May 28, 2015

For Judges Who Defy Turkey’s Leaders, Short Road to Jail

Emma Sinclair-Webb*

Jailing journalists has been one of the hallmarks of Turkey’s poor human rights record, a kind of shorthand for describing the country’s authoritarian tendencies and flawed justice system. But in the run up to a highly contested general election in June, that treatment has been extended to judges and prosecutors who issue decisions the government doesn’t like.

The Justice and Development Party (AKP) government, under the shadow of President Recep Tayyip Erdoğan, has been accusing these judges of acting as members of an armed organization attempting a coup and other judges friendly to the government have been sending them off to jail while there is an investigation.

Over the past month, three judges and four prosecutors have been put in pre-trial detention, all as a result of decisions they made while discharging their professional duties rather than on evidence of criminal activity. Another four prosecutors barred from the profession during May may be next to see the inside of a cell. The shared feature of these cases is that the decisions that led to their arrests were all on issues pertaining directly or indirectly to allegations of unlawful activity implicating the Erdoğan-dominated government.

Government split with the Gülen movement

Commentators in Turkey view the arrests as another episode in the destructive split between Erdoğan’s AKP and its former long-term ally, the influential Gülen movement. The movement is led by the US-based cleric Fethullah Gülen and allegedly has many followers in the judiciary, police and bureaucracy. In December 2013, the simmering conflict between the two exploded when allegedly Gülen-affiliated prosecutors and police arrested scores of people, including government ministers’ sons, on evidence of massive corruption and bribery. The accusations also reached Erdoğan’s own family.

The government hit back hard, obstructing the investigation, removing and later jailing police officers and moving to take firm control of the judiciary through mass rotation of judges and prosecutors, and institutional and legal changes.

President Erdoğan and Prime Minister Ahmet Davutoğlu have made it a dominant theme of AKP politics since the split to say that the Gülenists are a “parallel structure” that must be purged or will overthrow them. The issue has featured prominently in the AKP’s election campaign. The crackdown has not just been discursive: there have been multiple arrests of police and raids on legal associations and businesses in various cities over the past few months. The government seems to have decided that judges and prosecutors should be next in line to be jailed as coup plotters and members of what the ruling party has decided to term a Gülen-led terrorist group.

Judge imprisoned for granting bail

Judge Mustafa Başer of Istanbul’s Criminal Court of First Instance No. 32 found himself arrested and jailed on May 1, days after granting bail to a group of allegedly Gülenist police suspects. A day before that, the judge who had sent the case to him landed in jail too. The surreal story of how a bail decision could lead to a judge‘s own imprisonment is worth recounting in some detail.

Başer had granted bail on April 25 to 62 imprisoned police officers and a journalist, Hidayet Karaca. Among the police officers were some who had played a key role in exposing allegations of government-linked corruption and bribery in December 2013, and had been rapidly demoted and later imprisoned on various allegations of attempting to overthrow the government, procuring and disseminating information pertaining to the security of the state, falsifying documents, illegal wiretapping and terrorism. Karaca, the head of the pro-Gulen Samanyolu TV group, had been in prison since December 2014 under investigation on highly dubious allegations of leading a terrorist organization.

Judge Başer has argued before a court that he approved bail after 10 judges (known as criminal judges of the peace) had failed to provide any explanation for turning down bail applications lodged by the suspects’ lawyers. Facing these repeated rejections, the lawyers had gone to Istanbul’s Criminal Court of First Instance No. 29, where judge Metin Özçelik accepted their petition to disqualify the 10 judges on the grounds that they had not acted impartially. Judge Özçelik ordered the case to be passed to court no. 32, where judge Başer then granted bail to all suspects.

The government-controlled High Council of Judges and Prosecutors (HSYK), Turkey’s top body responsible for judicial appointments and disciplinary measures, stepped in within hours, contending that both judges had exceeded their authority. They claimed that the judges were employed in a separate system of penal courts of first instance that had no powers to overturn decisions of the criminal judges responsible for handling decisions on bail and pre-trial detention during the criminal investigation stage. Başer’s decision to grant bail on April 25 was blocked. The men remain behind bars.

Just a day after Başer issued his decision, Prime Minister Davutoğlu made a speech in which he condemned the two judges, saying they had conspired against the government as part of the Gülenist “parallel structure.” It was clear from more public statements and tweets by the government that it was leading the effort against the judges. The most extraordinary aspect of all this, and the element causing the most concern, is that accusations of exceeding their authority rapidly turned into a full criminal investigation on allegations of acting against the government itself. After President Erdoğan accused the High Council of being slow to act, the body apologized for the delay of a day and on April 27 suspended Başer and Özçelik for three months and went on to recommend their arrest. By the end of the week, an Istanbul penal court had sent both to jail.

Gone was the suggestion about technical irregularities in the judges’ decisions or a misuse of their powers. The Istanbul Bakırköy heavy penal court no. 2 sent Başer and Özçelik to pre-trial detention on grounds that they had received orders from Gülen in the US and, in attempting to allow the police officers and Karaca to be released on bail, had acted on those orders and were under the influence of obscure pronouncements by Gülen.

The court said that Başer was under investigation for attempting to overthrow the government, for partial or total prevention of government duties, and for membership of an armed organization, on the basis of alleged “concrete evidence showing the existence of a strong suspicion of a crime that he acted in concert with those suspects [to whom he had granted bail].” In other words, Başer was part of the same illegal organization – an armed terrorist organization no less – that the police and Karaca were suspected of being in although neither the police nor Karaca have yet been indicted under such charges.

Disbarring and jailing prosecutors

Twelve days after Başer was jailed, alongside Özçelik, the High Council of Judges and Prosecutors announced that the four prosecutors and a judge who had been responsible for the December 2013 government-linked corruption and bribery investigations on which the imprisoned group of police had also worked, had been disbarred. They have a right of appeal but are also being prosecuted for misconduct and negligence, and it is likely that those four prosecutors too will soon find themselves under investigation and jailed on allegations like those Başer and Özçelik face.

The Higher Council of Judges and Prosecutors a week later recommended the arrest of another four prosecutors who had served in the southern city of Adana. The nearby Tarsus Heavy Penal court ruled that the four should also go to jail while under criminal investigation, like Başer and Ozcelik, for involvement in a Gülenist-planned attempt to overthrow the government, plus obtaining and revealing information pertaining to state security.

The case of these four public prosecutors -- the former Adana chief prosecutor Süleyman Bağrıyanık, his former deputy Ahmet Karaca, and two former Adana prosecutors, Osman Şişman and Aziz Takçı, who worked alongside them – concerned the completely different matter of their decision to follow up on tipoffs on January 1 and 19, 2014 that trucks carrying weaponry were heading to the Syrian border.

Obliged by Turkey’s Criminal Procedure Code to investigate any potential crime brought to their attention, the prosecutors attempted twice to examine the contents of the trucks despite calls from the Justice Ministry informing them that they had no authority to do so and that the trucks were part of an operation run by Turkey’s National Intelligence Agency (MİT) to carry humanitarian assistance to Syria.

The government has maintained this line, although in the January 19 search the prosecutors recorded seeing weaponry. The government had not sought parliamentary authorization to supply weapons to Syrian opposition groups, and the whole incident exposed murky dimensions to Turkey’s involvement with the conflict in Syria and the Turkish government’s concern to prevent any legal scrutiny of Turkish intelligence operations.

Implications of government control of the judiciary

These cases show the government has few qualms about jailing judges and prosecutors when their decisions touch on issues that could be politically damaging in the June 7 general election.

The government clearly doesn’t want police officers who investigated the December 2013 corruption allegations released from prison and appearing before TV cameras to repeat the allegations. The government also doesn’t want discussion of possible weapons transfers to Syria – some commentators have suggested into the hands of rebel groups with radical extremist affiliations – when parliament has granted no such authorization.

While there is undoubtedly a power struggle going on between the government and the Gülen movement, this struggle raises important issues for the rule of law in Turkey.

Human Rights Watch has over many years documented the ways in which Turkey’s highly politicized justice system has perpetuated a plethora of abuses: trumped up charges against government opponents in the absence of evidence of criminal wrongdoing, often combined with mass arrests; arbitrary use of charges relating to terrorism and other crimes against the state on a mass scale; use of prolonged pre-trial detention in these cases, with the severity of the charge itself cited by courts as justifying the measure. Without taking sides in the power struggle with the Gülen movement, it is of great concern that the government is pursuing a policy of retribution against those it suspects of affiliation with an alternative political opinion.

The most blatant example of politicized cases in terms of numbers alone has been the cases against Kurdish political activists charged under terrorism laws with membership of armed organizations (KCK/PKK). Many Kurdish students and activists are in prison today after being convicted in unfair trials and sentenced to long prison terms for activities that amount to non-violent political association. Other cases include the famous mass coup-plot trials: Oda TV, Ergenekon and Sledgehammar. The irony is that these cases were pursued by the very same police, prosecutors and judges whom the government is targeting today as members of an alleged Gülenist terrorist organization.

There should be no illusion about the need to reform Turkey’s discredited justice system. Its usurpation by the government and Erdoğan for their own political payback not only does further harm but jeopardizes the basic rule of law, which two senior AKP figures -- deputy prime ministers Ali Babacan and Bulent Arinç -- have repeatedly pointed out is key to Turkey’s future and prosperity.

After the election, the next government should seriously consider what the future for Turkey does hold if its political leaders have no qualms about jailing judges and prosecutors for decisions that touch allegations of government wrong-doing. If the judiciary is made an arm of government and of Erdoğan’s presidency, the most important check on power, and access to justice for the population at large, is gone. In that case Turkey loses all claim to its democratic credentials.

* Emma Sinclair-Webb, senior Turkey researcher with the Europe and Central Asia division, joined Human Rights Watch in 2007. She has worked on issues including police violence, accountability for enforced disappearances and killings by state perpetrators, the misuse of terrorism laws, and arbitrary detention. She was researcher on Turkey for Amnesty International from 2003-2007, and previously worked in publishing as a commissioning editor on books on history, culture, and politics in the Middle East and southeast Europe. She has degrees from Cambridge University and Birkbeck College, London, and speaks Turkish.

Published on Open Democracy, 28 May 2015, Thursday

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