April 27, 2015

Judicial body removes judges upon pressure from gov’t

In line with the government's wishes, Supreme Board of Judges and Prosecutors (HSYK) investigators on Monday ruled for the dismissal of the judges who handed down a ruling for the release of Samanyolu Broadcasting Group CEO Hidayet Karaca and 63 imprisoned police officers who have been kept under pre-trial detention for months, dealing a serious blow to judicial independence and supremacy of the law.

The second chamber of the HSYK convened on Monday morning for a meeting regarding an ex officio investigation into İstanbul 29th Court of First Instance Judge Metin Özçelik and İstanbul 32nd Court of First Instance Judge Mustafa Başer. After the HSYK inspectors recommended that the board discharge both judges according to a preliminary report on the release of Karaca and the police officers, both judges were removed from their posts.

The judges have also became target of the pro-government media. In its main story published on Monday accompanied by photos of Özçelik and Başer, the daily Yeni Akit named the judges as being the ones who ruled for the release of Karaca and the police officers, saying, “Dismiss these traitors.”

The lawyers representing Karaca and the police officers on Monday filed a criminal complaint against İstanbul Chief Public Prosecutor Hadi Salihoğlu, İstanbul Deputy Chief Prosecutor Orhan Kapıcı and İstanbul 10th Penal Court of Peace Judge Necmettin Kafalı, as well prosecutors Ercan Devrim and Orhan Güldiker on the grounds of engaging in misconduct, depriving the individuals in question of their freedom and exceeding their authority by overriding the court's ruling ordering the release of Karaca and the police officers. The lawyers submitted their petitions of complaint to the HSYK.

Speaking to Today's Zaman, Fikret Duran, one of the lawyers representing Karaca, said the HSYK's decision to launch an investigation into the two judges who ruled for a removal of the judge overseeing the case of Karaca and the police officers as well ordering their release is completely influenced by the government.

"This same HSYK has always ignored our repeated petitions seeking an investigation into those penal court judges who refused to take our petitions to free Karaca and those police officers into consideration. Though we have consistently complained that these courts have not considered any of our requests objecting to the extension of the detention of our clients because there is still no indictment after several months -- a crime against our clients, we have not received a proper explanation for the rejection of our requests. The penal court judges in question have not even read our petitions requesting the release of Karaca and the police officers and have rejected these requests with the same typical sentences at every turn. This implies an obvious misconduct and offense depriving our clients of their freedom. We have continuously pointed out this arbitrary ignorance by these judges through our complaints to the HSYK but all of them have been denied. This is an obvious violation of the law concerning judges and prosecutors," lawyer Duran noted.

Accusing the HSYK of taking a hypocritical stance in terms of not launching an investigation into the penal court of peace judges who have routinely declined their petition for the release of Karaca and others even though the same judicial body kicked off an extremely urgent investigation into the judges who ordered the release of their clients, Duran highlighted that this is an outright intervention into the judiciary by the government as the justice minister is also head of the HSYK, following an amendment to the law regulating the HSKY last year that subordinated the judicial body to the government.

Karaca was detained as part of a major media crackdown on Dec. 14, 2014, while the imprisoned police officers were detained in operations starting on July 22, 2014 on charges of spying and illegal wiretapping in two separate probes. The officers were later arrested.

Lawyers representing Karaca and the imprisoned police officers have several times petitioned the penal courts of peace, requesting a replacement of the judges hearing the cases at these courts on the grounds that they acted on political instructions. Their requests were repeatedly denied. When the lawyers made their most recent request for a replacement of the judges, one of the penal judges of peace, İslam Çiçek, told them penal courts of peace are not in fact authorized to examine requests for replacement of judges at these courts, telling them to file their requests with the courts of first instance, which are above the penal courts of peace in the judicial hierarchy.

Lawyer Ömer Turanlı, who represents some of the imprisoned police officers, wrote on his Twitter account that Judge Çiçek “showed us the way” for the release of their clients. Since penal courts of peace are newly established courts, there is ambiguity surrounding the scope of their authority.

The lawyers then petitioned the İstanbul 29th Court of First Instance for a replacement of the judges hearing their clients' cases at the penal courts of peace. The İstanbul 29th Court of First Instance accepted the lawyers' request on April 20 and commissioned the İstanbul 32nd Court of First Instance to examine the lawyers' requests for a release of their clients, and it ruled for their release.

A copy of the İstanbul 32nd Court of First Instance's decision for the release of the 63 suspects was shared on Twitter by the lawyers. The court said in its reasons for the ruling that the suspects should be released as there is no concrete evidence that requires their arrest and that they are not likely to flee the country as they did not attempt any such action and had surrendered to the police themselves.

Judicial politicization at its peak

Criticizing the initiative of the prosecutors to block Karaca and the police officers from being released despite the court ruling, Turanlı said their decision not to sign the writ issued by the court and not to send it to the Silivri Prison administration is a clear indication of the politicization of the judiciary and the political authority's interference into the judiciary.

Calling on those jurists who refused to apply the court's release decision, Turanlı said in a written statement: "Do whatever your position requires. Send a lesson to those politics who use you [prosecutors] you as a tool. Just do your work and implement justice."

"Those who have share in this injustice against Karaca and the police officers will be brought to justice sooner or later. Also, not implementing court decisions is not something that only concerns our clients but also the people of the country as a whole. We expect all those who believe in democracy, the rule of law and international legal principles, as well judicial independence to take a stand against this unlawfulness. We will resort to all legal measures for the release of Karaca and the police officers," Turanlı further commented.

Lawyer Erdal Doğan also stated that Karaca and the police officers should apply to the Constitutional Court and the European Court of Human Rights (ECtHR) to seek redress for the prosecutors' failure to adhere to the court order.

Meanwhile, Mehmet Yılmaz, who was elected to the HSYK on the ticket of the pro-government Unity in the Judiciary Platform (YBP) during last year's elections, posted several tweets via his Twitter account, supporting former Justice Minister Bekir Bozdağ and ruling Justice and Development Party (AK Party) deputy Burhan Kuzu who criticized the ruling ordering the release of Karaca and the police officers. Yılmaz's tweets are considered to be against the principle of neutrality regarding jurists.

The HSYK, under pressure from the government, had previously dismissed several judges and prosecutors who made rulings in opposition to the ruling party's demands. For instance, a prosecutor who did not order the arrest of a high school student, whose initials are identified M.E.A, in Konya on charges of insulting President Erdoğan was removed from his post and reassigned to a different position in Zonguldak province.

In a similar vein, judges Kemal Karanfil, Hakan Oruç and Seyhan Aksar Orkun, who were overseeing separate cases, were also removed when they did not make rulings as expected by the government.

Published on Today's Zaman, 27 April 2015, Monday