April 26, 2015

Real judges also exist at İstanbul Courthouse, not only ‘Run İsmail’ ones

The penal courts of peace have hovered over the Turkish judiciary like a nightmare for months, operating contrary to constitutional and universal principles of law.

These courts, which assess even the slightest of criticism directed at President Recep Tayyip Erdoğan as an “insult” and which consider corruption investigations that became public in December 2013 as “coup attempts,” have also started to arrest people from every profession. Attorney Umut Kılıç from Afyonkarahisar, who was arrested recently after calling President Erdoğan a fascist, is but the latest example.

The penal courts of peace are also known as “project courts” because they were set up by the ruling Justice and Development Party (AK Party) in June 2014 specifically to fight against the Gülen movement, which is also known as the Hizmet movement and is inspired by the teachings of Turkish Islamic scholar Fethullah Gülen. The government accuses the movement of being behind the corruption investigations that became public on Dec. 17, 2013 and in which various government officials and pro-government businessmen were implicated.

The penal courts of peace turned to unlawfulness with a government-orchestrated operation that took place on July 22 of last year and targeted the police force, with the courts' arbitrariness reaching a peak on Dec. 14 with a government-led crackdown on the media during which police raided newspaper and TV channel headquarters.

A court possessing more jurisdiction than the penal courts of peace, the İstanbul 29th Court of First Instance, recently called a halt to the arrests of journalists and police officers. This means the İstanbul Courthouse still has judges in it who act in line with the universal principles of the law and the Constitution, and not just judges who act in line with the law of “Run, İsmail, run!”

The “Run İsmail” scandal transpired on July 28, 2014. According to the accounts of the lawyers representing police officers who were detained in an operation on July 22, Judge İslam Çiçek was having a meeting with several people in his chamber at the İstanbul Courthouse, allegedly including at least one member of the National Intelligence Organization (MİT). The lawyers, accompanied by Republican People's Party (CHP) deputy Mahmut Tanal, entered Judge Çiçek's chamber in the middle of a meeting. When Çiçek protested that they were interrupting a meeting, Tanal inquired about the identity of those present in the room. The people there included counterterrorism unit chief Kayhan Ay, İstanbul Deputy Chief Prosecutor Orhan Kapıcı and an unidentified individual. When the lawyers and the lawmaker asked about the identity of the person, who was wearing a blue T-shirt, Çiçek yelled at the man, "Run, İsmail, run!" The man then fled the scene, with the lawyers starting to chase him in the corridors of the courthouse. The man then disappeared.

In a development that raised hopes about the independence of the judiciary, which has been seriously shaken by constant political meddling, the İstanbul 29th Court of First Instance on Saturday ruled for the release of Samanyolu Broadcasting Group CEO Hidayet Karaca and 63 police officers arrested in the operations targeting the police force starting on July 22.

How did this happen? The penal courts of peace, specially set up by the government after the Dec. 17 and 25, 2013 graft investigations became public that same year, were restructured to have “interrogation” judges, meaning that these judges can only operate during the investigation phase of a case. Rulings handed down by these courts can only be appealed at another penal court of peace. Thus, it is a “closed-loop” system.

In this system, the lawyers of police officers arrested in the Tawhid-Salam and Tahşiye operations filed appeals with the penal courts of peace for months seeking the release of their clients. However, these courts rejected these appeals every time, showing no concrete evidence or lawful explanation for their decisions. Tawhid-Salam is an Iran-backed terrorist organization. Tahşiye is a group affiliated with al-Qaeda.

It is no longer possible to talk about the existence of an “impartial and independent” judiciary in Turkey, proof of this being the way these courts were established and the fact that every judge who has ruled to release those arrested in politically motivated police operations, and especially those targeted for their perceived links to the Hizmet movement, was immediately reassigned or dismissed, illustrating the explicit link between the judicial bodies and the ruling party. In the latest incident, the lawyers exercised their right to ask for a different judge, given them under the Code on Criminal Procedure (CMK). Only a high court is authorized to decide on whether to grant lawyers the request for a new judge.

According to the hierarchy of the judiciary under the Constitution, courts with higher authority than the penal courts of peace are the courts of first instance. The lawyers' request for a change in judge in the trials being conducted against those suspects arrested as part of successive government-backed operations in the last one year was accepted by the İstanbul 29th Court of First Instance on Saturday, which, citing Articles 26, 27 and 28 of the CMK, ruled to grant the lawyers their request and ordered the release of a number of suspects who had been arrested.

New courts are now preparing to hear these cases. The İstanbul 32nd Court of First Instance, hearing the cases concerning the Tawhid-Salam and Tahşiye operations, decided to release all the suspects arrested in these operations. This is completely legal, with no “Run İsmail” scandal to speak of. In other words, the real law is at play here.

Published on Sunday's Zaman, 26 April 2015, Sunday