By MELIS TON
With the Decree Law No. 671 enacted on 17.08.2016, a provisional article was added to the Law on the Execution of Sentences and Security Measures and this provisional article lead to two important arrangements in respect of those convicted or to be convicted due to crimes committed until 1 July 2016. (1)
First; the term “one year” for conditional release under Article 105/A of the Law on the Execution of Sentences and Security Measures has been extended to “two years”. According to this amendment; if the term of sentences of well-behaved prisoners remains less than two years for conditional release, the remaining part of sentences can be executed by applying probation measures. In other words, they will be released one year early.
The second amendment relates to the conditional release set out in Article 107 of the Law on the Execution of Sentences and Security Measures. While those sentenced to imprisonment and served the 2/3 of their sentences in the penitentiary institution were benefiting from the conditional release according to the second paragraph of Article 107, this term has now been reduced to 1/2 by the Decree Law. According to this amendment, when the prisoners sentenced to imprisonment for a period of time serve the 1/2 part of their sentence in the penitentiary institution, they can benefit from the conditional release.
It has been identified that a total of 93.000 prisoners were included in the scope of both arrangements made with the Decree Law. An important point to consider here is whether or not the government really grants an amnesty or has other agenda by making these regulations with the Decree Law. The AKP government has always managed to hide its real purpose in many legal arrangements.
In order to better understand the real purpose of this amendment in the Probation Law, one must consider closely the situation of the AKP government especially in the period of 17-25 December and the ongoing process in which it has subordinated the judiciary on to the executive in order to get out this lurch.
After the major bribery and corruption operations on 17/25 December 2013, in which some ministers, ministers’ children, senior bureaucrats and businessmen close to the government were involved, the AKP government declared the Gülen Movement as an enemy with the “parallel structure” rhetoric. Even though the AKP circles always described the group as a “community” until that moment, it put the claim on the group in these operations describing it as “a coup” against the political power. (2) The phrase “Parallel structure” gradually became harder and left its place to the concept of “FETO/PDY armed terrorist organization”.
Even though it is not possible to agree from a legal perspective, President Erdogan, then Prime Minister, acknowledged that 17/25 December was a milestone and declared that after this date he would declare those who are connected with the institutions affiliated to the Gülen Movement as terrorist criminals. (3)
The AKP government viewed the independent judiciary as the biggest obstacle to the steps they could take in this process. For this purpose, the project courts were first formed in order to issue verdicts indicating that the Gülen Movement is a “terrorist organization”.
Prime Minister Recep Tayyip Erdoğan stated at that time that a project is being worked on and that the criminal peace judgeship will be established. As it can be understood from these statements, new quests have been sought to establish a judicial organization under the direction of the executive body to carry out the said purposes.
Following Erdoğan’s above-mentioned discourse, it was foreseen to establish a 3-legged judicial organization within the context of the “Project Courts”:
1- Criminal Peace Judgeships as judges of the proceedings at the stage of investigation,
2- Specialized courts in charge of dealing with terror and organized crime at the prosecution phase,
3- Formation of a new chamber as an appeal authority in the Supreme Court.
With the enactment of the Law No. 6545 which entered into force on 28 June 2014, the first leg of the project courts was completed with the establishment of the Criminal Peace Judgeships. (4) With the decision of HSYK dated July 16, 2014, these judgeships were activated and new appointments were made for these newly established Courts. It caught the eye that the judges who released Reza Zarrab and other suspects on 17/25 December operations were also appointed as the . (5)
The troubling feature of the Criminal Court Judgeship is that they have a closed-circuit appeal system. In other words, an appeal against a decision rendered by a judgeship could be appealed to the next number of judgeship in row, and objections against prosecutors’ decisions of non-prosecution were also examined by the same judges. In this way, the possibility of review by a higher authority or court has been eliminated.
Following the establishment of the Criminal Peace Judgeships, other judicial institutions have also been shaped. The political power which sees the independent judiciary as an impediment has established new courts to keep the judiciary under control, taking into account the possibility that existing courts would be contrary to their political aims and tendencies.
The first target for this was to win the HSYK elections held in 2014. For this purpose, the “Judicial Unity Platform” (YBP) was established to nominate candidates for the HSYK election. The Judicial Unity Platform achieved a majority in the HSYK by using all the possibilities of the political power in its election work. This result has greatly facilitated the dismissals and injustices that the government has been undertaking so far. (6)
As a continuation of the ‘Project Courts’, special courts with the duty of dealing with terrorist crimes were established in the second stage, and some of the existing criminal assize courts were converted into the courts solely responsible for dealing with terror crimes. The presidents and members of these courts were replaced by the newly created HSYK. (7)
At the last stage, the political power also intervened in the Supreme Court. Amendments were made in the Supreme Court Law and established new chambers in the Supreme Court. New arrangements were made regarding the division of duties of these chambers. Meanwhile, 144 new members were appointed by the HSYK to the Supreme Court. The 9th Criminal Chamber of the Supreme Court, which had always been dealing with terror crimes, was terminated. As a result of all these interventions, the newly established 16th Criminal Chamber was commissioned to deal with terror crimes. (8)
These courts, which were established completely contrary to the principle of natural judge by the new HSYK, were soon transformed into the institutions acting with political motives under the domination of the government, and they started to be used as means of intimidation and destruction.
There was now no obstacle left for the government in order to direct the courts to give a decision on being a “terrorist organization” or arrest or conviction due to any crime about any part of the society or the persons whom the government see as opponents. It does not matter whether or not there is any evidence for the alleged crimes, or whether or not the activities constitute any crime at all.
Although the July 15 2016 Coup Attempt was described by Kemal Kilicdaroglu, the leader of the main opposition party (CHP), as a “Controlled Coup” planned by the government (9), the dismissal and purging was started by the government via the newly established “Dependent Judiciary”, July 15 Coup Attempt being an excuse, as President Erdogan called it as a “grace of God” to liquidate the Gülen group (10)
The government has been enormously hostile to the “Hizmet” (Gülen) movement, which it considers to be the key force in the uncovering of its corruptions and connections with the terrorist organizations especially with ISIS. The 17/25 December corruption and bribery operations revealed the corruption activities committed especially by President Erdogan and ministers, ministers’ children, high bureaucrats and businessmen close to the government. The MIT Trucks operation, on the other hand, internationally revealed the connections of the government and its judicial and law enforcement bodies with terrorist organizations.
Anyone accused by the government of being connected to the Gülen Movement or opposing the government will be declared as “enemy” and alienated, and then, those people were going to be sent to prisons, instead of 93.000 prisoners who had been released under the “Probation” in accordance with the Decree Law No. 671; this project was materialized in a short period of time as everything had already been planned. (11)
All the rights and achievements guaranteed by especially the Constitution, the European Convention on Human Rights, the Universal Human Rights Convention, the United Nations International Labor Organization (ILO) conventions are on the verge of being lost at the point where the AKP government has brought the country to realize its aims.
In the country, Alevis, social democrats, nationalists, opponents and those from every part of the society, who oppose the government, are to be treated with detention and imprisonment. Intellectual and modern people of the country; the deputies, academics, bureaucrats, judges and prosecutors, administrators, doctors and engineers are declared enemies, as they just happen to be opponents of the government. They are arrested and imprisoned by the judiciary under the domination of the government with the accusation of being members of an armed terrorist organization.
The innocent people detained in custody or sent to prisons are exposed to inhumane treatments and tortures similar to the atrocities committed by Nazis. (12)
President Erdogan does not hesitate to declare from television channels the dissidents to be guilty without any judicial decision, to make threats against them and to clearly order and instruct the judiciary to arrest them. (13)
Economy Minister Nihat Zeybekçi stated about these innocent people arrested by the project judiciary without any legally acceptable concrete evidence and accusation that ”We will not punish these treachers only for death, but we will punish them so that they will beg us to kill them.” These words open the way for torture in prisons and create serious pressures and threats on the courts. (14)
Freezing orders are issued on all assets of the accused, or the assets are directly seized. Even the rights to claim pensions, personal rights, health insurance and access to legal remedy are taken out of their hands. In this way, people’s survival possibilities have been eliminated, and some sort of “genocide” has been practiced. (15)
As far as the current circumstances in Turkey are concerned, it is not necessary to commit any of the crimes described by the law in order to be charged and arrested for membership of an armed terrorist organization. Even, there is no need for judicial investigations or any judicial decisions to be punished for this crime. The declaration of the President or the political power is enough to be convicted for such a crime!
Unfortunately, the government has fully become a party state at present. The AKP government and the President, who is also the leader of AKP, are undertaking all sorts of illegal activities in order to attain this goal. In their opinion, every path is legitimate to achieve this goal.
In conclusion, it has become clear that the real aim of the regulation of “Probation” in the Decree Law No. 671 dated 17.08.2016 is to make room and provide more space for the members of the “Gülen Movement” or the opponents to be arrested and imprisoned, whom the government has declared as enemies. We can only hope the best for the future, if we can realize that the newly formed judiciary arrest people and send them to prisons in accordance with political instructions, and that they are acting like a political body of the government.
1 http://www.resmigazete.gov.tr eskiler/2016/08/20160817-18..htm
5 a) http://www.hurriyet.com.tr/yazarlar/taha-akyol/adalet-26841868
12 a) https://m.bianet.org/bianet/insan-haklari/177141-af-orgutu-darbe-girisiminde-gozaltina-alinanlara-iskence-ve-tecavuz
13 a) http://www.cumhuriyet.com.tr/m/haber/siyaset/464135/Erdogan_dan_yargiya_talimat_gibi_sozler.
15 a) http://www.tr724.com/15-temmuzdan-15-temmuza-erdogan-soykirimin-hangi-asamasinda-akif-umut-avaz/