By MELIS TON
According to Article 88/1 of the Law on Judges and Prosecutors No. 2802, “Except for offences caught red handed (in flagrante delicto) which are subject to the jurisdiction of assize criminal courts, judges and prosecutors may not be arrested, neither their bodies nor their houses may be searched, nor they may be interrogated, for claims of having committed a crime.” For in flagrante delicto crimes which are subject to the jurisdiction of assize criminal courts, on the other hand, prosecutors carry out investigations in accordance with general provisions pursuant to Article 94/1 of the same law.
The existence of red handedness (in flagrante delicto) is defined under Article 2/j of CMK (the Code of Criminal Procedures) as follows:
- A crime that is being committed,
- A crime that has just been committed; and a crime committed by an individual who is arrested or caught without a warrant either by the law enforcement authorities, by the victim or by others, after he has been chased immediately after the crime has been committed,
- A crime committed by an individual who is caught with the instrument or evidence which indicates the crime that has just been committed.
In short, an in flagrante act means that someone who is caught in an act of an offense. The crime of a membership to a terrorist organisation is a continuous offense and it is regarded as a crime when the continuing act ended or terminated, and the date of the crime is defined as the date when the continuity of the crime ended. Continuity of the crime of a membership to a terrorist organisation ends when the offender is arrested, or, if not arrested, when the indictment is billed. According to Article 91 of the CMK, the existence of tangible evidence is required for a person to be caught and arrested for committing this crime. Soon after the nefarious July 15 coup attempt, arrest warrants were issued for 2 members of the Constitutional Court, 140 members of the Court of Cassation, 48 Members of the Council of State and 2745 judges and prosecutors from the criminal and administrative judiciary. According to the data published by the Ministry of Justice on 10 June 2017, after the July 15 coup attempt, 2 Constitutional Court Members, 3 HSYK (High Council of Judges and Prosecutors) members, 140 members of the Court of Cassation, 41 Members of the Council of State and 2431 judges and prosecutors from the criminal and administrative judiciary have been detained; and currently arrest warrants for 25 members of the Court of Cassation, 6 Members of the Council of State and 211 judges and prosecutors are issued. After the July 15 events, until today, 4238 judiciary members have been dismissed from their judicial profession with dismissal notices issued on different dates.
On 22 September 2016, about the arrests and dismissals issued for 2745 judiciary members right after the July 15 event, Vice President of HSYK Mehmet Yılmaz said that the list of these judiciary members have not been prepared in only one night, and he admitted that they have been working on them for the past three years. Indeed, the presence of names of a deceased prosecutor and of some judiciary members who are retired at the time of the July 15 event shows that the list had been prepared long time ago.
HSYK Vice President Mehmet Yılmaz explained how these lists had been prepared in his statement he gave on 22 November 2016: “Our main means of evidence are the witness testimonies and all our witnesses are judges or prosecutors. This is a list of the organisation, formed by the testimonies given by the chief public prosecutors and heads of the criminal courts.” There is only one explanation to this statement: They have merely created a purging list which was comprised of the names given by some judges, prosecutors, chief public prosecutors and court heads. Indeed, this method of purging was also confessed in a letter said to be written by the 2nd HSYK Chamber member Muharrem Özkaya (he has been appointed as a member to the Council of State after the 12 April referendum) to the President, Prime Minister, Minister of Justice, and to the judges who were conducting the investigation of the former undersecretary Birol Erdem, with these words: “Birol Erdem prepared the lists of FETO members in the Court of Cassation, Council of State and the high courts. Names of the 456 FETO members who are dismissed from administrative courts have also been provided by Birol Erdem.” Again, from the questions asked to the judges and prosecutors during their interrogations, and the claims stated in the indictments, it can easily be understood that the judges and prosecutors have been profiled according to their votes they cast during the HSYK elections, and whether or not they voted for the government-supported YBD (the Association of Unity in Judiciary), while names of the opponents of the YBD, and those who voted for the independent nominees have been profiled as “FETO/PDY” members.
The evidence against the judges and prosecutors in these lists started to be gathered, or rather, fabricated, after they had been dismissed from their profession and detained. It has been confessed that:
- The detained judges and prosecutors have been isolated in solitary confinement and their free will is impaired by intervention as clearly expressed by the HSYK Vice President: “And, if there will be confessors from these judges and prosecutors in the sense of discipline, then we shall not seek the path of dismissal; as long as they provide us good information to decrypt the organisation”,
- They have been deceived as professed by the HSYK Vice President: “I made this explanation (falsely promising to re-appoint confessed judges and prosecutors back to their profession) with the pure intent of encouraging confession and I have been very successful at this”,
- The list of ByLock users was created by the MIT (Turkish National Intelligence) by utilising unlawful methods, and
- New dismissals and detention decrees have been conducted based on the ByLock lists which had been created based on the information gathered for purpose of intelligence service only and they do not carry the quality of legal evidence.
In other words, the only evidence at hand until the July 15 event was those profiling lists. Added to these lists after the July 15 event, were only some submissions, which had been taken under the cover of “confession” by impairing the free will, and the list of ByLock users which is an intelligence information of the MIT. Surely, if they had had some evidence before the July 15 event, they would not have waited even a second to proceed with the legal procedures. Issuing dismissal and detention verdicts was posing a great problem, because they had not been able to find any legal evidence or reason. The legislations and the legal procedures were tying their hands. Indeed, one month before the coup attempt, in a speech he gave on 14 June 2016, 3rd HSYK Chamber member Turgay Ateş was complaining about this. “The judiciary will not rise from the ground it has fallen, before it is cleansed from the certain structure,” he said. “To carry out this mission, HSYK has got various procedures it has to obey, and only within the framework of legislation it can achieve results, which takes really a long time.” While answering a question asked “What can we do in the context of the struggle (they mean the struggle for cleansing the judiciary from opponents) that DDK (the State Supervisory Council) requires also from HSYK?” he said that a legislation is needed to be made and within the framework of this legislation, a vigorous campaign can be exerted to fight against this structure. Just then, the nefarious July 15 coup attempt happened. On 21 July 2016, a state of emergency was declared across the country, and the Cabinet was granted the power to issue legislative decrees. Somehow, the July 15 coup attempt, which was likened to “a God’s blessing” by the ruling power, came at once to the rescue of all those who were struggling against the so-called parallel structure. In a speech he gave on 22 September 2016 in New York, President Erdoğan said that they could shut down and confiscate the institutions linked to the Gulen Movement only with OHAL (the Emergency State) and KHKs (Legislative Decrees) and hand them over to the state. Again, on 23 September 2016, HSYK Vice President Mehmet Yılmaz said, “There were not these KHKs (emergency law decrees) before so we could not dismiss them all at once.” “All our dismissal verdicts are based on these KHKs,” he conceded. “If the KHKs were not issued, we would be continuing to carry out disciplinary investigations. Then we would be able to issue the verdicts of dismissals only after the Ankara Chief Public Prosecutor had prepared the indictments and we had taken their statements.”
Hence, the obstruction caused by the legislation for taking dismissal and detention decisions has been cleared by the July 15 event and the declared state of emergency. Meanwhile, the explanations of HSYK Vice President Mehmet Yılmaz showed that the legal action taken against the judicial members has actually been conducted for their alleged membership to a terrorist organisation and they are not accused of participating in the coup. Likewise, the recent indictments also show that the cases are filed for membership to a terrorist organisation.
“The Ankara Chief Public Prosecutor has issued the verdict of detention for the judges and prosecutors, because the evidence has now obtained for the criminal case they are conducting,” Mehmet Yılmaz said. Is it possible for a coup attempt committed by some military officers on 15 July 2016, be regarded as evidence also against those who have not got anything to do with the coup? Here, the principle of individuality of crimes is also clearly violated, since not a single accusation is made against the judiciary members in relation to the July 15 coup.
No lawyer can explain how the in flagrante delicto situation which did not exist on 14 July has suddenly appeared on 15 July. However the conditions of evidence were on 14 July 2016 about the judiciary members who had been subject to profiling for the past three years, they were the same on 15 July, too. It is lawfully impossible to accept the July 15 event as an evidence against the judges and prosecutors who have nothing to do with the coup, at a time when even any of the putschist were not caught and not a single prosecution was pronounced about the soldiers, and call this as an offense caught red handed for the judges and prosecutors.
Presence of an in flagrante delicto and date of an offense must be determined in accordance with the legal criteria. An offense caught red handed may not be defined by the date b ywhich the investigators are make an investigation request, which may not be known. The procedures that the investigators have conducted on, or postponed to, a date they wished, may not be accepted as a measure for determining the termination moment of the continuity, or the date of the offense. Issuing judicial verdicts and conducting legal procedures by fitting them into, or interpreting them according to, the conjuncture or the forged perception is not legal, and this is an abuse of authority.
In this respect, the interrogatory procedures executed for the judges and prosecutors, the issuance of arrest warrants, and the conducted searches and detention decrees are completely illegal. By these actions, Article 88/1 of the Law No. 2802 is violated and those who issued and those who applied these decrees have openly committed a crime. They have committed the crime of false imprisonment with the number of individuals who are illegally confined and this crime is going to continue until the day those individuals are released.
On the other hand, an overlooked question is where, and under which conditions, the arrest warrants for the high court members and 2745 judges and prosecutors were issued on 16 July. It appeared on the press that on the coup night, in Ankara Hakimevi (Ankara Guest House for Judges), a crisis centre had been established under the presidency of Kenan İpek, the Undersecretary of the Ministry of Justice. HSYK Vice President Mehmet Yılmaz, Ankara Chief Public Prosecutor Harun Kodalak and Deputy Chief Public Prosecutor Necip Cem İşçimen, both of whom were conducting the coup case and decreed for the members of the judiciary, have taken charge in the crisis desk. Even though it occupies one’s mind how they managed to come together at a time when the turmoil of the coup attempt was at its most violent and it was not secure at all to go out, we can say that it is quite natural for this team to gather in Ankara House of Judges and take decisions about suppressing the coup attempt and arresting the army members who participated in the coup. However, is it not strange for this team to take with them the previously prepared list of judges and prosecutors who have nothing to do with the coup, and very hastily and surreptitiously issue arrest warrants for these jurists, which are right after followed by the decisions of dismissals made by HSYK on the same day? This is an act which is not related to putting down the coup attempt at all. Did actually someone inform them about the coup beforehand?
Remember what I said earlier: “Surely, if they had had some evidence before the July 15 event, they would not have waited even a second to proceed the legal procedures”. Now, whenever I see the news about those who knew about the coup in advance, I cannot help myself thinking that they were also very sure that, that “God’s Blessing” was certainly going to descend and land on their lap. Only HTS records can show whether or not they were informed about the coup in advance, how they communicated with each other, and at what time they have gathered – that is, if they have the courage to do so.
All these oddities make us recall the news, reported by the famous German magazine FOCUS, on 24 July 2016, and show us that this news, which has not been denied by the authorities, is true: “Half an hour after the coup fire began, British Intelligence Agency GCHQ (Government Communications Headquarters) intercepted the telephone calls, e-mails and written messages of the Turkish Government saying, “Let the purges begin tomorrow and announce Gulen as the chief instigator of the coup!” What do you think, isn’t that so?
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