By LEVENT YILDIRIM
It has often been stated in the articles written so far that there has not been a court verdict acknowledging the existence of a terrorist organization called “FETO/PDY”. Nothing has changed in this regard even though it has been over a year since the attempted coup of July 15. Some of the readers could say, “There are a lot of court decisions about this issue. There is a recent verdict and decision of approval given by the 16th Penal Chamber of the Court of Cassation about the attempted coup.”
I would like to ask just a single question to those in this opinion “Is it really possible nowadays for the courts to give a verdict contrary to Erdogan’s and the government’s point of view and wishes?” Everybody knows that this is not possible anymore in such a system in which one single person controls the legislative, executive and judicial powers.
According to Article 6 of the European Convention on Human Rights (ECHR), “Everybody charged with a criminal offence is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Accordingly, the existence of a terrorist organization called FETO/PDY has not been acknowledged by an independent and impartial court established by law paying respect to all assurances of the right to fair trial. As long as the belief that “we possess all the powers of the legislature, judiciary and executive” or “everything belongs to us” prevails, nothing will change. The 16th Penal Chamber of the Court of Cassation’s approval of the decision issued by Erzurum 2nd Criminal Assize Court on the attempted coup does not change the situation.
In this article, we aim to prove, with evidence based on the criteria required by ECHR, that the 16th Penal Chamber of the Court of Cassation, which was established to try terror crimes, is not an independent and impartial tribunal as it was well reflected in the decisions of the Chamber. While doing so, we will consider such criteria as the appointment of its members, their tenure in the position, the existence of guarantees against pressures coming from outside, and whether the Chamber owns independent mechanisms.
- Judicial independence has been destroyed in Turkey. The 16th Penal Chamber of the Court of Cassation is just another circle of the judiciary that has lost its independence.
It is well-known by everyone that the government has been taking steps to control the judiciary since the bribery and corruption investigaitons of December 17/25, 2013. These steps reached their peak after the attempted coup of July 15, 2016 and the constitutional amendment, which was accepted on April 16, 2017. Now, it has to be acknowledged that the legislative, executive and judicial powers have been gathered under one hand.
Galip Ensarioglu, an MP in the ruling party, stated on a TV program, “the legislative power belongs to us, so do the executive and judicial powers.” Then Burhan Kuzu, another MP, senior advisor to the president and an expert on constitutional law, announced, “Everything belongs to us”.  These instances show us that the members of the ruling party do not hesitate to confess this fact.
Moreover, the same kind of evaluations have been made in the European Commission Progress Reports. The 2015 Commission Progress Report on Turkey states, “The independence of judiciary and principle of separation of powers has been harmed and the judges and prosecutors have been under severe political pressure”. The 2016 Progress Report says, “The strong political pressure on judges and prosecutors is continuing during the term of the report.”
- The highest institutions and representatives of the judiciary have openly declared their side and point of views in emerging disputes and so have lost their impartiality
The highest institutions and representatives of the judiciary have openly declared that they share the same opinions with the government on both Gulen Movement and on the perpetrator of the attempted coup of July 15 even if there has not yet been any trial and verdict on it. In his statements on various dates, Mehmet Yılmaz, the then deputy chairperson of the High Council of Judges and Prosecutors (HCJP), and in the decisions of dismissals given anonymously at numerous times by the HCJP after July15, it has been declared that Gulen Movement is a terrorist organization called “FETO/PDY” and that the attempted coup of July 15 was plotted by this organization. Furthermore, in its press release issued on November 21, 2016, the Presidency of Court of Cassation, which is the court of appeal for the decisions given by the penal courts dealing with coup trials, declared that the incident of July 15 was a coup attempt against democracy and rule of law and that it was plotted by the terrorists who were the members of FETO/PDY. 
Considering the statements of the highest institutions and representatives of judiciary which involve definite judgements and comments reflecting bias, no matter what the proofs are and who the real perpetrator of the incidence is, the courts (which include the supreme courts) cannot give any verdicts contrary to the thesis of HCJP which works as an institution totally controlled by the government. The judges who dare to do such verdicts have to be ready to be exiled, dismissed or arrested. Therefore, it is clear that under these circumstances, it is not possible to mention judicial independence in the country.
The suspension of the judges who made the decision for the release of journalists; the prosecution brought against judges of Hatay 2nd Criminal Assize Court, who gave the decision that “There are not any official documents proving the existence of FETO/PDY” and “Bylock alone cannot be adequate evidence” ; and the exile of chief judge and other judges of Antalya and Gaziantep Regional Court of Appeal, whose verdict reads that Bylock alone cannot be adequate evidence, are best-known examples of this situation. If a search is conducted since December 17/25, hundreds of other examples just like these can easily be found.
- The 16th Penal Chamber of the Court of Cassationis not independent in respect of its foundation
Article 6 of the European Convention on Human Rights (ECHR) states; “Everybody charged with a criminal offence is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The phrase “established by law” guarantees the principle of the natural judge. The principle of the natural judge expresses the determination of both the foundation and authorities of the tribunals, and the procedure to be applied by law before the emergence of the subject matter in dispute.
For a long time, as a court of appeal, the 9th Penal Chamber of the Court of Cassation was responsible for reviewing the terror related crimes. However, this responsibility was handed over to the 16th Penal Chamber of the Court of Cassation, which was founded in accordance with the law number 6572 issued on December 12, 2014. With this law, the number of chambers in the Court of Cassation was increased and 144 new members were appointed. It was a part of the attempts made by the government to take full control of the judiciary following the corruption investigations of December 17-25, 2013. The members of this Chamber were appointed by the HCJP, which is predominantly under the control of the Platform of Unity in Judiciary (PUJ). It is known that the PUJ is controlled by the executive (the government). In other words, a new judiciary authority was created to replace the long existing one after the emergence of the alleged crime. In term of its foundation and the appointment of its members, the 16th Penal Chamber of the Court of Cassation is a judicial authority that is created only after the alleged crime was committed. It is impossible to talk about the independence of a court when the area of jurisdiction of the courts is changed, when the judicial authority responsible for the trials is replaced, and when a court is terminated in order to divert the dispute to a specially created judicial authority.
Establishing new chambers in the Court of Cassation, appointing new members to the courts and the changing the area of jurisdiction were not done in order to ensure fair trial and reveal the truth. It is just like the foundation of Criminal Courts of Peace and Specialized Courts of Terror Crimes following the emergence of these crimes.
In its fight with the Gulen movement, the government, which holds the power of legislation, first called the movement as a “Parallel Structure”. Then it harshened its stance day by day. At the end, the government started to call the movement as “FETO/PDY armed terrorist organization”. In order to reach its goal, the government also started to tightly control the judiciary and specifically the courts that would make the decision about the Gulen Movement. Furthermore, to prevent the courts from making decisions contrary to its political views and interests, to frighten and deter opponents and the ones who do not have similar views to theirs by means of trials in the courts, and to consolidate its ruling in the country, the government resorted to setting up new courts and continuously changing the authorities of the judges and their places of assignment. The changes in the structure and duties in the Court of Cassation and the purges were all carried out to reach that goal. These arrangements are evidently against the principle of natural judge and violate Article 37 of the Constitution and Article 6 of the ECHR.
- The appointments to the 16th Penal Chamber of the Court of Cassationreveals that the Chamber is not independent and objective
The High Council of Judges and Prosecutors (HCJP) is an organization whose members are mainly from the Association of the Unity in Judiciary (AUJ), which was set up before HCJP elections of October 12, 2014 as a platform (Platform of Unity in Judiciary (PUJ)). It is a well-known fact by everyone including many international institutions that the government intervened in the HCPJ elections through PUJ. From the moment PUJ was founded, the representatives of PUJ and the members of HCJP from PUJ shared the same points of view with the government. They declared that their goal was to fight against “the parallel structure” which the government claimed to exist after December 17-25. As it was described in the press release of PUJ dated June 11, 2016, the members of PUJ are lawyers and prosecutors who came together willingly to eradicate the so- called “parallel structure” as they feel uncomfortable about it. That is to say, the members of PUJ supported the government in the emerging dispute and just like the government they claimed that the Gulen Movement is the “parallel structure” and considered it as an enemy.
As it is among the Bangalore Principles of Judicial Conduct of the UN, judges must be independent of the society in general and of the parties to the dispute in particular. Judicial independence reveals the need for disputes between persons to be resolved by a neutral third party outside the dispute. The independent jurisdiction must be in a position of the third person who has no relation to the dispute, has no prejudice against the parties, and is not under any threat. However, in the dispute relating to the so-called “parallel structure”, the members of PUJ supported the government’s point of view. Showing prejudice against the other side, they have made comments reflecting bias in the dispute. Since the members of the judiciary from PUJ came together with the purpose of struggling against the alleged “parallel structure”, it is definitely unethical for them to take part in the trials to be initiated on this issue. It is not possible to expect that these members of the judiciary will be impartial and act objectively in these trials.
Considering its formation, appointment and selection of its member, its members’ identical views with the government on the alleged “parallel structure”, it can not be said that the 16th Penal Chamber of the Supreme Court which is appointed as the appeal authority in the proceedings against the “parallel structure” allegations will be independent and impartial.
- The purges in the Supreme Courts have abolished their independence.
The most important indication of the independence of a court is that its judges can not be dismissed before their term expires (Campbell and Fell/England, paragraph 80 – Lauko/Slovakia, paragraph 63). The members of the Court of Cassation had the right to continue their duties until the age of 65 according to the law, but with the Law No. 6723, which was published in the Official Gazette dated July 23, 2016, all Supreme Court members were dismissed. This change abolished the independence of the Supreme Courts. The dismissal of the members of the Court of Cassation by law is against the principles of “judicial independence”, “legal guarantee of judgement” and “rule of law”. After this purge, the HCJP, which was fully controlled by the ruling party, elected new members to the Court of Cassation, but this election was not based on objective criteria, which led to the questioning of the independence and impartiality of the members of supreme members.
Since neutrality requires political immunity above all else, independence must first be ensured against the legislative and executive organ. The judicial organs can not be used for the realization of certain political interests, as it can not be limited for the reason that it prevents the realization of certain political interests, nor can it be minimized for the realization of political interests.
Hence, the independence of these courts was abolished by the dismissal of existing members and the election of members after the purge.
- The decisions of the 16th Penal Chamber of the Court of Cassation show that it is not independent and impartial
Under this heading, we will first examine the verdict of conviction about the judges Metin Özçelik and Mustafa Başer issued by the 16th Penal Chamber of the Court of Cassation as a first-instance court on April 25, 2017. Then, we will discuss the decision of approval made by the 16th Penal Chamber of the Court of Cassation as an appeal authority after reviewing the decision issued by 2nd Criminal Chamber of Erzurum Regional Court of Appeal about the former military personnel Murat Yılmaz and Murat Koçak, who were tried for involvement in the attempted coup of July 15. This decision will be contrasted shortly with the Chamber’s decision to overturn the verdict on Ergenekon case.
- a) The Chamber has displayed that it is not impartial by engaging with matters that are not subject to trial and appeal
As it is known, the basic element of the crime of both armed organization (Turkish Criminal Code, Article 314) and the violation of the constitution (Turkish Criminal Code, Article 309) is resorting to “force and violence.”
In Özçelik and Başer case, the alleged crime for the defendants is their judicial decisions (recusation and release decision). That in the Yılmaz Koçak case is the existence of their names in the appointment list of Martial Law. In other words, the alleged crimes do not involve element of force and violence in these cases.
Given the fact that there is no definite verdict on whether the Gulen Movement is a terrorist organization, the courts can decide whether or not it is a terrorist organization only if all the actions that are sufficient to decide on this issue are made the subject matter of the court proceedings. Otherwise, it is necessary to wait for the result of the cases in which this matter is judged. In the various statements made by especially Erdogan, politicians and Mehmet Yılmaz (the then deputy chairperson of HCJP), and finally in the indictments, it has been claimed that “FETÖ/PDY” gained the character of an armed organization after the attempted coup of July 15, 2016. Accordingly, other courts must wait for the final decision of the main case about the attempted coup of July 15. Only if a final decision that the crime was committed by the Gulen Movement and therefore it is a terrorist organization is given, they can make their own decisions.
There is no case filed at the 16th Penal Chamber of the Court of Cassation as a court of first instance or at the 2nd Criminal Chamber of Erzurum Regional Court of Appeal about the attempted coup of July 15 after which the Gulen Movement gained the characteristics of an armed organization and about the claim that the perpetrator of the coup was the Gulen Movement. Thus, the decision of the Chamber (and therefore of the 2nd Criminal Chamber of Erzurum Regional Court of Appeal) in this matter is an extortion of authority and a flagrant breach of impartiality.
For example, in the justification it is said, “The attempted coup of July 15 was carried out by the members of the FETO/PDY organization who had been infiltrated into the Turkish Armed Forces with the support of international power centers, as happened many times before.” Even though not all the aspects and issues of the attempted coup were presented and discussed in the court in Erzurum, the chamber’s making decision about the attempt and delivering opinions on the issues that are not subject to the trial is both a breach of its impartiality and reflecting bias. This situation hinders the chamber from dealing with all subsequent proceedings in this matter and is considered to be a reason for the refusal of the judge. In fact, there is no difference between the statements made by the politicians about the issue in the first minutes of the attempted coup and the Chamber’s declaring that the attempted coup of July 15 was carried out by the members of the FETO/PDY organization.
- b) The clearest evidence that the Chamber has lost its neutrality is its making decision based on the proofs that have not been evaluated in the local court.
The 16th Penal Chamber bases its decision that attempted coup of July 15 was carried out by the members of the alleged FETO/PDY organization on the testimonies and confessions of many suspects, open source information, court decisions, case files, investigations conducted, and findings of official institutions. None of this evidence has been discussed before the local court, and the statements including confessions have not been heard there either. Incomplete court decisions, case files and ongoing investigations were accepted as “definitive evidence” and the Chamber made its decision based on them. It is known that “open source information” consisted of news and comments provided by the Internet. This information can not be considered as evidence.
What should particularly be emphasized here is “testimonies and confessions of many suspects”. Related to this issue, it is stated in the Report of Turkey prepared by the UK Parliament Foreign Affairs Commission that they do not have the information that the attempted coup was carried out by the Gülen Movement. The report says; “The evidence that the Gülenists are responsible for the coup attempt is usually based on the confessions of the coup attempters. However, since these confessions are likely to have been obtained as a result of torture (there are pictures of attempters being beaten while in custody), the Parliament doubts the credibility of this evidence.” 
As can be seen, while the UK Foreign Affairs Commission, which adopted an objective approach to the issue, was skeptical about the credibility of the confessions, the 16th Penal Chamber of the Court of Cassation accepted them as “res judicata” even though they had not been discussed at local courts and they had been annexed to the file from other investigation files. According to Article 217/1 of the Code of Criminal Procedure, “The judge can only make his decision based on the arguments which are presented to him and discussed in his presence.” The present situation is a clear violation of this article and it is not possible to say that the decision is lawful. The Chamber’s approach can only be described as a serious violation of the law, given the fact that the owners of these confessions on which the Chamber based its decision stated that these confessions were made under torture.
- d) Whether or not a court is impartial sometimes manifests itself in its decisions made in similar cases.
Let us explain how the Chamber gave different verdicts in the same/similar issues by contrasting its decisions on the subject matter of this article, Ergenekon case and the “Military Espionage” cases in İzmir.
- aa) The Chamber has adopted contradictory approaches to the same issues in the alleged “FETO/PDY” case and in its decision to overturn the verdict on Ergenekon case.
In its decision to overturn the verdict on Ergenekon case, the 16th Penal Chamber of the Court of Cassation stated; “The verdict is to be based on the evidence provided in the trial. It can not be based on evidence that is not discussed. Evidence must be obtained in accordance with law. Otherwise, the decision can not be based on it. As a rule, in order for all evidence to be debated during the prosecution phase, it must be presented in a public hearing and in the presence of the defendants. However, as explained above, while giving its decision on approval of Yilmaz and Koçak file, the Chamber based its decision on the confessions of the suspects that were not discussed before the local court. Similarly, in the Özçelik and Başer file, the Chamber made its decision of approval as a first instance court, and it based that decision on the evidence that had not been presented to it.
One of the reasons why the Chamber made the decision to overturn the verdict of Ergenekon Case was that the verdict had been based on the testimonies and sound recordings of Tuncay Güney. He was not one of the suspects in the Ergenekon case and there was a strong doubt that illegal interrogation methods were used in the case in which he was a suspect. However, the same Chamber based its decision about the alleged “FETÖ/PDY” on the testimonies of suspects in other cases although there was a strong possibility that these testimonies had been taken under torture (which was mentioned in the report of the UK Foreign Affairs Commission).
Furthermore, the Chamber based its decision to overturn the verdict of Ergenekon Case on the fact that Özkan Kurt was a member of military, yet his testimony was taken by the Directorate of Anti-Terror Branch and there were not military police during this stage. On the other hand, in the alleged “FETO/PDY” case, the fact that the testimonies of the confessor soldiers had been taken by the police in the Directorate of Anti-Terror Branch seemed to be ignored by the same Chamber. It also ignored the photos of soldiers who were tortured and ill-treated there. The Chamber did not investigate the allegations that prohibited interrogation methods had been resorted to while taking testimonies of those soldiers by the Directorate of Anti-Terror Branch either. It is not possible to legally explain why the Chamber adopted lawful and justifiable approaches in the Ergenekon case but contradictory approaches in the alleged “FETO/PDY” case.
The Chamber considered the testimonies and confessions that had not undergone the process of trial as definite judgement without investigating whether these are taken by illegal interrogation methods. This has been recorded as a clear evidence of the supreme court’s losing its credibility and impartiality.
- bb) The decision of the 16th Penal Chamber of the Court of Cassation about Bylock is also biased and unlawful
Since so many things have been written about the fact that Bylock is unlawful evidence, let us briefly touch on the subject to the extent concerning our position here. Related to the Bylock issue, let us ask a question: If the Bylock data, which was considered as evidence of membership of organization, were the issue in the Ergenekon case, would the Chamber make the same decision again? No doubt, it would not. Let us also say that there is no need to study law to reach this conclusion. Anyone who knows how the Bylock data was collected and who reads the decision of the Chamber to overturn the verdict of Ergenekon Case will give the same answer. When you read the information on Article 134 of the Turkish Code of Criminal Procedure which was mentioned in the decision of the Chamber to overturn the verdict of Ergenekon Case under the subheading of “c- Searching, Copying and Seizure in the Computers, Software and Logs”, one cannot escape but conclude that Bylock data is unlawful evidence.
For example, in the decision of the Chamber to overturn the verdict of Ergenekon Case, it is said that; “In criminal proceedings, evidence must be legal and must be obtained in accordance with the law. Digital evidence obtained from suspects or defendants must be collected in accordance with the technical requirements set by the law, and submitted to the judicial authorities in a complete, unspoiled state so that the findings of the investigation and prosecution can be handled in a fair trial. However, it is clear that Bylock data is obtained by hacking servers in Lithuania through computer piracy. Let alone the data has not been collected in accordance with the law; the confidentiality, integrity, and credibility of the digital data obtained in this way have been so seriously harmed that there is no way to use it as evidence in the case. In the similar cases of Sledgehammer and Military Espionage, the Constitutional Court gave the decision that there was a violation of law. If the 16th Penal Chamber of the Court of Cassation applied the same justifications in this case as in their decisions on the Ergenekon case, it would have to accept that Bylock data was illegal evidence and that a decision could not be based on it. The contradictory decisions of the Chamber on the Ergenekon and the alleged “FETO/PYD” cases are one of the biggest proofs that it can not give impartial decisions anymore.
Likewise, the 16th Penal Chamber of the Court of Cassation has decided to endorse the acquittal decision on the grounds that “HTS records and wiretapping can not be evidence alone” in the case of “military espionage” in Izmir. HTS records which show to whom, where and when one communicates are not considered sufficient evidence for conviction because their content is unknown according to the established practices of the Court of Cassation. However, the Bylock data (even if collected legally) is a much weaker evidence than the HTS records. It is clear that this information, which has no record of, with whom, when, and where one communicates, and whose content is not determined, can not be used as evidence against persons. While the 16th Penal Chamber of the Court of Cassation has made a decision that “HTS records and wiretapping can not be the only evidence”, it has accepted the above-mentioned Bylock data alone as an evidence of the membership of a terror organization. This leads to the impression that it has made differring decisions depending on the cases (parties).
- d) That the approval of the verdict was made at a speed not seen in the history of the Turkish judiciary results in the suspicion that the judiciary is intervened.
Let us take a brief look at the progress of the case: A trial was scheduled against Murat Yilmaz and Murat Kocak on October 28, 2016 in Erzurum 2nd Penal Assize Court. On 5 January 2017, the court ordered a conviction of the defendants. 2nd Penal Chamber of Erzurum Regional Court of Appeal (RCA) refused the appeal objections with its decision dated March 2, 2017. This decision was also appealed, but the 16th Penal Chamber of the Court of Cassation approved the decision of 2nd Penal Chamber of Erzurum RCA. On July 17, 2017, the justified decision of the Chamber of the Court of Cassation was announced. In other words, within 8-9 months, trials and investigations were conducted and completed in 3 separate courts. Considering the cumbersome nature of the Turkish judiciary and the fact that so many files have been accumulated, this is a surprising speed. Even if only notifications, defense periods, writing of reasoned decisions, their notification and appeal periods etc. are considered, the process can not be completed in 8-9 months. Naturally, it was not possible to present all evidence to the court and to discuss them in open hearings within this period.
Normally, the decisions of approval do not exceed one single page. However, it appears that the Chamber has accepted every evidence that is not discussed at the local courts and that it has touched all the subjects covered in the continuing cases including the notion of “mistake” in Article 30 of the Turkish Penal Code (TPC). So, what is the reason for this rush and writing such a detailed justification that contains issues not included in the case? The answer to this question is hidden in the news of the pro-government media like; “This decision, which counts the use of Bylock as a membership of the FETO, will be a guide for other courts,” “The Court of Cassation refuted the defense of the people involved in the attempted coup.” It is understood that the file in Erzurum was chosen as the pilot file and it was concluded in a short time even though it is contradictory to the decision to overturn the verdict of Ergenekon Case made by the 16th Penal Chamber of the Court of Cassation. Of course, President Erdogan’s statement that “serious verdicts of conviction will be made until the end of the year” should be noted here. This statement could be considered as giving direction to the judiciary.
The primary purposes are to set a precedent for the continuing trials, to prevent the judges from making decisions contrary to government’s point of view by telling them that “the Court of Cassation holds our opinion” and “the Court of Cassation is backing you.”
This is the story of independence and objectivity of 16th Penal Chamber of the Court of Cassation. Unfortunately, the grave picture depicted in this article belongs to a supreme court. From the Criminal Courts of Peace to the Supreme Court, the same situation exists in all the stages of jurisdiction, and it is no longer possible to talk about judicial independence in Turkey. Naturally, it is not possible to talk about the existence of the rule of law in a place where judicial independence and legal (natural) judicial security are absent, fundamental rights and freedoms are abolished, and legal security of persons is not ensured.
In spite of all these facts, if there are people still claiming the existence of judicial independence in Turkey, let me ask them a question: After the suspension of the judges who made the decision to release the detained journalists, do you think that it is possible for the newly appointed judges to make the same decision?