REPORT ON RECENT DEVELOPMENTS IN THE TURKISH JUDICIARY
First of all I would like to state on behalf of the High Council that your due sensitivity in requesting official information from the Council on the recent developments in the Turkish judicial system is highly appreciated. Yet, the High Council considers with suspicion the declarations written in response to various complaint letters addressed to international organizations, which provide definitive judgements about us without any official information being requested from our side. This is deeply concerning especially having regard to the fact that these organizations are composed mainly of judges, since a very basic rule is observed to be violated, that is giving both parties the right to speak even in the smallest dispute.
For example, we had to communicate our concerns to the Venice Commission about its one-sided declaration published on 20 June 2015 without requesting any official information from relevant authorities in Turkey and only relying on its preliminary assumption that the allegations stated in several complaint letters it received were true, and underlined that this did not comply with the Commission’s mission. Likewise, the declaration by International Association of Judges dated 8 October 2015 drew significant reactions by the Turkish Judiciary on the impartiality of this declaration since it contained definitive judgements based on one-sided data.
Distinguished members of the CCPE, as you know and appreciate, as emphasized by the Council of Europe in various recommendations, the judiciary must be independent, impartial and free of any prejudice, it must always respect universal principles of law and reach fair decisions after listening to both parties with equal diligence also considering the equality of arms.
Therefore, I kindly request you to consider this framework while listening to the information I will present today about the developments in the Turkish judiciary. However, I also would like to note that we had been trying to contact you since last summer without any success, when we found out only from your website that the CCPE expected a report from Turkey for this meeting, which we found upsetting.
I would like to share with you some facts about the developments in the Turkish judiciary.
Having regard to the fact that in modern and democratic countries where the rule of law is recognized as a general principle, it is essential for the independence and impartiality of the judiciary that governments and parliaments, which are accountable to the general public upon being elected through democratic means, i.e. the executive and legislative powers, and all other democratic institutions have no intervention in the judiciary;
It is impossible not to react to some judges, prosecutors and even supreme court judges who act under the command of a religious organization, whereby the judicial authorities aimed at administering justice are infiltrated by the members of this organization with a religious motive and the law is used as a weapon and a means for oppression. It is an incident that is hard to believe since there is no other example in the contemporary world.
I deem it useful to give a couple of recent practical examples concerning the religious motive. As you know, members of the cult Doomsday Group who believed that the doomsday would come in May 2008, retreated to a cave in Penza region in November 2007, and they said that they would burn themselves using fuel if the police tried to force them out of their hideout. Therefore, the police was delayed in action and some of them starved to death.
We should also mention the deadly conflict that took place in Texas, in April 1993. The cult leader and the believers moved to a remote Texan hilltop, which they named Mount Carmel after a mountain in Israel mentioned in the Bible's Old Testament, and settled in to wait the second coming of Jesus Christ. A package containing firearms and hand grenades sent to the group was opened during transportation when the post officer saw and reported it to the police. After days of siege and conflict, 76 were killed including 21 children, 2 pregnant women and the cult leader David KORESH.
As shown in the examples I referred to above, one cannot deny that religion is an extremely powerful instrument in motivating others.
Montesquiou, the founding father of the theory on separation of powers said “It is preferable to have a colonel initiate a military coup every early morning, rather than having a member of legal profession deviate from law only once knowingly and intentionally”.
It is necessary to adopt the perspective laid down by Montesquiou while observing the developments in the Turkish judiciary. There are numerous cases filed before independent Turkish Courts concerning the fact that Fetullah GÜLEN, the leader of the organization, publicly instructed its followers to “infiltrate in all capillaries of the State”; members who were organized in a hierarchical structure within the organization acted in secrecy and used code names and stole questions of central tests aimed at the recruitment of civil servants and provided them to their members before the actual test took place, whereby the members could infiltrate in the majority of permanent posts within the State, which was the way how they could get organized for the past 40 years, and also that the organization opened thousands of schools and private tutorial centres in all provinces of Turkey to achieve their goal, and they especially took posts in the judiciary, police, military organs and the intelligence service. I would like to give you the following example to explain better the organized structure they had within the judiciary.
The 7 permanent and 4 reserve members of High Council of Judges and Prosecutors in Turkey are elected by votes casted by around 12.400 judges working in first instance civil and criminal courts and public prosecutors. During the membership elections that took place on 12 October 2014, 11 members of the Fetullah Gülen cult, who adopted the principle of secrecy, presented themselves as individually standing independent candidates, and to everyone else’s surprise these supposedly independent candidates received average 4800 votes from exactly the same people, which by itself is the most solid manifestation of the organized structure they had built within the judiciary.
I deem it useful to give a couple of more recent examples concerning what this highly organized cult group did within the judiciary.
Audio records of a 2003 seminar organized by the First Army Commandership, based in Istanbul, Turkey, were taken, and digital evidences were fabricated using these recordings; in 2009 a person named Mehmet BARANSU delivered a bag of digital documents to “special authority prosecutors”. It was later discovered that the documents which were allegedly created in 2003, had been fabricated on Microsoft version 2006, using the font “calibri”, which was introduced in Turkey in 2007, and all of these had been done through setting the date on the computer back to 2003, and thus fabricating the fake digital documents in 2009. The font called “Calibri” was used in the abovementioned documents which were allegedly created in 2003. However, this font was produced in 2006 and made available in Turkey in 2007. Furthermore, many of the companies and firms which were referred to in the documents did not exist on the date when the documents were allegedly created, and some of the public bodies and non-governmental organizations mentioned were established after 2007.
So who fabricated a bag of digital and fabricated documents, who organized all this, how was it possible that all the forgery was overlooked by prosecutors, courts and the specially established unit under the high court during proceedings despite reports written by international expert institutions, and hundreds of army generals were convicted.
A closer look at only this incident can make one consider the existence of a serious cult group organized in all State bodies.
In this case named as the “sledgehammer” case, after the court had given its final verdict, Constitutional Court of Turkey ruled that evidence had been overlooked during proceedings and therefore right violations had taken place. Furthermore, hundreds of people sentenced with more than 15 years of imprisonment were acquitted after their retrial in the Assize Court after the abolishment of special authority courts in which judges and prosecutors who were members of Fetullah GÜLEN organization worked.
Another case known as the Ergenekon case in Turkey started off when some hand grenades were found in the attic of an abandoned building in Ümraniye, İstanbul. Police cameras were recording when the grenades were discovered, and since they failed to disable the sound recording, some police officers, who were members of Fetullah GÜLEN organization were heard saying “We will call this the ergenekon case” while also swearing heavily at judges and prosecutors.
It is so strange that these grenades were reported from the city of Trabzon, 1064 km away from İstanbul.
Action was filed against Ramazan AKYÜREK, the Head of Trabzon City Police Department, as he was a member of Fetullah GÜLEN organization, and when he was in charge some extraordinary incidents took place in Trabzon. On 5 February 2006, father Andrea Santoro, the priest of Santa Maria Catholic Church was murdered, on 25 October 2004 the fast food restaurant McDonald’s was bombed and on 19 January 2007, Hrank Dink, a Turkish national of Armenian origin was killed in Istanbul by suspects coming from Trabzon.
In order to mold public opinion during the case referred to as Ergenekon trials; the Gulensit media and press organizations reported in the printed and visual media for several days as if the ammunitions found in the excavations conducted subsequently had belonged to the Ergenekon Armed Terrorist Organization; the concerned ammunitions found in the excavations were destroyed without any examination claiming that they were hazardous materials; whereas in the light of the photographs of these materials and reports regarding their properties, it was understood that they were comprised of tear gas canisters used by the police 20 years earlier, while these canisters located in different places had the same serial number and same properties.
It was stated that the digital document that was articulated quite frequently during this case and labelled as DVD no 51 was found during the search conducted in the office of a lawyer in Ankara; however, the female lawyer working at the law office of Levent GÖKTAŞ objected out loud during the search that the digital document alleged to have been found on the table in the office was placed there later, it was not there before, the concerned DVD containing images related to the private life of many senior public officials was deactivated at the Property and Evidence Unit; therefore, as this digital evidence could not be examined although it was requested for examination during the trials, the special court conducting the trials asked the police officers if they had copied the DVD no 51, upon which the police officers submitted the copy of the DVD; nonetheless, it was technically ascertained that the DVD had been copied by the police one week before the date when it was allegedly found in the office of the lawyer.
Once the Constitutional Court ruled that right violations took place in this case, the accused persons who had been under detention were released. After an appeal was lodged against the judgement of İstanbul Special Authory Court, the Chief Public Prosecutor of the Court of Cassation requested that the judgement be overturned on the grounds that several provisions related to the rules of procedure were violated in the concerned case, while the case is currently under the appellate review by the Court of Cassation.
The judges and prosecutors who were the members of Fetullah GÜLEN structure that was organized within the Turkish judiciary turned law into a weapon and a means for oppression instead of administering justice.
Some people committed suicide during these trials, while some others died questionably in prisons.
In Turkey; the Chief of Staff was arrested on 6 January 2012 not because of his incomplete attempt to stage a coup, corruption or bribery but due to his striking remarks pointing to the Gülenist organization, claiming that he was a member of the armed terrorist organization, which disturbed the conscience of ordinary citizens on the street let alone the legal professionals; while he was released after 26-month detention after the Constitutional Court ruled that right violation took place.
In 2012, in Ankara that is the capital city of Turkey, telephone conversations and all communications of hundreds of people who were members of a non-governmental organization were intercepted for 9 months; technical surveillance was conducted against them. Only two hunting rifles were found in the house of a person, who was just keen on hunting, during the searches conducted at homes and business places of the wiretapped persons within the scope of police operations conducted simultaneously across the country; and 23 people were detained for 42 days within the scope of this investigation. The incident that led to the detention of 23 people for 42 days was as follows: the accused (A) from one of the accused private education institutions got tea glasses bearing the institution’s advertisement produced and distributed them for promotional purpose to the cafeterias where young students came over; the accused (B), who was the owner of the cafeteria where the students came over, already knew and was very close with the accused (A) distributing the glasses bearing the institution’s advertisement, called the accused (A) by phone and expostulated on his friend (A) because (A) did not deliver glasses to him; as a result, (A) told (B) on the phone “do I ever forget you, I reserved 200 glasses for you, but I have more, I’ll be sending 400 glasses to you” and delivered 400 glasses on the same day. The police thought that the word glass uttered during the telephone conversation was a passcode, and asked both of them what the word glass meant and both replied “Glass is a glass”. The police conducted a search at the educational institution of (A) and recorded in the report that there were additionally 4 more packages of the concerned glasses, 176 glasses were still in use in the cafeteria of (B) although some of the glasses were lost; this telephone conversation between (A) and (B) was legally defined as Glass Looting by an Armed Terrorist Organization although there existed no organization and no crime, and 23 people remained under detention for 42 days just because of the abovementioned telephone conversation between two persons. Another prosecutor was assigned to this investigation subsequently and he decided on non-prosecution on the grounds that no crime existed.
The prosecutors decided on non-prosecution for the offender who was caught by the commissioned officers while cheating in Ankara during a central exam organized throughout the country and captured right at the beginning of the exam with the answer key of 180 questions of the exam, this was also recorded in the minute, and the offender was turned over to the police.
Since this organized structure was discovered in late 2013, and the officers at critical positions in the police department were relocated to the other units, the incidents that occurred in our country enabled the entire society to understand what this organization with religious motive did in the country.
Insofar as; the telephone transmissions were intercepted at the Departments of Intelligence, Anti-Terrorism, Anti-Smuggling and Organized Crime under Turkish National Police, while also the Divisions of Intelligence, Anti-Terrorism, Anti-Smuggling and Organized Crime and the Narcotic Division that are the provincial units of Turkish National Police also conducted wiretapping. We also have a central authority for the organization of interceptions in our country, which is the Presidency of Telecommunication and Communication, while interception for the purpose of intelligence and crime investigation is only possible in our country upon the decision of a judge as per the legislation.
Following the relocation of the police officers at critical positions, the computer records of the concerned interceptions available at the central police department and all police units in 81 provinces where interceptions were conducted as well as at the presidency of telecommunication and communication were deleted using the same method; all court orders were destroyed; actions were brought against hundreds of police officers in every province for these reasons; some of the interceptions were not even based on the court order; although reports were issued stating that some of the mobile interception devices belonging to the police department were destroyed by the police officers who were relocated, it is understood that these mobile interception devices for which destruction report was issued are still actively used by the Gülenist organization; telephone conversations of everybody in Turkey was intercepted including the leaders and managers of opposition parties, authorities from all non-governmental organizations, senior public officials, prime minister, President, ministers and supreme court judges; as a result of these interceptions, private life of some members of the opposition party was tape-recorded, and the resulting tapes were broadcast on the internet,
From 2010 to 2014 in Turkey, 866.000 persons were wiretapped upon court order, out of which 297.000 interceptions were judicial interceptions while 569.000 were conducted for intelligence purpose; these court orders were taken unduly; furthermore, thousands of individuals were also wiretapped without a court order in addition to these 866.000 persons, audio surveillance was also conducted without any telephone conversation,
Following the relocation of the Gulenist public servants from the abovementioned units, only 17.338 telephone communications were intercepted from 24/03/2014 to 12/10/2015, out of which 1557 were judicial interceptions while 15.781 were conducted for intelligence; we are of the opinion that this is alone enough to understand what happened in Turkey.
From 2010 to 2014, the High Council of Judges and Prosecutors was dominated by the members of Gülenist organization, some of the judges and prosecutors were appointed more than once in this period while in total 13.433 judges and prosecutors were appointed, most of the judges and prosecutors were subject to unfair appointment, (390) judges and prosecutors were retired before they turned 65 although the Constitution safeguards the right of judges and prosecutors in Turkey to practice until they are 65 years old and stipulates that they cannot be retired without their consent. The unfair and unlawful disciplinary sanctions imposed on 590 judges and prosecutors in that period were re-examined and revoked by the High Council of Judges and Prosecutors that came to office following the election on 12 October 2014 pursuant to the provisions stipulated in the law on the re-examination of disciplinary sanctions. Only 3998 judges and prosecutors were appointed in the new period of HCJP.
The journalist-writer Ahmet ŞIK who wrote about the Gülenist structure in Turkey was arrested before his book was published as it was considered as an offense, the prosecutors declared to the public that the distribution of the draft of the book in the digital setting would be considered as an offense, the Chief Police Constable named Hanefi Avcı who also wrote about Gülenist structure was detained for 3 years 9 months due to his book until the Constitutional Court’s verdict, the writers of Oda TV that also reports about the Gülenist organization were detained for this reason, consequently trust in the judiciary was lost in our country due to the abovementioned reasons.
Hundreds of similar judicial proceedings were conducted just like the abovementioned unfair and unlawful trials and investigations.
The well-educated members of the organized Gülenist structure that has thousands of private education institutions sent numerous letters of complaints to the international organizations, which did not reflect the reality; however, this matter could be clearly expressed by all segments of the society if the non-governmental organizations, union of bar associations, representatives of political parties, and even ordinary citizens on the street are consulted to obtain information on site, it is clear that HCJP consists of 22 members who are elected by all judges and prosecutors in Turkey, only the Minister of Justice, Undersecretary of the Ministry and 4 members are appointed to the High Council while the remaining 16 members are elected; HCJP which is a pluralistic, democratic and transparent authority welcomes cooperation with all international bodies and organizations and will be pleased by such cooperation,
It would be a legally proper act to look into all aspects of the concrete fact with the sensitivity of being a judge and prosecutor when such letters of complaints were sent by the members of the Gülenist organization, whereas it is evident that all aspects of the incident can be understood clearly if primarily HCJP and non-governmental organizations, press and media organizations, union of bar associations, bar presidents in all provinces, union of notaries, civil associations and institutes operating in the field of law are consulted.
On the other hand, the statement in the letters of complaint claiming that “judges were relocated or subject to disciplinary sanctions due to the decisions they took” is unrealistic. Such sanctions were imposed on those judges and prosecutors not because of the decisions they took but because of their illegitimate and unlawful acts.
The decisions taken by HCJP against these judges and prosecutors are lawful, while the rights of the relevant persons to have access to defence, information and documents are respected to the fullest extent during the investigations and a very delicate review is performed. There is also an effective internal mechanism for objection at HCJP available to the relevant persons. I would like reiterate that HCJP is always open to share information on this matter. However, some of these judges and prosecutors preferred fleeing abroad instead of going through this objective process.
The decisions against the detained judges and prosecutors are taken by the judges and prosecutors who fulfil their duties in the independent and impartial Turkish Judiciary, while the objections to such decisions are reviewed yet by independent and impartial judges and prosecutors. HCJP is not entitled to intervene in the concerned decisions within the framework of the “Judicial Independence safeguarded by the Constitution”.
I hereby honestly shared all the facts related to the incidents I witnessed and experienced within the scope of my authority and responsibilities as the former Deputy Chief Public Prosecutor of Ankara and a current HCJP Member.
You are hereby kindly requested to evaluate the abovementioned matters with due diligence and sense of duty.