“The people who don’t trust each other and divided into groups, tribes and clans will only gather around the power which they believe to possess absolute honesty. That righteous “power” which is a beacon of trust and which leads millions of people to become a “nation” and establish a state is not comprised of politicians, soldiers, administrators or political parties. That righteous power, that great beacon of trust is comprised of the judges. The magical bond that transforms millions of scattered pearls into a priceless necklace is the “absolute honesty” of the judges. When the judges are wiped out of the state, the state becomes “an armed mob” just as the water, source of life, becomes a source of death when you wipe the oxygen atoms out of a water molecule. There is no state if there are no judges. The reason that differentiates the state from an armed mob is the existence of the judges. (1)”
These words are from the defense of Ahmet ALTAN who is accused of “joining the coup attempt by giving subliminal messages” and being tried in custody for life. Truly, the “judgeship” is a profession which can be defined as the building blocks or the insurance of a country. The reason why the people sees this profession as “the prophet’s watch” is the fact that the judges, just like the prophets that were sent by the divine authority did, will only direct people into the righteous path, dignify the righteous ones instead of the powerful and will not cause even any tiny injustice towards anyone no matter what the threat is. Moreover, the right and responsibility to ensure the “basis of property” is given to the judges in a sense.
Let’s examine the situation we are facing. The things I am going to tell was not learned by reading history books or experiencing the irrational practices that exist in the countries like the North Korea, they are nothing but a short summary of what we have learned by living, even feeling the pain in a “democratic” country, our country, which is a member of the European Council for the last five decades.
After the coup attempt in 15th July 2016, at the midnight when armed conflicts and acts continued in some parts of Ankara, Necip Cem İŞÇİMEN, the prosecutor of Ankara, connected to a news channel and gave information regarding the incident(2). The prosecutor was declaring his “certain” verdict regarding who are responsible for the coup just after 5 hours after it starts and while, by his words, “the fighter jets are still in the air” and announcing his decision to detent 2745 prosecutors and judges who he related to those crimes. It will be later realized that the Supreme Board of Judges and Prosecutors started a meeting in the early hours of the day although it was weekend break. In the first phase of that meeting, the decision to dismiss those 2745 prosecutors and judges will be made with the accusation of membership to a terrorist organization and joining to the coup and without the need of accepting the defenses of the accused because of probably having the “certain” evidence they had (3). The words that were blurted out by the prosecutor of Ankara indicated that there was a serious effort about thousands of his work colleagues made by “some people” and the “necessary” thing can be done now. Unfortunately, the ones whose names were in the lists and who were still alive (there were the names of some people who died months ago in the lists) were arrested recklessly without being able to know what are the accusations and to what evidence they are based on.
Now let’s examine a news report of “Hürriyet” on March 2016. In the report, these sentences are used: “The vice president of SBJP, Metin Yandırmaz, announced that approximately 5 thousand people are detected to be the members of or related to the judicial branch of the ‘parallel organization’ ”. (4). A clue about the “necessary” thing to do from the Prosecutor of Ankara’s words can be found in this report. The last election of SBJP comes to the mind in this point with this number. As you will remember, the number of the judges who didn’t vote for the members of YBP (Yargıda Birlik Platformu – Judicial Unity Platform) was around 5 thousand (5). After considering the information and comments that will be given in this text, I will leave the deduction and judgement about if those 5 thousand judges of contrary opinions are the ones that were “related” to the so-called “organization”.
Metin YANDIRMAZ’s explanation, in fact, has the capability to illuminate all the process. “… the ones that are members of or related to the judicial branch of the ‘parallel organization’ “. The mentioned is not a small gang of a check mafia in a small province. According to the claims, it is an organization which can threaten the existence of a country and established a parallel structure with all its structures despite the existence of the government. And the members of this organization is detected by the SBJP. The first question in this very crucial point is : Who made this “detection” with which evidence and authority? In “normal” countries, courts deal with these accusations instead of administrative boards. To whom those detections belong to? Let’s assume that we ignored this crucial question. The second and more actual question is : “If this claims are true, why did you wait so long to prevent such a huge threat to the existence of the state? The people who you claim to be detected are judges and they make judicial decisions in all over the country in the local courts and courts of appeals. If your claims are true, doesn’t even only this situation mean that the SBJP commits the sin of omission and malpractice?
Let’s continue to examine it from a different point of view. While it is extremely difficult to even guessing the perpetrators, not completely detecting them during the early hours of the coup attempt, isn’t is a bit odd for the President (who created the political support for the winners in the mentioned SBJP elections) to connect to a news channel and tell who is responsible for the coup while he was on holiday? And what does it mean when he describes one of the worst disasters that may happen to the government of a state as “a blessing from the God”? Is it a pure coincidence when thousands of judges and prosecutors were taken into custody just hours after the coup? (and even before many of the soldiers who were claimed to be plotters)
For what were they preparing when the judicial members were challenged from the stages, the announcements were made about “re-designing” the judiciary and the “courts of project” were mentioned (6) after the corruption cases about Erdoğan and his inner circle were revealed? What does it meant when 10 judge and prosecutors were arrested(7) because of their decisions that are “criticized by the political will” for the first time in the history of Turkish Republic, more than 50 judges and prosecutors were dismissed and hundreds of them were put into investigation (8) just after the “victory” was achieved in the elections of SBJP?
Prof. Sami SELÇUK, the honorary president of the Supreme Court, made this comment in his article titled “the last nail to the coffin” which was written about the efforts of the political will to “design the higher judicial bodies” before the complete paralyze of the law system after the coup: “We haven’t experienced a time in which the judiciary is interfered and controlled that much for the last 50 years. Such a shame and pity! These days are shame for me as a former judge. I have never been embarrassed that much on the behalf of my country, the law faculties in my country, the lawyers, especially the ones in the Grand National Assembly and my students. And the ones who can hear and evaluate the distress calls are absent.” (9). Unfortunately, there is not enough people who reacted to those carelessness which paralyses a system and the future of a country.
Does any of conscious ones can have a reasonable answer for the witch hunt of judges and persecutors only hours after the coup attempt? Let me try to show you the wrongdoing to this country and its people by numbers. The number of dismissed judges and prosecutors after the coup attempt is “4560”. This number is higher than total number of staff of judicial departments of some countries and it is equal to the 1/3 of the total number of judges and prosecutors in Turkey. Please remember once more the expressions with the number “5000” and the questions we asked to Metin YANDIRMAZ by considering this number. There is another depressing fact when we look at the situations of the dismissed ones. Even after 16 months, 2431 of them are still under arrest. 1585 judges and prosecutors are released with judicial control decisions and 271 of them are still being searched. (10) Emma Sinclair-Webb, the Director of Turkey of Human Rights Watch organization who witnessed this situation in those days says that: “Arresting judges without even pretending to follow the legal procedures will damage Turkey’s legal system which will have long-lasting effects” and tells that “The rule of law principle cannot be protected by ignoring it.” (11)
680 people who are consisted of supreme court members and who are under arrest all this time are kept in “cells” for more than a year, being completely against the concerning regulation and law on execution of sentences (12). This execution which is not even applied on severe penalties of final judgements according to the laws of our country is applied to the supreme judges. Apart from the other prisoners that were put into cells, those 680 judges and prosecutors are being tortured psychologically, physically and in terms of family needs for real. In addition to the suicide of a prosecutor who couldn’t stand the humiliating situation and the demise of a judge whose illness relapsed and cause his death because of the trauma he experienced, another tragedy that is called “imprisonment until death” is added to the list. A warrant has been issued for Mustafa Erdoğan’ arrest, member of Supreme Court, who had a brain tumor surgery in his hometown, Antalya during the same period. At the same time, Mustafa Erdoğan’s properties, bank accounts and salary were confiscated, and an interim injunction was imposed. Just as his other colleagues, he got arrested without any reason and kept in the cell for six months, away from his family while half of his body was paralyzed. His lawyers demanded a release for his severe medical condition but there was no result. At last, the Constitutional Court responded to Hüseyin Aygün, Mustafa Erdoğan’s lawyer who applied to the court for his client’s release due to the health problems, as : “The detainee is not in any danger”. The decision for release was made for him, who wasn’t even allowed to see his family in this process, while he was in intensive care unit and losing his consciousness. Mustafa Erdoğan passed away four days later (13).
This is a monument of unlawfulness that will be remembered in history in which the 1/3 of the members of Council of State and Supreme Court which are authorities of appeal, ¼ of the members of SBJP that were elected by the “5000 opposing votes” and two members of the Constitutional Court were dismissed without even hearing their defenses (14). Which one of them should we mention: thousands of judges and prosecutors that are either arrested or dismissed, the women who were dismissed and lost their jobs because of their husbands’ jobs, confiscated bank accounts and properties, demonization processes, lynch attempts and countless other victimhood, imprisonment and being left for death?
What was the real reason of this great lynch attempt that is done by the ones who were entrusted to ensure justice? Is it fear, hatred, benefit or something else that we don’t know? Can the explanation of this situation be “the national interest” or “extraordinary tough times” that the politicians used frequently? Zühtü ARSLAN, the academic who became the president of the Constitutional Court and who did not become a satellite of the political will wrote in one of his books that: “ The tough times, on the contrary of its use in law literature as situations like states of emergency, martial law or war, are times in which the state puts itself into the emergency to fight against a real or superficial enemy, violates the basic rights and freedoms to do so, ignores the assurances that are provided by law, uses official of civil powers and in some cases, cooperates with the judicial organs.” Vedat Ahsen COŞAR, the deceased lawman who refers to these ideas and further says: “ In times when the fear becomes dominant like this, not only the decision making body of the state but all the branches of the society becomes bound by the fear and the threat behind it and therefore, all kinds of restrictions and even violations on freedoms and rights becomes much easy and justified. In times like this when the fear became or is becoming dominant, along with the rising nationalist movements, foreign and local enemies are created and new people, foundations or parties emerge who claim that they will protect the country from them, just like in Turkey now. The common sense of the society becomes blind by the fear and pressure as a result. People’s will become manipulated and the free expression of thought is restrained (15). It becomes very difficult to perform many jobs during tough times like these which allows people and personalities to be recognized with their real faces (16).”
Berke ÖZENÇ emphasized these points in his article titled “Hitler’s Judges” which tells to what purpose the law serves under the hands of judges in a created ground of fear: “ The political and lawful transformation of Turkey in recent years is often compared with the establishment of the Führer State in Nazi Germany. It needs to be emphasized that the transformation in law has significant and depressing similarities in some points. From this point of view, the application of laws by the technique of infinite interpretation and the criteria of “being national” which is created for the judicial decisions by the political power stands out. These two functions are the founding blocks of a process that works by being related to each other and they require a wrong and repeated deduction about the Nazi regime to be corrected. The thing that set the ground for the establishment of Nazi regime is not the law, but the judges. The result is the institutionalization of German type presidency and the establishment of the Führer State. As many of the lawmen who were related to the Nazis expressed proudly at that time, Germany is no longer a “Social law state” but Adolf Hitler’s “German law state”. The idea of institutionalism and predictability of the lawful state is replaced by a personal and arbitrary system in which Hitler’s “will” is determinative. The judiciary has a critical role in both establishing and preserving the regime’s existence. The most significant memory of this era is the letter that was sent to the Hitler by the Judge Roland Freisler, saying : “My führer, from now on, the public courts will try to reach a decision in a direction which they believe that you will follow.” (17) Similarly, the first act of Napoleon who became the first council by taking the advantage of France’s “tough times” was dismissing thousands of judges and what he did (18) and the conditions of the judges who willingly served in that system were not different from the previous example.
Back to the Turkey, I think that the events after the coup attempt will become a very famous phase of the stage of history. It was understood that those 2740 judges weren’t even allowed to defend themselves due to the excuse of the “decision of secrecy” while the interrogating judges were repeatedly asked for the evidences of those great accusations and those judges arrested their colleagues just because of the lists that were sent by SBJP, which is nothing but an “administrative board” and which promised to work “in accordance” (19) with the executive branch. But it is seen today that this list is submitted as the most important document in the indictments that are revealed today. The vice president of SBJP at that time, Mehmet YILMAZ, had announced months after the arrests that if any of the arrested judges and prosecutors will become confessor, they may be returned to their duties. But when a journalist called him in December 2016 and expressed his “concern(?) about the ones that will return to duty” , he said: “Yes I told that, but I told that to promote being a confessor and I reached a huge success, there are many confessors now. But be sure that none of them will return to their duties. We collected evidence by this about the arrested judges and prosecutors. (20)” This is not a slip of the tongue! The number one of the SBJP who demanded from all the judges to arrest their colleagues without any investigation confessed months later that he trapped his colleagues to “create evidence” because they didn’t have any, without being embarrassed and with proud. The judges who fulfilled this “sacred duty” proudly violated all principles of their profession and they started a race to leave their colleagues to death as if there were any reasonable evidences. After all this time, although they couldn’t find any concrete evidence about the crime of being a member to a terrorist organization, they “pretended that it existed” and kept on lying the same lies.
Today, the people that are in the decision-making bodies unfortunately undermined their identities of judges just like “the ones that cover the religious painting in the room while committing sins” to be “compatible” with the political will and accepted the claims and facts of a communication application which had millions of users and had nothing related to a crime, memberships to the legal foundations, being supportive to the different members rather than the representatives of the political will, witness statements which can’t even answer to the basic questions, being a follower of the news pages that are opposing against the government as adequate evidences. By doing so, they volunteered for the political will’s punishment process for everyone who “don’t think like them.” And, even there is no letter revealed, they proved that they are determined to decide in their courts in the same direction which they believe that the political will would have decided.
I would like to finish with another chapter of the defense of Ahmet Altan. “ What makes the judge who is crucially important for a state a judge? It is not his diploma, his cloak or his stand. The things that makes him a judge is his Godly honesty and the people’s unhesitant trust towards this honesty. In a real state that possess real judges, there will be no accusations without evidence, courts without evidence and arrests without evidence. When you read this indictment, you easily understand how the places which are called Courthouse and in which there are accused ones, the chairs for accused, the desks of lawyers, armed gendarmes, stands and cloaks are transformed into the slaughterhouse of law… In order to rape the law, the lawmen need to lose their feeling of embarrassment at first. If the lawmen haven’t been lost their feeling of shame, they wouldn’t have told lies that easily and they wouldn’t have became enemies of law and justice… (21)”
(13) birgün gazetesi