Heroic judges of Turkey

The two judges, Murat Ozcelik and Mustafa Baier, who recently ordered the release of a leading journalist and dozens of anti-corruption investigators appear to be quite informed on the case law of the European Court of Human Rights (ECtHR) as well as the recommendations issued by the Council of Europe (CoE) and Venice Commission that contributed to their liberal rulings despite intense government pressure and blatant interference by the president to prevent that from happening.

With manifesto-like judgments that have a rock-solid reasoning, they dealt a significant blow to Turkey’s authoritarian political Islamist regime, which is hell-bent on tightening its grip on institutions in order to survive in power and using a partisan judiciary against opponents and critics to wear down any resistance to the one-man rule of President Recep Tayyip Erdogan. Their abrupt removal from the bench — a first in Turkish history that was not even seen in the military coup era in 1980 — shows that political intimidation has reached the heart of the judiciary as well. The whole saga may represent the revolt of judges who want nothing but supremacy of the rule of law and respect for fundamental rights and freedoms in line with Turkey’s commitments in its domestic law and international conventions.

Just to recap, let’s remember that the European Convention on Human Rights (ECHR) is part of the Turkish legal code equivalent to the force that constitutional articles have. The ECtHR judgments are also binding for the Turkish government, which has no choice but to implement them immediately or face repercussions in the 47-member Council of Europe (CoE), the largest intergovernmental organization in Europe of which Turkey was a founding member state. ECtHR case law has come to be recognized as a body of precedents that guide Turkish judges in their rulings.

Metin Ozcelik, the judge of the 29th Criminal Court of First Instance, listed how the ECtHR cases helped shape his ruling in evaluating the request by the lawyers of defendants in the replacement of judges in the penal courts of peace, dubbed quotspecial courtsquot by Erdogan and set up in 2014 to prosecute government opponents and critics. The partisan and loyalist judges, whom the government handpicked, stack the benches of the penal courts of peace, which have become notorious in ordering sweeping detentions and arrests despite no evidence warranting such harsh measures in the investigation phase and during arraignments. Turkish Bar Association (TBB) Chairman Metin Feyzioilu said these courts have become a tool for the government to punish those who are against it.

One case that judge Ozcelik referred to in his well-reasoned decision was that of Imbrioscia v. Switzerland. In this case, the European court rejected the government’s claim that preliminary investigations were not covered by Article 6(1) of the ECHR, which says that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in the determination of any criminal charges against him, and Article 6(3), which says that “everyone charged with a criminal offence has the following minimum rights” such as to defend himself, to have adequate time and the facilities for the preparation of his defense and to examine witnesses against him.

Judge Ozcelik said these protections are valid not only during the trial phase but also during the investigation in line with the Imbrioscia case, where the ECtHR clearly established that Article 6 applies to pre-trial proceedings. It says the quotreasonable timequot mentioned in paragraph 1 of Article 6 begins to run from the moment a quotchargequot comes into being. It also noted that other requirements of this article may be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them.

The second case Ozcelik cited was the case of Wemhoff v. Germany, where the court made clear that everyone who is arrested or detained is quotentitled to trial within a reasonable time or to release pending trialquot according to Article 5(1). The judge said the suspects have been detained from three to nine months and they have the right to request a replacement of judges because their investigation and interrogations had been completed a long time ago. He concluded that judges at the penal courts of peace lost their objectivity and appeared to be highly biased against defendants. He further notes cases such as Piersack v. Belgium Rojas Morales v. Italy Fey v. Austria Gautrin and others v. France Remli v. France Incal v. Turkey Megyeri v. Germany Brannigan and McBride v. UK Lavents v. Latvia and Nikolova v. Bulgaria.

He also referred to the CoE Committee of Ministers’ recommendation No. R(94)12 on the independence, efficiency and role of judges. The recommendation says that “in the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

Judge Ozcelik also highlighted that the report on the Independence of Judges adopted by the Venice Commission at its 82nd Plenary Session in Venice on March 12-13, 2010 clearly emphasized the right to a lawful judge who is independent and impartial and the right to ask for the dismissal of a partisan judge from the case.

Similarly, Mustafa Baier, the judge of the 32nd Criminal Court of First Instance who was wrongfully arrested for ordering the release of suspects from long pre-trial detention also cited the Strasbourg-based European court’s case law in his reasoned decision. He said in the case of Zeynep Avci v. Turkey at the ECtHR, it was stated that since the suspect was held in custody for 21 days, Article 5(1) of the ECHR had been violated. The court first established the competence to review the defense’s petition to release the suspects pending trial and asked the Istanbul 9th High Criminal Court to make a judgment whether a Criminal Court of First Instance has jurisdiction in the matter. The panel of judges at the Istanbul 9th High Criminal Court unanimously ruled that Criminal Courts of First Instance have the authority to review such a petition.

Then the court asked the opinion of the Istanbul Chief Public Prosecutor’s Office on the lawyers’ release petition, which went unanswered. The court went ahead and issued a judgment nevertheless based on a Supreme Court of Appeals precedent and said the suspects’ detention exceeded the maximum time allowed for detention, violating both the Turkish Penal Code (TCK) and ECHR articles.

Judge Baier underlined that he did not find any strong evidence warranting the suspects to be placed in detention. He said the evidence listed in the investigation file would not even qualify for an indictment. Baier also questioned the judges of the penal courts of peace for not providing a detailed explanation of the evidence that prompted them to remand suspects in detention.

He listed the ECHR conditions for the justification of detention. One, the detention was not lawful in the first place because it exceeded the maximum time allowed for interrogation. There was a time lapse between the detention period and the arraignment hearing during which a judge issued a ruling.

Second, the arrest order by the judge lacked sufficient basis to warrant such a harsh measure because ECtHR case law established that the suspect may be placed in detention to bring him to court, if it is feared that he/she may commit another crime or if the suspect poses a flight risk. Baier said suspects voluntarily reported to the prosecutor’s office when rumors about their impending detention were circulated. They could have easily fled the country and they chose not to. He also said the suspects are all well established in society, with strong family and community connections.

Judge Baier also questioned the copy-paste decisions issued by the judges of penal courts in repeatedly rejecting the defense lawyers’ pleas to challenge the detentions. He said the justifications for extending the period of custody have to be different from those of the initial decision to arrest and the judge must base their decision on strong new evidence and establish the balance between freedom and security in their judgments according to ECtHR case law. He said in the case of Yagci and Sargin v. Turkey, judge Baier recalled that the ECtHR found Turkey in violation of the convention because the deprivation of liberty for the long pre-trial detention was not justified. It said the original charges were not sufficient to continue detaining the suspects. It also criticized the Turkish court for not displaying due diligence in the conduct of the proceedings.

Baier said during the review of detention conditions, judges at the penal courts of peace have always used the same preconceived notion saying, “There is no change from the conditions or reasons of the arrest since the initial arrest.” He also criticized them for not questioning what evidence was discovered by the public prosecutor and why they had not prepared the indictment for the suspects since July 2014. Given the suspects’ profession, personal attributes and values, clean criminal record, assets, residence, family connections, attendance in court without being forced to appear and not showing any adverse reaction to the decision to arrest, judge Baier concluded that he did not see any reason for extending the suspects’ detention.

That means if these cases end up in the ECtHR one day, Turkey will be found in violation of articles of the convention. The defense lawyers made clear that they will take these injustices all the way to the Strasbourg court when they exhaust domestic remedies. These two judges decided with their conscience and in line with ECtHR case law to order the release of suspects pending trial. The judgments were not enforced by the prosecutor, which was unprecedented. They were suspended immediately, and later arrested in a government-orchestrated move that is also unparalleled in the history of Turkish justice system. But the Turkish nation will remember judges Ozcelik and Baier as courageous jurists who stood by the law to protect freedoms and made history with their landmark decisions.