Law professor says felt intimidated by arrest of judges

İstanbul 29th Court of First Instance Judge Ozcelik and İstanbul 32nd Court of First Instance Judge Baser were detained on April 30 following their rulings to release 64 people — Samanyolu Broadcasting Group CEO Hidayet Karaca and 63 police officers — who had been held in pre-trial detention for months. Ozcelik was arrested on the day of the ruling, while Baser was referred to court and arrested on May 1. They were charged with membership in a terrorist organization and allegedly plotting a coup against the government in addition to “engaging in misconduct in public office” and “compromising secret information. The two judges are currently still in jail.

Prime Minister Ahmet Davutoglu claimed that the judges received orders from the US, referring to Turkish Islamic scholar Fethullah Gulen, who inspired the Gulen movement, and that he has recordings to prove it, yet has since failed to present any evidence.

Karaca was detained as part of a major media crackdown on Dec. 14, 2014, just three days before the first anniversary of the revelation of investigations of alleged large-scale corruption that implicated several senior members of government. The Samanyolu Broadcasting Group and Turkey’s best-selling daily Zaman had become government targets due to their critical stance on the alleged corruption and what are seen by many to be government efforts to muzzle the remaining free and independent media to prevent questions about corruption and other criticism. Karaca is also still in jail. The police officers who were detained had all participated in the corruption investigation.

Kaboglu spoke to the Ozgur Dusunce daily in an interview published on Sunday, and said that he was intimidated by the arrests of Ozcelik and Baser, and that the arrests indicate that there is even more political influence on the judiciary than there was when martial law was declared in years past.

When was asked the reasons it is so easy and common for the Constitution to be violated in Turkey, Kaboglu referred to the controversial internal security law, the subject of considerable domestic and foreign criticism for granting extensive powers to police officers and provincial governors. “The internal security law was voted on in Parliament though we [legal experts] had said that it was against the Constitution. [In Turkey], we are witnessing a clash between democracy, which has been reduced to numbers [a majority] and the supremacy of the Constitution. This shows how developed the law and democracy is [in Turkey]. However, at least when incidents such as this happen, the Constitutional Court can be an effective avenue to address the situation,” Kaboglu said.

The internal security law — also known as the domestic security package — was fiercely opposed by the opposition parties but was passed in Parliament early on March 27 after more than a month of struggle that included brawls and significant tension between opposition and ruling Justice and Development Party (AK Party) deputies.

Kaboglu emphasized that the reason for the frequency of constitutional violations is that the Constitutional Court works as review mechanism rather than giving prior approval that a proposed law is constitutional. “A law can only be sent to the Constitutional Court after it has been passed in Parliament. In most European countries, a law is sent to the Constitutional Court for approval before it enters into force. When the legal mechanism of review is thus delayed, it means that it can be too late for a wronged party.”

Commenting on the recent death of Tahir Elci, president of the Diyarbakır Bar Association and a leading human rights activist, Kaboglu said: “There’s no law in effect there [the Southeast] If there’s no law, there’s also no government. Those who should be frightened about this condition are Davutoglu and [other senior members] of the government.

Elci was killed in the crossfire of a gun battle between security forces and terrorists in the Sur district of Diyarbakır on Nov. 28. Since then, questions have been raised as to whether Elci was killed as a part of an organized attack or was just unfortunate to be caught in the middle of a violent conflict.

Kaboglu also evaluated the government’s reaction to the graft probe that went public on Dec. 17, 2013. “Instead of putting the cases through the legal process, the probe-related files were covered up. The government chose to prevent the legal process from working. Also, the rule of law [in Turkey] was damaged due to the interventions on the judiciary after Dec. 17.”

The police officers, prosecutors and judges who took part in the probes were replaced, suspended and some were sent to prison. To this effect, the AK Party government established the controversial Penal Courts of Peace in the summer of 2014. These courts have been harshly criticized as their “judges of peace” were given extraordinary powers, such as the authority to issue search warrants, detain individuals and seize property. It has been alleged that the courts are instruments for enforcing the government’s wishes by instigating arrests based merely on the headlines of pro-government newspapers.