Controversial politician Prime Minister Recep Tayyip Erdoğan does not mind striking a discordant note with most Turks when he wants to scapegoat his opponents and critics for his own troubles, which in turns helps him create the necessary distractions to hide his blatant abuse of the criminal justice system.
When he is faced with mounting public pressure over a fresh scandal, Erdoğan immediately raises provocative issues, such as the reinstatement of capital punishment, making abortion a criminal offense and doing away with co-ed education. In doing so, he deliberately sparks artificial public debates to fill the airwaves, print and social media. As soon as the real issue that Erdoğan is afraid of fades away from the radar, he returns to business as usual.
When Erdoğan, his son and business associates were all implicated in massive corruption investigations that were exposed last December, he did exactly the same thing by creating a perfect storm to ride out his legal troubles. He invented a conspiracy story: Foreign powers led by the United States and the European Union wanted to topple the elected government in cooperation with domestic collaborators, who are literally anyone in the country that is not loyal to Erdoğan’s rule. To flesh out this artificial plot, Erdoğan needed sham trials to show the public that those anti-corruption and anti-terror investigators who exposed graft — and the Iran-backed deadly terror network Tawhid-Salam — and who claimed that senior government officials had been aiding and abetting them, are in fact traitors.
Unlike he has in the past — quickly returning to the “same old, same old” routine — Erdoğan cannot go back this time, because he knows bridges have already been burned and that he has no escape route. That is the why he’ll keep triggering crisis after crisis in the governance — so that he won’t be called to account and so the day of reckoning will be delayed. That is the reason he has turned the whole justice system upside down.
Using his majority in Parliament, he established special courts called Penal Courts of Peace. They sound innocent in name but act with as much vengeance as the notorious State Security Courts (DGM), which were abolished a decade ago under pressure from the European Court of Human Rights (ECtHR). These courts are all operated by political appointees, with a closed-circuit appeal process in which the judge who gives the custody order for the defendant is the same one who will review the challenge to that ruling. This is what Erdoğan openly called his government’s “special project,” designed to conduct a McCarthyism-style witch hunt for his critics and opponents.
That was followed by the filing of a lawsuit containing fabricated espionage charges against police officers and chiefs who did everything by the book and merely complied with prosecutors’ official orders to pursue criminal investigations. With no regard to due process, a number of them were unlawfully detained while others were let go pending trial.
Serious violations in the code of criminal procedure were witnessed, giving all indications that the case has no merit in a court of law. The fact that Erdoğan, the head of the executive branch, has publicly defended the controversial judicial proceedings against heroic police officers is more evidence that these are politically motivated probes and sham trials.
Erdoğan, the country’s chief executive officer, has effectively violated the defendants’ right to the presumption of innocence by publicly declaring them guilty.
Where will Turkey go from here? According to the bulk of jurists, these cases will be eventually have to be corrected by the upper judiciary, especially by the Constitutional Court. If not, they will certainly create a major headache for Turkey in the Strasbourg-based ECtHR, which has a mandate to review complaints from Turkey. The ECTHR’s rulings on Turkey are binding and the law is clear on how judges should conduct fair trial procedures.
Let’s examine some of the violations that have been committed so far.
For one, defense lawyers say they encountered great difficulties in having access to their clients when giving testimony to the police, the public prosecutor and the investigating judge, respectively. No justification was given for what appears to be a systematic denial of defendants’ access to their lawyers or to have the facilities to prepare for their defense. The government stormed the courthouse with hundreds of riot police who stood in the halls inside the building, preventing defense lawyers from meeting with their clients or having access to the court’s clerk to file motions. The overwhelming force displayed to thwart the defense from doing its job is a clear violation of Article 6 of the European Convention on Human Rights (ECHR), which protects due process and the right to a fair trial.
Moreover, judges who serve on the benches or prosecutors who pursue adversarial proceedings are all government-friendly and some are open fans of Erdoğan, as has been revealed by media reports. It is simply not possible to have a fair hearing in the courtroom chaired by these judges, who often issued arbitrary rulings that lacked any reasoning or any sound legal argument. In fact, when one judge was reminded of a serious breach of procedure by the defense, he said he would do as he pleases in the courtroom. Another judge did not even bother wearing the customary robe when issuing his ruling, which is against the established practice in place in Turkish courts for decades. Therefore, they are neither independent nor impartial courts according to Article 6.1 of the ECHR, which states that suspects must be heard by an independent and impartial tribunal.
The criminal proceedings against defendants had not been concluded within a reasonable time, and in fact the maximum custody period had expired before the arraignment hearing was conducted. Instead of being released after the legally imposed limit exceeded, the police officers were deprived of their freedom illegally on orders from the government. It was also revealed that the charges against the officers were based on a single report that had been prepared by Interior Ministry and headed by one of Erdoğan’s confidants. What is more, the inspection report was written by figures who have shady pasts and most inspectors who were approached by government declined to endorse the report.
The defense was not given the evidence the prosecutor allegedly collected against their clients in the initial days, depriving them of the ability to respond to the charges effectively. When the evidence was finally provided, it turned out that some of the documents were tampered with or even forged, which is a crime in itself. Some of the defendants were not even heard by the court and others’ testimony was not entered into the record. The judge decided on the outcome without even hearing the defendants’ response to the allegations.
The way suspects were arrested by the police and how they were kept in the custody also violated Article 3 of the ECHR, which says no one should be subjected to torture or to inhuman or degrading treatment or punishment. Handcuffing only applies to criminals who may run or harm the law enforcement officials. In this case, many police officers have turned themselves in and others were taken from their residencies with no resistance at all. They were not provided with sleeping quarters while in police custody and had to rest on the concrete floor or on waiting benches. They were not provided with food and water in time to enable them to fast during the holy month of Ramadan. The ones that were placed in detention by the judge were sent to a prison where convicted murderers and terrorists are kept, in violation of rules that require police officers to be kept in another prison that is well-protected.
There was also a violation of Article 5 of the ECHR, which states that everyone arrested or detained is be entitled to a trial within a reasonable time or to be released pending trial. In fact, many defendants who turned themselves in after the judge ruled for their arrest were not questioned by the judge for hours and were kept waiting with their attorneys at the courthouse until the judge decided to show up. There are numerous other articles of the convention that may have been violated by the Erdoğan government, such that more space would be needed to enumerate them. Surely, more infringements will be witnessed until such time that the rule of law and democracy is fully restored in Turkey.
Erdoğan thinks he can simply circumvent the ECtHR rulings by paying the fine, as he said publicly on one occasion. The Strasbourg court has made it very clear in its case law that it considers the most appropriate form of redress to be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should the applicant so request. All these officers who were victimized by the Erdoğan government will not only get compensation for damages but will also seek a renewal of their trials. Article 311 of the Code on Criminal Procedure (CMK), which details Turkey’s retrial procedures, already allows this.
The ECtHR, just as it deemed the DGM to be unfair and unjust courts through various judgments, will likely consider Erdoğan’s creation of the Penal Courts of Peace to be in a similar vein. Turkey had to abolish the DGM to avoid shame in 2004 and will have to do the same for Erdoğan’s courts to clear the country’s name.
abdullahbozkurtblog 