Observation report on the trial of four prosecutors and one police officer on 1rst October 2015 in Ankara, Turkey.

To Medel

Dear Mr President,

By an authorizing and representative letter of the President of Medel, I was designed as observer on the trial of four prosecutors and a police officer on 1rst of October in Turkey, after a relevant request of YARSAV.
For this purpose neither pertinent documents were provided to me by YARSAV nor had I the possibility to come in contact with the defendants, because of the state authorities’ orders which forbid such a contact to persons which are not in narrow contact with the defendants. Moreover it is known that a previous attempt to take a relevant permission was rejected. On the other hand there was no opportunity given to contact the state authorities, taking into account that there was not such purpose of this trip. Under these circumstances the sole source of information was YARSAV. This statement does not challenge in anyway the trustworthiness of the aforementioned judicial union nor is considered in any way as a consideration of it to be partial. On the contrary I think that Medel has to pay attention and entrust its members. It is just mentioned as a component of fullness of this report.
The case refers to a search of vehicles for which there was information reached the prosecuting authorities that it contained illegal cargo. The tracks were traveling towards Syria. The police stopped the tracks for checking, but the responsible staff denied the control and resisted to it. So they were arrested and the prosecutor’s office was informed. Four prosecutors rushed in place and revealed the content of the tracks to be ammunition, albeit the order of their hierarchy to stop the investigation. The transportation of immunity through the Turkish-Syrian border seems to be illegal at time of the incident. After this search and record of the incident the responsible people accompanying this cargo revealed their identity, to be secret agents of the State (MIT). Upon this statement they were released and the tracks continued their trip freely to their destination.
Instead of charging the accompanying persons of these tracks the officers that put through this search were prosecuted. It is about the former Adana Chief Public Prosecutor Süleyman Bağrıyanık, former Adana Deputy Chief Public Prosecutor Ahmet Karaca, Adana prosecutors Aziz Takçı, Özcan Şişman and former Adana Provincial Gendarmerie Regiment Commander Col. Özkan Çokay. The above officers are accused that during and because of this formal search they revealed state secrets, undermined the state security and government and of being members of a criminal organization, which are crimes and entail many years of imprisonment for the defendants if found guilty. On this basis, the defendants, four prosecutors and a police officer were arrested and put behind bars five months ago. Besides, they are detained up to now.
We entered the court room of the Supreme Court of Appeal of Ankara, after some difficulties by the security authorities and everything was expected to go on normally, when suddenly the prosecutor raised an allegation of state security and requested from the court to order the emptiness of the room and the conduct of proceedings in camera. This request seemed to surprise the defendants, who denied the request substantially. The defense challenged the existence of a state secret and asked from the Prosecutor to define the notion of state security. In this request there was no response. The defense insisted that a trial in camera would infringe the Constitution, the art 6 of the ECHR and the criminal procedural law. After a procedure which did not stand for more than a few minutes the Court decided unanimously to close the doors of the court to the audience with not any justification. Sole the defendants and their lawyers stayed and all the others were obliged to leave immediately the court. Under such conditions, it became impossible to attend and observe the trial and prima facie the purpose of this trip was nullified.
On the other hand there was an opportunity appearing to contact and discuss to the people who left the court room. From those discussions I think that very important conclusions can be extracted.
Even if every state has the right to conserve its own secrets, it seems that this is not the fact in this trial. What was supposed to be secret is just the content of the trucks. But this was not a secret at the moment of the trial as the international press (e.g. Reuters) has in many ways published the whole story which can be seen still in the web. I suppose that there is just the effort of the regime that imposes such an attitude, in order to cover the transport of weapons to Syria for political reasons.
Anyway this supposition of disclosing secrets is contradictory to the indictement. More specifically if the indictement was correct, the state secret was revealed, which has as a consequence that there is no possibility to make it secret again. On the contrary, if the state secret was not disclosed there is no criminal action. Anyway, as foretold the fact that the prosecutors caught the trucks containing ammunition was published very much in Turkey in the press and in the web. The supposition that the Turkish State is trying to keep secret the formal report of the defendants, which testifies with no doubt the content of the tracks seems week as a base for the order of conducting the trial behind closed doors before the principle of proportionality. In other words, the covering of a secret which is no more a secret but a fortiori was a criminal action is not enough ground to conduct the trial in camera before the right of the defendants to be tried under public control, taking into account the denial of this order from the part of all defendants. It should also be taken into account the political atmosphere in Turkey now, in which many citizens contradict the regime’s practices and many citizens are prosecuted for undermining the government, insulting the President of the Democracy and many journalists are prosecuted for publishing incidents unfavorable for the Government. As it has already been stated by Simone Gaboriau, the tension between the Executive and the Judiciary in Turkey is taking already the form of a civil war. I have the impression that in a democratic state this trial would be showed in screens. Consecutively, it seems that this order to conduct the trial in camera has other purposes of keeping the publicity and transparence out of the court.
Much more facts are underlining this conclusion of lack of independence of this court:
1.The consistence of the court is challengeable as its members are designed by the sole will of its Chair and not upon objective criteria. More specifically the specific chamber which adjudicates the very case has ten members. Between them the President chooses alone four. This observation is strengthened by the fact that all the system of designation of judges has the same characteristics. As it is explained to me by the Turkish colleagues, the HJC which nominates judges in their positions is controlled in its majority by the President of the Republic. In its turn the HJC controls the plenary session of the Supreme Court, which designates the Chair of each chamber. Anyway, the impartiality of the HJC in Turkey can be challenged by the additional fact that members of YARSAV are consecutively transferred to remote destinations, without any rational ground. In Turkey the HJC has the competence to relocate judges at any time, even without their will, which is contradictory to international standards.
2.This way it becomes obvious that there is great possibility that the principle of the natural judge is infringed. In those facts must be added that some of the members of this court are founders of the Association of Judicial Unity (YBD), which is supported by the Executive and it seems that it is founded specifically to compete unfairly YARSAV. In a very short period of time, a great part of the Turkish Judiciary became member of this union, many of them pressured by the hierarchy. Even 300 members of YARSAV, out of 1700, left it and became members of YBD.
3.The defendants did not receive the notified to them indictment in its totality. The content of the tracks is not mentioned and some documents which support the accusation and are part of the appendix of the indictement are not notified to the defendants. This way the accusation is not sufficiently defined.
4.The defendants are denying the accusation, as they are stating that there was not in those trucks any document of the State Security Council, issuing secrecy order for reasons of public security. Such a document seems not to appear between documents which were notified to the defendants. Surprisingly, the secret agents that were conducting the trucks did not show their ID to the police officers nor to the prosecutors. They provided it later and after the search without any excuse. This issue can be explained just by the fact that the cargo was illegal.
5.A lawyer of the defendants underlined to me some irregularities, which were raised by the defendants during the preliminary procedure and the competent organ did not replied to them during the five months of their detention. It is mentioned that the trial could not start without the decision of this organ. Furthermore, the defendants are complaining that during the preinvestigation procedure phone records were taken over their telephone connections illegally. Those records do not include the content of the discussions made by them but just the names of correspondents and phone numbers. The indictement is based upon their innumerous contacts with many state agents. This reasoning is denied by the defendants by the allegation that beside being very general as ground of accusation, they were investigating cases of terrorism, with the reasonable consequence to be obliged to contact and cooperate with many state agents. Besides, the HJC investigating a fact is not entitled to ask someone to be arrested, as if it was a prosecutor, but in this case they did it illegally. Except this, a secrecy order can be issued without concrete evidence but not just upon suspicion, which is the case. Up to now there was no secrecy order. If it was such an order, even the prosecutor would not be entitled to have access to all documents, as he had up to now.
6.More important is the fact that prosecutors, as judicial officers, are not ex officio suspects to escape and thus it is inexplicable why they were deemed detainable. Even if the Turkish law is unknown to me about this very issue, I suppose that judicial officers should enjoy some respect even forbearance by their authorities as presumably decent citizens. My opinion is that the bare suspension of their duties was more than enough to deter them from committing new crimes as the indictment is narrowly related to their duties. The custody of all of them with no exception is at least suspect to me of pursuing other purposes of political expedience.
Beyond all this legal staff, I feel obliged as a judge to underline the human part of this trial and to express what my conscience is dictating to me, that very severe infringement of the human rights are occurring in Turkey at this moment. Facts that should be considered as very important infringement of the judicial independence in the free world are completely silented in Turkey. YARSAV is obliged to bring to us just the most important cases or even some of them passing by the less important. As an example I mention that at the day of my departure another prosecutor was put on trial with similar accusations. I met him and he was calm and sober. He asked of no support of any kind. All these people are brave men, deserving much respect by the free world who is not in the position to share the agony of the Turkish people and the harsh environment in which they are living.
After the order of the court to conduct the trial in camera, we stayed till the afternoon in the court yard, waiting weather the court would change its mind. But the trial continued with the doors closed and it was postponed in the afternoon for the next day.
So I talked to the Media, with many reserves I admit, about the trial, the order to conduct the trial in camera and the whole fact. Then I talked to some parliamentarians who came to support the defendants. One of them expressively shouted : law is dying in Turkey. Talking to the relatives of the defendants, I met simple and honest people. They discussed with dignity and much sobriety, staring at me with hope. They said that they had never attended a court and it was obvious for a judge that they were sincere. They said that their parents were poor peasants who helped their offspring to study with many personal sacrifices and showed me a picture with the father of one of them, a simple peasant of Anatolia. They insisted that their conscience and honor did not let the defendants infringe their sermon to their homeland even if their status is in full danger and the fact that it is not easy at all in Turkey to achieve to pass from one social class to another. I shall never forget their eyes full of hope of my presence and crush by the strike of fate but full of dignity. I shall never forget especially the eyes of the wife of one of the defendants full of endurance. A sole complain did not came out of their mouth but their eyes overflowed of the sentiment of injustice and pain. In addition I was informed that the child of one of the defendants which is disabled is not able to visit him in jail and another child of them who was a candidate for the University failed to the exams.
Then I met the representative of 37 judges who were recently deprived by their title of judge. They were accused of cheating during the exams to become a judge. He complained that the justification of this decision of the HJC was based on vague allegations. Besides, their case had been adjudicated definitively before by the competent administrative court which decided on their favor. Surprisingly, he learned from the web that he was no more a judge and not by a formal justification. He gave me a copy of this decision and I admit that it is based on suppositions of an IT and not on facts. He was very frustrated and disappointed and told me that there is no freedom in Turkey and he will be obliged to leave his country.
Eventually I met the representative of 49 judges who were suspended without rational ground and without any defense. After one and a half year of investigation they were given just ten days to prepare their defense before the disciplinary chamber of the HJC. It is underlined that the file consists of 107 dossiers. They have for sure that these proceedings will lead to their criminal prosecussion.
My suggestion is to intensify our support to YARSAV by all means and more specifically to judges who are unjustifiably put on trial.

October 5, 2015
Dr George Almpouras