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AUGUST 5, 2016 1:01AM EDT

Turkey: Judges, Prosecutors Unfairly Jailed

Pretrial Detention, Unfair Dismissals, Asset Freezes Follow Failed Coup

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Members of police special forces keep watch from an armored vehicle in front of the Justice Palace in Ankara, Turkey, July 18, 2016. © 2016 Baz Ratner/Reuters

(Istanbul) – Turkey’s courts have placed at least 1,684 judges and prosecutors in pretrial detention in the aftermath of the failed July 15, 2016 coup, Human Rights Watch said today. They are detained on suspicion that they are members of a terrorist organization or were involved in the coup attempt. Some lawyers have been reluctant to represent the judges for fear that they would be tainted by association.

In cases Human Rights Watch examined, decisions to arrest and detain someone pending investigation appear to have been made simply because their names appear on a list of alleged suspects, or because of alleged associations with a terrorist organization and “national security threats.” The authorities have presented no evidence in courts to substantiate any alleged criminal conduct by those arrested.

“Jailing judges without even the pretence of due process will cause profound damage to Turkey’s justice system for years to come,” said Emma Sinclair-Webb, Turkey director at Human Rights Watch. “Bypassing the rule of law is no way to protect it.”

Under human rights law, in determining whether to keep anyone in pretrial detention, courts must, at a bare minimum, have enough evidence to establish a reasonable suspicion that the person committed an offense. To justify an extended period of detention, courts need evidence of specific facts and personal circumstances relevant to the accused justifying the detention, and cannot rely on what the European Court of Human Rights has referred to as “general and abstract” reasons for detention.

Under a July 23 government decree, judges and prosecutors “assessed to be members of terrorist organizations or a structure, entity or groups that carry out activities that the National Security Council has ruled are against national security or assessed to be in connected or in contact with them” will be permanently discharged from their posts and banned permanently from practicing as a judge or prosecutor. A July 31 court decision freezes the assets of 3,048 judges and prosecutors under investigation.

The purge of judges and prosecutors comes in the context of the widespread crackdown on alleged supporters of the US-based cleric Fethullah Gülen, whom the government accuses of organizing the failed military coup. The Gülen movement, known for its network of schools in Turkey and internationally, was the erstwhile ally of President Recep Tayyip Erdoğan and the ruling Justice and Development Party (AKP) government.

Following corruption allegations implicating government ministers and Erdoğan’s own family in December 2013, the government in 2014 embarked on dramatic moves to demote and discharge the alleged followers of the Gülen movement in the judiciary, police, and bureaucracy. The arrest of thousands of judges and prosecutors as well as police officers since July 15 intensifies the government’s efforts to purge those it suspects of connections with the movement that it labels as a terrorist organization.

On July 16, the day after the attempted coup, the Higher Council of Judges and Prosecutors issued a list of 2,745 judges and prosecutors who were to be suspended on the grounds that they were suspected of being “members of the Fethullah Gülen Terrorist Group/Parallel state structure (FETÖ/PYD).” The council is charged with administering the justice system, including the appointments, assignments, and oversight of judges and prosecutors. Versions of these lists were published in the media that day, and police began to arrest those named. In addition to the 2,745 judges and prosecutors from lower courts, the investigation includes 48 members of the Council of State, Turkey’s highest administrative court, two members of the Constitutional Court, 140 members of the Court of Cassation, and four members of the Higher Council of Judges and Prosecutors.

At a July 19 news conference, Mehmet Yılmaz, the deputy head of the Higher Council, indicated that the Ankara prosecutors’ office had issued a decision to detain 2,740 judges and prosecutors.

“An investigation has been going on for two years,” he said. “The number of 2,740 judges and prosecutors is not a figure that has come out of the blue. This investigation is now taking shape. The investigation will continue. The number may increase, and quite the reverse there may be innocent ones. It will proceed fast. We will work with all our power within a legal framework without making anyone the victim.”

On July 24, Yılmaz compared the Gülen movement with secretive organizations like the Freemasons, the Illuminati, or the Catholic Church’s Opus Dei. The attempt to draw comparisons with other movements may reflect the difficulty the Turkish government has faced in attempting to explain its concern about the Gülen movement to European and US governments and media.

The Minister of the Interior announced that, by July 27, 1,684 judges and prosecutors had been jailed.

In a 2014 report Human Rights Watch raised concerns about lack of independence of the judiciary in Turkey and about judicial decisions that appeared to be politicized and open to influence by powerful factions. But the solution to those concerns is to strengthen the independence of the judicial oversight body and judges, not to bring them under tighter executive control, as the government has done in the past two years, Human Rights Watch said.

“The government is right to be concerned if judges act on behalf of other interests besides justice, but the judiciary needs to be independent and apply the law fairly without fear or favor,” Sinclair-Webb said. “Genuine concerns about politicized decision-making in Turkey’s courts can’t be solved by a witch hunt against judges and prosecutors.”

Arrests of Judges, Prosecutors

Human Rights Watch interviewed three judges, two lawyers, and two spouses of detained judges and prosecutors about the detentions, the evidence presented against detainees, the interrogations, adherence to procedure, and the courts’ reasoning for placing them in detention.

Human Rights Watch also examined the records of prosecutors’ interrogations of three judges and court decisions ordering the detention of eight judges and two prosecutors. Beyond those interviewed, many people were unwilling to speak about the details of the detentions and legal process for fear of reprisals. For the same reason, all names and locations of judges, prosecutors, their lawyers, and spouses interviewed are withheld for their protection.

Taken to Court Without Evidence of Individual Criminal Guilt

Human Rights Watch documented several cases in which judges and prosecutors were subject to criminal proceedings despite the absence of any evidence establishing criminal wrongdoing.

A judge who had been held by police, detained by a court, then released on appeal a few days later, told Human Rights Watch:

The day after the attempted coup we were informed by an SMS message from the Higher Council of Judges and Prosecutors that our annual leave was cancelled. I bought a bus ticket and travelled back to the province where I work. I was detained when the police checked everyone’s IDs. The peculiar part was that there was an order to capture me but not a warrant to detain me. The police were puzzled by this and it meant that I was held at a police station for many hours unlawfully. If there isn’t an order to detain someone then it’s an unlawful detention.

When brought before the prosecutor I asked what the evidence against me was. He said there was a list of names from the Higher Council of Judges and Prosecutors and a secrecy order on the investigation. I said, “What do you mean there’s a list, what about evidence against me personally?”

A lawyer for another judge said:

My client was told he was suspected of [involvement in] an attempted coup and membership of the “Fethullah Gülen terrorist organization (FETO/PYD).” I had a chance to talk to him for a few minutes in the corridor of the courthouse. The prosecutor said they were expecting a report from the Higher Council of Judges and Prosecutors but no such report came. My client was not asked a single question of any relevance to the crimes he is suspected of.

When we got before the judge, that judge said openly to everyone in the hearing:

“There is no limit to the number of calls we’ve been getting from morning on. We are under incredible pressure. In this country they don’t let you be a judge. That’s the way it’s always been.”

The 13-page written decision putting my client and others in pretrial detention appeared 10 minutes after the judge had pronounced it. It was clearly entirely drawn up in advance and contained no evidence of individual guilt.

Guilt by Association

In each of the criminal investigations into judges and prosecutors that Human Rights Watch has examined, the prosecution’s investigation seems to be based only on alleged association.

One judge who was released said:

The prosecutor had a list of 10 or 15 questions along the lines of: which high school and private prep school [to supplement state education system] did you go to; where did you live during high school and university years; were you encouraged not to vote for the AKP during the elections; which candidates did you support in the Higher Council of Judges and Prosecutors election in 2014; during the council election were you on duty and there when the votes were counted? Did you make election propaganda for any name during the election period? Do you send your children to any prep school connected with the FETÖ/PYD? Have you participated in programs at your children’s school? Which school did your wife go to? Have you ever paid money as charity? Beyond that I was informed there was a secrecy order on the investigation.

A lawyer who is representing another judge mentioned that his client was asked many of the same questions. A second court had turned down his appeal against his client’s imprisonment. He said:

I have worked as a lawyer for many years. I lived through the September 12, 1980 coup and the martial law courts that were set up in 1978 before the coup. In the martial law courts where the big trials of the leftist groups and the trade union confederation DİSK were held I never encountered such abstract and unfounded charges as these. There really was nothing like this even in that period!

The wife of a judge who was held by police and then placed in pretrial detention said:

I was not present when the police came to detain my husband from our home. He was among around 50 who were detained from the lodgings where we lived on July 16. The police searched our home and took away my computer. A neighbor told me that they were all taken down to the street below and made to wait in an armored vehicle until everyone had been detained.

I was able to speak to my husband very briefly on the lawyer’s phone after he was questioned. My husband told me that there was a two-page list of questions in front of the prosecutor who interrogated him and the prosecutor was following that list and asked questions like, “Who were you sitting with in the garden of the lodgings where you live on the evening of the coup attempt? What school did you go to?”

Decisions to Detain Judges and Prosecutors Without Justification

Human Rights Watch examined court decisions to place eight judges and two prosecutors in pretrial detention. The decisions cited the decision of the Higher Council of Judges and Prosecutors to remove the judges and prosecutors from their positions and to permit a criminal investigation as the reason for imposing the detention and restriction orders.

Flouting the presumption of innocence, the decisions stated that in the Higher Council decision “they were judged to be members of the Fethullahist Terrorist Organization/parallel state structure, which was judged to be a terrorist organization because of the July 15, 2016 attempted uprising.” Formulaic mention of the risk of suspects fleeing, tampering with evidence, plus “the evidence in the file” were provided as the further grounds for imprisonment.

One decision included two pages describing in generalized and highly emotive terms the danger posed by those in the “Fethullah Terrorist Organization” and listed their alleged practices and crimes, with no specific citation of any criminal activity by the affected individuals.

In one case an appeal court overturned a decision to jail a judge on grounds that it was “a disproportionate measure,” that no evidence had been found after a search of the suspect’s home and workplace, that the suspect had a fixed address, and so forth. But in most similar cases, the orders to place judges and prosecutors in pretrial detention have been upheld or an appeal is pending.

Pressure on Lawyers and Limitations on the Right to a Defense

Some lawyers asked to represent judges and prosecutors accused of links to the coup or Gülen movement said they felt pressure not to represent those clients or feared being associated with Gülenists if they did. Given that dozens of lawyers have been detained for alleged association with the Gülen movement in Istanbul, Konya, Izmir, and other cities, concerns about the risk of being associated with the movement are understandable.

The Adana Bar Association on July 26 made a public statement referring to the “fear” and “concern” about possible reprisals felt by lawyers in Adana, the decision by some not to provide legal aid to people detained in relation to the failed coup attempt, and the negative treatment they faced from the police and prosecutors if they did represent the detainees. The statement called on the Ministries of Justice and Interior to remind the relevant authorities of the right of all detainees to a defense, the principles of fair trial, and the presumption of innocence. The bar association stressed the importance of not associating lawyers with the crimes their clients were suspected of committing.

A lawyer said that he agreed to help only because one judge was a relative:

I agreed to help because we are relatives though I have no expertise in criminal law. I certainly don’t want my name published as lawyers are being arrested and heavily pressurized not to take on these cases.

We spent hours waiting for lawyers to turn up at the courthouse to act on behalf of close to 100 judges and prosecutors who had been detained. Many of those appointed by the bar association to provide legal aid to the detainees refused to do so, which is their right, out of fear.

The wife of one judge said: “The lawyer who initially agreed to represent my husband when he was detained later didn’t return my calls. He sent an indirect message saying that a partner of his would take on the case and that he had been threatened and was going to take a break for some time.”

Beyond the issue of pressure on lawyers, in practice there have been restrictions on the right of lawyers to meet with people in police custody and pretrial detention. The restrictions were made law in a government decree on July 27, allowing prosecutors to bar detainees from meeting with a lawyer during the first five days of police custody. A July 23 decree extended police custody to up to 30 days. The July 23 decree had also placed restrictions on the right to private communications with lawyers for suspects in pretrial detention. It is too early to assess the extent to which the restrictions have been carried out, but the wife of one detained judge reported that the first meeting in prison with his lawyer was monitored by prison guards and filmed. She told Human Rights Watch that she was concerned by the restrictions in the July 23 decree:

We were able to visit my husband in prison. The conditions are okay but since it was a “closed meeting” and we could only communicate by telephone from the other side of a glass window we assume that the conversation was monitored because the decree allows for such monitoring. That made us very worried that if we spoke openly restrictions might be placed on our visiting rights. During the first meeting in prison my husband had with his lawyer prison guards attended and the meeting was filmed. Our greatest concern is that pretrial detention will be extended, that our appeal against the detention will be rejected.