Turkey’s top judicial council members were jailed because they ruled that prosecutors who investigated the Turkish intelligence agency’s illegal arms shipments to jihadist groups in Syria were justified under the laws and regulations that were in effect at the time.
Three members of the Board of Judges and Prosecutors (HSK) — the country’s top judicial body, which oversees the conduct of judges and prosecutors and decides on assignments, promotions and disciplinary actions of members of the judiciary –opposed the government of President Recep Tayyip Erdoğan for punishing the Turkish prosecutors who exposed the unlawful shipments to Syria.
Ahmet Berberoğlu, Şaban Işık and Kerim Tosun, three leading jurists who had run on independent tickets for election to the HSK in 2014, wrote a dissenting opinion in the 3rd Chamber arguing that the prosecutors who exposed the illegal arms shipments acted within the confines of the law. They said the mandate provided to the prosecutors under the law at the time justified their actions in investigating agents of the National Intelligence Organization (MIT). They highlighted the fact that intelligence operatives were not duly authorized to conduct such an operation on the Turkish-Syrian border and that they failed to present any official document to prove the operation was approved through proper channels when asked by the prosecutors.
In two separate incidents that took place on Jan. 1 and Jan. 19, 2014, Turkish prosecutors intercepted arms-laden trucks that were bound for Syria. The shipment was escorted by the Turkish intelligence agency, although there was no official authorization as required by Turkish law. Immediately after the exposé, the prosecutors were sacked, reassigned and later arrested and tried on fabricated charges of espionage.
The Erdoğan government also orchestrated an investigation into five Turkish prosecutors who had been working in Adana province and were involved in investigating illegal arms shipments to jihadist groups in Syria. The prosecutors targeted by the government were Süleyman Bağrıyanık, the chief public prosecutor in Adana province; Ahmet Karaca, the deputy chief public prosecutor; Aziz Takçı, a public prosecutor; Özcan Şişman, a public prosecutor; and Yaşar Kavalcıoğlu, the chief public prosecutor in the Kırıkhan district of Adana province.
In a well-articulated dissenting opinion, HSK members Berberoğlu and Işık wrote that the Venice Commission of the Council of Europe warned Turkey in its 2011 opinion, saying that “there might be risks of indirect interferences, since the terms, which describe the preconditions justifying disciplinary sanctions, are very broad and often vague. This leads to the risk that the disciplinary power could be used to sanction a judge whose judicial decisions are disliked, without explicitly referring to such a motive.”
They also maintained that a 15-article bill on the National Intelligence Organization (MİT) that was hastily submitted to parliament in April 2014 and subsequently passed into law proved that when Turkish investigators probed the trucks filled with arms, MIT had no power to transport arms and the prosecutors had every right to investigate the claims of arms shipments to al-Qaeda and the Islamic State in Iraq and the Levant (ISIL). After the scandalous exposé, Erdoğan rushed to parliament to suggest a series of amendments to give the intelligence agency more power and immunity from prosecution. The new law stated that if prosecutors receive a tip about MİT officials or affiliates, they must initially seek the organization’s opinion about the authenticity of the tip. If MİT says the tip concerns a responsibility or an operation of the organization, then prosecutors will not be able to launch an investigation. In addition, prosecutors will not be able to launch investigations into claims against MİT officials coming from whistleblowers.
The amendments allowed MİT to conduct operations against possible overseas threats designated by the Cabinet. According to the law MİT will not bear any responsibility for such operations; the entire responsibility falls on the political power in the country, namely the government. Also, MİT agents operating under an assumed identity will not be held accountable for their activities, and MİT agents who infiltrate terrorist organizations will have no criminal liability for crimes committed while under cover.
The bill also authorized MİT to conduct wiretaps without a court order. In addition MİT officials will only be tried at a high criminal court in Ankara, according to the amendments, which means the government can exert more control over courts in the capital.
Tosun, another member of the HSK, wrote a separate dissenting opinion advocating the view that Turkish prosecutors had to investigate a tip that alleged illegal arms were being shipped to terrorist groups. He said prosecutors would be guilty of dereliction of duty if they were to ignore a credible tip received by law enforcement agencies in the border areas.
Nevertheless the decision to allow a witch-hunt investigation into the Turkish prosecutors who had done their jobs was approved by four to three on Dec. 23, 2014. The decision came after the government took control of the HSK in the Oct. 12, 2014 elections by pouring in cash and lobbying intensively for partisan members that ran on the Judiciary Platform (YBP), a government list. The HSK election dealt a huge blow to the separation of powers in Turkey given that other checks and balances — such as the legislative branch and the media — were already largely under government control.
Eight out of 10 newly elected members of the HSK, which had a total of 22 members, were from the YBP. As another seven members of the board are selected by the government, according to the government-endorsed bill that became law, the government-backed group acquired the majority in the judicial council. In addition to the YBP, members of the Judges and Prosecutors Association (YARSAV) and independent candidates run for seats in the HSK.
Justice Minister Bekir Bozdağ traveled across Turkey to seek support for HSK candidates close to the ruling Justice and Development Party (AKP) government. Even on election day, Justice Ministry Undersecretary Kenan İpek was sitting with Ankara Chief Public Prosecutor Fethi Şimşek and YBP candidates at the courthouse all day long, exerting pressure on the judges and prosecutors who came to cast their votes. Then-Prime Minister Ahmet Davutoğlu said in televised remarks that if a group of judges not supported by the government were to win the top HSK seats, it would will be tantamount to a “coup d’état in the judiciary.”
AKP parliamentary group deputy chairman Mahir Ünal went further by publicly declaring in September 2014 that the AKP would not respect the election results if the government lost in the HSK elections. Erdoğan also drew public ire for his remarks on the elections: “As the head of state, naturally I will have a plan B or plan C, according to the results [of the HSK elections].”
Independent candidates and candidates affiliated with YARSAV faced smear campaigns by pro-government media throughout the election campaign of 2014. Chief Public Prosecutor Hüseyin Baş, who filed a motion against the justice minister after the minister asked him to cover up a corruption investigation in İzmir, announced that he had given up his candidacy for membership in the HSK due to a “cruel campaign” that was carried out against some candidates. Baş wrote that the elections had turned into ugly and cruel campaigns for candidates who were not supported by the government.HSK_opiniom
Independent members of the HSK were dismissed and arrested by the Erdoğan government on July 20, 2016 under a state of emergency declared after a false flag coup bid on July 15 of that year. They were arrested, tried and convicted on fabricated charges and sentenced to lengthy prison terms. Berberoğlu, who served as an HSK member between 2010 and 2016, had been a judge since 1994. He remains in prison pending trial and faces up to 15 years if convicted. Işık was convicted by the 9th Chamber of the Supreme Court of Appeals, which is totally under government control, on terrorism charges and sentenced to 10 years in prison in December 2018.
Tosun, who was released in November 2016 after he agreed to testify against his colleagues in the trial under pressure from the government, was convicted in February 2019 and given a lighter sentence of two years, nine months and 22 days in prison. The sentence was commuted for time served. In the meantime, all the Turkish prosecutors who investigated the illegal arms shipments to jihadist groups in Syria remain in prison as of today.