Translated from Turkish by Translators For Justice
Press Release Concerning The Pronouncement of the Governorship of Istanbul About the Silivri Trial on August 5th and Concerning the Decision of High Criminal Court No 13, Which Violated the Principle of Openness
1. It has been ascertained that Istanbul Special Court no 13, namely High Criminal Court No 13, ruled that no viewer except MPs and press members is allowed to be in the court in Silivri Prison on August 5th, 2013 and hear the judgment on the case, publicly known as Ergenekon. Istanbul Governor’s Office reported that those who want to go to the location of the trial would violate the Law on Meetings and Demonstrations and measures will be taken against those who still want to go and these measures “will be undertaken incrementally until whichever stage is necessary”.
2. Under the article 141 of the Constitution and Code of Criminal Procedure 182/1, the trial is open to everyone. In order to restrict the openness principle, public safety must be at risk and make this restriction clearly necessary. Even in this case, the judgment and the justification for the restriction have to be announced publicly in an open court. It cannot even be claimed that public safety is under threat in the courtroom established in the middle of a campus of the high-security prison. It means that there are no legal requirements for the restriction of the openness principle of the trial. In fact, the trial’s taking place about 100 km away from the city and in a hall in the prison is also of itself indicative of the violation of the principle by the hand of the government. One of the major reasons behind the series of illegalities in the referred proceedings until this stage is maintained in an environment being far away from public and creating psychological pressure because of prison conditions.
3. On the other hand, on the basis of article 203 regarding “Order and Discipline of Hearing” and continuation of the articles of the Code of Criminal Procedure, the prohibition of the audience excluding certain persons cannot be decided in any way. The violation of the openness principle of the hearing is a contrary application proceeding in an arbitrary manner.
4. The aforementioned unlawful decision of the Court and the public statement of the Istanbul Governor’s Office referring to this restriction create the perception that the governorship and the court are acting together in agreement. However, a precondition for democracy is the presence of the independent and impartial judiciary and the separation of powers. That the governorship not the court pronounced this decision is an extremely unfortunate development that emphasizes the unity of the executive and the judiciary.
5. The press release of Istanbul Governor’s Office constitutes a direct violation of the provision “The Freedom of Travelling” under the Constitution Article 23 as well as the violation of Article 34 which states that “Everyone has the right to hold unarmed and peaceful meetings and demonstrations without prior permission .” According to the institutional judicial opinion of the European Court of Human Rights, blocking and dispersing peaceful demonstrators by using force is a violation of the Convention. Undoubtedly, the governorship must take the necessary measures to ensure the safety of the trial. However, in a constitutional state, the security cannot be provided through prohibition but through solicitous arrangements protecting the fundamental rights and freedoms.
6. Therefore, the illegal decision of the Governor’s Office about the prohibitions as well as their statement regarding use of force against those who want to come to the place of the trial are violations of “Freedom of Expression” in article 10 of the European Convention on Human Rights and the ”Freedom of Assembly” in article 11, intended for the realization of Article 10.
7. All articles of Meetings and Demonstrations Law, no 2911, which are taken as the basis for the decision of the Governorship should be interpreted in the light of the Constitution and the European Convention on Human Rights. Under the Constitution article 90, the provisions against the European Convention on Human Rights should by no means find any scope of implementation.
8. Governor’s Office announcement, which can only be seen in a police state, is a summary of what happened in this case. The Court seems to disclose the judgment secretly and perhaps in embarrassment instead of in public which is how it is supposed to be.
In spite of all the experiences, as the Union of Bar Associations of Turkey, we are still willing to rely on the judiciary. With our explanatory grounds, we consider the call publicly as a task for the court to revise its unlawful decision; for the Governorship of Istanbul to withdraw its statement in the name of democracy, constitutional state and human rights.
Att. Prof. Metin Feyzioğlu
President of Union of Turkish Bar Associations