Court files criminal complaint against lawyer Kozağaçlı for demanding recusal of the judge

19 March 2019
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Cansu Pişkin, Evrensel
Photo Credit

İstanbul - Cansu Pişkin, During the trial where Progressive Lawyers’ Association (ÇHD) and People’s Law Bureau (HHB) members face terrorism charges, the court ruled to file a criminal complaint against lawyer Selçuk Kozağaçlı, who is tried whilst in detention, for the statements he made during today’s hearing.  

Progressive Lawyers’ Association (ÇHD) and People’s Law Bureau (HHB) were shut down with a decree-law during the state of emergency in 2016. The third hearing of the trial where 20 lawyers who were members of these organizations, of whom 6 are detained, face “managing a terrorist organization” and “membership in a terrorist organization” charges resumed at the courtroom in the Silivri Penitentiaries Campus in Istanbul. Detained lawyers Selçuk Kozağaçlı, Engin Gökoğlu, Aycan Çiçek, Aytaç Ünsal and Barkın Timtik were present in the courtroom as well as lawyers who are tried without detention, Ahmet Mandacı, Zehra Özdemir and Yaprak Türkmen. There was a big turnout for the trial. Among the observers were People’s Democratic Party (HDP) MP Musa Piroğlu, Republican People’s Party (CHP) MP Mahmut Tanal, lawyers from the European Democratic Lawyers (AED) and the European Association of Lawyers for Democracy & World Human Rights (ELDH); lawyers from Italy, Belgium, Germany, France, and Greece. Today was the second session of the third hearing; hearings of this trial take place in multiple days. During today’s session, defendants requested the recusal of the judge. Presiding Judge Akın Gürlek kept interrupting the statements while they were presenting their requests and said, “You are accusing the court! Keep talking about your request for the recusal, do not accuse the court. Otherwise, I will have to turn off your microphones.”

“Erdoğan has intervened in the Soma case”

Detained lawyer Behiç Aşçı noted in his statement that the court is violating the law with its proceedings. Arguing that the court has clearly shown that it cannot remain impartial by ruling to continue the detentions as a judicial measure, Aşçı requested the recusal of the entire panel of judges: “While witness Berk Ercan was being questioned, you stated that DHKP-C (Revolutionary People’s Liberation Party/Front) has some influence over certain cases and asked us our involvement with such cases. You probably insinuated the Soma massacre case. The witness could not answer because he could not make anything out of your question. Yes, there was some involvement in the Soma case but not on our part. Recep Tayyip Erdoğan intervened in that case personally by saying ‘It’s in the nature of this profession’ in the aftermath of 301 mine workers’ death. Following this sentence, Presiding Judge who was on that case was relegated to another post under the guise of a so-called promotion. If you think that we intervened in some other way only because we did not let the murderer of those 301 workers walk away free, we would be proud of that accusation. Why did you ask Berk Ercan about Soma? I do not know if you have any personal ties with the Soma bosses but we agree with your point on how there has been an involvement in the Soma Massacre trial.” Detained lawyer Barkın Timtik also pointed out that the panel’s decision and inclination have been evident from the beginning and requested the recusal of the entire panel of judges.

“Secret prosecutor”

Lawyer Aytaç Ünsal, who is tried whilst in detention, stated that the case is based on a fictitious script instead of truth. Ünsal added: “Witnesses are like a jukebox, you put a coin in and they start singing whatever song you want. This case is already dismissed.” Ünsal also requested the recusal of the entire panel. Lawyer Engin Gökoğlu stated, “You are going through with a proceeding that you do not believe in. We haven’t been able to see the face of the Prosecutor who had presented the opinion as to the accusations against us. He turned into a secret prosecutor at this point.” Aytan Çiçek noted that the case is based on unfounded allegations and said, “The file states that I am a fugitive. I have been detained, I am right here!”

“The court disregarded its own existence”

Lawyer Selçuk Kozağaçlı, who is also tried whilst in detention, reminded the Presiding Judge that the requests for the judge’s recusal would have an accusatory tone by nature as he kept interrupting the defendant’s recusal during these requests. In his defense, Kozağaçlı said the following statements: “I do not know you personally, but I will accuse you with crimes as they are listed in our Penal Code. If the Prosecutor can identify these crimes, he should file an application to the office he works in. I wouldn’t have believed the things that happened here if I had not seen them with my own eyes. For the first time in my life, I’ve seen a judge who had the clerk write down ‘Everything has been completed during the preliminary investigation.’ By uttering such statements, you have disregarded your own existence. It is impossible for a panel of such foolish courage and heedlessness to conduct legal proceedings in a competent manner. I reject you! You asked the Prosecutor for his opinion for three times. When the Prosecutor refused to produce an opinion, they removed him of duty and assigned a secret prosecutor. This is a first in the history of our republic; this practice goes beyond being partial and revealing one’s side. Even Ministers of Justice Cemil Çiçek, Bekir Bozdağ, Abdülhamit Gül couldn’t have imagined such a method, they would tell you: ‘You need to listen to them before rejecting their demands.’ You reject demands without even listening or formally receiving them. You need to give the floor, listen to the demands, and then reject them.”

“There has been forgery of at least 20 documents”

Kozaçağlı said to the Presiding Judge Gürlek, “Our lawyers have repeatedly noted that the witnesses who have been called were clearly lying, they kept saying that the report on the digital materials were in fact not a report. These claims have been well documented. I file an official complaint with the Prosecutor for you have unlawfully called a lying witness to the stand with the law enforcement’s cooperation by using your title as the Presiding Judge of the 26th and 37th High Criminal Courts and a Criminal Court of Peace judge, which is a crime under the Turkish Penal Code. I have already filed a complaint with the Supreme Board of Judges and Prosecutors (HSK) but I will file another complaint about you again. I believe that you are a member of a terrorist organization.” Upon these remarks, the Presiding Judge said that he would turn the microphone off. Kozağaçlı continued: “You have established the sentence in your head, even announced it. We play the pools about the results, there is an ongoing bet about who will get 11 years… Even if you believe that all the evidence has been collected during the preliminary investigation, you cannot state such a thing in the official record of a trial hearing. We argue that there has been forgery in at least 20 documents, you cannot deliver a judgement before clarifying these points.” After these remarks, Kozağaçlı’s microphone got turned off. Following this, lawyers and the audience protested against the court by applauding. The Presiding Judge ordered the detained lawyers to be taken outside the courtroom. The panel gave a 20-minute break while also ordering the defense lawyers to be taken outside. Detained lawyers and their defense counsels were taken outside the courtroom while chanting “ÇHD cannot be silenced.”

“We demand justice”

Following the break, only Ahmet Mandacı and Zehra Özdemir, lawyers who are tried without detention, were let inside the courtroom. Mandacı and Özdemir stated that they wouldn’t present their defense as to the accusations since their defense lawyers were not inside the courtroom. Mandacı and Özdemir requested the judicial control measures to be revoked. At this moment, the audience members started to shout out, “Where are the lawyers who are tried whilst in detention? We demand justice! We reject your authority.” Ordering the audience to leave the courtroom, the Judge gave a lunch break.

Lawyers were not let inside the courtroom

In the afternoon session, the judge let all defendants (lawyers who are tried whilst in detention and others), members of the press, MPs and representatives from international organizations. However, the judge did not let defense lawyers and audience members inside. In response to the court’s attitude, defense lawyers began punching the courtroom door and shout out “the defense has not and will not be silenced.” Lawyers who are detained also noted that they cannot go through with the legal proceedings without their defense counsel and left the courtroom as they chanted “Our right to defend ourselves cannot be violated!” The court gave a ten minute break.  

Criminal complaint about the lawyers

While the courtroom was emptied, detained lawyer Aycan Çiçek’s mother wanted to enter the courtroom, saying “I want to see my child.” The mother who reacted to the court was carried outside the courtroom by the gendarmerie officers. At this moment, lawyer Bahattin Özdemir entered the courtroom and objected to the court’s decision. Following the brief break, the court announced its interim rulings in the absence of the lawyers. The court decided to file a criminal complaint against lawyer Bahattin Özdemir for entering the courtroom and allegedly insulting the panel of judges, the court also ruled to ban Özdemir from tomorrow’s session. The court also decided to file a criminal complaint about defendant Selçuk Kozağaçlı for the statements he presented during today’s session. The court rejected all demands for their recusal, arguing that such demands aimed to drag the proceedings. The trial was adjourned until 10 AM tomorrow to continue with defense statements.

“Right to counsel was violated”

The group of international lawyers who monitored the trial (from the European Democratic Lawyers (AED), the European Association of Lawyers for Democracy & World Human Rights (ELDH), and lawyers from Italy, Belgium, Germany, France, and Greece) held a joint press statement following today’s hearing. They noted that they’re extremely worried about the lawyers who stand trial, emphasizing that a legal proceeding cannot take place in the absence of lawyers, that this violates international conventions. The lawyers stated that the principle of an independence judiciary, the right to a fair trial, and the right to counsel were gravely violated and that the imputed crimes are not valid within a legal framework. They added that they are worried that democracy’s fundamental principles are discounted.