CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 septembre 2022

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margin-bottom:0pt; text-indent:18.15pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     SECOND SECTION CASE OF BAŞER AND ÖZÇELİK v. TÜRKİYE (Applications nos. 30694/15 and 30803/15)     JUDGMENT   Art 5 § 1 • Unlawful pre-trial detention of judges on suspicion of attempting to overthrow the Government and impair its operation, and of being members of an armed organisation • Failure to comply with a procedure prescribed by law in dispensing with domestic procedural safeguard afforded to judges of a prior authorisation for initiating a criminal investigation • Detention ordered by competent, independent and impartial, specialised domestic court Art 5 § 1 (c) • Lack of reasonable suspicion an offence had been committed at time of applicants’ initial pre-trial detention   STRASBOURG 13 September 2022   FINAL   30/01/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Başer and Özçelik v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro , President,   Carlo Ranzoni ,   Marko Bošnjak ,   Egidijus Kūris ,   Branko Lubarda ,   Pauliine Koskelo ,   Saadet Yüksel , Judges, and Hasan Bakırcı, Section Registrar, Having regard to: the applications (nos.   30694/15 and 30803/15) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mustafa Başer and Mr Metin Özçelik (“the applicants”), on 24 June 2015; the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning the lawfulness of the applicants’ initial pre-trial detention, the alleged lack of reasonable suspicion that they had committed an offence, and the restriction of access to the investigation files; the parties’ observations; Having deliberated in private on 5 July 2022; Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present applications concern the pre-trial detention of the applicants, judges of the 29th and 32nd Istanbul Criminal Courts respectively, at the time of the events, on suspicion of attempting to overthrow the government and impair its operation, and of being members of an armed organisation. THE FACTS THE CIRCUMSTANCES OF THE CASE 2.     The applicants were born in 1969 and 1970, respectively. They were represented by Mr E. Albayrak and Mr Ö. Durdu, lawyers practising in Istanbul. The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye. The background of the case 3.     In 2014 the Istanbul public prosecutor’s office opened seven separate investigations in connection with the Gülenist movement. As part of those investigations, sixty-three suspects (a journalist and sixty-two law-enforcement officers) were placed in pre-trial detention for attempting to overthrow the government and impair its operation, for being members of a terrorist organisation (with reference to the Gülenist movement which was classified as a terrorist organisation by the Turkish authorities and was later described by them as the “Fetullahist Terrorist Organisation/Parallel State Structure” ( Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması ), hereinafter referred to as “FETÖ/PDY”), obtaining State intelligence for political and military espionage purposes, unlawful interception of communications and forgery of official documents. 4.     On 20 February 2015, in the context of an application for the recusal of all the magistrates in Istanbul which had been submitted by the suspects’ lawyer, the 9th Istanbul Assize Court ruled on a jurisdictional conflict between the 32nd and 48th Criminal Courts. It considered that once the 48th   Criminal Court, which at that time was responsible for the referral and distribution ( tevzi nöbeti ) of applications, had forwarded the recusal application to the 32nd Criminal Court, the latter court was required to take a decision (a decision as to a lack of territorial jurisdiction, a decision as to a lack of jurisdiction as regards subject matter, a decision concluding that there was no need for a decision, a decision allowing the application, or a decision rejecting the application). On 4 March 2015 the first applicant, as the judge of the 32nd Criminal Court, dismissed the application on the grounds that the recusal of all magistrates was not authorised, and the lawyer had failed to clearly identify the magistrate whose recusal was being requested. 5.     The Directorate General of Criminal Affairs of the Ministry of Justice (“the Directorate”) was also consulted about applications for recusal lodged with the Istanbul criminal courts by certain suspects. In its opinion of 6   February 2015, the Directorate considered that the provisions of the Code of Criminal Procedure (“the CCP”) relating to the recusal of judges were limited to the trial phase of a case, and the recusal of all judges was not possible. The criminal courts did not have jurisdiction to rule on applications for the recusal of magistrates; the word “judge” in Article 27 § 2 of the CCP, relating to the recusal of judges, referred to the judges of criminal courts of first instance ( sulh ceza hakimi ), but did not refer to the recently created magistrates’ courts ( sulh ceza hakimliği ), and consequently this provision was implicitly null and void. Lastly, at the investigation stage of a case, the decisions to be taken by a judge could only be adopted by the magistrates’ courts, and only the magistrates’ courts could consider objections to those decisions. It was clearly contrary to the CCP for a judge or court other than a magistrate’s court to take a decision on detention. 6.     On 8 April 2015 the Constitutional Court declared inadmissible applications lodged by thirty-six of the sixty-three suspects who were being investigated by the Istanbul prosecutor’s office ( Hikmet Kopar and Others , application nos.   2014/14061). Twenty of the applicants were intelligence officers detained in the context of investigation no. 2014/69722 on suspicion of illegally intercepting communications and falsifying official documents for this purpose. Two of the officers were also suspected of constituting an organisation with the purpose of committing crimes. These officers were suspected of having intentionally dissimulated the identity of the persons affected by the interceptions in the requests addressed to the judges, and of having used the interceptions thus obtained for purposes other than the investigation. They were suspected of having carried out these interceptions in a widespread, systematic and organised manner. The other applicants (sixteen law-enforcement officers) in the case of Hikmet Kopar and Others were detained in the context of investigation no. 2014/41637, opened in connection with offences allegedly committed during the investigation related to an alleged terrorist organisation. The Constitutional Court noted that the communications of the Prime Minister with heads of State and Government as well as the communications of ministers, high-ranking officials and the director of the National Intelligence Agency had been intercepted. It noted that the suspected officers had falsified official documents to carry out these interceptions and had obtained State intelligence for political and military espionage purposes. The Constitutional Court found that the complaints of the individuals concerned were manifestly ill-founded; the complaints were based on the argument that there was a lack of reasonable suspicion that they had committed an offence, a lack of grounds for their detention, and a lack of independence and impartiality on the part of the magistrates’ courts. 7.     On 19 April 2015 a speech by Fetullah Gülen, the alleged leader of FETÖ/PDY, entitled “The Sacred Suffering and the Heroes of Alms” ( Mukaddes Çile ve İnfak Kahramanları ) was published on the website www.herkul.org . The relevant part of this speech translates as follows: “... Some of you suffer and some of you share what you endure, feel their suffering in your soul; [he] stands like a steed [ küheylan ] as to the acts to be carried out, [he] flies like a dove of the woods with the permission and grace of Allah; at this moment it means that they share [their suffering]. Yes, some live as prisoners [in] Medrese-i Yusufiye [1] , and the others sit outside and pray for them: ‘Free them as soon as possible, with ease, my God. Release them and [make] a lot of famil[ies] rejoice with them, forty thousand families, fifty thousand families, one hundred thousand families, perhaps ten million families, my God ...’” 8.     On 20 April 2015 the lawyers for the sixty-three suspects detained in connection with the seven investigations carried out by the Istanbul prosecutor’s office presented applications before the judge of the 29th   Istanbul Criminal Court for the recusal of all the magistrates sitting on the bench of the magistrates’ courts of Istanbul (of which there were ten in total at that time) and requested the release of the detained suspects. The lawyers indicated that the applications for recusal and applications for release which they had submitted so far had been systematically rejected by the magistrates’ courts in identical terms. They alleged that the magistrates’ courts had lost their independence and impartiality, and that the applications for recusal should therefore be considered by the 29th Istanbul Criminal Court. 9.     On 21 April 2015 the second applicant, who was the judge of the 29th   Istanbul Criminal Court, invited each of the ten magistrates’ courts and the prosecutors in charge of the investigations to send in their submissions. 10.     In their response of 22 April 2015, the magistrates’ courts indicated that the applications for recusal had not been handed over to the judges whose recusal had been sought, as provided for in Article 26 of the CCP. They also explained that criminal courts of first instance ( sulh ceza mahkemesi ) had been abolished and that the jurisdiction to take preventive measures at the investigation stage ( soruşturma ) had been assigned to the magistrates’ courts. Moreover, they asserted that the recusal of a judge was only possible at the trial stage. The magistrates’ courts also specified that decisions made by a magistrate’s court could be challenged only by means of an appeal to another magistrate’s court, under Article 268 of the CCP. They also referred to the opinion given by the Directorate on 6 February 2015 (see paragraph 5 above). 11.     The prosecutors in charge of the investigations also responded on 22   April 2015, stating that the criminal courts had no jurisdiction to rule on objections lodged against the decisions taken by the magistrates’ courts or to decide on a detainee’s release. They refused to send the relevant investigation files to the second applicant. 12.     On 24 April 2015 the magistrate of the 7th Istanbul Magistrate’s Court asked the second applicant to submit to him the applications for release submitted on 20 April 2015, arguing that he was the duty magistrate. 13.     In a decision issued on 24 April 2015, the second applicant allowed the applications for the recusal of all the Istanbul magistrates. He firstly indicated that it was his court which had jurisdiction to hear applications filed on 20 April 2015, as he had been on duty. He went on to note that he had a number of documents submitted by the suspects’ lawyers and he felt that there was no legal objection to him deciding on the applications for recusal without having the investigation files, since he had not been called upon to decide on the merits of the cases and, as the suspects were detained, the applications were classified as urgent. 14.     The second applicant also stated that, in accordance with Article   27 §   2 of the CCP, applications for the recusal of a judge of a criminal court of first instance were considered by a criminal court. He added that Law no.   6545 relating to the establishment of magistrates’ courts did not provide for a special provision on the recusal of magistrates, so there was no doubt as to the applicability of the general provisions of the CCP. He therefore found it difficult to agree with the opinion expressed by the Directorate on 6 February 2015 which indicated that Article 27 § 2 of the CCP did not concern the newly created magistrates’ courts and that this provision was implicitly null and void. 15.     As for the possibility of recusing a judge at the investigation stage of a case, the second applicant explained that Article 22 et seq. of the CCP, governing recusal, did not distinguish between the investigation stage and the trial stage. He stated that the applications for recusal in question had been submitted after the hearings in the cases of the persons concerned had been completed, and that they had been detained for three to nine months. He added that, according to the Court of Cassation’s case-law, the right to a fair trial as guaranteed by Article 6 of the Convention also covered the investigation phase. He therefore held that there was no doubt that it was possible to challenge a judge at the investigation stage and that therefore it was difficult to agree with the opinion of the Directorate. 16.     With regard to the merits of the applications for recusal, the second applicant explained that the magistrates’ courts had been established by Law no.   6545, and that following the establishment of the magistrates’ courts, criminal courts of first instance ( sulh ceza hakimi ) had been abolished. He also indicated that immediately after the new magistrates’ courts had started operating, investigations had been opened against the law-enforcement officers held responsible for certain operations, and most of the suspects brought before magistrates had been placed in pre-trial detention. He went on to explain that the process of creating magistrates’ courts had given rise to public debates. According to him, various allegations about the courts had circulated, for example, allegations that these were “project” courts, that the magistrates had been specifically appointed, and that therefore those magistrates were not independent or impartial. 17.     The second applicant considered that the lawyers’ allegations about the impartiality of the magistrates’ courts were based on concrete reasons. Those allegations were a development of: statements by the executive power about magistrates’ courts, reported in the press before and after the creation of magistrates’ courts; certain allegations reported by the press; the refusal of certain appointed judges to accept the office of magistrate; the transfer to different duties of magistrates who had not issued detention orders or who had issued orders for release; the anticipated disclosure on social media of the identity of persons who would be remanded in custody, before and during police operations, in various investigations conducted after the establishment of magistrates’ courts; and the identical and formulaic nature of all decisions made by magistrates as regards the extension of detention. 18.     Once he had allowed the applications for the recusal of all the Istanbul magistrates, the second applicant, under Article 27 § 4 of the CCP, appointed the 32nd Istanbul Criminal Court to rule on the pre-trial detention of the suspects, on the grounds that that court was on duty on 24 April 2015. 19.     On 25 April 2015, the High Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu – “the HSYK”) ordered the initiation of an inspection (paragraph 31 below). 20.     On the same day, ruling on an application by the prosecutor’s office, the 10th Istanbul Magistrate’s Court declared the decision rendered the previous day by the second applicant – allowing the applications for the recusal of the magistrates and referring the files to the 32nd Criminal Court so that it could decide on the applications for release – null and void. The 10th   Magistrate’s Court firstly explained that the 29th Criminal Court hadignored the rules on criminal courts on duty. He then noted that the application of the provisions on recusal was limited to the trial phase and trial courts, and that the magistrates’ courts were not intended to rule on cases; they had been created solely to adopt, at the investigation stage, the decisions to be made by a judge, and to examine objections against such decisions. The 10th   Magistrate’s Court went on to explain that Article 27 § 2 of the CCP concerned judges of criminal courts of first instance ( sulh ceza mahkemesi hakimi ) with judicial powers, and that this provision no longer applied to magistrates’ courts and had implicitly become obsolete. Thus, the 10th   Magistrate’s Court considered that the 29th Criminal Court had decided on the recusal of the magistrates in disregard of substantive and procedural standards, and that its decision was legally ineffective. He invited the 32nd   Criminal Court to forward the applications for release to the Magistrate’s Court on duty. 21.     Also on 25 April 2015, the first applicant, in his capacity as judge of the 32nd Criminal Court, accepted the applications for the suspects’ release, and by seven separate orders he decided to release all sixty-three detained suspects. Regarding his competence to hear the applications for the release of the persons concerned, he noted that the decision of the 29th Criminal Court on the recusal of the magistrates was final. As to whether he could rule solely on the basis of the documents provided by the suspects’ lawyers, he answered in the affirmative. He noted that the dispute was not about the merits of the cases, and that the applications for the release of the suspects should be decided on the basis of the documents provided by the lawyers. The first applicant noted that the files did not contain any evidence of strong suspicions about the commission of the offences of which the suspects were accused. He added that there was no risk of information being leaked or evidence being tampered with, and he considered that the reasons given were not relevant and sufficient. In conclusion, the first applicant considered that the files did not reveal the existence of facts or evidence requiring pre-trial detention, and that there was no reason why the detainees should remain in detention, taking into account the fact that they had permanent residences, the fact that they had surrendered, and their occupation, status, character, morality, wealth and family ties. He therefore ordered the release of the suspects. 22.     Also on 25 April 2015, when deciding on the application by the prosecutor’s office and reiterating the reasons which it had set out in its previous decision (paragraph 20 above), the 10th Magistrate’s Court considered that the release orders issued by the 32nd Criminal Court were legally ineffective and should be considered null and void. In the same decision, the 10th Magistrate’s Court stated that the decisions of the Istanbul magistrates’ courts regarding the continued detention of the suspects were still valid. 23.     In a statement issued on 26 April 2015, the Istanbul public prosecutor considered that the decisions of the Istanbul magistrates’ courts to keep the suspects in pre-trial detention were still valid; the prosecutor took into account the 10th Magistrate’s Court’s decision of 25 April 2015 and considered that the criminal courts had no jurisdiction to rule on pre-trial detention. 24.     On the same day, the Minister of Justice, in his capacity as President of the HSYK, issued a statement. He indicated that according to the press statement made by the Istanbul public prosecutor (see previous paragraph), the 29th and 32nd Criminal Courts had ruled on the applications before them without seeing the investigation files or examining the charges against the suspects or the evidence. The Minister pointed out that consequently two judicial inspectors had begun an examination, which was in progress. He reiterated that in accordance with Article 6 of the Constitution, no one could exercise authority which did not stem from the Constitution; classifying a failure to consider both that provision and the procedural rules relating to competence as judicial activity would be tantamount to accepting impunity for persons holding judicial office. The Minister indicated that the impugned decisions, which he described as an attempt to create legal chaos through courts lacking competence, showed the appropriateness of the decision taken by the HSYK to investigate the parallel structure within the judiciary. He indicated that the use of judicial authority, in an organised and systematised manner, for the purpose of serving illegal interests and objectives and undermining legal security, would receive the appropriate response within the framework of the law. He concluded by stating that any undertaking to undermine public order, legal security or social peace would be doomed to failure. 25.     On 26 April 2015 the Istanbul prosecutor’s office in charge of executing the relevant orders returned the release orders issued by the first applicant to him without executing them, on the grounds that following the issuance of those orders, the 10th Magistrate’s Court had ordered the detention of the suspects on the same day (paragraph 22 above). 26.     On 27 April 2015 the first applicant again referred the release orders to the Istanbul prosecutor’s office in charge of executing the orders, which once again refused to implement them, on the same grounds as before. 27.     On the same day, the first applicant reminded the prosecutor’s office in charge of executing the orders that the release orders issued by his court were in accordance with the relevant procedure, final and not amenable to an objection, and that they should be implemented immediately. 28.     On 27 April 2015 the applicants were suspended from their duties by the Second Chamber of the HSYK (paragraph 40 below). 29.     On 28 April 2015 the 32nd Istanbul Criminal Court (a newly appointed judge) declared the decisions adopted by the first applicant null and void, on the grounds that the criminal courts had no jurisdiction to rule on pre-trial detention. 30.     On 29 April 2015 the 29th Istanbul Criminal Court (a newly appointed judge) declared the decision of the second applicant null and void, on the grounds that the criminal courts had no jurisdiction to rule on applications for the recusal of magistrates. Inspection and examination carried out by the HSYK while the applicants adopted their decisions 31.     On 25 April 2015 the HSYK Inspection Board initiated a general inspection on the Istanbul Criminal Courts after the publication of the news by the press regarding several irregularities, and on the same day an examination ( inceleme ) was launched ex officio . 32.     On 25 April 2015 the public prosecutor took the witness statements of the chief clerk and the clerk of the 29th Criminal Court. The chief clerk explained the duty system ( nöbet sistemi ); she explained that each criminal court was the duty court for correspondence ( muharebe nöbeti ) on one day, and the duty court for the referral and distribution of applications ( tevzi nöbeti ) for fifteen days . She explained that their court had been on duty for correspondence, and therefore it should not have accepted the applications in question and should have transferred them to the duty criminal court for referral. The chief clerk also explained that detention issues were dealt with by magistrates’ courts, and their court did not usually receive cases concerning detention issues. She also explained that the disputed applications for recusal and release had not been scanned and filed with the court registry in accordance with the usual procedure, and she specified that she had not been informed of the filing of the applications for recusal or the decision rendered on 24 April 2015. 33.     The clerk of the 29th Criminal Court explained that their court was on duty for correspondence, and therefore he was only in charge of sending and receiving documents to and from courts in other cities. He pointed out that their court had not received an application for release before. The clerk then explained that it was customary practice for the chief clerk to receive the applications filed with the court, except for important cases. The clerk explained that on the morning of 20 April 2015 the second applicant had come to the court registry and said, “If any application comes in, I want to see it personally.” The clerk pointed out that lawyers had visited the second applicant’s office throughout the day. He also stated that on 21 April 2015, shortly after 5 p.m., the second applicant had called him into his office to hand over the disputed applications, requesting that he scan them and register them in UYAP ( Ulusal Yargı Ağı Bilişim Sistemi – the national communication system of the judiciary). The clerk added that he had passed the decision of the second applicant to the first applicant by hand on 24   April at around 5 p.m., at the request of the second applicant. 34.     On 26 April 2015, at the end of the examination ( inceleme ) carried out by him, the judicial inspector drafted a preliminary report ( ön rapor ). He considered that the applicants had acted “in unity of mind and action with the suspects” ( şüphelilerle fikir ve eylem birliği içerisinde hareket ettiği ) . According to this report, the examination ( inceleme ) was authorised on 25   April 2015 in accordance with the inspection competence of the chairmanship of the Inspection Board of HSYK. The preliminary report also stated that the examination ( inceleme ) had started ex officio following the publication of articles in the press. 35.     The judicial inspector noted that the second applicant had personally acknowledged receipt of the applications for recusal and release submitted by the lawyers for the sixty-three suspects, that the chief clerk had not been informed that those applications had been received, and that the applications had been registered in UYAP by the clerk the following day, namely on 21   April 2015, after working hours, upon the second applicant’s instructions. The inspector noted that these elements had also been emphasised in a letter from the chief clerk of the 29th Criminal Court sent on 26 April 2015. The inspector also noted that the second applicant had decided to join the seven separate applications, allowed the applications for recusal, and appointed the first applicant to decide on pre-trial detention. He further noted that the examination of the reasons set out in the applications had not mentioned concrete elements relating to situations justifying the recusal, or questioned the impartiality of the magistrates’ courts. 36.     The inspector also stated that the second applicant had acted in disregard of procedural standards, namely Article 26 of the CCP, which required a recusal application to be submitted to the judge whose recusal was being requested. He alleged that the second applicant lacked knowledge of procedural and substantive standards; the judge had decided the cases without being aware, even if only from UYAP, of the material in the investigation files, and he had decided the cases only on the basis of the applications submitted by the suspects’ lawyers and the incomplete information and documents provided by them. Lastly, the inspector noted that on 6 February 2015 the 26th Istanbul Criminal Court had rejected an application by one of the suspects for the recusal of all the magistrates in Istanbul. 37.     With regard to the first applicant, the inspector noted that he had decided to release a number of suspects without seeing the content of the investigation files on them, either physically or in UYAP. The inspector noted that the first applicant had decided on the applications for release only a day after they had been filed, when the application forms alone could not have been read in such a short period of time. He noted that because of a decision to restrict access, the suspects and their lawyers had not had access to the investigation files, and therefore the first applicant could not have had full knowledge of the content of the files from the applications made by the lawyers. The inspector also observed that the first applicant had ignored the decision of the 10th Magistrate’s Court of 25 April 2015 considering the decision of the 29th Criminal Court of 24 April 2015 null and void, even though he had been aware of those decisions before certain orders had been drafted and before the orders had been sent to the enforcement authority. 38.     The inspector added that the first applicant had ignored section 10 of the Judicial Organisation Act, which gave magistrates’ courts jurisdiction to take the decisions to be taken by a judge during the investigation stage of a case. 39.     According to his preliminary report, having regard to the evidence relating to the applicants and the publication of articles in the press accusing them of acting on instructions from the organisational structure of Fetullah Gülen ( örgütsel yapılanmasının ) the inspector considered that the facts imputed to the applicants, given their nature and seriousness, required the removal of the applicants (e ylemlerin niteli ği itibariyle meslekten çıkarmayı gerektirir ağırlıkta bulunduğu ), and that their continued service could damage the authority and reputation of the judiciary. Accordingly, he recommended the suspension of the applicants from their duties, under section 77 of Law no. 2802 and section 40 of the HSYK Regulations. 40.     On 27 April 2015, following the inspector’s recommendations, the Second Chamber of the HSYK issued a disciplinary sanction against the applicants (suspension from duties for a period of three months), by five votes to two. 41.     The Second Chamber of the HSYK related what the clerks of the 29th   Criminal Court had said in their statements. It also noted that according to the information given by the chief clerk in his letter of 26 April 2015, the applications for recusal and release received on 20 April 2015 by the second applicant had been registered in the UYAP system on 21 April 2015 at 6.08   p.m. The Second Chamber of the HSYK then recounted how the applicants had adopted the decisions in question. 42.     The Second Chamber of the HSYK then explained that with the amendment of section 10 of the Judicial Organisation Act, criminal courts of first instance ( sulh ceza mahkemeleri ) had been abolished and magistrates’ courts had been set up. Thus, the power of the criminal courts of first instance to issue judgments had been referred to the criminal courts. The magistrates’ courts, on the other hand, had been given the power to adopt, at the investigation stage, the decisions to be taken by a judge, and to consider any objections against such decisions. The Second Chamber also set out what the procedure was under Article 268 of the CCP for considering an objection, namely that an objection to the decision of a magistrate’s court was considered by another magistrate’s court. 43.     The Second Chamber went on to observe that the law establishing magistrates’ courts contained no specific provision on the recusal of magistrates, and that the provisions of the CCP relating to the recusal of judges had not been amended. As a result, doubts had arisen as to whether magistrates’ courts acting only at the investigation stage could be challenged and, if so, which authority was responsible for hearing such applications for recusal. It noted that the Directorate had been consulted in this regard and had issued its opinion of 6 February 2015. According to the Second Chamber of the HSYK, although the opinion of the Directorate was not binding on magistrates, ignoring the relevant considerations was not consistent with the principle of good faith. 44.     The Second Chamber noted that even assuming that Article 27 § 2 of the CCP had not been implicitly repealed, this did not change the procedure requiring a recusal application to be submitted under the conditions of Article   26, namely to the judge whose recusal was being requested. Similarly, the Second Chamber indicated that once an application for recusal had been accepted, the criminal court should not act arbitrarily in appointing the judge or court responsible for adjudicating on an application for release, and should do so in the light of the statutory provisions clearly giving the magistrates’ courts jurisdiction. The Second Chamber reiterated that the criminal courts had not been given such jurisdiction. Assuming that all the magistrates in Istanbul could be recused and that there would no longer be a magistrate’s court in Istanbul which could rule on the release of the suspects, in accordance with Article 268 § 3 (a) of the CCP, the magistrates’ courts of Bakırköy would have jurisdiction to rule on an objection. In any event, the 32nd   Criminal Court had had no jurisdiction to rule on the release of the suspects. 45.     The Second Chamber of the HSYK further stated that the second applicant, while he had been on duty for correspondence only, had recorded the applications for the magistrates’ recusal, which should have been handed over to the magistrates whose recusal had been requested, contrary to the usual procedural rules of the court; instead of transferring the applications to the judges concerned, he had allowed the unsubstantiated applications of the suspects, in disregard of the law. The Second Chamber indicated that on that occasion the second applicant had ignored the comments of the magistrates’ courts. He had then unlawfully appointed the 32nd   Criminal Court to rule on the applications for release, specifying the relevant judge (the first applicant) by name, thus ignoring the fact that only the magistrates’ courts had had jurisdiction in that matter. 46.     As for the first applicant, the Second Chamber of the HSYK noted that he had decided to release sixty-three suspects: (a) on the basis of an unlawful decision on jurisdiction issued by the 29th Criminal Court, which was not a higher court; (b) without seeing the investigation files and without reviewing the personal circumstances of each of the suspects, taking into account the offences in question and the evidence; and (c) while giving similar and very general reasons in his decisions. 47.     The Second Chamber indicated that the applicants had acted in concert with the suspects, whose previous attempts to secure their release had failed. To release the suspects, the applicants had violated the clear provisions of the law in a planned and organised manner. The Second Chamber therefore decided to suspend the applicants from their office for a period of three months, in accordance with section 77(1) and section 81(1) of Law no.   2802, on the grounds that their continued service would impair the proper conduct of the investigation, as well as harm the authority and reputation of the judiciary. 48.     Two members of the HSYK expressed their views in a separate dissenting opinion. They claimed that the statements of members of the executive suggested that the HSYK had acted under the influence of the executive branch of the State, and thus lacked independence and impartiality. In their view, the applicants had been sanctioned for decisions which they had taken during their judicial activity. They further asserted that the internal procedure of the HSYK had not been followed, in particular regarding obtaining authorisation to investigate the case, and that the HSYK had adopted its decision in a hurry. Lastly, they stated that newspapers had announced an extraordinary meeting of the HSYK and suggested what sanction would be imposed on the applicants, all on the same day. 49.     On 28 April 2015, after considering the recommendation of the HSYK Inspection Board to move to the investigation phase ( soruşturma ), as well as the articles published in the press and on the Internet criticising the decisions taken by the applicants, the Third Chamber of the HSYK decided that, in view of the irregularities attributed to the applicants in the preliminary report prepared on 26 April 2015, it was necessary to move on to the investigation phase under section 83 of Law no. 2802 and section   37(2) of the Inspection Board Regulations. The Third Chamber referred in its decision to some news articles (“The chaos decision of an incompetent court”, “The evil plan of the parallel organisation was foiled”, “The incompetent parallel judge seeks to make the show”, “Incompetent judge continues show”, “Decision of chaos from the Kamikaze judge”) without any other information about the date of these articles or their content. Two members of the Third Chamber expressed their views in a separate dissenting opinion. The Third Chamber sought the authorisation of the President of the HSYK in this regard, and the latter approved that decision on 11 June 2015. 50.     As part of his subsequent investigation, the judicial inspector conducted a hearing in which the clerks and officers of the 32nd Criminal Court gave evidence as witnesses. 51.     As it appears from their testimony, on Saturday 2 April 2015 at approximately 4 p.m. the Commission of Justice urgently summoned the chief clerk of the 32nd Criminal Court to that courthouse. As she was unavailable at that time, she asked the court clerk to go instead of her, and the court clerk went to the secretariat of the Commission of Justice at the courthouse at around 5 p.m. After waiting a while, she gave her mobile telephone number and went down to the entrance of the courthouse, after being instructed not to go to the 32nd Criminal Court’s registry. Shortly afterwards the clerk Ah. joined her, at the request of the first applicant. At about 5.20 p.m. the first applicant called the court clerk on her mobile telephone. When she indicated that she had been summoned by the Commission of Justice, the first applicant stated, “I am also coming [to the courthouse], do nothing until I arrive.” Then he called again and asked her, “What happened, has there been any development? If they ask for the key to my office, say you don’t have it.” Subsequently, the first applicant also called the clerk Ah. and asked him to summon the clerk Ab. and the court usher to the courthouse. 52.     Upon arriving at the courthouse, the first applicant asked the court clerk and the clerk Ah. to join him in his office, located on the second floor. He handed them files and asked for those files to be transported to the hearing room, and he asked the court clerk to open UYAP for a draft decision. In response to a question from the clerk, he replied, “I was going to write it on Monday, but they’re not going to let me write [it], that’s why we’re going to write [it] now.” 53.     In the hearing room, the first applicant and the court clerk began to write the decisions, on the basis of a note which the applicant had taken out of his pocket. The court usher and then the clerk Ab. joined them in the hearing room a little later. During the drafting, the clerks Ab. and Ah. noted the information necessary for preparing release orders. The first applicant told one of the clerks that he could not go home. During the drafting of the decisions, the connection to UYAP was interrupted, and the first applicant asked for the drafting to continue offline. An official from the secretariat of the Commission of Justice called the court clerk on her mobile phone asking where she had gone, and told her that the chief prosecutor was expecting her. The first applicant then seized the clerk’s mobile phone and had a conversation with the person who was on the line. The first applicant then asked the clerk Ah. to go to the secretariat of the Commission of Justice and tell them that they were waiting and that they were not drafting decisions. The clerk Ah. refused to go. When the court clerk indicated to the first applicant that the person who had summoned her was his supervisor and asked to go, the first applicant stated that she could not leave until he allowed her to go, and no one was permitted to leave the hearing room. While they were drafting the decisions, the applicant left the hearing room several times to speak on the phone. Three lawyers also entered the hearing room to question the first applicant about the veracity of the relevant information on the Internet. 54.     When the first applicant went to his office and was absent from the hearing room, the clerks expressed their concerns about the events and questioned the behaviour which was being displayed. Upon returning to the hearing room, the applicant continued to draft the decisions, as the drafting was scheduled to end at approximately 10 p.m. The applicant also requested that the suspects’ lawyers be immediately notified of the decisions; those lawyers were waiting in the corridor. 55.     The chief clerk of the 32nd Criminal Court arrived at the courthouse at around 9 p.m., shortly before the drafting of the decisions was completed. She had been intrigued by the fact that the first applicant had picked up the court clerk’s mobile phone and explained that she was busy. When she reached the hearing room, the court clerk and the first applicant were drafting the decisions and all the clerks of the 32nd Criminal Court were present. The chief clerk then joined the other chief clerks at the secretariat of the Commission of Justice, before being summoned by the judicial inspector, who was also in the same building. The inspector had given the chi