‘I saw a news report the other day, I didn’t like it at all’

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"The Presiding Judge said, 'Look, I saw a news report the other day, I did not like it at all, you wrote things that I had not uttered.' In response to this, I told him that everyone had witnessed what was written and I did not write anything that had not happened. He said he would file a complaint if it happened again. I told him that it was his most natural right..."

According to lawyer Barzan Demirhan, the above conversation took place at the last hearing of a trial which was previously covered by bianet and is held at the İstanbul 22nd Heavy Penal Court.

The news report mentioned by the Presiding Judge is this: Judge wishes to be recused, prosecutor sleeps during hearing. The next hearing following this news report was held on September 4, 2020.

Speaking to bianet about the trial, lawyer Demirhan has said that, this time, the requests for recusation were rejected in violation of the due process of law. He has submitted a petition again, raising another request for recusation. However, this last request has not yet been responded.

At the last hearing, he left the court, saying, "I will no longer express myself as if you were impartial and honest judges, I withdraw from the file."

'The most tragic of all...'

In his petition, lawyer Barzan Demirhan has recounted the course of his recusation requests in following words:

"On the grounds of existing reasons that bring the impartiality of the presiding judge of your court into doubt, I requested the recusation of the presiding judge and appealed against the ruling of continuation of arrest with my petition dated July 10, 2020.

"The Article 26/of the Code of Criminal Procedure (CMK) stipulates that the judge shall express his or her reasons for rejection of his or her own recusation in written form; the Article 27/1 of the CMK also says that the court which the judge is a member of shall give a decision without the judge in question participating in the negotiations. When the request is not accepted, legal remedies are available.

"Contrary to what this legislation indicates in detail, except for a cover letter dated September 10, I have seen neither a written response from the presiding judge regarding my request nor a letter indicating that my request has been rejected by the court board.

"The most tragic of all is the ruling of the İstanbul 23rd Heavy Penal Court. It refers to my request, which I submitted on July 10, 2020, as a request dated July 3, 2019, and rejected it in a judgement dated July 8, 2019.

"As the Article 268/2 of the CMK stipulates that 'the judge or the court, whose decision had been subject to opposition, shall correct the decision, if he determines that the opposition is justified; otherwise shall send the application at most three days, to the authority that have jurisdiction to make the inspection on the opposition," the authority of opposition apparently wanted to rectify this procedural deficiency.

"These proceedings that you have conducted in violation of the due process of law from the beginning to the end are null and void. I request that my request for recusation be examined in line with the CMK, the presiding judge withdraw from the file and the examination of arrest be urgently held."

'A hasty decision given on a retroactive date'

Speaking to bianet about the issue, lawyer Demirhan has said:

"The date 2019 was most probably inscribed on the decision by mistake, it is considered to be the year when we live; however, as the main court kept our request waiting in violation of the law and did not examine it, the 23rd Heavy Penal Court gave a judgement on a retroactive date.

"In other words, our request was sent to them within due time and they put a date on it as if a decision had been made within the stipulated time.

"We took down minutes on the scandal that happened in the previous hearing and requested the recusation of the presiding judge and the release of the defendant; however, our request has not been processed, it is still pending. As there was a hearing on September 4, my request was sent to the 23rd Heavy Penal Court, by disregarding the Code of Criminal Procedure and without making any evaluations to accept or reject it.

"As a hasty ruling was asked from the 23rd Heavy Penal Court, they tried to set things straight with a decision on a retroactive date." (AS/SD)