Can civil servants commit crimes?

Ekrem Dumanlı

If a man goes to a prosecutor and says, "Prime Minister Recep Tayyip Erdoğan is the leader of the parallel structure and I have serious documents about him," what is the prosecutor supposed to do?

In the face of such a complaint, which may be filed in connection with anyone, should he ask for concrete evidence? Or should he say, "I will launch an investigation because I have such a feeling since the people around him are conducting activities in various fields"? Which is lawful? Of course, by law, priority is given to concrete evidence. An official complaint means nothing without concrete evidence about the crime. Why?

Let me continue to explain by referring to Erdoğan, as he represents an extreme case. Numerous people have worked with Erdoğan in the past. Some of them might have experienced profound disappointment. Therefore, they may be angry with him. If those people move from one TV station to another in order to take revenge and voice claims that would keep Erdoğan under suspicion, does that make any sense from a legal perspective? If the prosecutor takes these unfounded claims seriously and treats people near the prime minister as criminals, and their activities running foundations, associations, schools, prep schools, etc. as criminal activities, wouldn't that prosecutor be committing a crime? Wouldn't it be a big mistake and legitimate to accuse the prosecutor of launching an investigation into the prime minister, his family and his close associates based solely on some so-called organizational charts or conspiracy theories voiced by some people?

You may ask, "Why did this fictional set-up come to my mind?" Let me explain: Last week, I saw an interesting news story on a website. The Ankara Chief Public Prosecutor's Office's Bureau for Crimes against the Constitutional Order is reportedly conducting an investigation. Latif Erdoğan and Ahmet Keleş testified under this investigation. According to the news story, these people voiced the same delusions that they had said on certain TV stations. They were so enthusiastic to testify -- as reported by the website -- that they talked about some people they don't know every well. It is a very absurd situation. It is an unlawful method.

This mechanism is not new. This is the old trick: You first publish false news stories so that the prosecutor's office can take them as complaints and launch an investigation, and after an investigation is launched, you publish other news stories so that people believe them. Based on this trick, certain media outlets have been publishing lies and libel for months. If prosecutors walk into this trap, it may make the government media and the independent judiciary partners in crime. There is only one way to avoid this mistake: to base all legal actions on concrete evidence. That is, concrete evidence should be sought instead of inventing a crime and looking for people to charge with that crime.

Amendments made to the Code on Criminal Procedure (CMK) five months ago placed heavy emphasis on evidence. For instance, in the past, prosecutors could launch an investigation based on "strong suspicions of crime," but that is no longer acceptable. The amendments require that prosecutors and judicial police have "suspicion based on concrete evidence" before taking any action. "Indications showing that the crime was committed," which were once used to take people into custody, are no longer regarded as sufficient, as the amendments to the CMK have made it compulsory to look for "concrete evidence showing that the crime was committed."

Given the emphasis on concrete evidence in recently passed laws and the fact that norms of international laws rely on "evidence," prosecutors cannot launch investigations based on so-called confessions of certain ambitious people. If they do so, it is considered a crime. Perhaps that is the reason why "investigations" named in certain newspapers do not officially exist.

What do files not recorded in the National Judicial Network Project (UYAP) mean? In response to a written application filed by a lawyer asking, "Are there any investigations being conducted into [the actions of] my client?" the officials say, "No, there are not." But what does it mean to secretly take testimonies from people? Under the law, it is an offense to hide investigations from the people involved and to deny them their records after calling them to testify.

Suspicions that unlawful activities are being conducted under a "plan to finish off the Hizmet movement," voiced former Interior Minister İdris Naim Şahin, are on the rise. The plan to set up a trap for the Hizmet movement, which is allegedly being conducted by a deputy director of the police department, is completely reliant on illegality and has the potential to create great nuisances for the police department.

National Police Department Chief Mehmet Kılıçlar, who is known for his compliance with laws, cannot be imagined as comfortable with this development. Indeed, this bureau -- with members selected from the Intelligence, Anti-smuggling and Organized Crime and Counterterrorism Units -- is currently doing nothing different from what the West Study Group (BÇG) did in the past. The BÇG failed to keep its mass-profiling activities secret. Those who engage in such activities today will not keep them secret either. The mass profiling done by that unlawfully established bureau based on the information it gets from "autonomous institutions" with the intention of fabricating crimes is illegal. When the country becomes normalized one day, no bureaucrat will be able to account for those activities at courts.

It is tyrannical to keep a social or political group under pressure by using rumors from people or institutions who don't like that group. If you push the law into such an ugly course, you are breaching the law. Both those who give unlawful orders and those who obey those orders are breaching the law. An unlawful method employed against a certain social group today may turn into a dangerous weapon against everyone in the future. The time may come when everyone, including your former executive assistants and your ministers, may act with resentment and anger and voice similar accusations against you without showing any concrete evidence and may deliver your benevolent workings as an organizational chart of the network to a prosecutor. So it is best for everyone to comply with laws.

Does Ramadan come to your neighborhood?

We are in the holy month of Ramadan. In this month, people become angelic and hearts become lenient and people feel the blessings of God. For this reason, Ramadan is the month of divine mercy. The rich and the poor come together, broken hearts are mended and people stay away from sins and come close to God.

But it is sad to note that our colleagues working at certain media outlets are far from the holy atmosphere of Ramadan. They continue to hurl slander, libel, defamatory allegations, insults, back-biting, etc. Moreover, they do this on TV and in the papers. They persistently commit all those acts, which are considered sins. Isn't backbiting a sin? Isn't telling lies a sin? Isn't slander a sin? I don't understand how they can insult millions of Muslims. No one can understand it. How can a person who believes in God dare to commit those sins day after day?

I think they hide behind meaningless justification: "Deception is the very essence of war, so everything is permissible." This is not something a believer can accept. Why? This assertion that deception is the very essence of war does not allow everyone to "tell lies" or "say slanders or insults." Did Prophet Muhammad ever tell a lie or spread libel or slander in any war? Moreover, there is no war here. A person who backbites millions of people on a holy day, thereby breaching their rights, and doing so witnessed by millions of people, must ask forgiveness of those millions individually. And it is impossible to account for such a sin on the Day of Judgment.

Ask the oppressed

I learned from journalist Nazlı Ilıcak's Twitter message that on the day he announced he would run for president, Erdoğan said, "May God keep us from indulging in oppression and injustice." When one reads this sentence, a bitter smile may appear. We say a heartfelt "Amen" to this prayer and ask for righteousness for everyone from God. Still, we are urged to ask, "Is our prime minister unaware of the ongoing oppression in this country?" Indeed, Ilıcak felt a similarly confused, and sent the following message to her followers: "Perhaps he really does not know what he is doing. Or is it that he does not want to realize it?"

We need to listen to the oppressed, not the oppressors, in order to understand if there is oppression. Indeed, no one who strives towards oppression will accept that they are oppressors. Oppressors always think they are right and that oppressed people deserve oppression, and that what is done is small compared what should really be done. How can one know oppression if they do not hear the voices of those being targeted in breach of the principle of criminal individuality; of those who are insulted and discriminated at schools and prep schools? Glorious speeches do not tell us about oppression. We must look for the broken hearts of the oppressed. And everyone should know that God will certainly avenge the oppressed.

Published on Today's Zaman, 07 July 2014, Monday