July 5, 2015

Jurists: Administrative reports like ‘Red Book’ cannot be basis for legal proceedings

A number of jurists speaking with Today's Zaman have criticized the government's attempts to base possible legal proceedings to be launched against members of the so-called “parallel structure” upon two administrative documents that are not legally binding.

Jurists and others have expressed their disapproval of the so-called “parallel state structure” (PDY) document that was recently sent by Zeki Çatalkaya, deputy chief of the National Police Department, to the Ankara Chief Public Prosecutor's Office, as well as a judge's reference to a political document known as the “Red Book” as the basis for a decision to arrest four police chiefs who were detained following a complaint from a member of a group linked to al-Qaeda.

The National Security Strategy Concept Paper (MGSB), often referred to as the "Red Book," is a national security document in which major threats against the nation are enumerated.

Out of the 20 police officers detained in June as part of an investigation built on the alleged existence of a plot against an al-Qaeda-affiliated group known as Tahşiyeciler, four were arrested while 16 were subsequently released. Judge Recep Uyanık of the İstanbul 5th Penal Court of Peace, who ordered the arrest of the four police officers, said in his reasoned decision that Fethullah Gülen, a Turkish Islamic scholar who advocates a moderate Islam rooted in science, was mentioned in the “Red Book” as a threat.

A document similar to the “Red Book,” the so-called “parallel state structure” document prepared by the National Police Department, defines the structure as an organization which aims to “seize all the constitutional institutions of the Turkish Republic and become a large-scale and influential political and economic force on the international level.” The report also states that the fact that the organization has these aims “is understood from the statements of those who were once a part of this organization.”

The “parallel structure” is a term invented by then-Prime Minister and current President Recep Tayyip Erdoğan to refer to followers of the Hizmet movement that was inspired by Gülen, particularly followers within the state bureaucracy, such as the police department. Erdoğan launched this large-scale battle against the movement because he and the government believe that the movement was behind a major corruption and bribery investigation that implicated Erdoğan, his relatives, four former ministers and some pro-government businessmen first revealed on Dec. 17, 2013.

Speaking to Today's Zaman, jurists say that those two documents that portray the Hizmet movement as a security threat cannot constitute the basis for any legal proceeding because neither document is legally binding.

‘Constitution is Red Book in democracies'

Mustafa Zeki Yıldırım, an associate professor of law at Fatih University, told Today's Zaman that it is not possible to base a criminal proceeding upon an administrative report. “A criminal proceeding can be conducted on the basis of the criminal act, evidence that was collected under the supervision of the investigating authorities in accordance with the procedure stipulated by the law. The ‘Red Book' in democracies is the constitution. Normalization can be achieved only when intellectuals and academics take the risks and raise their voices.”

Zeki Yıldırım, Yılmaz Yazıcıoğlu and Günal Kurşun
Zeki Yıldırım (L), Yılmaz Yazıcıoğlu (C) and Günal Kurşun

The classified document known as the “Red Book” is drafted by the National Security Council (MGK) to assess threats to the state and has no legal status, but rather acts as a guide for the government.

The “Red Book” has long been the subject of criticism from opposition parties and civil rights advocacy groups as political and military authorities have often abused it to justify their witch hunts of critics and opponents. Although it was unconstitutional, the Justice and Development Party (AK Party) government used the book to classify unsuspecting citizens based on their ideological and political beliefs, or their ethnic and religious affiliations. There is no reference to the book in either the Turkish Penal Code (TCK) or the Code on Criminal Procedure (CMK).

Also speaking with Today's Zaman, Yılmaz Yazıcıoğlu, an associate professor of criminal law, said: “No arrest decision or criminal penalties can be imposed only on the basis of the evaluations in the ‘Red Book.' The evaluations in the ‘Red Book' must be also supported by concrete evidence. Anything, including the ‘Red Book,' can be evidence in a legal proceeding, but none of them are legally binding. Thus, the judge cannot decide to arrest a person just on the basis of this [Red Book] document.”

Günal Kurşun, a professor of penal law at Çukurova University, told Today's Zaman that there is no other document that can be binding for judges and prosecutors except the existing criminal law.

“The judges and prosecutors are obligated to be independent and impartial while performing their duties, according to the Constitution. The ‘Red Book' and other similar political documents are not documents of the law. Therefore, no judicial act or practice can be based upon those non-legal documents. The legally binding documents are the TCK and the CMK. No person can be declared a member of a terrorist organization and demonized based on the ‘Red Book,' a political document. The arrest of those members [of the so-called terrorist organization] would be against Turkish criminal law and the European Convention on Human Rights [ECHR],” Kurşun said.

Professor İbrahim Cerrah, the head of the Ethics Commission at the National Police Department, told Today's Zaman that concrete evidence must be found to back the content of the controversial document sent to the Ankara Chief Public Prosecutor's Office. “No legal proceeding can be launched based just on the statements of people,” emphasized Cerrah, adding that the recent document clearly shows that the judiciary is being used to apply political pressure on the Hizmet movement.

Former police chief and Research Center for Security Strategies (GÜSAM) President Ercan Taştekin told Today's Zaman that the National Police Department document lacks objective data and analysis, adding that it includes imaginary scenarios without any findings or documentation. “The document is invalid unless the statements [of the alleged former Hizmet followers] are verified in a concrete manner,” Taştekin highlighted.

Politicians slam police document on ‘parallel structure'

Several politicians have also slammed the fact that the document prepared by the National Police Department classifies the Hizmet movement as a “terrorist organization.”

Speaking to the Bugün daily in a report that was published on Sunday, main opposition Republican People's Party (CHP) parliamentary group deputy chairman Levent Gök said the police document includes evaluations made for revenge against the Hizmet movement, adding that such documents prepared with reprisals in mind have no value in terms of the law. Gök emphasized that those behind this “revenge document” will face both administrative and legal proceedings for their acts in the future.

Nationalist Movement Party (MHP) deputy Alim Işık told the Bugün daily that it is already clear why this document was prepared. “Such a move made against a group that is known as being anti-AK Party is immoral. Those who prepared this document will be brought to account if the document is determined in the future to include baseless accusations and slander,” Işık said.

People's Democracy Party (HDP) Co-chair Ertuğrul Kürkçü also said the prosecutors cannot base their request for arrests or their indictments on police documents. Saying that the necessary evidence must be collected and that all the related suspects must be heard in a legal proceeding, Kürkçü said that if a judge arrests a person based on such political or administrative documents, the occupational qualifications for judges must be revised.

Published on Sunday's Zaman, 05 July 2015, Sunday