April 27, 2015

Prosecutors, judges, persecutors

Ekrem Dumanlı

The judicial system was subjected to a major test in Turkey two days ago.

The lawyers, after exhausting all options of appeal with the penal judges of peace, filed motions with a criminal court of first instance. After the admission of the motions, the court decided to release those who have been unjustly held in detention for months.

The office of penal judge of peace is an interesting invention that has remained under political influence. The politicians introduced this position as a way to achieve their political aspirations. This was also in clear violation of universal and constitutional law, which suggests that if there is an accusation directed against a person or group, these people must be prosecuted within the existing judicial mechanisms. If a court is established for special purposes, this is called a project court, and the decisions of that court would create an undermined image of the judiciary. This is the basis of the concerns surrounding the office of penal judge of peace.

An important development that challenged these project courts took place recently. The office of penal judge of peace was created by appointing specific judges and prosecutors and by removing the powers of a higher court (which is against universal law and constitutional law); in the new setting, the suspects were required to appeal to the same judges. But this closed cycle was broken two days ago when the lawyers appealed to the penal judges of peace, who rejected the challenge and motions of the defendants without even having analyzed the objections in the file.

If you hold innocent people under arrest unjustly for a long time, it is only natural for them to reject the judges handling the case. The motion was granted and then the file was referred to another court, in line with existing legislation. And the court ruled for the release of the police chiefs and STV Group President Hidayet Karaca. This was what should have happened. This is what would have happened eventually because universal legal principles would apply once the file was taken out of the vicious cycle of the project courts. And the regular system worked; the decision for release was made by the competent court, together with the explanation.

And then what happened? According to some solid rumors, a crisis management center was convened under the chairmanship of chief prosecutor Hadi Hacısalihoğlu. Why? Not to execute the court order. Is there any other option for the office of prosecutor? None. Since when do the prosecutors hold extraordinary meetings without communicating the release decision of a court to the prison administration? This is a crime.

The Çağlayan crisis desk made their move at midnight. The judge declared the court of first instance's decision null and void, as though the penal court of peace was higher than the court of first instance. Since when does a lower court declare a higher court's decision null and void?

So how did this happen? For a long time, the judiciary has been dominated by political actors. Judges and prosecutors have submitted to the wishes of the politicians; they just follow instructions. Because of this, justice has become hostage to the arbitrary decisions of the powerful. Will judges and prosecutors remain dignified in such an environment?

If the suspects are the relatives of politicians or powerful figures, nothing happens. In spite of strong evidence, these suspects are not properly prosecuted. However, if the suspects are individuals that powerful actors dislike, judicial mechanisms are not employed. Moreover, this injustice is committed publicly by people who do not even feel the need to offer a plausible explanation.

Those who delayed justice by overstepping their authority and by preventing the process of release have committed a crime. The laws being suspended today underline the presence of an era of arbitrary decisions. However, injustice and illegality cannot be sustained forever.

The law is suspended only in times of chaos and extraordinary situations. For instance, Stalin had a prosecutor: Vishinski. He did not recognize any laws when performing his job. There was only one criterion for him: the instructions and orders of Stalin. According to Stalin, everybody in the state was Trotskyist and these people should be identified and prosecuted for treason. No solid or strong evidence was needed in order to declare them traitors, or accuse them of treason or espionage. The families of the suspects were tortured for confessions that would substantiate the allegations. Vishinski was so submissive to the regime that Stalin revised the final drafts of the office of the prosecutor himself. How about justice?

The chief desire of all oppressors is to have a puppet judiciary. This was the case with Hitler. The Führer had prosecutors and judges who carried out the instructions and orders of the supreme leader. For instance, when they wanted to blame sections of society for the destruction of the Reichstag in a fire, hundreds of intellectuals were accused of being communists. Hitler, using the fire, made special laws and established special courts; in addition, he appointed special judges and prosecutors. The result? The poisoning of power turned into a disaster for a nation. Germany and Europe still feel the shame of this disaster.

We also had judges and prosecutors who did not recognize the law. Judge Salim Başol had told Adnan Menderes and his friends that the political will that had imprisoned them wanted them to be convicted; with this statement, he in fact confessed that a judge may have submitted to the wishes of the powerful rather than to the requirements and principles of justice. I do not have enough space to list all the judges and prosecutors who were willing to follow the instructions of the oppressors and the powerful in coups in this country in the past.

There is a similar risk for judges and prosecutors today. I am obligated to give the following reminder Justice is delivered only when constitutional and universal laws are followed. It is oppression to make a decision based on the wishes of the powerful; history will never forgive this brutality. They will not be able to look their sons and daughters in the eye in the future because of shame and embarrassment.

You, the person who said my hatred is my religion!

Some historians narrate that Hüseyin Avni Paşa once said, “My hatred is my religion.” This was the philosophy of a man who was committed to murdering Sultan Abdülaziz. This was a statement that reflected submission to arrogance and ambition of an evil man. Hüseyin Avni was caught in action. And this was not the first time. He was granted influential positions in the palace. However, he was involved in corruption out of greed. It became obvious that he rigged public tenders and committed bribery for his personal interests.

He was further accused of immoral conduct. Instead of admitting to his sins and seeking forgiveness, the paşa blamed those who caught him. He believed those who tried to prosecute him -- even the sultan himself -- should be punished. He looked for the proper opportunity. He built alliances to execute his plans. Some historians recall that he contacted British and Freemasonry circles to achieve his goals. Some of his allies did not know his real intention and found him pretty reckless and aggressive. Some of them believed it was all about the declaration of a constitutional monarchy and that his defiance would lead to a more liberal society and state.

But Avni did not care about constitutional monarchy or the state administration. For him, hatred took precedence. He could have sacrificed everything for this hatred. For this reason, consecutive disasters took place on Ottoman soil. The army faced serious disagreements because of his hatred and personal interests.

This is an incident that should teach those who govern this country a lesson. Those who consider their personal interests rather than the interests and priorities of the state and society would do the greatest harm to themselves and will not be remembered well. In addition, a pious person cannot hold hatred or a grudge.

Excerpt from the author's column published on Today's Zaman, 27 April 2015, Monday