December 28, 2015

Law professor Özgenç: Cabinet has no authority to declare anyone terrorist

A judge cannot label a group or people connected to it as terrorists based on a decision by the Cabinet, which has no authority to declare an individual or group as terrorists, Professor İzzet Özgenç, one of the authors of the Turkish Penal Code (TCK) and the Code on Criminal Procedure (CMK), wrote on Twitter on Sunday.

In series of tweets on his personal account, Özgenç underlined that even a recent graduate of law school knows that the Cabinet cannot label a group or organization as a terrorist organization. “Therefore, the unlawful decisions by judges are intentional,” Özgenç said.

After a major graft scandal erupted in December 2013 in which President Recep Tayyip Erdoğan and his inner circle were implicated, Erdoğan and the ruling Justice and Development Party (AK Party) have accused sympathizers of Hizmet, especially those in state bureaucracy, of conspiring to overthrow the government. Members of the Gülen movement deny these accusations.

Erdoğan coined the term the “parallel state” or “structure” to refer to followers of the Gülen movement, popularly known as the Hizmet movement, which is inspired by the views of Turkish Islamic scholar Fethullah Gülen.

Since the graft probe in 2013, thousands of police officers, members of the judiciary and bureaucrats were either dismissed or transferred in government reshuffles. Hundreds of civilians, along with academics and journalists, were also detained and arrested in government-orchestrated operations for supporting or being members of a terrorist organization based on a Cabinet decision in 2014 which designated the “parallel state” a terrorist organization.

Özgenç also criticized the decisions of judges who declared other judges' decisions null and void. “If a judge's decision is declared null and void due to incompetence, that is an act to cover something up. According to Turkish law, once a judge's decision is appealed, a higher court can only declare it invalid [not null and void],” he said.

According to Özgenç, if the ruling party demands that the judiciary carry out unlawful actions, the judges at first resist but eventually commit the wrongdoing against their better judgment.

In April 2015 the Supreme Board of Judges and Prosecutors (HSYK) immediately replaced two judges in two İstanbul courts after they decided to release Samanyolu Broadcasting group CEO Hidayet Karaca and 63 police officers who were arrested in government-initiated operations and declared their decisions “null and void.”

After the HSYK dismissed İstanbul 29th Court of First Instance Judge Metin Özçelik and Judge Mustafa Başer from the İstanbul 32nd Court of First Instance and launched an investigation into them, the two judges were later arrested on April 30 for being members of the “parallel structure.”

Published on Today's Zaman, 28 December 2015, Monday