An unusual Inquiry and Trial
Fikret ÝLKÝZ
Don’t ask whether it can happen. In Turkey, everything can happen. The specially authorized prosecutor in Erzurum, Osman Þanal, came to the court of justice to put Ýlhan Cihaner, the chief prosecutor in Erzincan, under custody and he “arrested” him, “searched” his office and put him “under custody” and sent to the court with “the request of arrest”.
The judge of 2nd Criminal Court of Erzurum, specially authorized, issued an “arrest” warrant for the chief prosecutor. The decision was contested. The court rejected the contest.
The Supreme Board of Prosecutors and Judges (HSYK) stripped “the special authorizations” of the specially authorized prosecutor Osman Þanal and the other three prosecutors.
The Court of Appeal and the Council of State declared that HSYK’s decision was conform to the law.
The Minister of Justice was very angry. “We cannot keep silent any more” he expressed and held a press conference as “a matter of course.” He declared that HSYK is not authorized to withdraw the judge, it’s only an administrative council and not a judicial one and the members are not authorized to check the decisions of the court and he criticized harshly HSYK that he chairs by stating that “attempts to check it, is an open usurpation of authority.”
The Minister of Justice criticized the declaration of the Court of Appeals, stated that “the fact that the 1st Presidency Council of the Court of Appeals, though not authorized, met about an issue which would be sent them and upheld the move of HSYK, has no legal basis; it means comments reflecting bias, this is an intervention to the judiciary process.” (February 17th, 2010)
Hasan Gerçeker, Head of the Court of Appeal, gave the following answer: “No one can teach us the meaning of comments reflecting bias. The institution which made comments reflecting bias is the Minister of Justice himself. His declaration towards 5.00 a.m. in the morning means comments reflecting bias. These are comments reflecting bias.” Then he concluded: “What they must do is to open the law book and to read it.” (February 18th, 2010)
The prosecutors stripped of special authorization sent the file of the Chief Prosecutor of Erzincan Ýlhan Cihaner-stripped of special authorization- to the prosecutors conducting the investigation into Ergenekon.
The Chief Prosecutor of Istanbul declared that a prosecutor was in charge of the related file, the lawyer of Cihaner Turgut Kazan stated to the press that a notice was not given to the prosecutor stripped of authorization and the Ministry and the Prosecution Office acted all together and took away the file.
Can they do all that? Already done… Do the laws allow doing all that? Everyone looks at the same law. Everyone disputes against each other. However, what is clear that the current “legislation” gives room to everything. The legislation gives room to everything and you face all these problems, if you make laws which can be implemented according to your comments- and they already made such laws.
No matter how you comment them… The reality and the sad point is that the Chief Prosecutor is arrested. You can make any comment. The chief prosecutor lives this reality. Think you were him… Inquiry, trial, arrest and laws…
The confidence in law is eroded every day. The justice is harmed through laws.
Which authorized and entitled and/or unauthorized and not entitled prosecutors’ “opinions” and/or which specially authorized criminal court would conclude about the arrest decision depriving the chief prosecutor of his liberty and the objection against this arrest?
How did you come up with such a justice system through the practice of a criminal procedure law, a penal code that you ended up to put suddenly the justice into “chaos”?
The answer is in fact very simple… You cannot solve all problems, resulting from the practice of the Criminal Procedure Law and the Turkish Penal Code in force, with the current justice system.
One of the problems is related to the arrest. The “arrest” measure, arranged with the article no.100 and the following articles at the Criminal Procedure Law, should be reviewed. As long as this article is not reviewed, “the confidence in law” will be endangered. Because in any inquiry, freedom is an exception and arrest is a rule when assessing whether “facts exist to prove a strong doubt of crime”. This practice presents a risk not only for the chief prosecutors but for all people. This practice is widespread. One of the most important reasons of this dangerous atmosphere is the written arrangement in the article no.100 of the Criminal Procedure Law and then its practice. The arrest, which is seen as a measure because of this mentality, is used as a means of punishment.
Another legal problem which is more important is the arrangement related to “the procedure of some crimes” defined in the articles nos. 250, 251 and 252 of the Criminal Procedure Law. More clearly, the State Security Courts were provided with a legal cover after June 1st, 2005 with these articles. Just the name of the old State Security Courts changed. They are not abolished. They continue through the specially authorized prosecutors and specially authorized courts. On the top of the courts’ verdicts, the following is marked: “IN CHARGE THROUGH THE ARTICLE NO. 250 OF THE CRIMINAL PROCEDURE LAW.)
Through this legal arrangement in the form of specially assigned criminal courts and specially authorized prosecutors, the former State Security Courts are kept with the appearance of “specialized courts.” This authorization and assignment through this legal arrangement contradicts with the natural judge principle. Everyone has the right to be tried by ordinary courts or jurisdiction. The specially authorized and/or specially assigned unusual inquiries and trials should be abolished.
In the opposite case, the security of everyone and law will come under doubt as long as the “specially authorized/specially assigned” judgment is in force.
February 22nd, 2010