Aziz Kamil CanEnglish

CAN EFFECTIVE REMORSE PROVIDE INNOCENCE or IS IT AN INSTRUMENT OF ENTRAPMENT?

 

The power holders, governing our country in recent years, are perpetrating an unlawfulness that can very rarely be seen on earth, while committing a genocide which outstrips even the witch-hunts of the Inquisition tribunals or the İstiklal Courts of the 1960 military coup in Turkey.

Inquisition was a court system of the Roman Catholic Church that used to severely interrogate individuals to discover, and suppress, unorthodox beliefs and opinions. Because of the verdicts given, and the political and religious views pursued during their time, these tribunals left a black mark in history of mankind and have, for many centuries, been recalled with abhorrence. The Inquisition tribunals were being conducted as part of a religious judicial system that adopted brutal torturing methods as means of interrogations. They were capturing people, who had been banished based only on allegations and false accusations without needing even slightest amount of evidence against them, and they were forced to admit the crimes they had never committed. Thus, the only evidence of the invented crime was the confessions taken under torture. These people were sometimes forced to be content with the things that the court wanted. By this way, these courts eliminated all the sects that the Roman Church regarded as threat, while from the 15th century onward, the people they tagged as sorcerers had been punished with atrociously barbaric methods.

Whilst the Inquisition had been formed with religious drives, the İstiklal Mahkemeleri (Independence Courts) in our country were established to eradicate the racial, religious and thought freedoms and they have disgracefully taken their place as a dark stain in our law history.

The İstiklal Mahkemeleri (Independence Courts) were formed on 11 September 1920 and closed down on 7 March 1927 and three quarters of their members were not from legal background. They were operating like mobile courts in different parts of the country. Their members, who had been directly appointed their judicial posts by Atatürk himself, were trying political crimes, as well as military offences.

The actual founding purpose of these courts was “to prevent the escapes from military service” during the time of the Independence War, but short time later, their authority was shifted towards political area. For example, the Şark İstiklal Mahkemesi (The Eastern Independence Court) which were founded in 1925, and the 2nd Term İstiklal Mahkemeleri targeted opponents of the regime. These courts added ethnically Kurds, politically members of the Terakki Perver Cumhuriyet Fırkası (Progressive Republican Party), and religiously all religious sects into the list of the opponents.

These courts would never hear cases, they would inflict punishments on individuals they claimed to be guilty and executed the sentences straightaway. This is why, many of those who had been tried at these courts used to be detained on the same day or within a week, prosecuted and their sentence would be executed immediately. (https://tr.wikipedia.org/wiki/%C4%B0stikl%C3%A2l_mahkemesi). Those who occupy the chair of judges were not liable for their decrees. In issuing verdicts, they did not require any evidence. The trialled individuals did not have the right to hire a lawyer, ask for an appeal, file an objection, change the verdict, or request to postpone the execution. The opinion of the court members was unquestionable. They were decreeing on behalf of the parliament, and their decrees did not have to comply with the laws or regulations in force, they were even over-ruling the laws. This was because on 16 January 1923 in İzmir, Mustafa Kemal Pasha said that the Law of Revolution was over the current laws. Hence, the courts did not feel the need for any witness or evidence to issue their verdicts. This type of tribunal is actually the very sad comedy of “We decree that the suspect will now be executed, the witnesses shall be listened later in time.” The courts used to issue their decisions and execute the sentences so hastily that “there were even people who had been mistakenly hung in place of others”. The capital punishments given by the İstiklal Courts had been executed after being approved by the commanders of the corps. The authority to approve capital punishments, however, was clearly given to the TBMM (Turkish Parliament) by Article 26 of the 1924 Constitution.

Consequently, when looked at their procedural and fundamental principles of their foundation, these courts were very clearly violating the Constitution. As far as the records say, these courts executed 1630 individuals, including Muslim scholars such as İskilipli Atıf Hodja, Babaeski Mufti Ali Rıza Afandi, Muhammed Esad Erbili and his son Ali Afandi, and Erzincani Mawlawi Shayh İbrahim Hakkı Efendi (The court gave death penalty for this person. When they learnt that he had died and been buried before this verdict, just to execute the punishment, his corpse was taken out from the grave and hung!). Meanwhile, unfortunately, the definite number of the people who had been unlawfully executed in those days, is still not known. (see: http://www.mehmetkarasakal.com/istiklal-mahkemeleri/).

Is there anything changed from that time to present day? Well, yes: Today’s persecutors discovered new, more advanced and far-flung methods. The barbaric systems or the dictators that implemented the atrocities of the Inquisition, Istiklal Courts or other similar persecutions, used to target mostly the individuals. They used to try to eradicate these individuals or the institution of the community they belonged to. Today’s persecutor and his supporters, however, with the fatwa and the courage they get from the twisted interpretation of religious teachings, like that of the Medieval Churches, (Actually the common goal of both the persecutors of today and those in the medieval times, is/was misleading masses of people by exploiting religious and national values and emotions, while lining their own pockets and occupying prominent places) are attacking even the wives, children and the possessions of those they label as opponents. They even punish cartoon characters under the influence of these drives.

On the other hand, today’s pathetic persecutors, in order to cover up their own crimes and suppress the reactions that may arise, daringly apply such unbelievable fallacies and methods that embarrass even the Devil and make him say, “How come I hadn’t been able to think that?!”

One of those methods they use is actually something we know: CONFESSION. Why, then, the Devil, or those who had used this method in the past, feel today ashamed that they could not think? Let me explain: In the old days, confession was withdrawn from the persecuted individual by torturing him so that he, in the end, had to accept a crime which he had not committed, and in his confession, the person used to speak out about things only related to himself, or just accept the things he is forced to say. Is it the same today? No. Some of them are tortured. But some of them are entertained with tea and coffee, nationalist conversations or film presentations. Some of them are threatened with their family’s security. While some others are deceived with perverted interpretation of the famous Article 221 of the Turkish Code of Criminal Procedures that regulates the provision of effective remorse.

So, is the only thing they want from these people to admit the offence charged on them? Of course not. Here is another thing that even amazes the Devil: These people are emotionally or physically forced to sign confessions for all kinds of subjects such as; giving the names of people they drank tea together while they were very young, identifying the people with whom they read newspaper together, listing the individuals with whom they stayed/studied together at the dorms or schools that had been officially opened and inspected by the state, or people with whom they went to, opened water wells and donated food and meat to the poor in Africa, and so on.

Naturally, none of these interrogation subjects is an offence, but let us assume that we lost all our humanistic faculties for a while and treat these things as acts of crime and discuss their legal consequences… We will not be able to! Why? Because, including the most recent times, the laws in our country have been changed tens of times, and tens of amnesties have been announced, and many cases with exactly the same subjects have been heard and conclusive verdicts had been issued before, and the General Assembly of the Court of Appeals have decreed for those cases and acquitted the persons accused with similar offences. And so, did not the time-limit prescription for all those stories that go back to the 1960s and 70s that are used for the current accusations, run in that time, or did they not become the subject of an amnesty before? Let me give the answer: Of course it/they did. But this is something valid for people who carry the respect to the Law.

In their statements of confession, these people are giving the names of individuals they had been friending from a date starting 40-50 years ago and themselves are also accused with these. With these statements taken with unlawful methods under the pretext of confession, they are both fabricating evidence against other individuals, and these statements are used against the person who is now treated as a confessor, while the courts are issuing decrees of convictions without needing any other evidence.

Why then, are the accused persons making such confessions? This is actually the main subject of our article. The minds, souls, discretion, and conscience of these people are made captives of an entrapment, based on a penal regulation called “effective remorse”.

This regulation –which is in fact introduced for certain offences, for purposes such as providing social order, applying personal grounds, preventing persons from committing crime, reintegration into society, etc. – is unfortunately made to a tool for MALICIOUS PROSECUTIONS today.

The suspects or the accused, who are misled and deceived with the Entrapment of Confession, start falsely accusing other individuals, and do not disdain drawing many innocent people into the swamp of this entrapment they had fallen in. As they firmly believe in their innocence, these individuals cannot think that they, unknowingly, smear themselves with a crime against humanity that will follow them both in this world and on the Judgement Day, while they cannot judge that, by this, they victimise many people, and upon their own responsibility, they burden other’s loads as well.

Whilst it is a reality that to be involved in the activities of a civil society organisation for their beliefs and opinions is not an offence at all, a person who displays effective remorse for such activities, falls into the category of confessors of a crime under Article 221 of the Turkish Penal Code. Secondly, they admit that they had been the member of an organisation that they knew that it was established for the purpose of committing a crime. In other words, under this deceitful interpretation of the law, a person who says that he is remorseful that he has been a part of an allegedly existing organisation, actually accepts that he joined to this organisation for the armed combat it is aspersed to have committed.

Regarding this, the person says that he wants to benefit from the provisions of Article 221/3 of the Turkish Penal Code. This paragraph of Article 221 says: “No penalty shall be imposed on a member of the organisation who is apprehended before participating in the commission of any offence by the organisation, and who is remorseful and provides information that is likely to lead to the dissolution of the organisation or the apprehension of its members.

Here, the condition to benefit from effective remorse is stated as not, “participating in the commission of any offence by the organisation”. What are the offences attributed to the person under these circumstances? They are: To have subscribed to a newspaper, being registered at a school, to be a member of an association, to have a bank account, to have written some writings and/or online messages, to listen or to relate religious conversations, to reside in some certain institutions, etc. If the interrogations and judiciary units are accepting these activities as offence, then the person may not benefit from effective remorse in pursuant to the above mentioned paragraph. Because he is a person who had already committed these “crimes”. If no penalty shall be imposed on this person who submitted his confession, then other accused persons must not receive any penalty, either. Otherwise, it will be against the penal justice and the purpose of regulating this code.

My findings until here, were about the legal side of the issue. We also come across with some practices of the courts in relation to the entrapped confessors. We see from the court decrees published in the media that, at the end of the adjudication, the same penalties as given to the other accused persons, or even heavier ones, have been imposed on many confessors, who accepted the bait of benefitting from the effective remorse and then turned many of their innocent friends’ lives upside down by falsely accusing them.

As we also hear from the politicians that effective remorse is used as an entrapment, more gravely, we hear this from the mouths of persons who are at the head of some judicial institutions.

Indeed, the person, who openly said that they are using effective remorse as a bait for entrapment, is Vice President of HSYK (High Council of Judges and Prosecutors) Mehmet Yılmaz. Although at a statement he gave to ahaber TV channel on 21 October 2016, Mehmet Yılmaz said, “We will even consider keeping in their profession, those from the judges and prosecutors who confess out very useful information, those who confess accusations that are very useful in dissolving the organisation. But they will, first of all, judicially be exempted from punishment,” (http://www.ahaber.com.tr/gundem/2016/10/21/hsyk-baskanvekili-yilmaz-itirafci-olanlari-meslekte-tutmayi-tartisacagiz) soon, he did not hesitate to utter, “Let everyone feel assured! HSYK will never return anyone who benefitted from the Law of Effective Remorse back to their judicial posts… I made the statement, ‘We may make the FETÖists who have been useful with their confessions, judge or prosecutor again,’ just to encourage them to confess, and it has been very successful.” (https://tr.sputniknews.com/turkiye/201612281026529306-hsyk-baskanvekili-itiraf-tesvik/).

Again, in a press release, Ankara Chief Prosecutor Harun Kodalak, leading these investigations, openly acknowledged that they had used an authority which does not exist in the procedural law: “… We release them whenever they give us serious information about the organisation… We issue decrees of release for those who have been effective in dissolving the organisation with the information they gave, not in pursuant to any law, but by taking an initiative…” (http://www.karar.com/guncel-haberler/kimligi-de-yuzu-de-degistiriliyor-283609)

When this and the politicians’ statements are evaluated together with the verdicts issued by the courts, how the accused persons have been entrapped under the pretext of effective remorse can be evidently seen.

Then a second question comes to our minds: Can the confessions taken by entrapment be valid? In fact, Article 148 of the Turkish Code of Criminal Procedure clearly regulates:

“– (1) The submissions of the suspect or the accused shall be stemming from his own free will. Any bodily or mental intervention that would impair the free will, such as misconduct, torture, administering medicines or drugs, exhausting, falsification, physical coercion or threatening, using certain equipment, is forbidden. (2) Any advantage that would be against the law shall not be promised. (3) Submissions obtained through the forbidden procedures shall not be used as evidence, even if the individual had consented.”

According to this, as it is evidently obvious that the statements were not taken based on the free will of the suspects or the accused persons under the name of confession, these statements have not got any legal value whatsoever. The statements taken with forbidden methods of falsification and threatening, have defected the gathered evidence. Since this openly violates Articles 148, 206/2-a and 217/2 of the Turkish Code of Criminal Procedures and Article 38/6 of the Constitution, the adjudication may not be grounded on this evidence.

Despite the fact that, it has been seen on some news appeared on the press that some suspects, who had stated they want to benefit from the provisions of effective remorse at the police station or while being interviewed by the prosecutor, have later said that they had been deceived and these statements had been taken from them under threat and those submissions do not reflect the truth, the court still issued verdicts based on the person’s old statement, not on their new submission they gave freely during the trials. This openly violates the Procedural Code. The first statement, which is used as the fundamental ground for the conviction, has been denied by its owner and there is no other evidence that supports the first statement. Here, what the court should have done was to issue a judgement of acquittal of the accused because of lack of evidence or for the crime has not been proved.

This important issue is indeed accepted as one of the reasons to renew a trial in favour of the convicted person. Article 311 of the Turkish Code of Criminal Procedures states:

 “– (1) A lawsuit that has been concluded with a final judgment shall be tried again in favour of the convicted individual through the way of a new trial, under the following circumstances:

 

  1. a) If any document used in the main hearing and which had an effect on the judgment, is fraudulent;
  2. b) If it is discovered that any witness or expert who has been heard under oath has testified or used his vote deliberately or negligently against the convicted individual, contrary to the acts, in a way that affected the judgment,

 

  1. e) If new facts or new evidence have been produced, which when taken into consideration solely or together with the evidence previously submitted, are of the nature that require the acquittal of the accused or the conviction of the accused because of a provision of the Criminal Code that require a lighter punishment…”

Thus, this article determines how the witness statements are important in adjudication and emphasises that this statement must be coherent and doubtless. In pursuant to this, a judge may not issue a conviction based on a testimonial that remains doubtful, or has later changed, or is not consistent within itself.

Article 223 of the Code of Criminal Procedures openly states that the accused in such a situation may not be convicted. Under the title of “Concluding of the main hearing and the judgement”, this article states:

“Article 223 – (1) After the declaration that the main hearing is concluded, the judgement shall be produced. The rulings of acquittal, no need to inflict punishment, conviction, judgement related to a measure of security, inadmissibility of the law suit, and dismissal of the case are considered as a judgement.

 (5) In cases where it has been proven that the accused has committed the charged crime, the judgement of conviction shall be rendered.” It is impossible to prove that the accused had actually committed the charged crime based only on their contradictory statements.

So far, we have explained the lawfulness and entrapment aspects of this specific confession. We also need to look at moral and religious foundations of confession. How ethical or religious can defaming others just to save oneself be? In this respect, we must look at the lives of the individuals we take as examples. The companions of the Prophet were laid down on scorching sands or stones under intense heat of the sun, while some were crucified while being forced to blaspheme. They endured many kinds of tortures, but remained upright, and they had not even dare to think to save themselves by smearing someone else.

I wonder what will their answers be when God will ask them on the Day of Judgement they believe in, “While you were walking on my path, what wrongfulness or fault did you find to be remorseful, and signed under those lies and besmirched your angel-like friends?” How reasonable can it be to fall into the trap of the oppressors and make their own and many innocent people’s lives miserable, instead of waiting for the result by means of judicial struggle, a bit patience and submission to destiny, while they were proceeding on a legitimate and rightful course?

At the end of my writing, let me repeat the question I asked in the title: “Can effective remorse provide innocence?” Although effective remorse is described as showing active, sincere contrition for what one had committed, it still renders some certain consequences in criminal procedures. Innocence indicates a state of being untainted by any wrongdoing, sin, or fault. While a person testifies his contrition, he actually testifies in his conscience that he will never again commit the crime under concern, and by this way, he will purify his soul, and he is going to protect the rights of others by exposing those who commit this crime in the society. Everything is normal until this point. What is it that is abnormal here, then? Slandering and falsely accusing others and themselves is the abnormal thing. In this regard, I would like to change the title of this writing here and ask a new question: CAN THE PERSON WHO FALSELY ACCUSED OTHERS BY THE ENTRAPMENT OF CONFESSION, ATTAIN INNOCENCE? Answer: The path to contrite is open for everyone. At the court hearing, these individuals may acknowledge their mistake, take back their false accusations and receive the blessings of those they had slandered. It is never too late for anything.

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