How does the Whirlpool of Unlawfulness Work?
Imagine an event; an event in which everybody were involved. Then, this event becomes a court case. But it has got one condition: All the people involved in this event shall be one party of this court case. That is, the person ordered this case to be launched, the judge, the prosecutor, the defendant, the witness who will testify against the defendant, shall all be chosen from those who had lived that same event. And let the case begin…
Would this case yield a fair decision? Would the court case be impartial and independent? Would it be possible to admit that this is a lawful case?
You could not work out what is going on, could you? Neither could I. For the last few days, I have been examining a court case, the statements given during the hearings, and the actors of this case. The more I look into, the faster the whirlpool pulls me in, and the more I struggle to escape, the deeper I sunk in.
A whirlpool –also being used in describing dangerous places or situations– occurs when powerful currents of water in seas or rivers, coming generally from the opposite directions, meet and start flowing in a circular motion. In a figurative language, we can say that, if you are moving to the opposite direction of a flowing order, get ready to create a whirlpool! The law is also like this. Your action that is opponent to the rules and regulations, will eventually pull you down deeper and deeper, and then will drown you.
You see, the court case being heard at the 9th Penal Chamber of the Turkish Court of Appeals, where the members of the Court of Appeals and the Council of State are trialled, is that kind of a case.
The Case: It is related to the events happening around a social structure called “Cemaat” (pronounced as Jamaat) that has later started to be categorised as a terrorist organisation.
The Defendant: A member of the Cemaat.
The (Accused) Witness: A member of the Cemaat.
The Judge and the Prosecutor: Members of the Cemaat or from those who are elected and protected by other members.
The Person Gave the Starting Order of the Litigation: A member of the Cemaat or someone who is acting together with them.
Two Major Evidence the Case is Based On: To be elected members to the Court of Appeals or to the Council of State.
The Defendant: An elected member
The Elector: A member of the HSYK (The High Council of Judges and Prosecutors) who is testifying against the defendant
The Judge: A jurist who had been elected at the same time as the defendant
The Person Appointed the Judge: The HSYK member who is going to testify against the defendant
The Chief Prosecutor: A member of the Court of Appeals who was elected in 2010
The Person Appointed The Chief Prosecutor: The person who gave the starting order for the litigation
The Person Gave the Starting Order of the Litigation: The one who made the defendant, the judge, the witness and the chief prosecutor to be elected to the high courts.
Would it be possible to act impartially in such a court case? Under paragraph 1-h of Article 22 of the Turkish Code of Criminal Procedures (CMK), which regulates the cases where judges can be excluded from proceedings, it is stated that, “A judge may not practice the judicial duty, if he had testified in the same lawsuit as a witness or expert.”
This paragraph can be interpreted as follows: A judge may not adjudicate the case at which he is a witness, because during the hearing, he cannot be expected to act impartially.
In the following articles of the code, all other grounds and limits for a motion to disqualify the judge from adjudicating such a case, are explained. Furthermore, in Article 289 of the CMK, rules that, “If a judge, who is by law prohibited from participation in the duty of judgeship, had participated in the process of the court’s decision-making,” is listed as an absolute violation of the law.
Let us now look at the other actor: Is the statement of the witness, who testified against the defendant, legally valid? At the first glance, yes it is. In our case, however, no, it is not. And there are two main reasons for this:
1- The aspect related to the witness: In our case, the witness is actually a defendant who is benefitting from effective remorse. Article 221 of the Turkish Penal Code (TCK) regulates the provisions of “Effective Remorse” related to our case, and it requires that the member of the organisation, who wants to benefit from effective remorse, must not have committed an offence in line with the aims of the organisation.
According to this Article, it is not possible for the (accused) witness to benefit from effective remorse. Because, the crime the defendant is accused with is to be an elected member to the Court of Appeals and the Council of State. Who elected the defendant to these courts? The witness. In this case, the witness, too, has committed the same crime, hence, this provision of the law may not be applied here. Then, we can guess that the witness has been given some illegitimate promises. They may have said, for instance: “The legal regulation is not important. In anyhow, we will award you and will impose on you only a minor punishment.”
At the same time, this is an illegal evidence which has been obtained by a way that violates the CMK. Article 148 of the CMK on the procedures forbidden during the interview and interrogation, states this: “(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.”
2- The aspect related to the defendant: The defendant applied to the elections for membership to the Council of State as a candidate, after having had served his legal duty as a judge for many years, just like many other of his colleagues. The witness elected him for the position. Now, how solid can the legal validity of the abstract false accusations of the witness against the defendant be, since he directed the malicious prosecution with an effort to save himself and cover up his own acts, under the influence of the events that have broken out 6 years after the election? The point discussed in this case is the reason why the defendant had been elected as a member to the high court, not the eligibility of the defendant. In this case, should we not look at the elector, rather than the elected?
Let us go back to the descriptions.
The Case: Membership or leadership of a terrorist organisation, or (actually) being elected as a member to a high court
The Defendant: An individual elected as a member to the Court of Appeals and the Council of State
The Witnesses: HSYK members who had elected the defendant to the high court
The Judge and the Prosecutor: Those who had witnessed the election and have been assigned to this duty by the person who gave the starting order for the litigation
The person who gave the starting order of the litigation: The Head of the Head of the institution to which the witness is a member.
Yes, the then Prime Minister Erdoğan has given orders to Sadullah Ergin, the then Minister of Justice and the President of HSYK; the appropriating laws have been made; a referendum was held; and new assignments have been conducted to judicial posts. In 2010, with the support of Erdoğan, the then Chief Prosecutor of the Court of Appeals Mehmet Akarca has been elected as a member to this high court. Birol Erdem, Ahmet Hamsici and İbrahim Okur, the witnesses who benefitted from effective remorse, have become HSYK members in 2010, while witnesses Mustafa Kemal Özçelik and Kerim Tosun, have become members later in time. They have issued decrees under the presidency of first Sadullah Ergin, then Bekir Bozdağ.
The witnesses had not only elected the defendants as members. During the same period of time, they had also elected Burhan Kadıoğlu, the Head of the 9th Penal Chamber of the Court of Appeals, who presently trials the defendants in our case.
One of the evidence submitted against the defendants is a meeting held at Ankara Judges Lodge. Interestingly however, Presiding Judge Burhan Kadıoğlu had also attended that meeting.
If holding a meeting or being elected as a member to a high court is accepted as a crime, then should not the witness, the judge and the defendant be considered equally guilty?
After benefitting the goodies of their cooperation with the cemaat for 40 years, Erdoğan, who had given the starting order of the litigation, and his adjutant Bekir Bozdağ, said that they were deceived.
On the other hand, after enjoying similar blessings for 30 years, Deputy President of HSYK Ahmet Hamsici, who had elected the defendants as members, said these: “The implicit contract between us and the leaders of the cemaat did not include a provision about ‘staging a coup’. They breached that contract. I became a confessor, because I feel myself deceived, even raped.” But nobody said to him, “Wait a minute, you were already ‘the leader’, because you had elected all those to the high court.” Or nobody has asked the explanation for his sentence containing that imaginary magical “contract”, which muddied the minds, and churned the stomachs.
Meanwhile, despite the grounds that necessitate his refrain from adjudication in this case, the motions forwarded to disqualify him, and the clear provisions of the law, the Presiding Judge, who, from the very beginning, had been witnessing the events that are the subject matter of this case, still blatantly continues to adjudicate the lawsuit.
Now think about it! There is an event in front of us, in which everybody has been involved, and court trials are started by assigning different duties to the people who were engaged in this event, while some of these people are made defendants. Would this trial yield a fair result? No. This is a whirlpool.
There is only one way to solve this muddle. It can be possible to push through and out of this whirlpool, by means of one method that it is accepted in all parts of the law: Rendering all the procedures that have destroyed the order of the judiciary; and all the court trials and related operations that have been conducted by violating the provisions of all legal procedures, as “non-existent”. Even the principle of “absolute nullity” that dominates over the civil law, remains under shadow next to this, because the “non-existence” casts effect on all the operations here and nullifies them all.
Maybe not today, but certainly tomorrow, this and all other similar cases, where Altan brothers, Nazlı Ilıcak, Enis Berberoğlu, Hidayet Karaca, Selahaddin Demirtaş, Ahmet Şık, et al., have been trialled, will be regarded as “non-existent” and will be thrown into the dark dungeons of history.