Cem AydınEnglish

Disproportionate Decisions of Intemperate Judges

Every profession has an artistic value. Art is all methods describing and expressing an emotion, a design, a beauty or similar things. A member of a profession proves his/her success and competence through the methods s/he uses.

We evaluate an artist through the painting s/he does and a surgeon through the operation s/he performs. His/her performance of applying the specific principles of their occupation determines his/her accomplishment.

The profession of judicature has a performance art too. We observe a judge’s art in his/her conduct of a trial and, finally, in the decision that s/he reaches.

Giving a decision of acquittal or punishment after evaluating all evidences collected in a fair trial in the light of laws and universal principles of law, a judge produces his/her art through the reasoned decision that s/he writes.

When we read the reasoned decision, we read also the judge’s state of mind, psychology, experience, and emotions. We understand whether s/he decides neutrally, independently, justly, without prejudice or not. We feel his/her fear, expectation and courage. We see s/he is on the side of power and political will or on the side of justice.

In addition to that, the ‘principle of proportionality,’ which is used to determine the punishment for a crime, is the most critical principle showing the quality of a judge’s professionalism.

A judge’s success and justice are tied to finding a balance between the action violating a rule and the sanction imposed for the action.

Then, to which degree do the Turkish courts currently apply this principle of proportionality? Unfortunately, there is not a pretty sight.

In international index of rule of law, Turkey has fallen back, with an incredible momentum, to the lowest levels in recent years. The justice system has completely collapsed. So indeed, the courts handling political cases have been applying different laws depending on both the identity of the defendants and the cities in which the courts located.

Different people, who have been unlawfully accused of the same activity may get acquittance or receive three years, 15 years, or aggravated life imprisonment because of subjective judgments. As the examples below indicate, there has not been such disproportionality throughout the history of law.

However, Article 13 of the Constitution, titled “Restriction of Fundamental Rights and Freedoms,”is pretty clear. “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be in conflict with the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular Republic and the principle of proportionality,” says the Constitution.

According to Article 3 of the Turkish Penal Code (TPC), “Any penalty and security measure imposed upon an offender should be proportionate to the gravity of the crime.”

Determination and individualization of the punishment are articulated in the Article 61 of the TPC. These two coherent articles stipulate the proportionality of the punishment with the action’s severity and gravity as well as the intent of the perpetrator.

In this respect, in determination of the punishment amount, the criminal act is taken into account firstly, regardless of the characteristics of the perpetrator. After that, it is individualized (TPC 61/5). On the basis of basic penalty, the final penalty was determined by applying the provisions which necessitates mitigation of punishment like criminal attempt, complicity, successive offense, unjust provocation, age, mental illness and extenuating circumstances.

Besides, according to Article 62 of the TPC, the perpetrator’s past, social relations, attitudes before and after the act as well as the possible effects of the punishment over the perpetrator may be taken into consideration as extenuating circumstances.

However, in order to give a proportionate punishment within the scope of above mentioned principles, a judge has to have competence and experience, before everything else.

In an effort to get rid of investigations and cover up his crimes, notably corruption cases, Erdogan has dismissed and made arrested more than five thousand successful and unbribable judges and prosecutors who did not vote for the candidates indicated by Erdogan in the elections of the High Council of Judges and Prosecutors. It was the purge of nearly half of the judiciary. During last three years, 12 thousand judges and prosecutors close to the government have been accepted into the profession. These people, who have just graduated from the faculty of law and not made even their one-year internships, have started to judge people based on accusations necessitate aggravated life imprisonment and, at the end, given tragicomic decisions.

For example, the penalties are started to determined according to defendant’s personality, where s/he worked, political or religious views, and which group or identity s/he is belong to.

Yet, the issues like perpetrator’s past or social relations can be evaluated as extenuating circumstances, not in the determination of basic punishment or increasing of punishment (TPC 62).

Nevertheless, above mentioned principles have not any importance in today’s Turkey. The critical thing is what President Erdogan thinks of that trial or defendant. The judge has to decide according to Erdogan’s thoughts. Therefore, in Erdogan’s judicial system, laws, the constitution, and international conventions on fundamental rights and freedoms have not any binding authority.

For this reason, personal conditions like a person’s fame, wealth, civil service, etc. can be a reason for increasing of punishment for different members of a same organization.

For example, although they have been tried for their writings in the context of the same organization, same crime and same act, journalist Murat Aksoy was sentenced to 2 years and 1 month, Unal Tanik to 6 years and 3 months; Cumhuriyet’s Akin Atalay to 8 years 1 month 15 days, Ahmet Sik to 7 years 6 months and Kadri Gursel to 2 years 6 months; Samanyolu Broadcasting Group General Manager Hidayet Karaca to 31 years 6 months; Ahmet Altan, Mehmet Altan and Nazli Ilicak to aggravated life sentence.

As journalists from different ideologies and backgrounds, only common feature of above mentioned figures is their ideas opposing Erdogan’s dictatorship. That said, their punishments were determined disproportionately and arbitrarily in accordance with the directives that have been given to the judges.

On the other hand, a different sense of justice is applied to criminals and organizations protected by the government. And one of the examples of this is the trials of ISIS which has became a problem for all world, carried out horrible massacres, and explicitly supported by Erdogan government.

Smuggling weapons for ISIS under the supervision of the Turkish intelligence (MIT), Erdogan paved the way for release of criminal ISIS militants while he made arrested the prosecutors investigating the subject.

Yunus Durmaz, who has organized Turkey’s bloodiest slaughter, Ankara Train Station Massacre, exploded himself during a police operation. His sister Gamze Demir was caught in the same house with the suspects of the same massacre and with 20 kilograms of TNT, a lot of suicide vests, and ammunitions. During the trials taken place in the Gaziantep 2nd High Criminal Court, the defendant said that she did not look into the boxes with the thought that there were books in them. The court discharged the defendant from prison in the light of the length of her detention and also that she has a toddler and detention is protective measure.

In contrast, in an investigation on Gulenists that launched upon Erdogan government’s demand, Gaziantep 8th High Criminal Court rejected Hatice Ogut’s release demand and sentenced her to 15 years imprisonment for being leader of an armed terrorist organization since she collected scholarship for poor students and organized religious sermon.

Moreover, in several cities, including Gaziantep, hundreds of women who have newly given birth, 17 thousands of other women, hundreds of babies and toddlers have been unlawfully and arbitrarily jailed pending trial for alleged Gulenist membership despite statutory obstacle.

In another example in Diyarbakir, caught with substantial amount of bomb making materials and with a sword in his home near police lodgement, B.I. was emptying chemical materials into toilet outlet when the police made operation. Yet, B.I. acquitted from being member of ISIS terrorist organization, but received 5 months for having a sword. Thinking the punishment was too much, Gaziantep Regional Court of Justice absolved B.I.

After a short period of time, Diyarbakir 5th High Court of Justice, which gave the first verdict, tried Suleyman Turk for his alleged membership to Gulen Group’s tradesmen wing. Seized sermon tapes and books, detected his visits to Private Nil College, and detected his membership to an association closed with a decree law, Turk was sentenced to 7 and a half years imprisonment and not released although these acts do not constitute a crime.

Istanbul 27th High Criminal Court is one of tens of courts which have given similar scandalous decisions. In the case of Reina massacre in which 39 people were killed, the Court justified its release decision for mostly foreign nationals 7 ISIS suspects on non-existence of suspicion that they were going to flee and on principle of proportionality. Ironically, in contrast to such a sensitivity for a constitutional right, the Court rejected journalist and academician Mehmet Altan’s release demand by disregarding a Constitutional Court decision which was a clear violation of the Constitution. The Court justified its decision saying that, despite two years of detention, collection of evidences has not yet completed about the journalist who is actually accused of participating to the coup d’etat with his writings.

It is not possible to explain Erdogan judiciary’s these implementations with only double-standard. So much so that, in investigations on Gulenists, every court proves their lack of justice and judicial ethics by giving totally different decisions in their own trials, even based on the occupations of the defendants.

A similar inconsistency exists in the judgments of judges and prosecutors who were arrested just three hours after the coup attempt started for allegedly participating into the coup. For instance, while an ex-judge who was sentenced to more than 10 years since his usage of Bylock encrypted messaging application and relations with the Gulenists were detected, his one of colleagues arrested for similar accusations in Ankara was sentenced to 6 years and 3 months, and another was sentenced to 18 years in Istanbul. Meanwhile, members of high judicial bodies have been subjected to solitary confinement and sentenced to higher punishments.

Similarly, in accordance with political directives, many courts continue to hold wealthy businessmen in solitary confinement for trial or gives high punishments while they give lowest sentences to small business owners for the same acts. Again, there are serious differences between sentences given to a form teacher and an academician and their detention lengths for allegedly being Gulenist.

At this stage, Erdogan’s judiciary is in a pathetic situation from the stand point of its disproportionate ‘enemy law,’ inconsistencies between courts regarding application of procedural provisions, and defense lawyers’ inability to guess whether their clients will be acquitted or sentenced tens of years. This unlawful and unsystematic judicial system, which will certainly be studied in European law schools and history books, and its poor enforcers will likely be remembered shamefully for long years.

 

 

 

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