ArticlesBAHADIR ASLANEnglish

THE COURT OF CASSATION UPHELD THE ACQUITMENT OF FORMER UNDERSECRETARY, BIROL ERDEM, WHO HAD BLACKLISTED THOUSANDS OF JUDGES AND PROSECUTORS

Dr. Bahadır ASLAN

                                                                                                                                      

The Birol Erdem decision announced by the Assembly of Criminal Chambers of the Court of Cassation has become the most discussed topic of this week. Birol Erdem, who still works as the High Counselor of the Ministry of Justice, became a member of the Council of Judges and Prosecutors (HSK) on October 25, 2010 and served as the Undersecretary of the Ministry of Justice between November 21, 2011 and January 1, 2014. Birol Erdem and his wife were detained on 3 June 2017 as part of the investigations initiated by the Ankara Public Prosecutor’s Office against the Gülen Movement. He was released by the judge on duty, but his wife, Gülümser  Erdem, was arrested on 17 June 2017 on charges of “membership of an armed terrorist organization” and “fraud”. Gülümser Erdem was later released on the condition of judicial control.

The former undersecretary, who was prosecuted for the charge of leading an armed terrorist organization, was acquitted by the 9th Criminal Chamber of the Court of Cassation, on the grounds of Article 30 of the Turkish Penal Code (9. CD. 01/02/2021 T., 2019/11 E., 2021/5 K.). The acquittal decision was approved by the Assembly of Criminal Chambers this week. During the trial, Birol Erdem explained his activities within the Gülen Movement and his high-level duties in detail. Besides, he gave comprehensive information about systematic and planned blacklisting operations. According to Birol Erdem’s statements he had blacklisted approximately 3000 judges and prosecutors, whom he thought were members of the Gülen Movement in the Turkish judiciary, since 2013. He also testified against the judges and prosecutors he blacklisted.

Although former undersecretary Birol Erdem admitted that he was the main actor in the blacklisting process of the Turkish judiciary and that he had blacklisted thousands of judges and prosecutors and shared sensitive personal data with the intelligence agency, the Court of Cassation deemed these unlawful actions of the former undersecretary to be legitimate.  The Court of Cassation evaluated these unlawful acts of the former undersecretary in his favor in the “interpretation of the concept of delinquency” and acquitted him.

The Court of Cassation, which upheld the imprisonments given to hundreds of thousands of innocent people on the basis of unlawful evidence and fabricated reasons, decided that Birol Erdem, who confessed of being a member of the Gülen Movement and carrying out crucial duties, had not known the ultimate purpose of the Movement and therefore he had fallen into error about this matter. As can be seen, the Court of Cassation acquitted the defendant on the grounds of “mistake” that it embellished with universal law principles in order to save the former undersecretary who blacklisted most of judges and prosecutors. However, The Court of Cassation has not applied ‘the provision of mistake’ (TPC art. 30) until now, as the Supreme Court is aware of the fact that if the aforementioned rule was applied to others accused of being members of the Gülen Movement, then everyone would be acquitted. 

In other words, Birol Erdem was benefited from “the provision of mistake” because he took part in blacklisting commissions, engaged in illegal intelligence activities outside of his primary duties, and testified against hundreds of judges and prosecutors.

The Turkish judiciary was put under pressure with the start of the 17/25 December Bribery and Corruption Operations. Through the dismissal of around 5000 judges and prosecutors from their profession and the detention of most of them on the grounds of the July 15 coup attempt, the judiciary was actually put under the control of the government. With the subsequent amendments to the Constitution and laws, it has become an apparatus under the control of the government. Thus, the Turkish judiciary has assumed the identity of a regime judiciary rather than being an independent and impartial judiciary.

Thus, the Supreme Court remained in a position far from its main function and started to act as an organ of the government. The Court of Cassation has used the government’s statements about the Gülen Movement as justification for its decisions. It prejudicedly accepted the Gülen Movement as a criminal organization having the virtual layers within a pyramidal structure which was invented by the Supreme Court itself (CGK E. 2017/16-956 K. 2017/370 T. 26.09.2017). The same court has now acquitted the former Undersecretary of Ministry of Justice, who had blacklisted thousands of his colleagues and gave false testimony against them. This is the exact summary of the disgraceful situation of the judiciary in Turkey.

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