EnglishLevent DERYA

THE CLAIMS FOR DAMAGES FILED IN RELATION TO TERROR CRIMES

By Levent DERYA

 

For some time now, the press has been publishing news about some state institutions, filing compensation cases for physical damages occurred in their buildings, because of the July 15 events. While even the veil of mystery has not been lifted from over the events on that day, and who started the events, who upheld them, and who stopped them are not yet clear, what is this hurry to claim the damages for? Even the President himself was not sure from whom and what time he learnt the coup attempt. As this is the case, filing very high amounts of claims against certain people for the physical damages happened at that night, with an undue haste, could not be interpreted as an act in good faith.

Article 20/A of the Anti-Terror Law requires rendering a decision, not to file a case for compensation, but to apply precautionary measures on the assets of the perpetrator and add an annotation to the decision requesting this. A similar procedure is available in the Highway Traffic Code (Article 85/2). The reason behind this provision is to allow the prosecutor, who brings an unlawful action –the criminal act he sued– against a court, to apply immediate measure upon the assets of the criminal to prevent them to liquidate the assets with bad intention. This measure upon the assets stays for a period of time, and if the victim does not bill a case at a court for another measure, then the measure taken by either the prosecutor or the judge is automatically lifted.

However, regarding the July 15 incidence, criminal cases were at the stage of being filed against the –not yet clearly defined– perpetrators when the claims started to be filed. How come they were being able to define the defendants before the lawsuits are concluded? Would this not mean that they are declaring the accused ones (the defendants) guilty well in advance? Have they not violated the principle of presumption of innocence by this? Would not the criminal judges, who have already deviated from justice, be further influenced by this?

It is possible to increase the number of these questions, but let us look whether the legal conditions for filing these compensation cases have been met or not:

The claims for physical damages for the state buildings that occurred during the July 15 coup attempt, fall into the category called “tort claims”. According to the Claims Law, if someone had caused harm for another person with an unlawful act, they have to compensate this damage. Compensation of a damage can be possible by bringing the property back to its original condition. If this is not possible, then the financial cost of the damage is calculated and this amount is paid as pecuniary compensation to the person whose property is damaged. For example, someone’s parking their car on my land in a way that prevents me from using my land, is an unlawful action. When they take their car away from there, the original situation of my land will be reinstated and the damage will thus have been recovered. However, if someone crushed my wall down, or felled my tree, to bring their original state back is physically impossible. In this case, to compensate the damage, the person who is responsible for this act must build the wall same as it was, as for the tree, its monetary value is calculated and this amount of money is paid to the owner of the tree– me.

There are four fundamental elements in the Claims Law: 1) the act of the defendant, 2) the damage caused by the act, 3) the fault or unlawfulness, 4) the existence of a causal relation between the act and the damage.

We mostly know what is meant by the elements of the offender and the damage. Unlawfulness means that the act that has caused the damage cannot be protected by the Law, that is, it is a wrong, illegal act. Sometimes the act that caused a damage can be a lawful act. For example, demolishing a building –let’s say a house–, which had been built illegally by violating the building regulations, is legal; thus the owner of the house may not claim for the damages caused by this demolition. And sometimes, the act is unlawful, but the offender can have no fault in this act. For example, “Knock this wall down, because it is built against the building regulations,” orders a mayor to an operator who operates a digger of the municipality. In reality, however, the wall is not built illegally, but the mayor has other bones to pick by this demolition. But the digger operator did not know anything about this and carried out the order assigned to him in accordance with the related legislations. In this case, the operator may not held accountable, because he has not got any fault. And consequently, he may not be claimed for the damage. Here, the mayor is the one who is wrongful, so the responsibility of compensating the damage falls on the mayor. The causal relation between the act and the damage means that the damage has happened because of that particular action. In our example, although the one who had operated the digger was not the mayor, there certainly is an appropriate causal link between the order of the mayor and the demolition of the wall.

Now let us examine the damage claims filed against the persons who are trialled in the cases related to the coup attempt. To make the material damages of their buildings to be compensated, state institutions like TMSF (Saving Deposits Insurance Fund), TBMM (Turkish Parliament), and EGM (General Directorate of Constabulary), filed cases against the individuals who are trialled with the accusation of committing the coup, or  being a member of an organisation.

First of all, the damage is clear, so there is no doubt about this. But what follows after is a bit blurry. Before anything else, it is still tentative who the perpetrators are. According to the reports of the pro-government pool media (they are called like this, because they have been all gathered under the ownerships of government-supporters), everything is very clear. The truth of the matter, however, is completely different. If you just give a glance to the video programs and writings of at least Ahmet Nesin and Ahmet Dönmez, you will see how baseless the accusations and the claims are and you will also see that there is something fishy about this incidence. For example, there are tens of contradictory statements and question marks about the damage occurred at the TBMM building, such as, the aftermath state of the furniture and the paintings on the walls and the technical specifications of bomb that is claimed to fell on the building, are contradicting in terms. Meanwhile, on the TV program that broadcast the bombings of the planes live that night, viewers clearly watched that a bomb was exploded and it caused destruction on the building. However, there was no sign of neither a plane, nor a bomb dropped by a plane. In this case, this brings to our mind that there is a possibility that the incidence did not happen as they allege, but happened in such a concocted way that aimed to eradicate, or at least alienate from society, some targeted persons who are accused by committing the coup –the defendants of the coup case– hence it was a trap.

As a result, hastily filing claims for damages without clearing all these doubts will never serve the fairness of the case. First and foremost, all these doubts should have been cleared by means of mechanisms like the criminal and disciplinary procedures, and the material truth should have been brought into the open more evidently; only then the claims should have been filed.

Unfortunately, we are not going through a normal judiciary process. If the person who is charged with such a claim is not the person who threw the bomb or fired the gun that caused that damage of the building and/or the furnishings, in other words, if he is not the person who actually committed the act that caused the damage, since a causal link cannot be established between the act and the damage, this case should be rejected.

If the person is the one who committed the act, but it has been evidenced that he had been entrapped to do this, then again the compensation case should be rejected. As we understand from the many case files being heard at criminal courts, many innocent common soldiers, military students, even military officials, had been drawn into this trap by false alarms such as “there is an action drill”, or “there is a terror attack, we are going to an operation.” Just as in the demolition of the wall by the digger operator with the order of the mayor, here also, those who conducted the job they were assigned, with the motion “I am called for duty, I am fulfilling my work,” may not be held responsible for faulty behaviour. Naturally, they cannot be claimed for damages, either. In this incident, all of the fault should be cast on the person(s) who had concocted this trap, and those who had given the orders in that direction.

Meanwhile, there are also those against whom cases are filed, on the ground that “they must be the members of the same structure,” although they have nothing to do with the act that caused the damage in question. It is needless to say, this accusation can be as fair and rational as filing cases against all workers of the municipality when one worker has intentionally demolished someone’s wall.

Before these murky elements are cleared and the criminal cases are doubtlessly resolved, to proceed these compensation cases in a fair way will be very difficult. Here, the civil judges are under serious historical and conscientious responsibilities. They either will deviate from justice –like their criminal judge colleagues have– and by obeying the orders from the political rule, burden the defendants with heavy claims without even needing to trial them, or will fulfil what the Law and moral sense require.

On these days when everybody are passing through their own designated trial, the judges are also experiencing a very harsh examination. They either will (non)act like a corpse being bathed and submit themselves completely to the dead-body washer –who orders them to conduct what procedures to follow for these cases– and leave their intellect and reasoning aside and just do what they are commanded to do; or they will establish justice with the awareness that they will one day give the accounts of all their decisions to the Creator of both them and the dead-body washer. After all, is life not about the choices you make?

 

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