Şanal has been claiming that Cihaner was linked to the Ergenekon terrorist organization and has carried out one of the plans of this organization. Cihaner, in turn, played dirty. He claimed that all the slander had been fabricated about him just because he was investigating a particular “religious community.”It is not right to write about an ongoing court case. Both the accuser and the accused are prosecutors and they know very well that the duty to prove a claim falls on the claimer. Şanal was able to convince the regional court at least. Cihaner, in turn, is using familiar rhetoric. The two religious groups he claims to have been investigating, the İsmailağa Group and the Gülen Movement, are both legally cleared of all accusations brought against them. In fact, Cihaner himself had sent a report to the Ministry of Justice about the İsmailağa Group that after two years of inquiry, he had found nothing that may constitute a crime. About the Gülen Movement he says nothing other than that he had opened an investigation into the movement. There is no claim about the movement itself. But it is a clever move on the part of Cihaner. His logic was adapted by several columnists: “I am being prosecuted because I tried to prosecute this and that movement.”
There is no accusation here about a religious group itself. The accusation is about the Erzurum Special Prosecutor Osman Şanal and it is Cihaner himself that needs to prove his claims.
History contradicts Cihaner. Fethullah Gülen was prosecuted and judged by several notorious prosecutors and he was cleared of all the accusations at the highest level. The court took about 10 years. Gülen himself didn’t want to benefit from a general amnesty and wanted his court case to be finalized.
Being untouchable, on the other hand, is an unfortunate reality of the Turkish judicial system. We well remember what happened to Ferhat Sarıkaya, the Van public prosecutor who dared to prosecute the “good boys” of the military. The memories of the hot summer when the Supreme Board of Judges and Prosecutors (HSYK) insisted on replacing the courageous prosecutors of the Ergenekon case are still alive in our minds. History says that civil prosecutors, who dare to investigate and accuse, leading to the conviction of military personnel, or of ‘white Turks’ are ostracized and even persecuted. Now that Osman Şanal’s special authority has been lifted by the HSYK, we may count his case as a historical example of prosecutors who dare to touch the “good boys” of the judiciary being ostracized and persecuted.
Anyhow, there is a legitimate discussion going on in front of the screens, as to whether a special prosecutor can or cannot prosecute a chief prosecutor. The Ministry of Justice already released a statement saying that what is being done in Erzurum is not a prosecution, but an investigation that will or will not lead to an actual prosecution. The Constitution says that the prosecution of chief prosecutors is within the jurisdiction of the Supreme Court of Appeals and yet the ministry claims that the investigation of prosecutors is done by other prosecutors. Already a former chief prosecutor, Reşat Petek declared his position that there is no wrong-doing in the investigation of the Erzincan public prosecutor. And finally, the HSYK overruled all these statements and decided to lift the authority of Osman Şanal. Now, we have a newborn baby discussion: What will happen to the court case? Will Cihaner be released? Who will take over the case from Şanal?
As I said, the discussion is a legitimate one, but it also reveals the unsettled nature of the Turkish judicial system. This discussion should have already taken place and been finalized during the writing of the Constitution. If there can be a diversity of opinions among the judges of the country on such a core and constitutional issue, the problem is not with the judges or their opinions, it is with the Constitution.
