It is the military that has created this oligarchy. The receding armed tutelage has left the judicial oligarchy defenseless against the government. The prosecutors and judges in Erzurum did nothing but implement legal procedures. It was not the judge against the judge. The conflict emerged between the rule of law and the judicial oligarchy. The result is something that can be found in jokes.The investigation being conducted by the prosecutors and judges in Erzurum is very important. The arrest of the Erzincan chief public prosecutor signifies the importance of this investigation. By stripping the prosecutors of their special powers, the Supreme Board of Prosecutors and Judges (HSYK) did nothing but prevent the investigation. The reason for the HSYK decision was the arrest of the chief public prosecutor. The chief prosecutor is still under arrest, and the HSYK does not have the authority to take him out of jail. The picture is perfectly cartoon-like. The prosecutors were stripped of their powers because they caused the arrest of Chief Public Prosecutor İlhan Cihaner but the chief public prosecutor could not be released. Does this result signify the strangeness of the situation?
Legal cover
We are not discussing a complex civil case. A chief public prosecutor who is accused of committing serious offenses, such as membership of a terrorist organization and the defamation of citizens, was arrested as a result of an investigation that another chief public prosecutor had been conducting for several months. It was not a personal decision of a single person. The chief public prosecutor indicted another prosecutor, presented the evidence and the court decided to arrest him. On the other hand, without having any idea about this evidence, the HSYK stripped these prosecutors of their powers.
Article 138 of the Constitution reads: “No authority, organ, institution or person can issue orders or instructions or circulars or advice to courts or judges in the exercise of judicial powers and authorities.” Weren’t “orders or instructions” given? Wasn’t “advice” given? During the last three years, this was done by many people, particularly the military. But, all in vain. Investigations continued to make progress. Advice did not work.
What happened in Erzincan was extremely scandalous. It is likely that the state’s authorities that are responsible for maintaining security may conspire to manufacture false evidence to set traps for innocent citizens. It is possible that the members of the National Intelligence Organization (MİT) and high-ranking members of the gendarmerie, who are supposed to maintain public peace, the prosecutor who is expected to protect public order for the sake of the people, and a general commanding an army may come together to prepare plots against people. They may use their power and authority and the facilities and privileges available to them to implement these conspiracies. They may give assurances to bad people to convince them to give false testimonies. Yes, they may do all of these.
All of them are possible. But were they really done? We do not know. The judiciary is investigating. What happens if they are implemented?
The prosecutors conducting the Erzincan probe assured us that we should not be worried but continue to have trust in the rule of law even if we face such a large, scandalous conspiracy. The HSYK, on the other hand, has undermined that trust. The government rushed to prop up judicial independence and impartiality while the judicial oligarchy shook this trust.
Essence of the matter
The real reason behind the ongoing scandal is 3rd Army Commander Saldıray Berk, the true mastermind behind the Erzincan conspiracy. Let us remember the main theme of the investigation under which several MİT staff members, members of the gendarmerie and a chief public prosecutor were arrested. To secretly plant weapons in the houses of devout people to give the impression that they are members of a non-existent terrorist organization and then to indict these people for membership in a terrorist organization, thereby defining religious communities as terrorist organizations. To create material support to the “threat of an armed reactionary revolt against the republic” and to give legitimacy to the military authorities’ interventions and demand for power. For this purpose, an “Action Plan to Fight Reactionaryism” was drafted in the General Staff headquarters in Ankara. In Erzincan, the state’s intelligence organization, the Gendarmerie and the prosecutor’s office worked together to implement this plan. This is the reason why the intelligence and gendarmerie staff and the Erzincan chief public prosecutor were arrested and jailed under the investigation conducted by the specially authorized prosecutors. The evidence to support these claims and arrests implies that an armed terrorist organization has been established to conduct smear campaigns against citizens. Finally, the chief public prosecutor was arrested on charges of being a member of a terrorist organization. So who is the leader of this organization? Who makes the assignments, gives orders, provides coordination and executes the plan? Isn’t it the 3rd army commander?
Here is another and clearer question. If, as in the case of the chief public prosecutor and other officials, there is clear evidence about Gen. Saldıray Berk, and there is a very high probability that this evidence might be obscured, and if this general has to be arrested because of this offense that is not of a military nature, what will happen? The answer to this question is very important for us to understand the true nature of the current crisis.
The destination that the ongoing investigation is taking Turkey to will be a place where the rule of law is asserted in practice. States are governed by the rules. If there is strong circumstantial evidence that the person to whom you entrusted an army has committed a crime, this pasha must be suspended from duty according to these rules. Why? Because a person who wields so much power will use this power in order to prevent the investigation against him. Indeed, if the prosecutor is not allowed to enter the army headquarters, what other reason can there be? The option to suspend from duty is particularly suitable for such cases.
The General Staff must immediately suspend the 3rd army commander from duty. If it fails to do so, the government must act directly and dismiss the commander. Isn’t it a serious threat against fundamental rights and freedoms and the rule of law to allow a person who is being investigated on charges of conspiring against citizens and who tries to block this investigation to continue to command so many soldiers and weapons?
The real crisis is taking place not within the judiciary, but within the military. This is the military behind the irregularities of the judiciary. The criminal networks nested within the army are being investigated. The scandals in the judiciary are intended to prevent these investigations. Will the new specially authorized prosecutors to be appointed to Erzurum be able to sweep the ongoing investigation under the carpet or destroy the collected evidence? No, this is impossible because law works based on rules, not on certain people. When you put the principle of the “publicity of the trial” and the principle of “military secrecy” side by side, you see why the answers to these two questions are different. The new prosecutors who are appointed to replace the prosecutors who were stripped of their powers in the judicial scandal have no other option than to let the legal process follow its course. The investigation phase is confidential, but during the public trial phrase, all their errors, if any, will be exposed. These are the very principles that enable us to rely on the rule of law. The logic of the law makes sure that all possibilities for error are minimized. At this stage, external inference with the investigation in Erzincan will only effect a delay, but no change.
A tangible indicator of this conclusion will be Gen. Saldıray Berk going to the new prosecutors and answering their questions like a well-behaved child. Is it possible otherwise? No, according to the law. Yes, according to politics. Then, the government must step in and force this pasha to an ex officio retirement before sending him to the prosecutors.
Will Berk come and testify in the investigation under which the Erzincan chief public prosecutors were arrested? Yes, he will. What if he needs to be arrested? Yes, he will be arrested. Is there any other possibility? No. Then, there is nothing to worry about.
