Tuncay Özkan -- who is currently in detention in connection with a probe into Ergenekon, a clandestine organization nested within the state trying to overthrow or manipulate the democratically elected government -- had applied to the European Court of Human Rights via his lawyer in February 2009 claiming that he was being subjected to practices in breach of the European Convention on Human Rights (ECHR). In his petition, he demanded that the European Court of Human Rights should identify and put an end to the violation of his rights.
Normally, the European court does not accept an application when domestic remedies have not been exhausted. However, it made an exception with regard to the application concerning the murder of Hrant Dink and agreed to discuss the application even before domestic remedies had been exhausted. Eventually, it found Turkey in violation of the ECHR on the grounds that the murder was not effectively investigated and no effective protection had been provided to Dink and it was unfair to penalize Dink under Article 301 of the Turkish Penal Code (TCK).
According to the 2011 European Court of Human Rights report, Turkey was the country with highest number of violations as identified by the Strasbourg court. In other words, the European Court of Human Rights is a court that has been frequently hurting Turkey because of judicial violations. No one doubts its impartiality.
This court declined Ergenekon defendant Özkan’s petition that claimed Özkan’s rights to freedom, security and a fair trial, enshrined in the ECHR, had been violated. The European court further defined Ergenekon as a terrorist organization that seeks to overthrow the government through violent methods. It held that the arrest decisions had been made based on substantial evidence and legitimate justifications. It also said that Özkan’s claim he did not know the accusations against him was clearly unfounded. It announced that it will further investigate the claims about long detention periods.
In its interim decision, the European Court of Human Rights pointed out that Turkish courts are conducting the adjudication in a swift, independent and fair manner with regards to the case against Ergenekon. It underlined that Özkan was arrested for justifiable reasons. Noting that the evidence collected has created strong suspicions about the existence of the Ergenekon terrorist organization, the court did not find acceptable Özkan’s demand for release pending trial as it may complicate things for security forces dealing with organized crime.
This decision is of critical importance for the future and legitimacy of critical cases, like the one against Ergenekon, in which the country confronts and questions the tutelage that has been maintained in collaboration with the deep state and other shady networks nested within the government.
It is significant because this process has been harshly attacked by groups lobbying against the case against Ergenekon out of fear of Turkey’s democratization and the introduction of a transparent state governed by the rule of law.
These groups have even been propagandizing that there is no such organization as Ergenekon. They have long suggested that when referring to Ergenekon, everyone should say the “alleged Ergenekon organization.” In this way they implicitly argued that such an organization is an imaginary network manufactured by the ruling Justice and Development Party (AK Party) government with a goal of establishing its own civilian dictatorship.
As a matter of fact, some erroneous moves by the judiciary, such as the arrests of Ahmet Şık, Nedim Şener, Ragıp Zarakolu and Büşra Ersanlı, have allowed them to add a human dimension to their objections. Furthermore, when prosecutors opted for construing the already anti-democratic Counterterrorism Law (TMK) in a broad manner, this Ergenekon lobby found another, much more effective propaganda tool. The fact that detentions were not being utilized only in exceptional circumstances bothered us. We had two objections: First, people should not be treated unfairly, even if they are criminals. Second, these erroneous moves were undermining the case against Ergenekon as the Ergenekon lobby was bringing human rights violations to the front and deliberately confusing judicial errors with the subject matter of the case against Ergenekon to create a legitimacy crisis.
In this sense, the European Court of Human Rights’ interim decision on Özkan’s application gave a major boost to the case against Ergenekon. This decision is particularly important amid the debates about whether the powers and authorities of specially authorized prosecutors and high criminal courts, established under the Code on Criminal Procedure (CMK), should be pruned. This is because the main problem is not about Articles 250 and 251 of the CMK, which essentially abolish immunities and introduce equality before the law in legal proceedings. The main problem is the set of anti-democratic laws, such as the TMK.
Justice cannot be administered via injustice. People should not be deprived of their citizenship rights and human rights after they commit offenses. In this way, smooth progress can be ensured with regard to critical cases, such the one against Ergenekon, and Turkey can be cleansed of the deep state.
