However, as the immunity shields public officials have get stronger, the system is becoming less and less a state governed by the rule of law where everyone is treated equally before the law and everyone accounts for their deeds in court, irrespective of their positions. It is a serious source of concern that the system of immunity has recently started to expand, although it is expected to diminish due to criticism that it is already covering too many people and areas. The politicians who promised to introduce transparency and accountability at the election rallies are now acting quite contrary to their promises, which further reinforces these concerns.
Despite the sheer number of legislation that must be prioritized -- such as the drafting of a new civilian constitution that will catapult Turkey to higher standards in fundamental rights and freedoms or the passing of numerous bills to ensure harmonization with the legal system of the constitutional amendments ratified in the referendum held on Sept. 12, 2010 -- the ruling Justice and Development Party (AKP) passed amendments to the match-fixing law and the National Intelligence Organization (MİT) law posthaste. This has certainly created in the public the perception that the alleged illegal activities of certain people and institutions are being protected against due process of law. The practical aspects of the MİT bill aside, the government has come to be perceived as suffering from a dangerous shift that is in stark contrast to the principle of rule of law.
Fortunately, not all actors or components of the state are on the wrong track. The AKP government has just passed a bill to reinforce the immunity certain public officials already have, and the Presidency’s State Audit Institution (DDK) issued a report on the investigations concerning the murder of Turkish-Armenian journalist Hrant Dink, who was shot dead in İstanbul on Jan. 19, 2007. This report clearly shows why this MİT bill is a flawed attempt.
The 650-page DDK report, also sent to the Prime Ministry and İstanbul Chief Prosecutor’s Office, reads: “Although the person who shot Dink dead was apprehended shortly after the murder, the investigation and prosecution processes were not conducted as effectively and swiftly due to certain systemic problems. For this reason, the general public and the Dink family have not been satisfied with the investigations/prosecutions conducted by administrative and judicial authorities. In particular, the general criticism is that the public officials who were allegedly involved in the murder of Dink were not tried, and the people who masterminded the murder were not found. On the other hand, in Dink v. Turkey, the European Court of Human Rights (ECtHR) ruled on [Dec. 14, 2010], that Turkey failed to protect the applicant’s right to life and breached the right to fair trial and didn’t conduct an effective investigation for the protection of the right to life and failed to provide effective remedies. Accordingly, the negligence of public officials was substantiated, and the criticisms that the public officials who failed to prevent the murder were being protected increased, and this made the nature and outcome of the administrative investigations dubious.”
The DDK report also criticizes the immunity afforded to public officials against legal processes. Referring to two basic systems for investigating and prosecuting public officials, it explains that in the judicial guarantee system, the investigation and prosecution concerning public officials’ offenses related to their duties are completely conducted by judicial authorities according to general provisions. Indeed, in this system, the judiciary is considered a “guarantee” for public officials as it is for other members of the society, the report adds. In the administrative guarantee system, it notes, a public official is considered a state representative. “Therefore, the state tends to protect those people who perform state services... The state protects the bureaucracy that represents its sovereignty with laws and endows its servants with privileges... In sum, the administrative guarantee system has been developed in countries with a central state structure out of concerns for the protection of the administration and public servants as its representatives in parallel to the development of the administrative law,” it says.
The report also makes some recommendations to the decision-makers concerning the prosecution of public officials. “The system that requires prosecutors to ask for the permission of the administration to launch a judicial investigation on public officials facing certain charges is currently being implemented so broadly that this undermines the public’s sense of justice and cannot be reconciled with contemporary legal norms. In this regard, a method should be developed to eliminate the current inconveniences of the judicial guarantee system and to ensure greater harmony with contemporary legal norms,” it suggests.
The report also stresses the legal fuzziness concerning the prosecution of public officials and notes that Turkey has rich experience in cases like the murder of Dink. As examples, it refers to the murder of Christian missionaries at the Zirve publishing house in Malatya, the murder of priest Andrea Santoro in Trabzon, the Cage (Kafes) action plan, the cases against Ergenekon -- a clandestine organization nested within the state trying to overthrow or manipulate the democratically elected government -- the Revolutionary Headquarters, Odatv -- which is accused of acting as a media outlet to propagate the cause of an organization that attempted to forcibly overthrow the government -- the Sledgehammer (Balyoz) action plan, the Anti-reactionaryism Action Plan, the bombing of a bookstore in Şemdinli, the Council of State attack and the unsolved murders. The report mentions there are claims against public officials in these cases. “It is a must that the whole incident, including how Dink was ‘otherified’ and made a target and threatened, should be investigated, and certain negligent and other acts of public officials, before and after the murder, should be investigated and prosecuted directly by judicial authorities as part of the main case.”
At a time when a potential pruning of the powers and authorities of specially authorized courts and prosecutors has started to be discussed in the circles close to the government after judicial authorities attempted to investigate the controversial relations between some MİT members and the terrorist Kurdish Communities Union (KCK), the DDK report completely negated these arguments. Indeed, this report reveals the saddening fact that specially authorized courts and prosecutors are incapacitated in their efforts to collect evidence against public officials who allegedly acted negligently in the murder of Dink. In other words, it underlines that the powers and authority of specially authorized courts and prosecutors are not as broad or extensive as claimed, but fall short of enabling them to effectively investigate the offenses attributed to public officials.
