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MARKAR ESAYAN

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MARKAR ESAYAN
June 13, 2012, Wednesday

Judiciary is not a toy to fiddle with

The specially authorized courts matter, for example what sorts of amendments the government is planning to make to Articles 250, 251 and 252 of the Code of Criminal Procedure (CMK), have yet to be clarified.

Oddly enough, some ministers or deputy prime ministers are claiming that there are changes planned while government spokesperson Deputy Prime Minister Bülent Arınç assures us that neither the third nor the fourth package of judicial reforms contain amendments to Article 250. This sends one wondering what is happening. Why is there all this secrecy or uncertainty?

First, let must note this. The government has long been working on the third and fourth packages of judicial reforms in order to tackle the problems in the Turkish judicial system, particularly the problems Turkey faces in regards to the complaints filed at the European Court of Human Rights (ECtHR). These reforms include preventing detention decisions from being handed down as a rule rather than as an exception, reducing lengthy detention periods, and allowing the defense to have access to investigation files.

The major criticism against the specially authorized courts, which I, too, agree with, is that the duration of detention which is normally five years is increased by these courts to ten years. A court should be able to conclude a trial in five years however complicated it may prove to be. The court is preparing to issue its final decision on the complicated and colossal Sledgehammer (Balyoz) coup plan trial and the whole process lasted only two years. This positive change, too, should be noted and acknowledged.

Yet, the planned amendments go beyond these positive changes, and the changes may prove more disadvantageous. These changes may end up restricting the freedom of thought and expression, and put the country behind the eight ball in regard to the cases at the ECtHR. In particular, the principle of making publications for the common benefit of the general public is scandalously breached in the amendments related to secrecy. For a journalist, it is a basic duty to disclose a crime if s/he deems it will be a benefit to the general public to do so. But according to the proposed amendments, a journalist doing so may be sentenced up to five years in prison. This sentence can be postponed for three years, but if s/he repeats the same crime during this period, s/he is imprisoned for all of the crimes. This implies that a journalist can be effectively censured for three years.

There is already a problematic regulation involving the National Intelligence Organization of Turkey (MİT), in which the authority to give permission to investigate and file a claim about crimes that governmental officials are involved in is given to the prime minister, relevant ministers and governor. If this law was enacted, who would talk about the independence of the judiciary and enforcement? Who will control the decisions of the prime minister, ministers or governor? If these people issue wrong decisions, how will they undertake the moral and legal responsibility for this decision? While we keep criticizing Act No. 4483 on judicial proceedings concerning civil servants, which also hinders the Hrant Dink case, would institutionalizing such a mistake in this way be suitable for the criteria set by the ECtHR?

All in all, now that there is a demand that judicial proceedings be expedited, if lawsuits that have been going on since 2007 were taken out of the hands of the ÖYM’s, these lawsuits would have to be prolonged for two or three years, since the new courts that would take over the lawsuits would have to repeat many proceedings. In order to avoid this, the statement: “Ongoing lawsuits will be excluded” may be added to the draft law but this is against the core of the legal system.

Additionally, there aren’t any complaints about the ÖYM’s. Moreover, Turkey didn’t become subject to any criticisms or penalties from the ECtHR about the judicial proceedings and detention periods with regards to the trials of Çetin Doğan and Tuncay Özkan.

The Anti-Terror Law, which we should refine and which I think is the actual basis of the problem, isn’t mentioned at all. Article 6 and Article 7 of the Anti-Terror Law should definitely be abolished. They state such an uncertain and broad definition of terrorism that it would become impossible for prosecutors to interpret this definition correctly. Youngsters in whose house a dissident flag is found or who participate in illegal protests or unfurl a banner to demand free education are counted as members of a terrorist organization. This law was enacted in this way due to the intervention of the army and for the purpose of misusing this law. The judiciary shouldn’t be a victim of vicious ideological conflicts.

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