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Spontaneous Philosophy of Turkish Judiciary
by
ORHAN KEMAL CENGİZ
by
ORHAN KEMAL CENGİZ
This concept of “spontaneous philosophy” provides us with quite a useful concept to understand the judiciary in Turkey. The Turkish judiciary has always had a very strong “spontaneous philosophy” but they always claimed to be “neutral.” Whenever the individual and the state were in conflict, whenever freedoms and the state’s presupposed high interests were in conflict, our judiciary unmistakably favored the latter.
Minorities, for example, lost all their property rights through the judgments of Turkish high courts. In 1974, the Supreme Court of Appeals opened the way for the seizure of properties of religious minorities in Turkey with extremely peculiar reasoning, which reads: “It appears that the acquisition of real estate by corporate bodies composed of non-Turkish people was forbidden. This is because corporate bodies are stronger than individuals, and it is clear that the state may face various dangers if there is no restriction on them obtaining real estate.” What they mean by the term “non-Turkish people” are Turkish citizens of Armenian, Greek and Jewish origin. After this judgment by the Supreme Court of Appeals, their properties were confiscated, in other words, the properties of religious minorities were looted by the state.
The judiciary also protected the criminals who served the state’s purposes. In spite of ample evidence, some killers were acquitted just because they implied that whatever they had done was done under the orders of the “deep state.” Prosecutor Doğan Öz had almost uncovered the Turkish Gladio (Ergenekon) in 1978 when he was killed by İbrahim Çiftçi, an ultranationalist hit man. Çiftçi was sentenced to death by the court of first instance he was tried in but he was acquitted by the Military High Court, which was authorized through laws issued by the military junta that came to power in the 1980 coup d’état.
Countless political parties have been closed down by our Constitutional Court. Turkey has been condemned by the European Court of Human Rights many times because of these cases. Turkish courts used to accept statements extracted under torture as lawful evidence. No Kurd has ever been compensated for their villages and homes that were destroyed by security forces. No illegal activity of the Turkish military had ever been investigated. Tens of thousands of extrajudicial killings in southeastern Turkey have remained unsolved. They were all done to protect the “high interest of the state.” I could extend this list indefinitely.
Things, however, have started to change significantly in recent years and the Ergenekon investigation became a milestone. Through the Ergenekon investigation and the subsequent case, a big hole opened in the “spontaneous philosophy” of the Turkish judiciary, which was an unbreakable shield for state-sponsored crimes. Untouchables started to be touched. With the Ergenekon investigation, we started to witness things we could not have ever imagined before.
This big change is the real reason why we now have a huge war within the Turkish judiciary. Some segments would like to continue everything the same way as before, some would like to get rid of this ancient “spontaneous philosophy of the judiciary” and want to do their work by legal standards only. Old and new Turkey, in other words, are fighting each other through the judiciary right now. Can we establish a state governed by the rule of law? Can we establish a system in which everyone would be accountable in accordance with law? Can we replace this old “spontaneous philosophy” with “law” itself? These are the critical questions, the answers of which will determine the future of the country.
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