Jurists lambaste top court deliberation of Cihaner case merger

According to jurists, a decision to merge without examining the original case files is unprecedented in Turkish legal history. “There is no legal need to merge the two cases. The two cases mention different crimes. A criminal case being held at a specially authorized court cannot be handled at an ordinary court. … The Supreme Court of Appeals cannot merge the cases by examining the CD version of the case file. It should examine the entire original file.

A merger decision after examining the CD would mean a violation of the law,” remarked Sinan Kılıçkaya, the president of the Jurists Union. In a case being heard by the Erzurum 2nd High Criminal Court, Cihaner is accused of membership in a terrorist organization, namely Ergenekon, a clandestine criminal organization accused of working to topple the government. According to an indictment prepared against the chief prosecutor, Cihaner was working in line with a suspected military plot to undermine the Justice and Development Party (AK Party).

Cihaner is also accused of abuse of power and falsification of documents during an investigation he conducted, a case being heard by the Supreme Court of Appeals.

The 11th Chamber of the Supreme Court of Appeals said on June 11 that it will examine the CDs related to the terror case and will declare soon whether it will merge the two cases against Cihaner. The chief prosecutor was arrested in February on charges of membership in a terrorist organization. Various courts turned down several appeals against his arrest.

Dr. Mustafa Şentop, an associate professor of law at Marmara University, said the appeals court does not have the authority to merge two cases where in one a suspect stands accused of abuse of power while in the second he is accused of membership in a terrorist organization. “Cihaner is not the sole suspect in either cases. If the Supreme Court of Appeals decides to merge the cases, the merger will impact more than 10 suspects. Thus, such a decision would not be compatible with procedural law,” he noted.

Şentop also recalled a judiciary plan to save the prosecutor from prison, which was exposed last month with the emergence of a voice recording that appeared on news websites.

The speakers in the voice recording are allegedly Supreme Court of Appeals judges Hamdi Yaver Aktan and Fatih Arkan. On the recordings, Aktan is heard telling Arkan that he offered Supreme Court of Appeals judge Ersan Ülker the leadership of the Supreme Court of Appeals if he could ensure that the two cases against Cihaner were merged and that Cihaner was freed from prison. Ülker is the head of the 11th Chamber of the Supreme Court of Appeals.

“The judges in the voice recording should have recused themselves from the Cihaner case. We are talking about the Supreme Court of Appeals, not an ordinary court. Any decision by the court would be suspect due to the recording,” Şentop added.

‘Merger decision would be a first in Turkish legal history’

According to Professor Ahmet Gökçen, an expert of criminal law at Marmara University, it will be a first in Turkish legal history if the Supreme Court of Appeals decides to merge the two cases against Cihaner without examining the case file.

“For a merger, the Erzurum 2nd High Criminal Court should have forwarded a request. How can a chamber of the Supreme Court of Appeals decide to merge a criminal case with another, though another court has not sent it the case file? I do not think the 11th chamber of the court will decide to merge the two cases,” he noted.

Retired military judge Faik Tarımcıoğlu said the judicial body permitted to hear a case in which the suspect stands accused of membership in a terrorist organization is a local court, not the Supreme Court of Appeals.

“If the appeals court insists on doing so, it will overstep its authority. This is a critical fault in law,” he remarked, adding that a merger decision of the two cases against Cihaner would mean violating the Constitution. “Such a decision would overshadow the principles of the independence and objectivity of the judiciary. The merger decision would push the limits of the law. It would create question marks in people’s minds. The intervention of the Supreme Court of Appeals in the Cihaner cases makes me think of political motives,” he added.

* Mustafa Turan from İstanbul and Selim Karahan from Erzurum also contributed to this report.