Is Justice Minister Ergin going to pardon Batum?
by Cüneyd Er*

Discussions have started after Süheyl Batum, deputy chairman of the Republican People's Party (CHP), strongly criticized the Turkish Armed Forces (TSK) for being weak in the face of the current Turkish government.

He delivered his controversial statement during a visit to the Zonguldak branch of the Atatürkist Thought Association (ADD). Batum criticized the investigators who are probing coup allegations inside the military by saying they had managed to “demolish the military.” Batum claimed that “now it is obvious that the military was a ‘paper tiger,' and we thought it was an army. Turns out, the United States simply carved a hole in it. They were able to fell that gigantic tree within seconds.”

After this was broadcast on national TV, the TSK released a counter-declaration on its official website regarding Batum's statement. The Turkish military indicated that efforts to drag the TSK into discussions of daily politics are frustrating. It also said the military should not be used as an instrument for political polemics. It added that the TSK expected politicians to be more mindful of their remarks when talking about the military in contexts where they would like to appeal to certain voters. On the side of Batum's party, Kemal Kılıçdaroğlu, the chairman of the CHP, also criticized his deputy, without mentioning his name. He said the military could only be criticized by the chairman, by referring to a previous statement of Deniz Baykal, the former leader of his party. It is obvious that such a limitation, the limitation of free speech, particularly the freedom of expression of party members, was not in line with the policies that should have been accepted by the CHP. Similarly, Prime Minister Recep Tayyip Erdoğan also criticized Batum's statement. During his parliamentary group meeting, Erdoğan stated that Batum drew an image in which the TSK was under the influence of the US military. He claimed that the statement is degrading to the Turkish military and called on prosecutors to file an indictment against Batum. We should also note another critique from Devlet Bahçeli, chairman of the Nationalist Movement Party (MHP). He mentioned that the CHP's Batum must apologize to the Turkish military and the Turkish nation.

From right wing to leftist CHP

At this point, we should see who Mr. Batum is. He is a professor of constitutional law who lectured at several universities, such as İstanbul, Galatasaray, İstanbul Bilgi, Bahçeşehir, and several others. His dissertations for becoming an associate professor and a full professor were about the European Convention on Human Rights. Since he comes from a right-wing background through his father, Mr. Sadık Batum, who was a parliamentary deputy for the Democrat Party (DP) and a deputy for the Justice Party (AP) (moderately right wing), it was assumed Süheyl Batum would be an active politician in the DP. However, surprisingly, he preferred to join the CHP, which defines itself as a leftist party but has many contradictions in terms of both social and democratic policies. After being a member of the CHP, he also became a member of the party's Central Executive Committee. On Nov. 3, 2010, Batum became the secretary-general of the party. However, after a short while, on Dec. 25, he was removed from that office and appointed deputy chairman of the CHP. He has always appeared on TV in connection with sensational news stories, such as responding to the verbal protests of students with the phrase, “What you are doing is fascism,” during a conference at Ankara University. As a new member of the political atmosphere, he also made some other controversial statements.

Nevermore, the recent statement by Batum, referring to the Turkish army as a “paper tiger,” marked the breaking point. On Feb. 9, a Zonguldak prosecutor petitioned the Justice Ministry for clearance to start legal proceedings against Batum under Article 301 of the Turkish Penal Code (TCK). Currently, it is called into question whether the justice minister, Mr. Sadullah Ergin, is going to “allow” the prosecutor to start legal proceedings. Because until the amendments made on April 30, 2008, Article 301 was a very controversial provision of the TCK. Prosecutors were preparing indictments and accusing many people of committing the crime of insulting Turkey, the Turkish nation (before it was changed to Turkishness) or Turkish government institutions. Most of them were cases against intellectuals, authors and activists and their statements. Notable “301 cases” were filed against Orhan Pamuk, Murat Belge, Perihan Mağden, Noam Chomsky, Elif Şafak, Hrant Dink, and Rahim Er, to name a few. Some of them were acquitted, some were sentenced and some of the prosecutors did not receive clearance after the changes in 2008.

He does not hold immunity

Süheyl Batum is currently not a member of Parliament. For this reason, he does not hold any immunity that would prevent charges based on Article 301 or other kinds of investigations against him. The rationale for the prosecutor submitting a petition to the justice minister is to be able to start legal proceedings, because the recently amended Article 301 requires the justice minister's approval to prepare an indictment. This leads to another puzzle: Is Justice Minister Ergin, going to “pardon” Batum, who is a political rival and a person who always makes harsh statements against the reforms of the government? I know that “to pardon” is a legal action which means forgiveness of a crime. Moreover, it can only be granted by the head of the state. (In Turkey, it is the president.) Accordingly, the situation under Article 301 is not pardoning a criminal. However, if Minister Ergin allows the Zonguldak prosecutor to begin the criminal proceedings against Batum, that trial may end with Batum's conviction. He will be tried for a statement which the Turkish military published a harsh counter-declaration in response to. It is for sure that it is also hard for any judges who may hear this case. Besides that, it will likely involve procedural and bureaucratic red tape, which will be a headache for Mr. Batum. It may, especially if he is convicted, affect his future political career. For this reason, I do not think Justice Minister Ergin -- who has dismissed many previous requests for trials based on Article 301, lead important reforms in the judiciary and believes in the importance of the European Court of Human Rights' case-law -- is going to let the prosecutor continue this legal action. Mr. Batum seems to have been pardoned by the justice minister!

[*] Cüneyd Er, LL.M., is a Turkish lawyer and a Ph.D. candidate at Leiden University's faculty of law (the Netherlands). He was the acting head of the Projects Office of the Council of Europe in Ankara, Turkey until he was severely injured in widely publicized plane crash on Feb. 25, 2009, in Amsterdam. He currently resides in Washington, D.C., where his treatment continues. (cuneyder@gmail.com)