Lawyership, as a profession, is under attack, more seriously than ever in Turkey.
While the glory of the bourgeois democracy is fading all over the world, the bourgeoisie is stripping the lawyer profession of its holy veil day by day, turning lawyers into its wage workers, as was described in the Communist Manifesto.
As a result, the conflict in law is the point where the wave breaks in the war between ruling and working classes, and where the contradictions become the most visible. This war is happening worldwide, but certainly one of the most remarkable battles is taking place in Turkey. This is seen in how out of the three elements of judgement, the chair of defense, with the lawyers and their organisations, are made the target.
On 22 June 2020, bar associations from across the country marched to the capital Ankara to protest the new legislation that foresees the division of bar associations, thereby weakening the last castle in the formal judicial system that is independent of the political power. Their march with the slogan of “Justice Marching” encountered a brutal suppression of the police, all the lawyers, including bar association presidents, were subject to violence no matter their title or position. This was a public acknowledgement that now the police, with the fascism of AKP behind, has superiority over the justice system, and the law is merely a lie: it’s an “idol out of halva” that the rulers make to worship and then eat when they are hungry.
Prosecutors that operate upon directives, judges that learn how to decide from the news, cases that don’t require evidence, indictments that criminalise daily life, secret witnesses manufactured by the law enforcement… While these corrode the ‘constitutional state’ from the inside, the lawyer profession and its organisations, the last independent element of justice out of this corruption, is attempted to be seized by both threats of torture and prison, and the kind of legislation that is proposed today.
How did we get to this point? What is the ‘judicial system’, what are its constituents, how does it work, what are its relations to the politics and how are those relations institutionalised?
‘The Defense’ answers these questions exactly. This literary masterpiece written in 2013, in the court where the lawyers were put on the defendant chair by unlawful operations, and published as a book in 2015, it predicts the future of the power’s conquest of law in Turkey, based on a thorough analysis of its history.
Upon this defense, with the spirit of resistance raised by the June (Gezi) Uprising in 2013, the lawyers were released. However, in the September of 2017, a new series of operations started and 18 lawyers were arrested again. They were kept in prison for one full year, after which they were finally brought to court and decided to be released.
They were out of prison by the morning, only to learn 10 hours later that the arrest of 12 of the lawyers was warranted upon intense pressure on the same committee of judges. That same day, 6 of the lawyers were arrested again.
This committee of judges paid the cost of the releasing the People’s Lawyers, whom AKP had openly declared to be its enemy, with the punishment of demotion to lower rank courts only two days later.
Reasons for this extreme change of decision was never explained, and the lawyers got sentenced to a total of 159 years of prison.
Among the imprisoned lawyers, Aytaç Ünsal and Ebru Timtik started deathfasting for exactly these reasons, and now they are in their 170th and 200th days. Özgür Karakaya and Didem Akman, who were imprisoned by the same unjust procedures, have also been deathfasting for 150 days. All of them have a single demand: JUSTICE. They want justice, they want to be judged fairly. They are resisting for this, putting their lives at stake. It’s clear that their demand concerns us all. This resistance is ours.
Let’s at least hear their message, their warnings, and be the voice of this message as loud as we can, and make them live!
[You can download the original pdf of the full book ‘Savunmalar’ (The Defense) in Turkish here. On this page, we are displaying only a part of it that serves as a good reference book on history of the constitutional state. As we believe that the book serves as a warning for the lawyer profession worldwide, we have initiated a campaign to translate it to English by a team of volunteers. We had to prepare and publish this specific part of the book with limited resources and a serious time pressure, therefore we are sure that we have left many mistakes in the text. Please don’t hesitate to write us for even a smallest typo. We are planning to publish the full translation as a book very soon. You can e-mail us to pre-order the book, or re-visit this page for the full pdf when its ready. We hope that the warnings of our lawyers become a worldwide call to defend the lawyer profession.]
Before declaring the State of Law as our sacred cow, a thorough assessment is needed. In fact, this was an unfair analogy: Hindus don’t eat their cows when they are hungry. If we really need a religious analogy, yours is more likely to Mecca Polytheists’ making idols out of halva. Because, no matter how you idolise it, you eat your “sacred” when you need it.
What this instructive parable, for sure, purposely and tactfully overlooks is that choosing halva as a raw material of the idol is actually quite obscene from the very beginning. In other words, the idea of “eating it when you are hungry” is immanent in choice of making idols out of halva. Just like your State of Law, with all its exceptions, which make them actually exist by devouring and thinking nothing of its rules.
The warning of “anyone who wants to investigate the rule firstly investigates a genuine exception“, which Schmitt underlined in “Political Theology“, should not be underestimated. The exception is more interesting than the normal state. “The rule proves nothing; the exception proves everything: It doesn’t only prove the rule, also the rule lives only thorough the exception.” So “the structure of the sovereignty consists of exception”. Therefore, let’s conduct a meticulous investigation on the “state of law” keeping generalizations and transcendent universalities away.
It is not problem when saying that State of Law is a formal concept and doesn’t mean more than bindingness of statutes. When we are limited to following an established rule, we can get back to Ancient Greece, to ‘Nomos Basileos’, and can pass by accepting the exhortation to obey the law as the one of the rooted and respected habits of human communities.
Moreover this admission can promise a simple solution even about the justice while being a little bir sarcastic.
Athenian – Then the lawgiver will style these enactments “justice,” and will punish every transgressor as guilty of injustice.
Even the “universitality” of this simplification cannot be mentioned. Ruling by law (act) has never been the unique and most common model.
Thomas B. Stephens, in his research about The Shanghai Mixed Court which existed from 1911 to 1927, concluded that there wasn’t “China Legal System” that was based on predetermined, universal and transcendent rules of law and that would make independent and objective judgements on issues it handled. Especially, Mencius, who was one of the important followers of Confucius in respect to maintaining order of law, is remarkable for his pessimism: “If the emperor tried to rule by issuing laws, then the people would soon discover the nature of the laws and find ways around them.”  According to this view, enactment doesn’t put in order, but only leads people to be more combative and more contentious. Of course, without discussing great historical/social tradition behind it and knowing the authoritarian/paternal hierarchy that superseded the law, the meaning of this sentence cannot be comprehended. But there is still something it can teach us: the generalization of universality and the claim of transcendence about the law is not true, nor does it solve our problems!
Therefore we should continue recognizing that the interesting thing is not the law itself but its way of solving problems, in other words its enforcement.
Especially, regardless of which acts and how you bring it into force, if you are able to make this act enforced forcibly, it means the order is established. Don’t think of horror stories at once! While it is not so apparent, in our language and in French as in the concept of appliquerloi, enacting and enforcing the law requires some use of power/force. Derrida points out that this is more obvious in English: the concept of “enforceability” is used to refer to applicability of law. Power is with the emphasis on “force”. Remember this point, we will be back.
This must be the reason why those who want to win the heart of Justice throw aside the decolorized robes of the priest, the judge and the professor and become shielded. The Beautiful Goddess has no interest in robes, wigs and powder. Although the shabby law considers needless mentions of her name as knack, it is neither the existence of acts nor what the courts say that justice interests. She is only impressed by the fullfillment of a statement in other words by the execution. Again, when saying execution, do not immediately think of bad F Type torture prisons or shooting a man in a street, as you used to. What we are looking for is the execution of judgment in the sense of the fulfillment of a statement, that is, exequatur. Whether this statement is about award or punishment:
“…Whoever can there bring sufficient proof that he hath strictly observed the laws of his country for seventy-three moons hath a claim to certain privileges, according to his quality and condition of life, with a proportionable sum of money out of a fund appropriated for that use. He likewise acquires the title of Snilpall, or Legal, which is added to his name, but does not descend to his posterity. And these people thought it a prodigious defect of policy among us when I told them that our laws were enforced only by penalties, without any mention of reward. It is upon this account that the image of Justice, in their Courts of Judicature, is formed with six eyes – two before, as many behind, and on each side one, to signify circumspection – with a bag of gold open in her right hand, and a sword sheathed in her left, to show she is more disposed to reward than to punish. “
It is quite obvious why they find your system as “defect”. Where the oligarchic caste that has grabbed power is fed and no one except the bourgeoisie, that feeds it, hands the gold bag of the public; the sword decapitates the poor who try to get enough of the plundered common property not to die. Your goddess, who plundered the gold without already weighing it, that is, without having a justice debate, does not also need scales when punishing it.
Perhaps you should also try the suggestion of the little people instead of the weak “forensic equipment” that is available; namely the blind sword that doesn’t cut but break up, the blind eye and the blind scales!
And it’s not only the Lilliputians who find your Goddess defect. It is said that “Humanity cannot take the threat and encroachment of the sword as the basis of the Justice. Because above all, justice is a virtue. The symbols, tools and equipment of the justice of the order are not sufficient to cover the broad horizons of law as a culture and of justice as a virtue.” : The foundation and characteristics of this criticism are different from the first one’s. We would not have preferred that a goddess, who is as virtuous as to cover the broad horizon, but sword-free, walks down this wretched street after the sun sets. It is said that ” Contra vim nonvaletjus: Law is powerless against violence” In another motto of the bourgeois revolution, which is no longer remembered because it was not as famous as ‘freedom, equality and brotherhood’, Robespierre said: “I accept that terror without virtue is evil, but virtue without terror is nothing”. We are all aware that the state of law loves consent only because it finds it cheaper. But that doesn’t change the fact that the essential one is still ‘force’. As you see, the guys we faced with are shady characters, so walking without a sword may be dangerous.
This is exactly why the Justice we want her love, keeps her eyes open to see that she always hits the right point, even though she has to wear a ski mask to hide her beautiful face from her enemies who want to seduce her, namely the courthouse and the police force. Here’s a Dike who is worthy of the love of the poor…
4th paragraph of Article 15 of Metropolitan Municipality Act No. 5393 says: “The municipality may conduct public opinion polls and surveys in order to ascertain the views and opinions of the residents of the city regarding municipal services” Here is an opportunity for you!
Another opportunity that famous Article 48 of Weimar Constitution intitled, comes to one’s mind: “If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153.” [i]
We will see later whether the opportunity in the Metropolitan Municipality Act will be used, but they used the other one on 28 February 1933: “Decree of the Reich President for the Protection of the People and State” remained in force from 1933 to 1945, alone managing to hold an entire constitutional order in a state of suspension.
Whether you start with the intention of taxing olive oil or sacrificing a virgin, in the end the decree or approval from the referandum, the priest–shaman, the council, the pope, the queen in short from an act is the law.
Franz Neumann called the Nazis “unmediated empery that separated itself from the law.” But when you think with all the written and drawn on the state of exception/the state of emergency, the question “if the Führer wanted to stay in law, what more would he need than Article 48?” hangs over us. Let’s talk about this later. For example, although not from the same place as Neuman, we cannot accept that the beloved teacher Ökçesiz, a supporter of ‘Goddess Without Swords’, makes legal culture transcendence as “a plane of human existence on which all powers stand trial’ by saying “it is misleading to draw Nazi persecution as a state act from the explanation scheme of legal positivism”.
At this stage what we require is that it is the ‘State of Law’ as long as you know who is going to make the rule, as long as you abide by and ground on the established rule. Now, we can go back to the question of ‘bringing into force’, which we just wanted you to remember.
“The Law claims to be enforced in the behalf of justice, and the Justice demands to be settled in a law where enforceability (bring into force – enforced) is required.”
What a tempestuous relationship! Elections, referenda, plebiscites; majorities and consensus point not to the claim that the law asserts in the behalf of justice, but only to the force to be used for ‘applicability’ and where and how it can be accumulated.
Making whether the decision is ‘Just’ or not depending on how it is taken is a little and deceptive game of the mind. Such is the force to ‘enforce’ justice began to accumulate with rebellions and riots, and boycotts and strikes. In this case, you should know that the election is not between ‘shall we decide by referandum or shall they enact acts-decrees-orders without asking us’. Again, the statement “referandum cannot be an option, because some fundamental rights cannot be changed even by the majority”, which is supposed to be a lag to be stand on, is also empty. What are those fundamental rights? Throw away your list of “basic rights” that somehow doesn’t include being fed, being treated when you’re sick and having a roof over your head.
The election is between the force accumulated by the uprising that is enable to enact justice and the monopoly of violence accumulated by the power. The fight is between the people and the power. It always has been and it will be in the future as long as the insurrectionists exist until justice is brought into force.
 Schmitt, Carl, Siyasi İlahiyat, Çev.: A. Emre Zeybekoğlu, Dost Kitabevi, Ankara 2010. English book is Political Theology – Four Chapters on the Concept of Sovereignty, University of Chicago Press.
 Platon, Nomos, 714d. English translation is from: http://data.perseus.org/citations/urn:cts:greekLit:tlg0059.tlg034.perseus-eng1:4.714
 Hoff, Tobby E., Modern Bilimin Doğuşu ve Yükselişi ‘İslâm Dünyası, Çin ve Batı, Çev.: İnan Kalaycıoğulları ve ark., Epos Yay., 2008.
The state is a constitutional state where there are somehow generalisable and stable rules, and although the interpretation may have nuances due to the values and experiences of the interpreter, a reasonable estimation of the inference is possible.
“a) the state is framed with a judicial text, that is, the constitution.
b) the powers of the state are separated.
c) the supremacy of the law is maintained, that is, the executive and judicial powers are subject to law,
d) the judicial system is audited,
e) the state is responsible to compensate for any harm.”
When these conditions are assumed, there is no need for a further pledge. This is what is meant by ‘Formal’. One will make the law, one will execute it, and one will ‘tell us the law’ (jusdicere).
Although the separated powers of the state have the same common distant goal, due to the frequent unison of the legislative and executive powers, the judicial power (from the magistrate to the constitutional judge) creates the essence of the debate. For this reason, the idea that the judge is nothing more that the voice that tells the law, is the basis of Montesquieu’s principle of ’separation of powers’.
A similar understanding can be found in Friedrich Julius Stahl who says “The Constitutional State, never denotes the aims and substance of the state; on the contrary, it signifies the style and character of how to execute these.”, or Theodor Maunz who says “The form of the state is founded upon the principles of political structure, the constitutional state is a non-political principle of form.”.
In fact it is disturbing how this description is similar to the description of any reasonable group of individuals who manages to build a canal, tax the agriculture, and recruit soldiers to protect the borders.
With a few pillars and maybe a temple, its easy to mystify the concepts of ‘creating rules’ and ‘auditing the obedience to the rules’, which would not have been interesting at all today. In this case, one can only say, as does Carre de Malberg, “the only possible law, is the law belonging to the state”.
We can even think like Kelsen: if the state and law are the same thing, the problem of limiting the state’s powers by law is a fake one. That is, the law is a technical application of the political power; a power that is solely practiced in this manner is called a ‘state’.
If you cannot stand in this position, you cannot just deny this or extend the distance between theory and practice in order to overcome the problem of judicial audit of the state. As Judge Murat Aslan, the chair of Union of Judges and Prosecutors, reminds by quoting Duguit: “If the state bows to the law only when it wants and only in the way it wants, then it means it never bows to the law.”
The dominant power is the one that decides what the law says, what the law wants, it is the one who had made the law, after all; therefore the practice is merely a matter of style. When this is the case, do the parking guard who says “park properly or I’ll take your 100 liras!” (and takes) and the major-general who says “park properly or I’ll shoot you” (and shoots), belong both to the same ‘technical practice’? As it was announced by the Hatay Martial Law Secondary Region Command on 18.10.1972,
“I declare that the drivers and pedestrians that violate traffic rules will be punished according to the martial law legislation number 1402. Major-General Cemal ÖCAL, commander Hatay Martial Law Secondary Region Command …, Commander of 39. Division”
Why not? We mentioned before, every size of stick is available when it comes to beating…
The ‘Constitutional State’ that finds discomfort in this situation will not be satisfied with the formal status, but will also claim to have a ‘substance’. In fact, it will shame those who confuse it with the ‘State of Law’, which is how the previous formal definition without substance is to be called!
Then what are you, beyond the formality? The answer extends the previous list with the items:
f) the freedom to perform certain acts without hurting others,
g) the freedom of expression and organisation
h) the freedom to found a political party, be a member, to elect or be elected,
ı) the freedom to criticise political power
i) the freedom from censorship and prosecution
j) the right to receive equal treatment by law
k) the freedom and the right to change the laws”
Providing these to the people by the Constitutional State will be accepted as its ‘substance’ and will be claimed to be happening.
As you may have noticed, it is progressed from just ‘obeying rules’ and arrived to a description of a typical bourgeois liberal parliamentary regime.
In Neumann’s words again,
“By creating the concept of the constitutional state, the liberal bourgeoisie has attempted to consubstantiate itself with the concept of abstract state. By only identifying its own state as a constitutional state, it has categorised all the other types of states with conflicting interests as the states of unlawfulness or despotism. What lies hidden in the proposition of the concept of constitutional state, is the tendency of bourgeoisie to recognise itself as the nation, and its state as the ideal state.”
Once again we are with Midas with donkey ears. He twists and transforms the concepts, the problems and structures. As we said before, we are immune to this, but this problem doesn’t only concern us but it concerns you as well. Because this claim that the ‘constitutional state’ is supposed to be beyond the form and has a substance, promotes the status of the judge from the one who says the law (jusdicere) to the one who makes the law (jusdare). That is, the judge can be authorised to rely on the system of values called the ‘Constitutional State’ while interpreting the particular law. When the judge’s hand is extended this way, it’s possible that the decisions they benefit from are applauded saying ‘Long live the Constitutional State’ and the decisions that jeopardise their interests are denounced as ‘Down with the State of Judges’ (Righterstaat, Etat des juges) …
Let us one more time use the explanatory power of art.
The situation we’re trying to describe is similar to that of the Merchant of Venice, played by Vural Savaş on the premiere and by Ahmet Gündel in the soirée, as Sami Selçuk, the only ‘law expert’ left ever since the Master Sulhi Dönmezer passed away, couldn’t make it due to his health condition. For those who don’t know the play, let’s tell the story along with its parallelism.
Antonio is a noble Venetian merchant. A beloved friend of his wants to loan some money. This dreaming friend aims to win the heart of beautiful Portia. As Antonio has no cash, he signs a bill for the famous moneylender Shylock to help his friend get the money.
The jewish moneylender, who hates Antonio, imposes a condition that in the absense of the payment on time, the penalty is ‘a pound of flesh’ of Antonio; which you may remember from our earlier conversation. Although Antonio is fully confident in paying the bill on time thus accepts the condition, due to some misfortune the payment does not happen on time, and the judgement that interests us begins, in the presence of the Duke of Venice. First we have to acknowledge that everyone on the stage has confidence in the ‘supremacy of the law’. It is shameful to even think the contrary. In Shakespeare’s observation, in Venice, the well established Republic with traditions and an important port of trade, obeying the law is almost sacred, as it’s a social and commercial assurance. How much it resembles us!
Shakespeare underlines this common attitude when the moneylender Shylock says:
The pound of flesh, which I demand of him,
Is dearly bought; ’tis mine and I will have it.
If you deny me, fie upon your law!
There is no force in the decrees of Venice.
I stand for judgment: answer; shall I have it?”
As we agree in the principle, all we need is a law expert to interpret the law (in a just, perfect, good, successful etc. way). Now you begin to see the resemblance to our case.
The Duke has decided to consult with a law expert for the matter.
“Upon my power I may dismiss this court,
Unless Bellario, a learned doctor,
Whom I have sent for to determine this,
Come here to-day.”
If the great authority can make it to our court (or to the matter, to our concrete problem somehow), the problem will be solved. But as one can see, the absence of the expert in the topic is structural:
“Lots of mistakes are being made in Turkey every day. If I want to live in a democratic environment, my door must be knocked in the morning only by the milkman or the journalist, that’s it…”
Unfortunately there is the gentrification: They destroyed the milkmen’s houses and sent them out of the cities, and the journalists are in prison because they got ‘involved with terror’. Mr Calvin, the unhappy milk merchant of Iron Heel, would have said: “There was no more milkmen, only the milk trust!”. Maybe that’s why it was the police who knocked the door. Let’s insist anyway, Dear Judge! Expert! Doctor Doctor! Find a cure to our trouble: “In the case that a bad law is issued in Turkey, the judges apply that law badly. If they try to apply it well, they lose impartiality.” Don’t bother! Who cares for a more libertarian interpretation, a binding higher norm: “Making a constitution is easy, however making a civil code and criminal code is hard because requires a deep cultural experience. I’ve been in law for forty years. I regret to say, the worst application of law in the world is in Turkey. Even the most basic principles have not been settled.”
You can almost consider this sincere, if you can ignore the fact that the colleague has been not only an expert but also a practicing judge for those forty years. Okay, you couldn’t settle those principles, but what are we going to do while those are being settled? Oppression, poverty, prison, torture, abuse? Doctor doctor, do you have a cure!? According to the doctor the cure is the Law, but that is a forty year old vinegar; if they were serving it to everyone who asks, how could it remain in the barrel for forty years?!
[Reads the letter from the Doctor]
“Your grace shall understand that at the receipt of your letter I am very sick”
Ok, let’s accept the apology. But when the experts are of no good for the real problem, we reserve the right to suspect that they are in ‘rivalry with the defendant’, as Dr. Bellario was.
Whatever… If the expert is not present, we will do with what we have at hand. In the play, the justice comes from the beautiful Portia, who disguises as a male law expert, after she sends a fake excuse to her expert cousin. Is this then, the real justice? This is no problem as long as we know this: Portia is there not to judge but to save her husband and his friend; just like the good politicians with ‘made-up’ law expertise. As everyone knows, any speak of justice by someone without a side in the case is annoying buffoonery. All useful practices of law have originated from those who struggle in the sides that defend to protect their rights and interests, not from the judges. In our case, Portia, now the wife of the friend that Antonio bore the troubles for, proposes quite legal arguments. You first watch a fabulous presentation of institutional principle, she takes out the contract in the view of the claimant’s interests. “Whatever the law commands, must be obeyed” says the beautiful judge; That flesh is to be cut off! The claimant’s side applauds in excitement:
A Daniel come to judgment! yea, a Daniel!
O wise young judge, how I do honour thee!
When the undersecretary of National Intelligence Organisation and the prime minister were cornered by some prosecutors and judges about the Oslo meetings, their opening remarks were:
“Specially authorised prosecutors have gone too far! When the prosecutors don’t feel accountable to law and jurisprudence, they go off limits and this is reflected in both the KCK case and the rigged football case. We see a step by step increase of discretionary application. If this arbitrariness proceeds further, we switch to a judge state. Big problems are ongoing in the judicial system, it needs major surgery. (…) If the officers from National Intelligence Organisation continue to commit criminal activities upon orders that are claimed to be from the Prime Minister, the specially authorised prosecutors can even start to prosecute the Prime Minister.”
Daniel, famously just, has really come to judgement: Obey the jurisprudence, don’t act arbitrarily, feel accountable to law. Amen! This is what we call a presentation of principle.
But when it comes to the June (Gezi) Uprising, neither ‘jurisprudence’ matters, nor ‘law’ or ‘measure’… Now it’s time to make law instead:
“We observe that the events fall into the category of terror crime as defined in the first article of the Anti-Terror Law. Those who hurl stones at the police, who resist, who damage property, cars, can be considered members of terror organisation due to these acts. Because the act is an act of terror. These acts fall in the category of ‘attempt to overthrow the government, making it unable to serve’ as defined in the Penal Code article 312. Supreme Court Chief Prosecutor should start investigation on İP (Worker’s Party) and CHP (Republican People’s Party) with a prospect to close them.
This the moment where Portia says the moneylender has the right to cut the flesh, but it will cost him too if there is blood, as the blood is not included in the bond. Tables have turned. The scripts of law and contract, have been read out one more time in a way to declare new winners and new losers. Well, claimant’s side rightfully boils up:
GRATIANO – A Daniel, still say I, a second Daniel! I thank thee, Jew, for teaching me that word.
These thanks are from retired prosecutors Reşat Petek and Ahmet Gündel to the retired prosecutors Sabih Kanadoğlu ve Vural Savaş. Law is a master-apprentice relationship. Do you want to get a party closed, get someone arrested, or do you need someone arrested to be released? The best way to figure out how is to look at the precedent by the master.
Let’s close the curtain. This is as far as the guidance of art goes. Everyone can be a judge but not everyone can be an artist.
It’s not possible to promote all our available actors to the role of ‘made-up law expert’. It needs at least a little bit of skill. For example, neither the premier nor the soirée can incorporate the words of Judge İbrahim Okur into the script:
“I believe that the intention there is to say ‘the judges are doing what they have to do and so do we.’ Law is independent. Nobody can command orders on the law. I believe that Mr. Prime Minister’s words ‘we met with the law’ is a slip of the tongue, I don’t think he would have such a meeting, such a directive. Mr. Prime Minister, as I have been knowing him, is noone like that. That’s why I believe the word is not what was really intended, even if it was, this is not what it meant. (…) At this incident, we had already engaged ex officio.”
You must never forget this statement that revolved four times in such a short period. Let’s remind the incident: A group of MPs from BDP encounter armed guerrillas of PKK on the intercity road. They greet each other and have a chat in front of TV cameras. The Prime Minister, along with many other threats, says ‘I told the law what to do, they will do what’s necessary.’ It is these words, that the 1st Department Chair of High Council of Judges and Prosecutors, is trying to ‘interpret, revert, criticise, complement’ or whatever… A short time after this, when a press and MP reception started live casting from Kandil, İbrahim’s ex officio prosecution paused until a second evaluation, and our judges that have realised the new situation decided not to jump into ‘ex officio’ engagement. We could dismiss this weakness of engaging upon directives, but not while you still keep tens of lawyers and journalists in prison due to your doing of ‘what is necessary’. The bureaucrats of ministry and the High Council of Judges and Prosecutors are now so far from the tribunal that they find no problem with directives. However, you, the judges of the tribunal, if we were in your place, we would be afraid in such a loose and precarious position. You must be afraid too.
Let’s continue to work with our list of the ‘content’ of a state of law. Before looking at the claims of the list, there is a need of general evaluation: we need to have a real idea about the ‘State of Law’, ‘Liberal Democracy’ and ‘Human Rights’.
We need to ask which are the group, denomination and class values so as the mentality hiding behind these concepts. There is a social class which created the concepts of ‘state of law’ and ‘human rights’ and this social class is the bourgeoisie who adopted liberalism as its ideology. This means that taking the ‘state of law’ and the ‘human rights’ as separated from the liberal utopia, the liberal worldview, the liberal mentality and the liberal ideology, to isolate those concepts is not possible.
Actually what is needed to be said is that the law is not a neutral concept, it is rather ideological because it includes and propagates a set of complex positions, values and theories about the population. In short, “it’s ideological content constitutes a part of the hegemonic ideology ; because these positions and values imposes and legitimates the current popular order”. The law which reflects the economical relations and imitates their forms is political, coercive and the reflection of the government block.
Remind the first five articles of the list: a Constitution should exist, the powers should be separated, they should be relied by the law, the jurisdiction should control this state, and if they break anything despite these precautions, they would repair it. Now let’s take a closer look to one of them.
As it is known, all the constitution is full of apologies and excuses for why it is unpracticable. As Marx said; “Each Constitution contains its oppsosite assertion, its Lord’s Chamber and it Common’s Chamer: the freedom in the text and the removal of this freedom in the margin”.
The Constitution, even when the fakeness on the issue of the ‘rights’ is put aside, is an unserious document. This is a facied community that it calls as ‘Everyone’ while shaking its finger to as ‘No one’. By nature, it is a concept which does not have anything to do with us, meaning with the oppressed people today here, it is not even a name; ‘it is an indeterminate pronoun which allude to those who have lived, are living and will live under a specific political power’. It is not any possibility of answer to a political entity which hearing any description of a right ask ‘Are you calling me out?’ to the imaginary crowd sometimes called Nation. The right to life is not to prevent ‘your’ death, the right of expression is not to protect ‘to say it this way’. For sure the right is standing over there. It is just that our representants will protect it for us with attention and make it live forever, just as a savage animal they are feeding in their houses as an ornament.
Babeuf evaluates the 1789 French Declaration of the Rights of Man and Citizen as so: “the feed and trap within it is so miced up that, when analysed, it is getting understandable that it is a trick made by those who are trying to fool the people. This declaration is no more than a diversion. It does accept big principles like freedom and equality, but by adding some records making their materialisation become complicated, doing some dilution and rasping preventing them to progress and expand.”
Louis Blanc criticise the abstract rights as so: “The right which is understood as abstract, is a mirage which is keeping the people exploited since 1789… The rights which are declared in Constitutions and Edicts in an overblown and infertile way, did not served any other purpose than masking the injustices in an individualistic regime and the ferocity in the abondonment of the poor.”
The ideology of the bourgeois law is not a way, a mean ‘to reach justice’; it never have been and will never be. On this level there is no difference between you or a land registration court or a family court. The law is the first between all the persuasion activities aiming to fool by intimidating the poor and oppressed.
In particular, this monster that we called Criminal Justice system, has the aim neither to annihilate the crime nor to struggle with the delinquency. Simply it does not have any other goal than the continuity of the regime and not other ability than ensuring this, including the protection of the private property and the maintaining of high crime rates. What does ‘the continuity of high crime rates’ means? Why would we want to maintain it? Take a look at what Marx said, not in order to construct a crime theory but to conduct a sarcastic discussion about labour: “A philosopher produces a thought, a poet produces a poem, a priest produces a sermon, a professor produces an analysis etc. A criminal produces a crime. When we look closely at the relation of the society with this last production branch, we get rid of many prejudices. The criminal produces not only the crime but also the penal law and the professor who is giving the penal law course and also the inevitable analysis that this professor is releasing as common ‘methas’. The criminal produces at the same time the whole of the police and the criminal procedure, the policemen, the judges, the jury committee etc. as constituting many categories of the social division of work, also new needs which develop human mind’s different capacities and all the business lines which creates new ways to supply those new needs.” The crime is vital for our system.
Actually, as we said it, it is most of the time none of your business to decide of who will be imprisoned or who will be kept out, but in this country if the most grave crimes are ‘killing’ and ‘physical injury’, you should take a deeper look to the arrangements that is possible to make to stop them. If we do not want it as judges, why not doing this as a hobby for example? Here is for you a Marxist Criminology comparison: Reiman has compared the whole FBI crime reports for 1995 with another published government statistics. As a reference point, the writer has separated in one side the official reports attesting of 21000 killings and reckless homicide, 1 million assaults causing heavy personal injury and 15 million dollar robbery, and on the other side, workplace risks. Even a very moderate estimation is showing that the deaths related to work rates are 25000 per year. Another very moderate estimation concerning the diseases related to work is also of 25000 per year in the USA. The result is that for three people dying of murder or reckless homicide, there are four workers death. If we do need to make a comparison with street crimes, the rates should even be divided by two as the workforce is equivalent to the half of the population. Also, the deaths and mutilations related to work should be added to this. When looked at, working is killing 34100 workers a year, the crimes are killing 10500 persons and while working is causing physical injury to 3450000 workers, 500000 persons are harmed by crime. On the opposite of the Criminal justice system, the Work safety and Health administration is really small compared to the responsibility it caries and is facing state deductions.
How simple! You would say, if it is to preventing real crimes perpetuated against real people, so killing and physical injury and to punish real repsonsibles, you should use your money elsewhere and shake your finger at someone else. This means to be able to establish that this biggest crimes against humanity are perpetuated by the patrons, the riches and the states. If your problem is just to protect the property order from the poors, your definition of the crime is answering this purpose. As it is said in this beautiful popular song from the 17th century (or even from the 15th century for certain versions);
“ The law llocks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose”
 Akbaş Kasım, (citing Alan Hunt) HFSA, 15. s. 87.
Why does “the separation of powers” nonsense, which symbolizes the balance of a historical period, is presented as an important judicial value today? What is indispensable about it? It should be taken into consideration that where Montesquieu mentions separation of powers, he refers to real historical and political powers. His claim about the power division between the King, nobles, and the people considers the historical balance, which should also be borne in mind. In these circumstances, the separation of powers represents the judicial and institutional balance of the battle between aristocracy and the bourgeois. In other words, the nature of separation of powers exists upon the contradiction in the social base shaped by the circumstances of the period. And what maintains it as a political configuration is the balance that it gives to the rulership crisis between two powers.”
The reason why this model, which does not signify a more important meaning that the balance of a historical estate, is because it still benefits its owners. However, it is hard to say anything for those that are not in power and yet still admire it. Call it “legal fetishism,” “legal totemism,” or “legal romanticism;” the attempts to exalt the law create serious implications.
Legal fetishism (compared to Marx’s meta fetishism) is “the view that law is an imperative and vital element of the communal living.” It is also fetishism to consider whatever societal rule as the law. It is also fetishism to treat all kinds of societal relations as a subject of legal regulation. Rule of law is a nothing but mystification, and distortion (and misunderstanding).
IN FACT, IT’S US WHO RULES, BUT ONLY THROUGH OUR REPRESENTATIVES?
Even in the most “developed” democratic societies, what is behind the act of legislation is not (and has never been) the ability for representation. As Emma Goldman argues, “if voting changed anything, they would make it illegal.” Bourgeoise parliamentarian democracy, of course, carries periodic, strategic or political meaning for the poor who have struggled for the right to vote for a long time. But we have never been trapped by this: “a state that has a class-based foundation can only advance by means of that are closed to negotiation. It is no coincidence that bourgeoise states that allow constitutional rule or democratic means are still defined as dictatorship (bourgeoise dictatorship) despite everything…”
Communist Manifesto defines the government of parliamentary-based modern state as “nothing but a committee that runs the common business of all bourgeoise.” How true. Later Marx talked about the periods in which the state declared its temporary independence from the bourgeoise,” and Engels in The Origin of the Family, Private Property and the State said that:
“Exceptional periods, however, occur when the warring classes are so nearly equal in forces that the state power, as apparent mediator, acquires for the moment a certain independence in relation to both.”
That is to say, we should base our understanding of this matter only and completely on the power of the class struggle, and not on elections, parliaments and legislations.
It is a misconception that the country is governed by the legislation issued by an elected parliament. What is so popular enough for you to follow about this is what is before you every day on the TV; the representatives do not have the slightest idea about the content of the law they vote for. They sometimes vote incorrectly when they are not clearly told to say “yes” or “no” or when they are occupied with playing games on their mobile phones.
Perhaps everyone remembers some of the most fun episodes:
Prime Minister showed a map about divided roads to the members of the parliament during his party’s group meeting. The members of the parliament applauded Erdoğan who pointed that that the map depicts the roads divided before 2002. Prime Minister warned the members of the parliament and said “why are you applauding this. The map to be applauded is coming now.” Subsequently, the members of the parliament applauded the new map this time. Again during the time of major legislations, which they defined as omnibus bill, the members of the parliaments of the ruling party rejected their own motion just because of their preposterous method of voting the opposite of what the opposition party votes for. And finally, one of the unforgettable moments took place during a commission work, when Tülay Bakır AKP parliamentarian from Samsun said, “Really I am not in a position to distinguish the right from the wrong, (…) we come here not knowing anything and my only function is to raise my hand.”
What would they have understood, if they have read these in advance, how would they have distinguished what is good for the people? Would they have taken a break from their business and dissolute lives and struggled to pass a legislation? This is impossible.
Then how come so many legislations against the people are prepared and swiftly passed? How do they calculate and legislate the interests of multinational companies and imperialism to their smallest detail? Who is undertaking this task, while the parliament is busy eating trotter soup or playing party politics behind their general president?
You have to get to know these two institutions: Investment Advisory Council (YDK) and Coordination Committee for the Improvement of the Investment Environment (YOİKK).
Among these, YOİKK is composed of four big organizations: Union of Chambers and Exchange Commodities (TOBB), Turkish Industry and Bussines Association (TÜSİAD), Foreign Investors Association (YASED) and Turkish Exporters Assembly (TİM).
YDK comprises of YOİKK, YDK’s fundamental component, the government and multinational companies (MNC). The Prime Minister leads YDK and the government is further represented at the YDK thorough three ministers. 19 MNCs are as follows: Arcelor, BNP Paribas, Citi Group, Fiat, Ford, Hyundai, ISCAR, Lafarge, Merloni Elettrodomestici, Metro, Nestle, Newmont Mining, Nortel Networks, Nunza B.V., Pirelli, Rio Tinto Plc., Siemens, Toyota, Unilever.
Of course, the representatives from the World Bank (WB) and the International Monetary Fund (IMF) attend these meetings. We should add that their head and directors attended the meeting that took place 15 Mart 2004.
These meeting where the government presents regular progress reports continue. 15 March 2004, 29 April 2005, 29 June 2006…
Coordination Committee for the Improvement of the Investment Environment (YOİKK) meets with TOBB, TÜSİAD, Foreign Investors Association (YASED) Turkish Exporters Assembly (TİM). While this meeting was initially led by the undersecretary of Prime Minister, now it is led by a government minister. Finance Ministry, the Ministry of Industry and Commerce as well as the undersecretaries of Treasury, Foreign Trade and State Planning Organization also attend these meetings.
Here are the examples of the legislation prepared by this Committee, which is practically Turkey’s deep parliament: Labor code, Direct investment code, Code concerning foreigners’ working permits, Law concerning the changes in the code for the encouragement of tourism, Code for the social security administration, Law concerning corporate tax…
This construction, by means of its professional commissions, prepares legal reforms and statutory rules and orders to their smallest details. They also commit the government to control this process by means of progress reports.
Today in Turkey, YDK–YOİKK de facto usurped the authority to prepare legislation and the process to transfer the executive power to “independent” regulatory authorities and institutions of the capital, such as TOBB, began.
What comes after this is likely to be privatization of prosecution processes. Alternative dispute resolution methods, which allow dispute resolution outside of state courts (conciliation-mediation-arbitration), can be found in the programs of the World Bank and the YDK–YOİKK. Hence, the states three powers (executive – legislative – judicial powers) are on their ways to be privatized.
It is for this reason we call oligarchy what you call as representative democracy. There is no longer meaning in right to vote, election, parliament, or what you understand as representation. These are all controlled by a minority that has the capital and their allies; that is to say, an oligarchical political power. Bakır Çağlar said “Constitution is the government’s corset.” It is known that corset does neither eliminate extra weight nor discomfort. Its task is to prevent a problem escalate by repressing or to hide the problem.
Read the most memorable three provisions of the Constitution that comes to mind back to back:
Article 7- Legislative power is vested in the Grand National Assembly of Turkey on behalf of Turkish Nation. This power shall not be delegated.
Article 10 – No privilege shall be granted to any individual, family, group or class.
Article 6 – Sovereignty belongs to the Nation without any restriction or condition. The Turkish Nation shall exercise its sovereignty through the authorized organs, as prescribed by the principles set forth in the Constitution. The exercise of sovereignty shall not be delegated by any means to any individual, group or class. No person or organ shall exercise any state authority that does not emanate from the Constitution.
If you still believe that this corset hides the sickness or even heal it, you are gullible. And stop and think before charging us with harboring negative intentions towards the constitutional order; which constitutional order? The one that is written? The one that is in force? Are you angry because we do not like the bait or because we do not like the trap?
In broad terms, the struggle for rights is the most important revolutionary struggle of the people. We will not abandon even the smallest of our achievements, achievements we gained through centuries, without a fight within barricades.
Constitutional or public, written or unwritten, we will not let you shy away from any of your obligations which we made you pledge by. We are hell bent on getting every right given not only through national and transnational contracts and declarations but also through circulaires and working contracts to us, the people, the poor, the workers and peasants.
We are are dedicated to make you work as hard as the institutions, courts, directories committees and commissions, which we have forced you to establish, allow us to do.
We will never get off your tail to interpret every law, fund and budget in the people´s favour.
Because the struggle for rights gives us the most important introductory sentence: It is not the “rule of law”, “human rights” or “democracy” that is universal, it is struggle and being exploited. We will keep demanding “legal guarantees”, “new laws” and “bylaws” for the working class and the exploited from every strata.
We have explained why we do not believe in the rule of law. Now let us explain why we do not turn away from any kind of struggle for rights.
Lenin, who got upset at a tyrant merchant that holds people captive in Samarra, sued in the local court and got the man sentenced by always closely following the case. Pashukanis, who cites from Elizarov explains:
“Could the courts of the tsardom be applied to? Was this even possible? The orthodox intellectual way of thinking, the fear of soiling the clean image of the revolutionaries, the anarchist and indifferent attitude towards the courts and most importantly the ignorance and the lack of knowledge on how any of it works stood as obstacles in front of such an act. Lenin had criticized all of these open and implied reasonings ‘… I am on the side of applying to the courts. There is no need to be a show-off. It would be something unforgivable to be emotional about this. Socialists are not against the courts of the crown in any shape or form. We support the laws being enforced. Marx and Bebel had applied to courts themselves despite their socialist standings. It is essential to know how it is done and use it when necessary…”
If you pay attention, it is us who, in the name of our client Dursun KARATAŞ which have gave us the power of attorney, filed and won a lawsuit in the Administrative Court of Ankara It is us who got involved in his case file in his attorneyship; and it is you who make these things a cause for arrest for “getting instructions from an armed organizations”. You should think about who takes seriously and makes use of the rule of law and who is being a show-off. The police do not believe in the rule of law, and so don’t we. The difference between the two is that we, just like our client, believe that we should apply to every sort and method of struggle for rights. When it comes to you, time will show what you believe in and how you acted. Your situation is reminiscent of the judge in the famous story.
A tavern gets opened in front of a mosque. The congregation, who can’t not displace the building which was constructed in accordance with the law on the owner’s own private property begs God to destroy the building. The tavern gets destroyed after being repeatedly struck down by lightening in a stormy day. The owner sues the congregation for “they have cursed my shop and caused it to get destroyed, they should pay for the damages.” The congregation argues against the lawsuit of the owner in court, saying that “How could such thing come about? Is it possible for a building to get destroyed by curses? There are constructional methods and lightening rods, what responsibility could we have?” The judge swiftly describes the situation as such: “It is a tough case. We are stuck between a tavern owner who believes in God accepting prayers and curses, and a congregation that believes none of these things and claims no responsibility”
Then oh the congregation of the mosque of “the rule of law”: Somewhat believe in the things you prey to five times a day, at least until the case is over.
For us, the foundations which the problem lies on are colourful. As instructively caricaturized by Monique-Roland Weyl, law has been approached in two different ways in Marxist-Left ideology. One of these is Sectarianism, which is also considered as a swerve to the left; and Opportunism, which is thought to be as a swerve to the right. The Sectarians see the concepts of law and struggle as polar opposites and view every demand for justice from any kind of law as having a bourgeois quality to it. Everything relies of the actions of the masses and that means everything about law is a “heavy burden to be carried”. They say that law is a “bourgeois weapon and a deceptive tool that helps the bourgeoise hide away the contrast of the classes.”
Weyl makes fun of these people by saying how they would organize protests, send delegations to the ministries to press the issues and open press campaigns but none of them would ever think of filing a lawsuit before the statute of limitation expires.
Opposing this view, the Opportunists are union leaders that relentlessly consult lawyers, or research if some random thing is possible by pressing on some documents, taking some other document into consideration or playing with some commas. Or they are people that work in the law department in some branch of a union, all of whose work is to “pass the matter to a lawyer”
Again, in Weyl´s colourful depiction, they are the ones who cry out that “This ruling is against law”, “How dare you deem us wrong” before the courtrooms that they have lost their case in. But since they can not gather in the streets before making absolute certain that it is legal, they will never even dare make a protest march against the ruling.
For us Revolutionary Lawyers, the dialectic unity of these two divergences is clear, we are on neither side. The practice of law will play its historical role of defending the rights of the poor and the exploited to extend their opportunities until the bourgeois property, labour and criminal justice systems are solved completely.
This does not mean that we will not boycott trials when it is necessary. Whether by laying out our political demands and evaluations, or by founding on a regulation we have made get passed, it could have been the right choice to disregard your trial. Just like our limitless political means, we have our judiciary means as well. Your problem of legal legitimacy which is so accurately described by judge Ömer Faruk Eminağaoğlu keeps hanging above the issue of law. In article 38/f of the law on practice of law it says, “If the work requested from a lawyer does not comply with the necessities of professional solidarity and order as set out by the Union of Turkish Bar Associations, it must be declined.” How and when can this law be implemented better? If in these so called courtrooms the defence can never truly play an active role, if the actions of the law enforcement never get inspected and if these actions are presented as the verdict of the court, then why it is idly stood by and watched when lawyers present a defence under the illusion of a trial in these institutions? Why are these courts defended as being legitimate?
You cease to exist the day we give up recognizing you, give up talking and give up taking you seriously and you will go back to your administrative schematic where you are nothing more than a tacked on part of the law on enforcement. Just like how the Unicorn tells Alice; “So, now that we can see each other” said the unicorn “you believe in me and I believe in you, deal?” You can not make us accept your existence without you acknowledging ours. Just as we cannot call a “thing” that does not acknowledge the existence of lawyers a court, there can be no ‘political trial’ that does now acknowledge the existence of political lawyers. This is a situation beyond the power of you, us or the police to change.
Anyone will accept the impossibility of forming an idea about the legitimacy of law by talking only about law. Therefore, you should think by keeping your eye on the big political and societal building. Even the most brilliant law expert knows that legal professionals do not construct the societal building, including the law itself. “The famous claim you can read in every handbook nowadays that law is developed by those in legal professions is only true in games of insignificance. Those in legal professions are incapable of laying the foundations of the building and making the building rise. Only after the building is finished, come they as crows in the thousands, nesting in every corner of the building, measuring the boundaries and sizes of every stone of the building to the very millimetre. They decorate the building in so many pictures and embossments that the ruler and the people do not realize that it is the same building that they have put up.
REFORM IS TOO SERIUOS OF A BUSINESS TO LEAVE TO REFORMISTS!
In the Program that the Social Democratic Workers´ Party of Germany, accepted in the Congress of Eisenach (1869); the autonomy of the courts, trials with public hearings, a judiciary without profit were demanded. In the Erfurt Program (1891) of the Social Democratic Party of Germany the principles of “having the judiciary function without money, free judicial aid, the right to sue for indemnities for those accused, arrested and convicted, the right to appeal in criminal trials and the election of the judges by the people were advocated for.
We own up to all of these and defend them when necessary. We never abandoned their struggles. You should know that we will not make the same mistakes as the parliamentarian movements in the history of socialism and we have cleansed ourselves from the venom of reformism. This is how it is for the Tsarists as well. “Equal election districts, the repeal of the obligation to own property to be elected as representative, the right to vote for all adult men, holding parliamentary elections every year, secret ballot, wages for representatives. With these demands withered away the Tsarist movement, which limited and guided the class movement to a series “Peoples Charters” in the years 1838-1848; and left behind a leftist tradition which was hopeful for the system to be reformed and which was faced towards the parliament. It has come to the point that the issue we are dealing with become less the actual problem and more the belief that we can get rid of the problem through general elections. The issue is not with these demands themselves but rather with the belief in parliamentary democracy that has been made to be so absolute. Just look at how even after hundred and fifty years the revolutionaries advocated for similar demands.
If the workers´ strikes are not going to serve the interests of the bourgeois opposition and be a tool of the bourgeoise, its demands should reshape in a way that is more for the people, patriotism, freedom and democracy. The enemies and the friends of the workers movement should be identified on the basis of whether or not they support these demands. These demands should be, in its most distilled form, the following:
Drafting a new democratic constitution with the contribution of every democratic power, the people and having it be consented by the people,
The repeal of every fascist, oppressive and antidemocratic law that stands in the way of basic human rights and freedoms,
All obstacles in front of the freedom of speech and the right to be organized to be lifted.
Putting an end to privatization.
The immediate arrest and public trial of all those responsible for massacres, murders, abductions, disappearances and tortures.
Lifting the State of Emergency
Ending oppression and all the bans against the Kurdish people and opening the way up to Kurdish people recognizing their own identity and determining their own destiny.
Pulling out of all the economic, political and military agreements made with imperialist institutions such as the IMF, World Bank and NATO”
Again, reminding that the issue is not with the demands but whether or not they can be imposed on the government.
“These demands could be partially modified or increased but this is the framework that our actions should be based on. If these demands cannot get to be adopted by the worker´s movements and do not get imposed of the government, the lives of the workers will not change regardless of any change in government or any miniscule increase in the workers´ wages. And the workers´ movement will not be free of the wills of the bourgeoise, the knowledge that the ultimate goal will never be limited to these makes us see these demands as new as any, despite them being twenty years old at this point.
The revolutionaries do not disdain efforts of reform and especially do not undervalue the struggle for justice. In the words of Mr. Haluk İnanıcı, we recognize that it is not real justice: “Because leftist ideology aims for a change in method of production for true justice and democracy. The changes in the form of exchanges, ‘The efforts for the distribution to be more equal will not be belittled but be recognized as essentially far from providing true justice. We said not to be belittled because neither Marx nor Lenin belittled the struggle for rights and justice in communities of exchange’ On the contrary, they underlined their support for them. All ideas in the democratic process of expanding parliamentary democracy in terms of rights and freedoms, transferring and authority of the government to the people or opening them up to public scrutiny, dissipating the government into the people are not foreign to leftist thinking on the virtue that they represent a stage in the class struggle.”
The end of the unions that made huge waves in the 1860s and 1870s and the New Social Democrats who have managed to put 12 representatives in the Reichstag is before us as examples. This coercion resulted in German gaining the concept of “Sozial Politik” and Bismarck legally institutionalizing the unions that provide social security which are the core institute of the working class. So, in the end it was again us who had lost but social policies were shaped and established as an area of struggle. The Welfare state on the other hand consumed its own lifetime and removed itself from the pages of history.
All of the rights we name “Fair Trial” and then bundle together are the subject of the struggle of the working class and are gains the people achieved fighting against the dominant forces. Let it be known that that Bourgeoise Liberalism is no owner, protector or diving force of any body of rights.
Us demanding remedies do not mean that we will be politically settled with those. We only recognize that reform is too serious of a business to leave to the reformists.
Now we can talk about the demands of rights of the poor and the “big” promises of the second part of the list. John Locke´s, who is still considered to be a founding father of liberalism, proposal in 1696 is striking; Locke proposed that the tax obligations of the poor of the villages that are collected as work, should be distributed proportionally by the taxes that they pay. It is generally accepted that we be unaware of the slave owner, racist, sectarian and sexist tendencies of the big liberators in history due to “small deficiencies” in our education system. However, this situation is not very personal or secret. The law of 1547 had already criminalised poverty. It ordered that a person who does not wish to work do slave work for the one who report him as lazy and a vagabond.
This liberalism which considers us all equal and likes to speak on behalf of all of us always teaches that; “Human beings are not equal at birth and there are differences of skill, intelligence and capability (and inheritance of course) Those with the skills and intellect should be able to freely showcase their craft, own wealth and property and reinvest them and the society can improve thanks to their entrepreneurship.”
It gets upset at your confusion and says: “What kind of equality did you think we talk about when it is so obvious that people are not like each other? Naturally we talk about an equality before the law and a freedom that does not harm the property of others. Isn´t this the right thing to do?” Then we must first fully grasp what is being meant by “free” and “equal” and continue accordingly. Because this pretty definition tells most about the freedom and equalities of those who do not have anything to sell. “In this case everyone is equal before the law (everyone owns what they have) and two free (everyone´s will rule over their property) owners of meta run up on each other at the market and sell everything at its value.”
What about social security, health centres, retirement, family and children aid, minimum wage, cheap transportation with a high reach as public service, communication, free education? Did these things never happen? Call it whatever you want.
What happened to that state that serves and protects us with the taxes we pay to it? If you look at the boastful speeches of our prime minister, the government is much richer and more powerful than the times it had provided these services! Okay then! Why don´t you start with the free public services that the miserable budgets of the era of 1945-1975 where they were provided so easily?
It is because you can´t.
The place where the capitalist transformation that started to stabilize in the 1980s arrive to is striking; not only are the welfare practices are purged completely, imperialism calls back to the characteristic practices of its brutal and remorseless liberal phase.
The Capitalist State guarantees the authority of the bourgeois class in various different ways: Laws and practices that protect private property, with instruments of violence such as the police and the armed forces and instruments of ideology such as the education system, schools and mass media. Despite the it being an instrument of coercion that protects the system of private property being organized, it imposes that it is “neutral” in the face of societal classes through its ideological means and creates consent for its existence. But that is not all the function of the state in capitalism.
The policies that were put on the agenda at a time where the struggle of the working class was eroding -after a cold war- brought about a new and primitive process of accumulation.
There are strong similarities between today and the era what Marx called “primitive accumulation”. There is a new process of dispossession and proletarianization, colonialism tightens its grip, conquests and wars of distribution become once more the topic of discussion. The international debt system, favouritism in investment and trade, privatization, new tax burdens on the masses, spread of modern methods of slavery, disciplining og the dispossesses masses through ever harsher punishments etc, are all placed in the current framework of today´s policies of primitive accumulation.
“The new exploitation policies that are shaped around the imported substitutive ‘developmentalism’ of the post 1945 era have been replaced by new policies of primitive accumulation that shape the transfer of resources from poor/underdeveloped countries to imperialists countries that are based on difficult, speculative and monopolistic profit margins.”
The transfer of lands in Izmir´s Menderes Efemçukuru village to a mining company under the name of “immediate expropriation” in 2008 is one such primitive accumulation. When the villagers do not want the sell, the land is seized through the order of the Council of Ministers. One more examples is the expropriation of the arable farmlands of the villages of Kandira, which you hold some of us in, for an organized industrial zone. There is no public benefit, its is all being gone for private gains and the façade of doing them in the public interest is not even bothered to be put up. Urban renewal is disguised as the renewal of buildings that are safer in case of earthquakes or the clean-up of unregistered slums from the lands of the treasury all the while the truth reveals itself in an unmistakable manner. You are being forcefully evicted out of your houses, or your properties in a more straightforward way, that have no zoning problems, are registered and safe against earthquakes. Because just like in primitive accumulation, small capital is being purged to be added to a bigger capital and will continue to be so.
Look what happens if you run a trial of “welfare state” in the interest of the public in such a time. Law 4736 on Charges of Goods and Services that Public Institutions and Establishments Produce and Changing Some Laws, Article 1 (19th January 202 and 24645): … There can be no discount on or repeal of charges on goods and services produced by public institutions and establishments until the process of privatization is complete…” The act of Municipality of Dikili to give out up to ten tons of water to the residents of the borough free has been found illegal and the mayor has been put on trial for “abuse of power”.
Come and explain this to the people as it is! Say we are putting your mayor on trial and will convict your mayor for wanting to give you free water.
They will not take their feet away from our necks until we have no other expectation other than coming under the patronage of the humanitarian organizations and associations. They will not stop until they hear this exact phrase come out of our lips: “one small penny for God´s sake!”
The “Patronising Charity that replaces Social Rights” that they try to make us accept safeguards the spread of this vice.
The weak imprints of the “welfare state” on the constitution and its laws is now already an unnecessary burden.
The Constitution said:
XIII. The Limits of the State´s Economic and Social Obligations:
Article 65: The state, in fields of social and economic, performs its duties that are defined by the constitution, in a way that is in accordance with its budget and by establishing and taking care of the priorities of these duties.
These are called constitutional excuses.
Bülent Tanör had laws such as Article 65 “Giving the People Dud Cheques”. In the justification of the Constitution of 1982 it had been explicitly stated that: “(it) gives nobody the right to wish for the actualization of social and economic rights…” These rights are nothing but “duties put on the state”.
Perhaps just like we said in the International we must rethink the relationship between duties and rights! Not only think, but resist. Those who resist will become familiar with the actions of the colonial types of fascism in this new colony of a country.
You must not forget that all you can expect from the law is “law of terror” and “the exception of terror” in which all of our basic rights and freedoms get suspended.
Let’s say an exam or a test. If that person was not drowned and managed to get out of the water he would lose the case: she was guilty, Even the water did not accept her. The judicial process for the ‘laundered dead’ was coming to an end: they were Innocent.
In the test system of feudal law, the truth in question it is not the research, but the test of truth, power. The person accepts or refuses to test. If he rejects and doesn’t want to try it, that means he’s already guilty; he loses the case in advance. After accepting the test, there are two possibilities, ‘to lose by living’ and to be killed
or ‘earning by death’ and justification. This should not appear to your eyes as complex legal procedures, this should never make you forget the result: When the sovereign accuses you in this law, you are killed.
Well, so what is the meaning of these cases; the procedure, the court, the trial, the ceremony itself?
These are the ritualisation of a war, or symbolically moving the war to another context.
Therefore, the conviction or the loss of the case already, means accepting the justice of the court they designed and to fall into their hands.
The enemy has now become the “law”. It is not your real enemy in the real world that kills you, but “justice” in the context in which your conflict is carried by it. His justice. No matter how much it is distorted, this state has always stood before the eyes of humanity at the limits that it can comprehend. As Tevfik Fikret said:
Therefore, do not think that this work is out of our understanding. Once you realize this; Even when it is possible to be killed or closed, you can not be defeated or managed in this way. Also, do not dream about us.
The experience in the world after September 11 is more of a “management” than the “legal scope” of the Anti-Terrorism Laws. Otherwise, we cannot explain the “Anti-Terror Law” which has become quickly the most important “export property” in the world. Turkey is one of the countries in the sphere of influence of this trend. Rather than a concrete experience, a concrete threat or an incident, we are faced with a political modelling. Likewise, the process of generating this new terrorist exception has been the result of the narrowing or destruction of the basic tools and structures of politics.
At this point, all political infrastructure and contexts of political violence were destroyed; “Partisan”, “militant”, “supporter”, “sympathizer” etc. The main political figures regarding the historical depths of political struggles such as these left their place to the name of a ‘terrorist’ only and only in whatever historical and local contexts. This attitude means weakening all the rich texture related to their content (politics, historical-social-class-cultural, etc.), and in the end, by the term “terrorist,” it means completely emptying its sense. Thus, the “terrorism exception” has had serious consequences for the elimination of politics more and more from our lives through the exclusion of all kinds of dissident politics.
It is precisely for this reason that the struggle against this process, which encompasses and destroys politics and life, should be considered as ‘terrorism’ by ‘terrorism exception’ after a while. The political and legal explanation of our experience today lies here in Terrorist law and its “exception”.
Turkish experience now accepts all possibilities of politics (not just political violence) as a terrorist crime. One of the accusation issues in the case file is extremely important in terms of showing the last point of this understanding. Likewise, even the political crime-terrorist crime debate itself is considered a “terrorist crime”.
In the case file, a petition belonging to a defense made in the Belgian Supreme Court; The argument that “DHKP-C is not an terrorist organization but an organization that accepts political violence as legitimate” is presented as evidence of terrorist crime. However, the debate is open. ‘Intimidation’ is considered as one of the main features of the terrorist act. And one of the most important features of intimidation is that the movements related to intimidation are directed not only to the enemy, but also to people who are completely innocent and not related to the movement. The petition emphasized the fact that DHKP – C did not target third parties, apologizing if these people were harmed by the actions, and compensated them if they suffered damages. The transformation of the discussion itself into the accusation is the most typical symptom of the process.
This is why the need for the political criminal lawyer, the most influential figure to fight against this process, to be declared as a “terrorist”.
Let us first give an idea of how every area of everyday life has turned into the field of this private law. We talked about the “clan principle” of the accusation of attending İbrahim Çuhadar’s funeral and calling for collective responsibility. Now we can talk about a stranger connection with Ibrahim.
It is also among the charges to attend an event held in April 2006 regarding the lawyer Behiç AŞÇI’s initiation of the death fast. However, the prosecution has not made this “participation in the event” a subject of accusation. The point that the prosecution emphasized and turned into accusation was the participation of İbrahim Çuhadar, who made a sacrifice action against Gazi Neighbourhood Police Station in 2012.
We are facing a new level of crime. At the time when the law of terrorism was born, if we call it the first stage, it was a crime to participate in armed action.
With the development of the law of terrorism, we can say that it is the second stage, and all kinds of relations with the people who carried out this action within the time frame of the armed action started to be accepted as a crime.
Prosecutor Adem is starting a new era, and if we say the third stage, to be in the same place ‘6 years ago’ with the person who carried out the armed action and to be declared ‘terrorist’ for this reason only, without any other accusation that he had maintained a relationship in this long period of time!
The prosecution’s contribution to the world of law is not limited to this. He also describes engaging in open-air actions – tens of thousands of others have participated in it – as a crime. Of course with a new legal standard; at this point, we can reveal the development in stages.
Stage I: Participation in open space meetings / statements is freedom of thought and expression.
Stage II: In the statement made in the open area, it is a crime to shout the slogan of the illegal organization and to carry the banner.
Stage III: (discovered by the Prosecutor Adam.) Yes, this person is not shouting the slogans; he does not carry banners or other stuffs, but with his presence there, he gives confidence to the members of the organization! Isn’t it amazing? He continues, there is an illegal organization flag, but you are not accused of neither ‘doing’, ‘bringing’ nor ‘carrying’ this flag, but because it is kept right next to your head by unrecognized third parties.
We are going through a historical period in which the judiciary is subject to every actual punishment for human life, due to the abuse of the uncertainty threshold permitted by the law to the prosecutor.
According to the statistics shared by the General Directorate of Forensic Statistics with the public;
In Turkey, the creation of an exceptional threat perception starts since the late 1960s with the concept of terrorism. The unlawful/political precautions of the political power are transferred to an integral political/legal structure by the political power, and a new political order begins as of 1970s…
The formation process of the law on terrorism in Turkey, need to be identified the two different periods. These periods are: 1 – An extraordinary real danger detection regarding the terrorist situation and based on illegal measures. 2 – Transformation of these illegal measures into a rule.
The efforts to establish various legislations and terrorism as a state of emergency and extraordinary criminal law carried out since the 1970s represent the first period; The process of getting into shape as a regular criminal law, starting from the 1970s and reaching all its results in 1991, represents the second period. When looking at the legal processes, it is difficult to observe a distinct difference between both periods. Likewise, in both periods, there is a legal legislation and similar production methods that can be regarded as similar or even the same. Therefore, both periods are interdependent. However, the most important difference of the last period is that it clearly declares all the legal accumulation of the past established within a certain context in a political order and as a dominant decision. In this period, now the Terrorism Laws Corpus; has become the basic form of legal management of the system. The principles of the modern state of law such as ‘no lawless crime and punishment’ and ‘separation of powers’ have turned into a new and complex political legal expression. When viewed from an institutional perspective, the most basic result of these laws is particularly revisiting the relationship between the executive and the judiciary, and the renewal of the executive as a judicial-like institution and the effectiveness of the judiciary against the executive. On the other hand, it is another remarkable feature that the categorical distinctions regarding the police-soldiers and other security forces are replaced by a single centralized security center.
Before mentioning the terror law and exceptions in Turkey, it’s necessary to look at the extraordinary regime inside which this exception was created. After all, all these judicial-political processes are strongly interlinked.
The extraordinary regime in Turkey and greatly understated manner it should be noted that the exception is converted into a regular regime made permanent and temporary being removed. Again, the existence of a practice in which military interventions took place on May 27, 1960, March 12, 1971, September 12, 1980, February 28, 1980 and April 27, 2007, which made the legal expression of the unusual regime inadequate before and after these periods, should not be forgotten.
Therefore; one has to consider and discuss the extraordinary regime in two levels: first in the legal context, and then in the illegal/unlawful context.
The Republic of Turkey was proclaimed on 29 October 1923 until the date 30 November 2002 has been managed with extraordinary regime. Between 1923 and 1987, martial law remained in force for a total of 25 years 9 months and 18 days. After martial law was abolished in the whole country (July 19, 1987), regular management procedures were not implemented. In other words, between 15 July 4 months and 11 days between July 19, 1987 and 30.11.2002, this was the stage in which another unusual management method called state of emergency was kept in force.
As of its anniversary on 29 October 2013, the Republic that was born on 1923 has passed its 41 years, 1 month and 29 days under the extraordinary regime.
These data demonstrate that extraordinary regime single handedly determined the government style in almost half of the history of the Republic of Turkey. Even this length shows that the extraordinary regime has become an ordinary one.
If we examine these methods of extraordinary governing in the perspective of the Turkey experience, although the constitution and the law defines martial law and state of emergency as distinct sets of precautions under distinct (although similar) conditions, we see a practice that almost removes any of these distinctions. That’s why it’s not wrong to evaluate both of these types of extraordinary regimes together.
At this point it will be good to open a parenthesis on the unlawful area. The development of this area with acts such as massacre, kidnapping, execution, disappearing etc., would be impossible to represent with a complete list but at least to get an idea:
There is a rather rich amount of legislation in Turkey, regarding the extraordinary methods of governing, which are the martial law and state of emergency. This can be seen as another proof of how the extraordinary methods became the ordinary way of governing.
So, what is the legislative story of the martial law and state of emergency in Turkey?
We can categorise the martial law cases in Turkey into two main groups:
1- Legal cases of Martial Law
2- De Facto cases of Martial Law
For a more detailed picture;
1. Cases of martial law with legal basis
a) 1920–1931 martial law
b) 1940–1947 martial law
c) 1955–1980 martial law
d) 1984–1987 martial law
2. Cases of martial law by De Facto ‘Regime’
a) 27 May 1960 martial law
b) 12 March 1971 martial law
c) 12 September 1980 martial law
There are mainly three laws in the Republican regime regarding martial law. These are:
Martial Law Legislation dated 22 May 1940 with number 3882
Martial Law Legislation dated 12 May 1971 with number 1402
Martial Law Legislation number 1402 with a brand new character upon the radical changes applied on 12 September 1980, which is still active.
These laws are shaped during the periods when the civilian regime was suspended by the De Facto regime (12 March and 12 September). A closer look shows an increasing trend of anti-democratic content in these laws.
The laws have a large scope: ‘Censorship, shoot order, domestic exile, dismissal, search and seize warrant, curfew, interdiction on getting in and out of regions, suspending education, military operations out of borders (hot pursuit), limitation on right to defense, long surveillance periods, judicial authorisations for the martial law commander, arrangements against the defendant in martial law court (inability to convert the sentence to precautions or fines, inability to delay the sentence, absence of good conduct abatement), encouraging informers, limitations on right to appeal’ are some of the limitations these laws impose on the basic rights.
The most important aspect of the martial law is to be constrained in ‘time and place’. Martial law can only be applied in a definite period in a specific place. However, it can be said that the practice in Turkey has been stretching these standard aspects, in terms of both time, and place. Obviously, this led to the transformation of the martial law to a much more authoritarian regime.
In terms of the effects it causes, the martial law regime in Turkey cannot be understood solely by the time its limited to. In other words, the extraordinary regime, especially with its institutions that carry out the activities, extend well into the time of the ordinary regime.
The martial law courts continue being operational even after the removal of the martial law, until their cases are all closed. This is based on the article 23 of the Martial Law Legislation with number 1402. As a consequence of this provision, despite the martial law terminated on 19 July 1987, the martial law courts resumed their activity until 30 December 1993.
The same influence happens retrospectively. Although the effects of the martial law are required to be within the period of its official declaration, this principle is violated. For example, the activities that had been legal and required no prosecution until the declaration of the martial law, are determined to be ‘activities that caused the declaration of the martial law’ and were subject to martial law court based on Law number 1402.
It is seen that, not only constraints in time, but also the constraints in place are being violated. The legislation includes provisions that cause application of the precautions outside the declared area.
The legal basis of the state of emergency in Turkey is:
– Law of State of Emergency, with number 2935, dated 25 October 1983
– Decree Regarding Guidance of State of Emergency Region Governorship, with number 285, dated 10 July 1987
– Decree Regarding Additional Precautions During Continuation of State of Emergency, with number 430, dated 15 December 1990
– Decree Regarding Additional Precautions During Continuation of State of Emergency Due to Increase in Violence and Disturbance in Social Order, with number 424, dated 9 May 1990
The first thing that catches the eye here is that, although the arrangements regarding the extraordinary regime of state of emergency is only allowed to be arranged by legislation according to the constitution, the use of decrees have violated this constraint as they bypassed the legislature, leaving it obsolete. Even though the subject was brought to the attention of the Constitutional Court for cancellation, a new decree has followed and the regime is maintained despite the constitution.
As the martial law of 1980 was getting withdrawn gradually, the absence was not being completely covered by the practices of state of emergency. Therefore, the precautions of the martial law have been imported to the regime of state of emergency. One of the examples is the hot pursuit. Another example is the judicial audit. While the martial law legislation (in appendix 3) disallows the cancellation of administrative procedures regarding authorisations of martial law commanders, the Law of State of Emergency includes a similar arrangement in its article 33: “The execution of administrative procedures upon the authorisation of the governor cannot be stopped by lawsuits.” Again, with the decree number 285, it is arranged that administrative precautions of the governor of the state of emergency region cannot be sued.
The state of emergency is carried out by regional governorship regime as an special extraordinary status, in an unconstitutional way. And this arrangement is not made by legislation but by a decree.
The regional governors of this scope have been, by order of assignment, Hayri Kozakçıoğlu, Necati Çetinkaya, Ünal Erkan, Necati Bilican, Aydın Arslan and Gökhan Aydıner.
Some of these governors, after their role as such, have become members of parliament of ministers, such as Kozakçıoğlu (now a minister), Çetinkaya (now the deputy leader of AKP), Erkan… Çetinkaya is at the moment a member of parliament from AKP. Among these governors, the only one who could not resume a post-governor career has been Aydın Arslan, the reason being not the negligence of AKP but that he passed away during this position. The last governor Aydıner has become General Director of Police.
The tendency of martial law for exceeding the constraints of ‘place’ is also the case for the state of emergency. With the decree number 285, the provinces that have been out of the scope of the state of emergency have been subject to the precautions under the name ‘adjacent provinces’
According to the Constitution, martial law is supposed to be depending on higher levels of danger than those for the state of emergency, and by logic, the latter is supposed to have lighter precautions. However, it is seen that the current arrangements include ‘censorship, domestic exile, suspension of education, prohibitions of moving in and out of the region, auditing or recording of any kind of broadcast, curfew, search of individuals and their houses, bans on meeting, rallies and strikes’. As a result the martial law and state of emergency become one.
There can be a temporary or permanent ban on distribution of any kind of publication that can disrupt the social order or ‘excite’ the local public. For this reason, about 30 newspapers and magazines have been banned.
In the state of emergency provinces, those who disrupt or seem to have the potential to disrupt the social order can be expelled out of the region upon the decision of the region governor. This authorisation led to the exile of hundreds of public servants due to being ‘inconvenient’.
The state of emergency governor can suspend the authorisation for lockout, and can stop referendum and union activities. He can forbid activities such as boycotting or work-to-rule. For this reason, the May Day could not be celebrated in public during the state of emergency.
Upon the governor’s demand and the approval of the State Security Court, the arrestees and convicts of crimes causing the state of emergency can be picked up from prison for prosecution, 10 days at a time.
If a potential risk in delay is foreseen, the police can raid houses without warrant.****
The state of emergency governor has the authority to evacuate and relocate residences.
The state of emergency authorises the forces of security to fire at will. This authorisation has been utilised ’generously’ and the cost is terrifying.
During the state of emergency, 23535 Guerrillas, 5050 Security Officers, 4485 Citizens, 307 Public Servants have lost their lives.
About three thousand households, 4 million people have suffered ‘forced’ migration.
This count does not include the disappearings and mass graves. Remark that, the ones who have been responsible for this cost, the region governors, let alone being judged, have risen up in their careers.
We mentioned how the extraordinary regimes of martial law and state of emergency brought the precautions that limited fundamental rights and liberties. This regime continued until 2002.
Law Against Terror with number 3713, that created a permanent exception of terror in the judicial system, has been active as of 8 April 1991. Therefore a part of the country was subject to a double exception between 1991-2002. It was particularly harming due to the doubly extraordinary situation.
The martial law declaration on 28 April 1971, in the provinces of İstanbul, Kocaeli, Sakarya, Zonguldak, İzmir, Eskişehir, Ankara, Adana, Hatay, Diyarbakır and Siirt, was distinguished from previous martial laws. It was the first use of the expression ‘attempt against the order of the state, against the integrity of the homeland, against the secular republic, with ideological aims’. Previously it had been a concrete event that triggered the suspension of justice, but now the ‘ideological reasons’ were sufficient enough.
Obviously the ideology mentioned here is socialism and communism. As of this point, the socialists and communists are declared enemy with no further reason. With this decision, the ‘terror form’ was born, to find its full shape in the 1990s.
The period following this martial law, an active terror law was formed through consecutive lawsuits. At this point, the THKP-C and THKO cases are particularly interesting. On 26 June 1973, a permanent court with special authorisations, the State Security Court, has been founded. In order to reduce the fundamental rights and liberties, many legislative arrangements have been made, many laws have been issued based on the threat of terror.
Due to the rising power of social movements, especially that of the working class, it has not been possible to create a ‘terror corpus’. With the intensive popular campaigns led by the unions, the State Security Court was closed before it could do anything.
The political power tried to compensate for the judicial shortcomings with unlawful methods. This period had the first police raids on houses and massacres. The executions continued on the streets and on the mountains. If we make a list again;
on 30 May 1971, in Nurhaklar, Sinan Cemgil, Kadir Manga ve Alpaslan Özdoğan,
on 1 June 1971, in Maltepe, Hüseyin Cevahir,
on 19 February 1972, in Arnavutköy, Ulaş Bardakçı,
on 9 March 1972, in Ankara, Koray Doğan,
on 30 March 1972, in Kızıldere, Mahir Çayan, Cihan Alptekin, Saffet Alp, Ömer Ayna, Sinan Kazım Özüdoğru, Hüdai Arı- kan, Ahmet Atasoy, Ertan Saruhan, Sabahattin Kurt and Nihat Yılmaz,
on 24 January 1973, in Dersim, Ali Haydar Yıldız,
on 10 March 1973, in İstanbul, Ahmet Muharrem Çiçek,
on 18 May 1973, in Diyarbakır, İbrahim Kaypakkaya,
have been murdered.
From this period till the military coup of 12 September 1980, the attacks by civilian fascists and mass massacres continued with the support of the state.
In this period that the state preferred physical intervention over legislative construction, a Terror Corpus has not formed. However, on the practical side, we can say that the fundamental rights and liberties have been permanently limited or even abolished.
The permanent judicial ‘terror exception’ in Turkey has been provided with the Law Against Terror with number 3713 that was issued on 8 April 1991.
The appendices of this law removed some of the consequences of the coup of 12 September 1980, which blurred the analysis of the law by the public and the law experts. This is because these appendices partially removed some of the precautions on parole in the 12 September lawsuits, in the advantage of the suspects/convicts. In addition, the Penal Code articles 141, 142 and 163, which were to that moment seen as the biggest barrier on freedom of opinion and expression in Turkey, were abolished. These aspects delayed the attention of the public on the Law Against Terror.
This law has been decided on the National Security Council meeting on 5 April 1991, and then proposed by the government to the parliament and legislated. Of course it is not possible to say that a sufficient debate was performed in the parliament, or even within the government.
The law contained arrangements that can suspend all the principles that the law of the criminal court has adopted. The principles of ‘nulla poena sine lege’ (no crime without a law), ‘separation of powers’ and ‘natural judge’ were suspended with the excuse of ‘terror exception’. With this law, the ‘bare life’, that lives in the judicial system but with the suspension of justice, was created. **** ÇN: Agamben ref.
Upon the objection that the law is unconstitutional, the Constitutional Court cancelled the parts where the right to defense was completely abolished (limit on number of lawyers to 3 and surveillance of lawyer-client meetings) and the parts where state officials could not be arrested even under prosecution. However, it rejected all the other cancellation requests.
In the views of some judges (e.g. İhsan Peker), or in the speeches of the ANAP and DYP**** in parliament debates, the pronounced mentality is that ‘when it comes to the state, all else is irrelevant’.
ÇN: Neo-liberal parties
After the ‘9/11’, during times of the trending international legislations, all international agreements have been signed. In 2006, arbitrations with have been put into place with extensive arrangements to limit the fundamental rights an liberties even further. In 1993, the arrangements that were previously cancelled by the Constitutional Court have been legalised.
Again, the terror law has been fortified by embedding the ‘terror exception’ into other laws.
In this context, during the arrangements of the Police Duty and Authority Law, there have been legislations on Witness Protection Law, and Law of Prevention of Black Money. In the end, when we look at the anti-terror legislation, we see that an area that lacks any judicial security and open to the violence of the political power.
All these developments made the country the one with the most political prisoners.
When we examine the Law Against Terror article by article, we see both the source and the gravity of the situation.
Law no. 3713, Fight Against Terror
Definition of Terror:
Article-1: (Updated first article 15/7 2005-4928/20) “Terror is, any kind of activity by individual or individuals belonging to an organization that aims to change the constitutional attributes of Republic, to change the political, judicial, social, secular, economic system, to damage the integrity of the country and the nation of the State, to endanger the existence of the Turkish State and Republic, to weaken the authority of the State, or to destroy or seize the State, to destroy fundamental rights and liberties, to damage the interior and foreign security of the State, to damage the public order and public health, by use of force and violence, using one of the methods of oppression, fear, discouragement, suppression or threat.
(Abolished second and third articles: 29/6 2006-5532/17)
It can be seen that this definition in the law, in terms of its application, allows for a field of uncertainty in which any kind of activity can be incorporated. ‘Any kind of political activity and democratic struggle can easily be placed in this definition’. This wide uncertainty brings a very important matter along. This is a decision problem on what it really is. On one hand the law claims to rely on a constitutional basis that can set limits to its reality; on the other hand what it really is can only be decided by the hegemonic authority.
It is possible to see here how the political area is seized by the state and an ‘inclusion-exclusion’ type of political relationship is established. This is where the difference between a definition of a concept, versus the substance and scope of a concept, is revealed most clearly. ‘Terrorism’ is defined as a practice of violence, however at the same time it is seen that the concept of ‘political’ has such a wide area of influence to cover almost all possibilities, allowing no ‘political’ struggle in competition and it determines all content and limits by its own presence.
Here, ‘Terrorism’ is described as a phenomenon not only in the context of the political means, but also in the context of political aims.
However, terrorism, in its historical development, is not a definition related to ‘political aims’ but to ‘political means’. Terrorism is not in the aims but in the means. If it is condemned to this uncertainty, all political arena vanishes for the sake of fighting terror. This is exactly what we face.
‘The weakening’ mentioned in the definition is the aim and the natural consequence of any political opposition against the political power. As a result this definition makes it possible to directly assault any social movement. It is important to remember how Margaret Thatcher attempted to utilise the law of terror against the strike of miners in the beginning of 1980s.
With this law, politics has been redefined. Politics has been reduced to the political organization of the political power. This way the political power has gained a permanent judicial basis that will mark as terror all legal activities of those who are even partially out of its control.
We have to state that today AKP benefits this facility to its limits. It can be seen in either the statistics presented by the Ministry of Justice, or those from the Directorate of Judicial Statistics.
Between 2002-2012, despite a population increase of 8.6%, the number of terror suspects increased by 112.4%. The total number of terror suspects being 106301 in a country shows that it has turned into an open prison.
In this period (2002-2012), let alone any increase in activities of violence, it can even be said that the total rate has decreased. We talked about the right to resist, we will talk more. We discussed about the belonging of the armed political activities to the political arena, it should be discussed more. But all these statistics show that rather than an actual incident/activity of violence, it is produced juridically.
Article-2: “An individual who, as a member of the organisations with the aims described in Article-1, has committed crime with others or alone towards these aims, or has been a member of the organisation even if has not committed the crime, is a terror criminal.
Those who commit the crime on behalf of the organisation, even if they are not members of the organisation, are also considered terror criminals.”
This law article restructures the principles of crime, punishment and accountability in the penal law. It arranges such that anybody can be punished as a terrorist without committing the objective crime or without membership of the organisation.
This time, ’terrorism’ is defined on the basis of ‘terror organisation’. The organisation is not defined based on the action. The contrary, what a terror activity is, is defined based on the description of the organisation. According to this new definition, Terrorism, is the thing that a ‘terrorist and a terror organisation’ does. In fact it is ‘everything’.
The effort of criminalising certain political activities is not based directly on the action, but rather based on relating them to an organisation that is designated illegal. This way, the political area and the political means for such activity are denied in terms of these organisations, and the activity is excluded and criminalised even if those means are used on a constitutional basis.
The boundaries between what belongs to the public space and what doesn’t, what belongs to the political area and what doesn’t, are this time constructed based on ‘terrorist criminals’ and ‘organisations’. As an inevitable consequence, no matter how the definition of terrorism was initially based on violence and the threat of violence, now the element of ‘violence’ is totally extracted out of the definition.
It is terrifying how far this law article is being applied. Press conference, funeral visit, slogans, clothes, writings, everything is placed in the scope of ‘crime’. During the prime minister’s speech in the Romani Conference, the university students opened a banner saying ‘Tuition-Free Education’, and this law article is what allowed the treatment of this act as a terror crime. Although the demand was constitutional, and the signature belonged to a legal association, due to a report by the Turkish Intelligence claiming that the tuition-free education is a campaign initiated by DHKP-C, the act was treated as a terror crime and the students were sentenced to 8.5 years.
İsmail Beşikçi, in an article he wrote, referred to a place in South Kurdistan with the name ‘Qandil’, and he was sentenced to prison for the reason that the word included the letter Q which belongs to the Kurdish alphabet, and the Kurdish alphabet belongs to the politics of the PKK.
Crimes With The Objective Of Terror
“Article-4 (Updated 29/6 2006 5532/3): The crimes below are considered terror crimes in the case that they are perpetrated in the context of an activity of a terror organisation founded towards the aims defined in Article-1.
a) The crimes in the articles 79, 80, 81, 82, 84, 86, 87, 96, 106, 107, 108, 109, 112, 113, 114, 115, 116, 117, 118, 142, 148, 149, 151, 152, 170, 172, 173, 174, 185, 199, 200, 202, 204, 210, 213, 214, 215, 223, 224, 243, 244, 265, 294, 300, 316, 317, 318 and 319, and the second paragraph of the article 310 in the Turkish Penal Code,
b) The crimes defined in the ‘Law Related to Firearms, Blades and Other Tools’ dated 10/7/1953 with number 6136,
c) The crimes of arson of forests defined in the fourth and fifth paragraphs of the Law of Forests dated 31/8/1956 with number 6831,
ç) The crimes that require prison sentence, defined in the Law of Fight Against Trafficking dated 10/7/2003 with number 4926,
d) The crimes within the regions under state of emergency, that are related to the incidents that are the reasons for the state of emergency being declared, according to the Constitution article 120,
e) The crime that is defined in the Law of Protection of Cultural and Natural Heritage, dated 21/7/1983 with number 2863.”
This article presents, in addition to the usual crimes against the state (which were already managed in the previous article), an extensive list of crimes that can be considered as terror crimes upon the decision of the political power in the field of uncertainty. Keeping in mind that terror crime means the suspension of the principles that make up the constitutional state, it is easily seen how, despite the discourse of the exception, the exception becomes the general rule.
With this article, a total of 50 crimes in the Turkish Penal Code will be considered terror crimes in the case that they are perpetrated in the context of an organisation. That means, they will be subject to an exceptional investigation and prosecution process, the prison sentences will be increased by half, the conditional release period will be longer.
The kinds of the crimes mentioned are very interesting. Resisting in prevention of official duty (Penal Code 205), humiliating the indicators of the power of the State (Penal Code 300), discouraging the people from military service (Penal Code 318). Here, a structure is formed, which can incorporate all the components of the social opposition and their activities easily into the ‘bare life’.
Enhancement of the punishment
Article-5 (Updated 29/06/2006-5532/4):
Those who commit the crimes mentioned in articles 3 and 4, are sentenced to prison or fines with an increase of half the amount of what is determined in the relevant articles. The upper limit of the crime in question, or or the upper limit of any crime, can be exceeded if necessary for punishments determined this way. In the case of life sentence, the sentence is enhanced to be aggravated life sentence.
If an enhancement in the punishment due to organisational context is foreseen in the relevant article for the crime, only the enhancement in the article in question is applied. However, this enhancement cannot be less than two thirds of the sentence.
(Appendix: 22/7/2010-6008/4 md.) This article cannot be applied on minors.
In this article, it is stated that in the terror crimes the sentences will be enhanced by half. Keeping in mind that the catalog of terror crimes constitute a third of the Penal Code, it is clear that in the context of criminal policy, the article will result in deep injustice and wide application of enhancements on sentences.
The equilibrium is also broken in terms of the policy of crime and punishment. The amount of the sentence already having a wide range in the articles they are defined, results to even more arbitrary and unequal sentences in application due to the enhancement, and this is happening.
Exposition and Publication
Article-6: Those who expose, with or without displaying names and credentials, the identity of the officials who have involved in fight against terror, or announce that a crime will be perpetrated against these individuals by the terror organisations, this way showing them as target, receive one to three years of prison sentence.
Those who print or publish the bulletins or announcements of the terror organisations receive one to three years of prison sentence.
Those who expose or publish the identities of the informants, conflicting with the 14th article of this law, receive one to three years of prison sentence.
(Updated fourth paragraph: 29/6/2006-5532/5) In the case that the acts described in the above paragraphs are through press and media, those publication responsibles who have not involved in the crime are sentenced to criminal fines of thousand to ten thousand days. However, for the publication responsibles, the upper limit of this sentence is five thousand days.
Article-7 (Updated: 29/6/2006-5532/6):
Those who found, those who lead, and those who are members of, a terror organisation to commit crimes for the aims described in Article-1, using force and violence, with the methods of oppression, fear, discouragement, suppression or threat, are sentenced according to the 314th article of the Penal Code. Those who organise the activity of the organisation are also sentenced as an executive of the organisation.
An individual who makes the propaganda of the terror organisation is sentenced to one to five years of prison. In the case that this crime is through press and media, the sentence is enhanced by half. In addition, the responsibles of the press and media institutions who have not involved in the crime are sentenced to a criminal fine of one thousand to ten thousand days. However in the case of media responsibles, the upper limit of this sentence is five thousand days. The activities and behaviours below are sentenced according to this paragraph.
a) Covering the face in order to conceal identities in meeting and rallies that are turned in to the propaganda of the terror organisation.
b) Carrying the emblem and symbols of the organisation that reveal membership or support for the terror organisation, chanting slogans or using sound equipment to broadcast, or wearing the uniform that carries the emblem and symbols of the terror organisation.
In the case which the crimes described in the second paragraph are committed inside buildings, offices or annexes that belong to associations, foundations, political parties, labor and trade institutions and their subsidiaries, or educational institutions or student dormitories or annexes, the sentences is doubled.
In the context of judicial and institutional power model, with the negative interpretations of law against rights and liberties in environments of political crisis, it can be said that these crime definitions pose a serious problem for intellectual freedom, and they suspend the freedom to get informed by redefining the role of the media beyond transmission of information. In this context, like in other countries, one of the important parts of the judicial process is made up of efforts to break the connection between the political activities that are stigmatised as terror and the public that they are trying to reach. It is aimed to attenuate the impact of national and local conflicts on the international public, as well as to reduce the interest of the public in the national area, by foreseeing a judicial intervention on the news concept of the press and media organs, and by executing bans on expression of opinions and news through legislations. In this context, media is the field where the first presence and impact of the law of terror are observed.
It is seen how this interference is eventually adopted by the media, and the operations continue with the media in full collaboration.
Wearing any outfit in public that raises suspicion on membership or support for an illegal organisation is defined as a crime of prison sentence. This is another type of intervention on the political area.
While the 6th and 7th articles of the law prevent the use of liberty of opinion and expression, they also designate it as a terror crime. As a consequence, any questioning, even in the level of criticism and protest, is restrained.
There is no judicial regulation that prevents the use of liberty of opinion and expression in the constitutional limits.
There are legislations with carefully detailed regulations, most important of all being the Law Regarding Meetings and Rallies with number 2911 and the Press Law with number 5187.
The Law Against Terror has pretty much abolished these legislations.
Even when there is no connection to the hierarchy of the organisation, due to the article 2 of the Law Against Terror and the article 220/7 of the Penal Code which allows the punishment as if a member of the organisation when involving in the activities of the organisation, an unarmed outdoor meeting can be transformed to a crime that receives tens of years of sentence.
Article-10 (Updated 2/7/2012-6352-75):
The lawsuits in the scope of this law are processed in the assize courts, upon the proposition by the Ministry of Justice, in provinces determined by the High Council of Judges and Prosecutors, where multiple provinces in the vicinity can be covered.
The chairs and members of these courts cannot be assigned for other courts or tasks by the justice commission.
The provisions regarding the individuals to be judged by the Constitutional Court and the Supreme Court, and the provisions regarding duties of military courts are reserved.
Regarding the crimes that are in the scope of this law;
a) Investigation is performed by the Public Prosecutors assigned to these crimes by the High Council of Judges and Prosecutors.
b) The crimes described in the articles 302, 309, 311, 312, 313, 314, 315 and
316 of the Penal Code are investigated by the Public Prosecutors directly, even if the crime is committed on duty or as a result of the duty. The provision of article 26 in Law of State Intelligence Services and National Intelligence Organization with number 2937 dated 1/11/1983, is reserved.
c) A sufficient number of judges are assigned to only perform the tasks of making judicial level decisions in the investigations and examining the objections to these decisions.
ç) The 24 hour limit for detention, described in the Criminal Procedure Law article 91 paragraph 1, is extended to 48 hours.
d) In the case that the aim of the investigation is in danger, upon the order of the Public Prosecutor, only one relative of the person who is in detention or whose detention is extended, is informed.
e) The right to talk to the attorney can be limited to 24 hours upon the order of the Public Prosecutor, during which the person in detention cannot be interrogated.
f) In the minutes written by the law enforcement, only the registration number is written instead of explicit credentials. In the case that a law enforcement officer has to be testified, the invitation document is delivered to the work address of the officer. The work address of these individuals is recorded as the address in the testimony and minutes.
g) It can be decided to hold the trial elsewhere for security reasons.
ğ) The open cases are processed also during judicial holidays.
h) The exceptions described in article 135 paragraph 6 item (a) subitem (8) and article 139 paragraph 7 item (a) subitem (2) of the Criminal Procedure Law, are not applied.
As in the Penal Code,
a) The crime of production and trade of stupefacient and stimulant drugs and the crime of declaration of assets gained from the crime, committed in the scope of the organisational activity;
b) The crimes of force and violence in the context of the activity of an organisation with the aim of unfair economic gain;
c) The lawsuits for the crimes defined in Second Book Chapter 4, Sections 4, 5, 6, 7 (except articles 305, 318, 319, 323, 324, 325 and 332), are processed by the courts assigned as described in article 1. With the exception of third paragraph items (d), (e), (f) and (h), the provisions of this article are applied to also the investigations or prosecutions related to these crimes.
With the exception of the articles 305, 318, 319, 323,324, 325 and 332 in the Penal Code, in the crimes defined in the Second Book Chapter 4, Sections 4, 5, 6, 7, the period of arrest is doubled of what is foreseen in the Criminal Procedure Law.
Minors cannot stand trial in the courts assigned in the provisions of this article, the investigation and prosecution provisions that are specific to this article cannot be applied in the context of minors.
This article is the legal foundation for the special assize courts. The legal legitimacy for trial in contradiction with the principle of natural judge is created by this article.
With this article, a new form of defendant rights is added into the judicial system. As a consequence;
– The time of detention for suspects in normal crimes will be doubled in the context of terror crime (4 days)
– While a relative of the suspect’s choice is informed about the decision or prolongation of arrest and detention, in terror crimes the contact to be informed is arranged to be determined by the police.
– The violation of the rule of public trial is made possible by arranging the possibility of moving the hearing elsewhere due to security reasons.
The limitations of the Penal Code on the security precautions that violate privacy (listening, watching) are rearranged in the context of the terror crime. That is to say, the exception receives a further exception.
Time limitations on arrest is arranged to be twice of others for terror crimes (the maximum being defined in Penal Code 102). This way, it is established that the terror suspect does not benefit from the principles and protections regarding suspect’s rights.
As a consequence of the Law Against Terror, ‘terrorism’ is no longer an exceptional situation or a problem. On the contrary, it is the fundamental judicial-political object of the political-judicial system.
The ‘exception of terrorism’ has been added to the definitions of the society and order. It is now a property of social order. This is because ‘terrorism’ is no longer a threat, it is the very essence of the social and political existence.
Recently there is a new type of scam going on in the courthouses. People are being called on the phone and receive the warning that their numbers and bank accounts are seized and used by the terror organisation. Then they are asked for phone credits or money in order to be saved from prosecution or help the operation.
This kind of scam is presented to us as entertainment in the news or third pages of newspapers. Everyone reading or watching this talk about how naive the victims are; “how can one be so naive!”.
This approach is now obsolete as of the latest example of the of scam, as it is the famous professor Canan Karatay who got scammed. The Prof. Dr. Canan Karatay whose books have been the top in bestseller lists, with a diet program named after her, the popular figure of TV and newspapers…
Although the competing diet experts and professors blame Karatay for her own victimhood by saying this is the consequence of not eating bread as in the Karatay diet, is this really the case?
We believe the source of the problem is not the bread but the state. It is the political power that gives hell to people with the excuse of ‘terror’, the power that can declare anyone a terrorist with a snap, and not only the ones on the street for their rights, revolutionaries, unionists, the oppressed such as the Kurdish people, but also its new targets extending all the way to the Chief of Staff, no matter what their career or economic position is.
In this sense Canan Karatay is not at all naive, but rather a very smart woman. In exchange for preventing their life from turning to hell, who would have not dumped the 50000 TL in the designated trash bin, or leave that money to the police after they caught the scammers, to avoid any further troubles with the police…
This new relation between the judicial order and terror law is signalling the end of politics. Or let’s say the politics ‘as we know it’. The revolutionary politics that does not rely on the approval of the judicial order, raises the values of options with all its capabilities.
‘Terror Law’ denotes a permanent area within the judicial system where Fundamental Rights and Liberties are suspended with the excuse of ‘the threat of terrorism’.
While the list of the suspended rights is rather long, one of the most important among those is the right to defense. This is due to the key role that the right to defense plays in terms of the criminal procedure. Furthermore, this right is of vital importance during the execution of the sanctions and limitations on the other rights.
In the scope of the terror law, the right to defense can be subject to limits on many grounds. Benefiting the legal assistance of the lawyer is one of the frequent subjects of limitation. The precautions that are initially towards the defense rights of the suspect eventually expand to a level that imposes sanctions on the lawyers themselves. This fact is evident in the experiences and statistics in both our country and others.
This tendency towards the lawyer arises from, despite the lack of knowledge, the common and deeply established belief of the dominant power that the lawyers have a negative functionality in terms of terrorism. According to this belief, lawyers play a key role in terms of terror organisations due to their judicial security and professional advantages. First of all, they provide the communication between the members of the organisation in detention or under arrest, and between the legal and illegal areas of the organisation. Secondly, with the information they may potentially gain, they may reduce the probability of operation or harm on the organisation, and raise the action capacity of the organisation. Finally, they complete the public side of the cycle in terms of the terror activity (or action).
In the development process of the terror law, this perception leads to the construction of the suspect and the lawyer as a single ‘terrorist’ body, and as a result, making the lawyer the subject of bare violence.
Just as in any country that has adopted a Law Against Terror, we see a similar attitude in Turkey on both judicial and practical grounds. Considering the 36 lawyers under arrest at the moment, we can say that Turkey has become the leading example.
In the lawsuit file, both the proceedings and the indictments are based on this negative functionality. Keeping in mind that the witnesses are most likely unaware of this judicial tendency, the open or hidden testimonies point to an involvement of law enforcement.
The press conference in Çağlayan Courthouse by the Chief Prosecutor and two assistants, following the ‘labeling’ attempt of the prime minister we mentioned earlier, is the consequence of such a tendency. Chief Prosecutor Çolakkadı stated that the last 1 year, especially the last 6 months, the organisation performed many actions, including raid of police stations and attempts of ‘assassination’. He said “Recently 3 police officers have been martyred”.
Alright, then what is our role, what is the role of the defendants of this lawsuit, in this action? Has there been an accusation related to these actions? No. But this introduction of the proceedings and the indictment is the result of the belief that the lawyers, especially the politically engaged lawyers, have been performing their ‘functionality’ by advocating for the suspects.
What we are going through is not a first time. In Turkey, the challenge of the lawyers with the state and the judicial system has always been painful. No doubt this is a consequence of some of the characteristics of the profession, but it is also directly related to the history of the profession in this country. For this reason, the problem of ‘terror and lawyer’ cannot be understood outside this historical perspective.
The secularisation of law that has started with the Tanzimat***, has been one of the fundamental steps of the modernisation of Ottoman/Turkey. The lawyer profession has been integrated to the judicial system as a western institution in this mission. The modernisation by law has been also accepted by the Republican circles. Law has been considered as both a vehicle and a pioneer of the cultural and political transformations.
This mission that is charged on law, naturally required the creation of an identity/staff of lawyers. This attitude, while on one hand resulting in the purge of the staff of law that does not accept this mission, on the other hand led to the creation of a new staff of lawyers shaped for this mission. Therefore the policy of the Republican administration is shaped based on two fundamental codes: Purge and formation of identity. It shows the level of importance given to the formation of the identity that the first university ever founded by the administration of the Republic was the Ankara Law School, which was for a long time connected to the Ministry of Justice.
The most apparent place of the purge is the Istanbul Bar Association. In 1924, hundreds of lawyers are removed from the bar for being a ‘supporter of Chaliphate’. The president of the bar, Lütfi Fikri, stood trial at the Independent Tribunal with a demand of death sentence. Despite all of this, being declared a supporter of Chaliphate, Lütfi Fikri was elected as president for the bar, and this situation resulted in the exclusion of the lawyers already at the first stage of the foundation of the Turkish judicial organisation.
With the combination of this situation with the characteristics of the lawyer profession, the lawyers have always been expressing themselves outside of the government.
As this historical position was combined with the other precautions of the Terror Law that was forming in the 1970s, the lawyers became a direct target of state violence.
Getting expelled out of the courtroom, getting prosecuted, sued, detained, arrested, receiving prison sentence, and physical attacks have been added to the history of the lawyer profession. The founders of our association, which was founded at this historical turning point, were the first targets of these offences. Therefore this lawsuit shows that the historical tradition is followed by both the government and the lawyers, the members of the PLA. We have to also state that, as the Terror Law developed and became permanent, these offences are no longer an exception but a general practice.
As in all aspects of the Terror Law, it is seen that the German experience is imitated also in the judicial and practical situation that the lawyers face. That is why the comprehension of what we are going through relies on experience.
Like in other aspects of the Terror Law, Germany has formed its mentality of lawyers and defense in the period of the RAF case.
In this process, it has been claimed that the lawyers have been providing the flow of information between the suspects of terror and the members of the organisation. As a result, the law of ‘contact ban’ has been issued.
According to this law, if the defense attorney:
a) has participated in any crime,
b) has aided any crime,
c) has abused the right to contact the client in prison by connecting to a crime or putting prison security in danger,
d) has put the security of the state in danger,
it was possible to expel both the defendant and the lawyer out of the courtroom.
In addition to this, in order to prevent the earlier type of free contact and communication between the lawyers and clients, a separate law is accepted in September 1977. According to this, in the case of emergency when life or freedom is in danger, the administration of the prison or the federal Minister of Justice can forbid the contact between the terror suspect and the lawyer.
The first time this experience is imported to our judicial system is the Law Against Terror.
This law that came to practice as of 8 April 1991 brings significant limitations on lawyers regarding the right to defense. Upon a request of cancellation, the Constitutional Court has examined this law and cancelled the provisions regarding the limitations on lawyers. These articles are:
– Limiting the number of lawyers to 3 in the lawsuits involving terror accusations,
– Requiring the meetings of arrestees and the convicts with their lawyers to be under surveillance of an officer.
Despite the cancellation of these articles by the Constitutional Court, for the justification that it may remove the right to defense, there was an effort to achieve the benefit that was expected from these articles in practice. Now lawyers are among the targets of operations, victims of the killings and arrests. Lawyers have been detained, arrested and even murdered. Our colleagues Fuat Erdoğan, Faik Candan, Şevket Epözdemir, Metin Can, are some of the examples…
As it is the case all over the world, September 11 is benefited also in Turkey as an opportunity to expand the terror exception and limit the fundamental rights and liberties.
With this purpose, there have been revisions in the Law Against Terror, Criminal Procedure Law and Law Regarding Execution of Crime and Security Precautions (LRECSP) in 2005 and 2006. In the scope of these revisions, some provisions previously cancelled by the Constitutional Court in 1993 are added, alongside brand new limitations.
With the revision dated 25.05.2005 on the LRECSP with number 5275, article 59/4;
“The documents and files of lawyers regarding the defense, and the recordings of their meetings with clients, cannot be subject to investigation. However, for the convicts of the crimes that are described in the Law number 5237 article 220, Volume 2, Chapter 4, Sections 4 and 5, in the case of evidence that the convict is committing the crimes in question, endangering the prison security or aiding communications across terror or other types of criminal organisations, the Chief Public Prosecutor can demand that, upon the decision of executive judge, the meetings can be under surveillance of an officer, and the documents transmitted by the lawyers can be subject to investigation.”*****
With this revision the relation of the lawyer with client is brought to the RAF case standards. However, the operational and practical situation has not ended. The biggest proof is this lawsuit.
According to the documents that are claimed to be written between 1999-2004 and claimed to be possessed by the specially authorised prosecutor since 2006, ‘PLO lawyers provide communication between the organisation and its members in prison.’. Despite this claim, despite having the legal possibility to stop this alleged communication, only after waiting for 7 years to accuse us with the claim of “organisational communication”, based on the 1999-2004 documents, cannot be serious. When the law 5275 is changed, the article 121 of the Criminal Procedure Law is also modified. “CPL 151/3 ‘Lawyers of convicts of crimes in the Penal Code articles 220 and 314 and terror crimes, in the case that they are prosecuted due to the crimes in this paragraph, can be banned from representing the convict.’”
With this revision, due to the easiness of initiating a prosecution, it is up to the state’s convenience to allow lawyers to work in political lawsuits. This way, it is made possible to indirectly determine which cases the lawyers can take on.
The offences and limitations on the lawyers have continued with the 2006 updates on the Law Against Terror. These updates include: Limitation of lawyer-client meeting for a period of 24 hours during the prosecution, limitation of maximum one lawyer during the detention period…
Now the legal framework for the political power to have the authority of decision on how the lawyer profession is to be performed and who can be defended by lawyers, is complete. Of course, this does not mean the unlawful means of intervention are abandoned. Considering that the legal ground is insufficient and ineffective, the power frequently resorts to unlawful options. The present number of prosecutions, detentions and arrests against the lawyers, show that this unlawfulness can no longer be treated as an exception.
The accusation against us in the indictment, without presenting any concrete reason, is that we are ‘the lawyers of the organisation’.
With no other functionalities than approving the law enforcement’s operations, asserts that we are lawyers of the DHKP-C, due to the democratic rallies of masses we participate, the journals and books in our offices and the cases we defend.
The democratic rallies of the masses are always open to everyone, including lawyers. The only people who are devoid of this right are the ‘military personnel’, and since we are certainly not that, there is no legal obstacle for practicing our right of freedom of opinion and expression in public space.
The 23. article of Havana Rules and the 3rd article of European Council recommendation number 9 regarding liberties in the lawyer profession, state that all lawyers possess the liberty of expression, faith, organisation and gathering, as do all the other citizens.*****
There is no doubt that the activities we have participated are not limited to those that are included in the indictment. The number of rallies we have participated is far beyond the number mentioned here. It is a futile effort to criminalise us by using an arbitrary selection of activities.
The same goes for the selection of journals and books picked out of our office libraries and added to the case file to assign us an organisation.
It is also fascinating to select about 50 among the detentions we followed between 2010-2012, and to write them down as a list to match an organisation. How about the other lawyer activities during this period, how about the other lawsuits, etc? Prosecutor’s methods are helpless when it comes to this question. Whenever they get stuck, they desperately note it down as “the lawyer used the right to remain silent in detention” (which is a usual thing anyway, as it is impossible for the law enforcement to receive a statement from the lawyers)…
Everybody is repeating the same tirade… “This prosecution/lawsuit is not an offence towards the lawyers and the lawyer profession, this is towards some criminal actions of the lawyers.” The need for this to be repeated so often makes it clear that the operation is indeed toward the lawyer profession and the style of practice…
Upon the backlash when the lawyers were detained and arrested, the Chief Prosecutor of Istanbul made this statement:
“There are about 25 thousand lawyers registered in the bar of Istanbul. The prosecution involves a very small number of them. This prosecution is in no way related to the lawyer profession.” We are curious what he sees when he looks at this courtroom. Usually the judges and prosecutors perform as lawyers after they retire, but apparently Chief Prosecutor Çolakkadı already knows too well what the lawyer profession is about!
Journalists arrested? It has nothing to do with journalism. Lawyers arrested? It has nothing to do with being a lawyer. Okay, so what determines this distinction? The proceedings of the police and the indictment derived from that?
We are living at a time that everyone can be determined as a terrorist and every action can be determined as terror. The ‘Service Movement’ knows it very well…
The first press release of the Foundation of Writers and Journalists in its history was a very important public account of the tension between the Government and the Fettullah Gülen group. It has been a topic of so many political debates, and it deserves to be debated more.
The press release was stated in 11 items, and although each one is fertile for deep debates and implications, the last part is the most important one for us. After all it also teaches us why we keep hearing statements of denial of an offence towards the profession.
The last part of the press release mentions the ones who make the claims and accusations on the Service Movement, that they have stated their intentions by saying “one prosecutor and 3 police officers are enough to put the Service Movement in the scope of terror and crime organisation, and end it”.
You can either consider this statement as a confession, as it has empowered itself while being in the terror threshold of Turkey, or, you can consider it as an expert’s report, as it has accompanied the authority for a long time.
What is it again? Terrorist = 1 prosecutor + 3 police officers.
THE ROLE OF THE LAWYERS AND THE JURISDICTION IN THE STRUGGLE AGAINST TORTURE: WHERE WE CAME FROM!
Related to the murder of Engin ÇEBER under torture, the decision given by the 14th High Criminal Court in Bakirköy was confirmed partially by the 8th criminal division of the Supreme Court in November 2013. This decision is characteristic for being the most heavy imprisonment for a torture crime in the history of jurisdiction in Turkey. But the jurisdiction can‘t chalk up a success or pride story upon this decision.
The trial lasted for 4 years. Within this period 25 hearings took place. Before each hearing hundreds of people have gathered in front of the courthouse reading press statements demanding justice.
Their accused counterparts, who considered all those press statements as propaganda for an illegal armed organisation, declared Engin CEBER as member of an armed organisation and prepared enquiry reports writing that he‘d died a natural death.
These enquiry reports first turned into indictments and without delay info court decisions. Tens of people were punished just because they demanded justice. The jurisdiction, who wants to attribute a success story to itself today, is the same that ordered the confiscation of socialist magazines, only because they were containing pictures from Engin CEBER.
Indeed this trial is historical from the point of the lawyers. The biggest bar associations of this country got involved in the case. 1000 lawyers accepted to become an intervening lawyer and demanded justice. Of course, not bearing the facts in mind that in torture trials there was a price to pay if one is just right side from the bench and moreover to be directly opposite the security bureaucracy.
Therefore we‘re not surprised, that the press statement we read at the Bakirköy Court in front of a banner with the photograph of Engin CEBER and the writing ‘We want Justice‘ in huge letters, was used against in this trial as one of the evidences for being members of an armed organisation.
Else we‘re not surprised that you wrote under the photographs, you found during the investigation procedure within the scope of this trial while searching our offices „it is thought that they belong to prison personnel and that they were beclouded to hide their identity“ and that you turned them into intelligence documents. Ultimately, you‘re honored to jail exactly 4 years later this time the lawyers of Engin in the prison where he‘d been killed.
After all that, can you now stand up and say, the Turkish jurisdiction has punished torture? We don‘t want to misguide you. Indeed this end is not for all lawyers. The question is on which side of the bench we are. Of course there‘s also left of the bench. And with this trial you commend us under punishment threat to take our seat there.
We disagree that lawyers are being classfied upon their defendants. But you always accuse us of taking the same trials. Don‘t forget, while we always take worker‘s trials, sometimes there are also „lawyers who always take cases of the bosses“ on our opposite. And as we always take torture trials; we also had lawyers ‘who always took the cases of torturers‘ on our opposite.
We‘ve made it our regular praxis to defend the first ones, some lawyers made it a habit to defend the second. Now, with this trial, you accuse us not to defend the second. You don‘t accuse the second type of lawyers for making it a habit to take certain trials.
If you find our place wrong, from where we look on a lawyer on the left of the bench, who was selected to the management of TFF (Turkish football federation) without having any relation to football, we‘ve nothing to say to you.
Among the defendants in face of you, there are again lawyers who took place at the right side of the bench in the trial on the Sivas massacre on 2nd July. And if you say, those on the left side of the bench have become president, members of the constitutional court, deputy, mayor, provincial chairman and owners of companies today and that we‘re on the wrong side, we also have nothing to add. If you think about attorneyship after retirement, you‘ll also have to make a choice. It‘s not to lead you, but just for your information, we wanted to remind you, that you shouldn‘t have difficulties while making your choice.
The more retirement is delayed the difficult it is to find a place, in case you‘re intending.
It is a scientific fact; that law and state occured in a certain stage of the development of humankind, around ten thousand years ago, along with the disintegration of societal interests into social classes, who are in conflict with each other, in order to reconciliate or suppress these conflicts and to bring order to the societal production life.
The fact that, despite of all claims of the liberal democracy, the action of the jurisdiction as the legal organ of the state will, can be neither independent nor neutral, is because it‘s the outbreak of the will of the ruling class in a society that has been divided in classes.
But these conflicts within the bourgeois society doesn‘t require to ignore certain achievements of the classes. Likewise, the jurisdcition is the guarantor body of these achievements wihtin the state forces. Therefore, the jurisdiction principally coincides with the society‘s experience of restricting the state. The most known expression of this experience is a little story. (Great) Frederick II, King of Prussia, was only 32 years old when he commissioned the construction of that famous garden and palace for Sanssoucci. In this period, which was followed very close also by Voltarie, he showed big interest for philosophy and fine arts. Everyone can remember the assumed dialogue that occured after the miller didn‘t want to sell his place on a hill, which was considered suitable for the palace: The answer of the miller to the words „I‘m the King, if you don‘t give me this place, I can take it“ was „There are judges in Berlin“.
As indicated also in this story, it doesn‘t grow out primarily from the state but from the society. The jurisdiction is not described as instrument of the state to restrict the society, but as instrument of the society to restrict the state. If the jurisdiction and judicial activity don‘t develop their essential function apart from the state according to the societal demands and expectations, the name of that thing is „courthouse“. Rather than a mechanism to produce justice, it is a state department, where judge and prosecutor work together. (127)
The signification and rating democratic judges made upon the conceptions jurisdiction-court-courthouse, are remarkable. If the meaning of these conceptions is pulled to a real level, forget to mention about a judicial activity in Turkey, it‘s not possible even to talk about a court. Likewise, a court gains meaning upon some subjects-rights and duties. Since the procedure in Turkey kicks out certain subjects from ‘defendant-lawyers‘, we can‘t even talk of the existence of a court anymore. Since there only remain now lucrative officers, a staff from judge-prosecutor-secretary, its name is actually courthouse. The jurisdiction in Turkey is not a space for societal arbitration, which arises from the balance between the political forces.
The historical line on which the Turkish jurisdiction dwelled on until today, has become a player in favor of the state and the rejime where the field of the power, the fields of societal demands as collective and individual freedom have intensified and it actually turned out to be a political instrument. This historical mission towards the suppression of different political, ideological and social choices, have become more functional in critial periods of the jurisdiction in Turkey and it has increased in importance wihtin the governmental forces.
Just as described in the brilliant story of Necati Cumali, it should be kept in mind, that this courthouse has turned into a thunderbolt even without using force itself.
In terms of the courthouse, the problem can‘t just originate from creating a flop. The real problem is, and this is more significant, that the courthaouse has turned into a center of struggle against the people. This has turned to a basic function in terms of these special assize courts. While these courts are being fictionalized by the political power with such a purpose, it‘s also necessary to mention, that judges/prosecutors voluntary participate in this policy. In has been documented, that the judges/prosecutors in their field missions, can easily break from justice in case of conflicts between state interest and requirements of justice. The role of judge-prosecutor is completely left to the initiative of the police forces. In that point an explanation by the military prosecutor of the State Security Court (DGM), Mete GÖKTÜRK, hits the nail on the head. After a judge had released a suspect person, who was sent to the DGM in 1994, he was called by the Istanbul chief of police Necdet Menzir and scrubbed. Being unable to slow down, Menzir even withdrew the security police of the DGM. The request and gratefulness of the chief prosecutor of the DGM gave result. Menzir, who calms down a few days later, instructed the security police officers to return to their duty. What a shame it is, that the jurisdicition is subjected to the nerve coefficient of a police chief. But you‘re wrong, if you think that judges/prosecutors worry about that. On the contrary, there are also some of them who turn this into an opportunity. It should be never ever forgotten, that we live in a country, where writings are made on the sky facilities of Palandöken to ask the special authorized prosecutors, why it is not free of charge.
Since September 2013, we‘ve got 8960 judges and 4706 prosecutors. These judges and prosecutors are working in the jusice ministry. We don‘t forget, that we live with judges/prosecutors, who closed the organisation founded by some unorganized judges/prosecutors, and who heartily tried a judge, who didn‘t go on the streets and even didn‘t show the smallest democratic reaction, but simply made an effort to prevent police from committing crimes. Therefore we have to keep our expectations at a mininum. Nobody is expecting of you to be like the 20 judges, who blocked the entrance of the US-missile depot in Mutlangen on 12th January 1987, by organizing a sit-in to oppose the threat of their country and others by nuclear weapons. We already mentioned before, where we put our lath.
But certainly, everyone‘s got the right to demand an end to this police wardship towards the jurisdiction!
The books of the kadi in the 17th Century, of which we gave two decision examples before, should be considered – of course, without forgetting ‘the quote of dispute that could be brought before justice’, on which there’s no study available. If we examine the verdicts given by the Kadi of Galata in the years between 1602-19, it is understood that the chance of the state officials to win the trial, may they be in a complainant or in a defendant position, is very low.
In these trials, which includ confiscations in the name of the state because of taxing, inheritance and dotation, the rate of won trials by state officials is at 25.7 percent, while the other side has won 62 percent of the trials. The remaining 12.3 percent were solved with agreements for the benefit of individuals.
In that case, at least on this field, it is not understandable, how it can be considered as an insult to characterize the judge as kadi. These numbers show that kadis were faced with a serious injustice.
One characteristic of the terrorism law is the funcionality of leading ‚political prosecutions‘. Kurt Groenewold has extensively listed the different structure and tables of contents between a normal trial, which is based on the ‘state of law‘, the ‘human rights law‘ and the ‘liberal democratic‘ principles and institutions on one hand and the practice of ‘political prosecution‘ on the other hand. According to this, a suspect in an ordinary prosecution process;
* has the right for presumption of innocence.
* has the right for free and unlimited defense against the claims, can freely define the form and content of defense,
* is a subject in itself within the trial period,
*has no secondary qualification towards other subjects in the prosecution process.
These rights and freedoms bear characteristics, which have been principally recognized by the modern rulership and which could be multiplied even more in terms of the prosecution processes.
Groenewold further defined the basic characteristics of the ordinary prosecution practice. In an ordinary prosecution, efforts are made to detect and comment on a ‘time period‘ within a date as well as on a defendant who plays a role in an incident within that period. The prosecution is limited with any activity by the defendant, which has got out at any time period and place. On the other hand, in the political prosecution, the context within a specific incident (action) completely disappeared. We speak about the efforts over a prosecution and adjudgement, which lie beyond of actions bursting in a certain time period and place. The thing which is beng made a subject of the prosecution is not limited with any time and place. Further in this situation the defendant;
* does not have the right for presumption of innocence,
* is a subject of the rulership
* is not an ordinary prisoner but an enemy, it‘s sufficient if that person is present in the court room and it can merely be a part of the state‘s show.
* is not an independent subject
* doesn‘t have traditional rights
* can‘t make and lead it‘s own defense, is not allowed to make unwelcomed statements.
According to the state, ‘terrorists‘ have specific characteristics, that hadn‘t been forseen earlier the modern jurisprudence and which needed a different legal line. Hereby, society is built within two different parts, while their borders aren‘t defined. The first; subjected to a normal law, while extraordinary law practises need to be applied to the second. The political system is formed with decisions by the ruling force at the doorstep in between of those two sections.
In this way, it has been expressed, that ‚terrorists‘ can‘t be treated like normal inmates, that the normal legal level of the state won‘t be applied to those new defendants and persons ahead of the legal state system, whom continue their political existence and claims, and that a different prosecution order would be required for such cases. Thereby, terrorism as an exception is also excluded from the basic principles of criminal law as it is from the politicial principles of the ‘democratic state of law‘.
Turkey, in real/modern terms, has been the scene of an uninterrupted tradition of political prosecution, which has started from the second half of the 19th century during the establishment of courts. Each political trial has some more fortified the state and with the special assize courts and its experience of over a century it came to the point, where words fail.
The political trial tradition of Turkey will be presented in a historical order. Indeed, the aim of that is not to solve the known problem of ‘literacy‘ of judges, but to show, that our recent experiences -from the point of the Turkish jurisdiction- are part of a normal prosecution practise, beyond an exception and a small historical paranthesis. This historical reading will indeed proof right Marx once again. “Hegel remarks somewhere that all great, world-historical facts and personages occur, as it were, twice. He has forgotten to add: the first time as tragedy, the second as farce.”
With the dethronement and death of Sultan Aziz In 1876, an opposition with democratic/revolutionary potential occured within the Ottoman society. This opposition, which represented the longong for freedom and equality in that period, gathered around Mithat Pasha.
Mithat Pasha and the forces who are represented by him, aimed to establish a power, based on laicism and equality among the Muslim and Christian population in Ottoman‘s Europe.
A citizenship understanding beyond the religious and sectarian relations provided by the constitution (1876-Kanun-i Esasi), as well as military units with the participation of the Christian population and coed schools had been typical manifestations of this understanding.
Of course, we have to mention that this revolutionary understanding was confronted with Mahmut Celaleddin Pasha, Redif Pasha as well as a his followers, who were led by a pro-Russian clique.
Therefore, with the words of Marx, in the Ottoman-Russian war, the Russians „used more tactics and strategies in order to distract Mithat Pasha from Istanbul and to keep groom Mahmut Pasha in power, than for the siege of Pleven.“ But there were no people. The best description for the defeat of the Pasha also came from Marx: „People who weren‘t able to take a revolutionary position at the zenith of crisis have lost“. Finally this fight, which was also mixed with the politics of the palace, was lost by the revolutionary forces of that aera and Mithat Pasha was banished.
The liquidation of the revolutionary forces by Abdulhamit, who closed an aera by ending the constitutional power and who once again and even more powerful turned Islam to a state doctrine by politicising it, happened via a trial.
Abdulhamit committed suicide in 1876 and used the death of the dethroned leader Aziz, who took his own life, as a tool for the liquidation of the opposition.
In 1881, the court of criminal appeal was established for this purpose. This prosecution under the presidency of Sururi Efendi, who was hostile with Mithat Pasa during the Tuna governorship, started on 27th June 1881.
This trial, in which 11 defendants were charged under penalty of death, took place in a tent which was set up on an empty square close to the Malta police station, facing the garden of the Yildiz Palace.
Despite the fact, that there was a court building at hagia sophia, it was handled like that with the thought that Abdulhamit, who stayed at Yildiz, was able to intervene in the trial on a daily basis.
Yet before the trial started, Ahmed Mithat, wrote in the Tercüman-i Hakikat (translator of truth) newspaper, that Aziz had been murdered.
In this court, which was accessible with a ticket, there was placed a chair for the justice minister of the period Ahmet Cevdet Pasha directly behind the judges, to enable his immediate intervention. For the trial, lawyers who were appointed by the defendants weren‘t accepted, the defendants had to choose one of the lawyers defined by the court.
At the end of the trial, which lasted for 3 days and 6 hearings, 9 defendants in total, among them Mithat Pasha, were punished with death sentence, 2 defendants with 10 years of hard labour prison sentence, just because of a couple of statements taken under torture.
During the trial Mithat Pasha was denied to ask questions to the witnesses and his demand to hear the mother of Aziz, Pertevniyal, was refused. In his defense, Mithat Pasha said „Two parts of this indictment are true, one is the basmala (Islamic phrase bi-smi llāhi r-raḥmāni r-raḥīmⁱ) at the beginning and the other is the date in the end“. And he shouted out the historical reality, we bring forward in all political trials of the present: „There are some courts which formally end. Actually they‘re continuing. At this juncture, where the panel of judges change place with the defendants a judge has become history. I entrust you all together to this great judge.“
Well, what can we see, if we watch this historical incident – tragedy – appearing again today in its reputable fashion, or better if we watch this ‘farce‘? The trials which have been locked inside a tent in the past -though there was a court builing at hagia sophia-; today are closed inside a campus of Silivri prison, additionally in company with the song of praise „We‘ve opened the biggest justice palace of Europe ın Caglayan”…
While in the past, the court was established in the garden of the palace to enable the Sultan to intervene on daily basis, while a special chair was placed on the court stand to enable the minister to intervene, today we see none of that. Indeed, the reason for this change is not the change of the cultur of prosecution, but technical developments. Actually, the rulers don‘t need anymore to establish a court in the palace‘s garden or to reserve a chair for the minister on the court stand to be able to intervene in the prosecution. Likewise, for the intervenion there‘s no importance of physical intimacy anymore. In any case there are group meetings. In brief, we can speak about a change, but its not from that kind related to the prosecution. Maybe there hasn‘t been made any progress in the judiciary, but the science-technique is developing.
In the past there was the Tercüman-i Hakikat, which already gave a verdict before the trial was held, today there is Zaman, Sabah, Akit…
In the past, Abdülhamid established a court after the death of Aziz to punish Mithat Pasha. Today, the prosecution of Istanbul is opening this trial after 7 years, by declaring documents, which are in their hands already since 2006 as „organisational documents“.
While there were normal courts opened in the past, prosecutions took place at the court of criminal appeal. Today, as well only the name above the entry has changed: In duty of TMK- Anti-Terror-Law Article 10…
During the Mithat Pasha trial, the chief judge Sururi Efendi, recused with a petition from the trial due to the enmity between him and Mithat Pasha. Can you remember such a recusal in any court of today? We can remember one. The place was Trabzon Criminal Court – the trial regarding the Gazi Massacre… The defendants were police officers, the chief judge Hüseyin Imamoglu recused from the trial… His justification was fiercely remarkable:
‘my nephew was killed by illegal organisations. Resulting from this incident, an enemity arose between the wronged party and my family‘. The enemity of Imamoglu was obvious. Likewise, he asked permission and stopped the persecution in the first hearing of the trial on November 15th, 1995, according to the law on prosecution of public servants. This permission process lasted for exactly 22 months. After the decision was taken, that there was no need for such a permission, he recused from the trial.
This is not even the only difference. In the Mithat Pasha trial the couret gave its verdict of conviction by a majority vote. In a trial opened by the Sultan, some judges remained in opposition. Forget about a similar dissenting opinion in a trial of this scale nowadays, if anyone beliefs in the probability that there could someone remember that, may she or he come near!
A little notice: 11th high criminal court of Istanbul/ Chief judge Seref Akcay has written dissident opinions in some trials. And this unlucky man was not even Saluted by any associated judge until he resigned-was resigned.
First Imperialist War ended up with the defeat of Central Powers, including Ottoman Empire. Defeated powers continued paying the price of the War. They were issued demands to submit to invasions and treaties with heavy economic and political burdens.
In this period, Ottoman country was also experiencing similar issues. Even though, people of Anatolia was paying the real price of the War and the defeat, Committee of Union and Progress (CUP) were wanted to be the ones who were facing with the political cost of events. In the end, CUP was the responsible for Ottoman entry to War in accordance with period’s Realpolitik. Hence, they bear the responsibility for failure and defeat, making public to demand justice. Also Allied Powers were pressuring both to government and Vahideddin for punishment of CUP.
As the reaction of the imperialists and of the public meet on a common ground-
in order to charge the CUP members- Sultan ordered a courts-martial. Freedom
and Accord Party (FAP) were preparing for office and they saw this bloc as an
opportunity to destroy their historical opponent; CUP.
This Special Military Tribunal, named ’Divan-ı Harb-i Örfi’ established on 16 December 1916, first in Istanbul and then on several other places in Anatolia. Court named as ’Divan of Nemrut Mustafa’ after the chairman of tribunal, Mustafa Nazım Pasha. This naming has a merit. Likewise, during the chairman of Mustafa Nazım Pasha, dozens of capital punishment ruled upon first hearing, with the lists provided from FAP. It is important to note the levels reached by the tribunal, with an example from the court of Urfa Governor Nusret Bey. Nusret Bey returned an acquittal with 3 in favor and 2 cast against him. But Nusret Bey had to face death penalty, simply for political reasons. Court reassembled again with a change of a member who voted in favor. Then he faced death penalty with 3 in favor and 2 cast against him.
FAP and his office rule used this tribunal to dismantle their political opponent
CUP. 34 people were arrested on 30 January 1919, followed by 22 people on 10
March 1919. Among the arrested, there were Grand Vizier4, ministers, parlia-
mentarians and journalists. Everyone served during CUP period from Grand
Vizier to low-ranking officials held accountable for the crimes and severely pun-
ished without clear rules bounded by law.
At start, these courts-martial given death penalties to higher cadres involved in
Turkish War of Independence, noteworthy; M. Kemal. Courts-martial ceased to
exist with the end of Ottoman Empire. An hectic Kurdish prominent; Mustafa
Pasha, after shoved around a bit, would left Istanbul. Just before his death, he
will even hold a ministry position in the short lived Kurdistan State.
Independence Tribunals are established just after the formation of the 1st Na-
tional Assembly. It continued to operate until 1927, with short interludes till
cleansing of all remaining opposition. From this point of view, we can easily
conclude that Republic of Turkey formed inside the extraordinary jurisdiction.
Independence Tribunals were active between two periods of 1920-1923 and 1923-
During the period of Grand National Assembly(GNA), first Independence Tri-
bunals formed to force the new Fugitives Law. Established in 11 September
1920, Law passed to deal with desertion during the war. As part of the Law, 11
Independence Tribunals established in the areas of Ankara, Eski ̧sehir, Konya,
Isparta, Sivas, Kastamonu, Pozantı and Diyarbakır.
Due to opposition of the II Group in GNA, all but Ankara court terminated in
17 February 1921. After this point, only Ankara court remained in function.
After Mustafa Kemal given full power as Commander-in-Chief by GNA in 5
August 1921, 4 other courts were established with his order in cities of Konya,
Kastamonu, Samsun and Yozgat. After the lift of Commander-in-Chief position
in 20 July 1922, privileges recalled and functioning period of courts is over.5
After the military defeat in Battle of Kutahya-Eski ̧sehir in 31 July 1922, two
Independence Tribunals formed; El Cezire and Occupation Area. 6
Formation of the Independence Tribunals during the II GNA period started in
8 December 1923 with the Istanbul Independence Tribunal. After the court
ruled the last case -together with demand in this direction- GNA closed down
Tribunal in 20 January 1924.
Last period of function for Independence Tribunals are after the Maintance of Order Law(Takriri Su ̈kuˆn Kanunu) passed in 4 March 1925. Two Independence Tribunal formed; one in Ankara and other in area of rebellion (East). After the closure of these two in 7 March 1927, the era of Independence Tribunals ended.
FIRST PERIOD OF INDEPENDENCE TRIBUNALS
Main reason for the formation of Independence Tribunals was to solve issue of
deserters. Long war periods together with trials to form a regular army created
a serious desertion problem.
Just after the 15 days of the formation of Tribunals, courts purview expanded
to crimes similar to ’treason, espionage,trying to undermine morale and physical
strength of the country no matter what’ with the proposal of Antalya deputy
Rasih Efendi in 26 September 1920. This being the case, courts could simply
accept lawsuits nearly for all crimes.
In the first period of GNA, tribunals expanded their purview enormously. Like-
wise, violating Commander-in-Chief ruled National Tax Orders were added to
purview of tribunals.
First Independence Tribunal of this era was Istanbul Independence Tribunal,
established in 8 December 1923. This court formed in a closed session of GNA
to hear a case of newspapers named Tanin, I ̇kdam and Tevhidi Efkˆar that pub-
lished a letter from the head of London Muslim League, Syed Ameer Ali and
Aga Khan III before it reaches to recipient, I ̇smet I ̇n ̈onu ̈. Letter was a request to
keep the position of Caliphate as a moral connection between muslim nations.
The director in charges and head writers of these newspapers Hu ̈seyin Cahit,
Velid Ebuziya, Ahmet Cevdet, O ̈mer I ̇zzettin and Hayrettin Beyler arrested on
Also the head of the Bar Association of Istanbul Lu ̈tfi Fikri, was arrested by the
same court order for writing an article that defends preserving Caliphate(dated
10 October 1923).
After the end of trials on 27 December 1923, Lu ̈tfi Fikri sentenced to 5 years
of prison and journalists were acquitted on 2 January 1924. After 2 years of
purview, Tribunals were finally closed.
Independence Tribunals were formed again during the second period of GNA to
hear the cases related to Maintenance of Order Law passed on 4 March 1925.
This law was a reaction to Sheikh Said Rebellion, started on 13 February 1925.
The day law passed, two new Independence Tribunals were formed in Ankara
and Eastern region.
Eastern Independence Tribunal started hearing trials after the defeat of Sheikh Said Rebellion and ended on 28 June 1924 with heavy sentences, especially cap- ital punishment was prominent type of penalty. Same court ruled to close all of the offices of Progressive Republican Party (PRP) in the area of it’s purview, due to ’party is respectful towards freedom of religion and beliefs statement in party constitution contributed to rebellion. Same court did another hearing in Elazı ̆g for alleged encouragement of several newspapers for rebellion. Accused journalists acquitted from this trial. They send a letter to M. Kemal asking for amnesty and he send a telegram to court, in order them to take into account request of amnesty. Ankara Independence Tribunal (Divan of 4 Ali’s) was the most active court of the period. It can be said that, court exercised a traveling ’terror’ unit.
In July 1926, Turkey shaken with the news of arrest of a gang that was planning an assassination of M. Kemal. M. Kemal started a tour in southern and western Anatolia on 7 May, visiting I ̇zmir on 15 June. Group planned to make the attempt on this day in Kemeraltı neighborhood. Assassination attempt failed as M. Kemal arrival to I ̇zmir post- poned. One of group members Sarı Edip Efe left the city, leaving the person who would take them to Chios Island after the assassination; Giritli S ̧evki in suspicion. As he wanted to save himself from the consequences, Giritli S ̧evki snitched members to Governorate of I ̇zmir leading all of the gang members to arrested. Government commissioned the perpetrators trial to Ankara Independence Tri- bunal. Court board decided the action was not a simple assassination attempt, over their investigations in I ̇zmir on 18 July 1926. They concluded, it was part of a coup attempt to overthrow government, organized by a coalition of II Group of GNA, PRP members and Unionists(CUP member). Prosecutor claimed ”CUP members never lose their ambition to come to power even after they escaped abroad after the World War I. They instrumentalized II Group in first GNA, during the War of Independence but failed. In 1923, they formed a party program to participate in elections but denied. They tried again with PRP in II GNA, but didn’t succeed. As a last resort, they tried to assassinate President to come to power.” First hearing of 49 detained defendants started on 26 June 1926 and uphold decision on 15 July. Court board decided to rule on death penalty for 15 defen- dants, including 6 independent deputies from closed down PRP. Some executed includes; Ziya Hur ̧sit, Gu ̈rcu ̈ Yusuf, Laz I ̇smail, C ̧apur Hilmi, Sarı Edip Efe, Rasim (organizer behind assassination attempt), Deputy and member of PRP Ahmet S ̧u ̈kru ̈, Abidin, Halis Turgut, I ̇smail Canbulat, Ru ̈ ̧stu ̈ Pa ̧sa, Ayıcı Arif and Hafız Mehmet, an ex-deputy from I GNA. Court ruled on death penalty in absentia for 2 escaped defendants; old Ankara Governor Abdu ̈lkadir and infamous Unionist Kara Kemal. Kara Kemal committed suicide when he was about to get arrested on 27 July and Abdu ̈lkadir Bey arrested on 23 August and executed on 31 August. Kazım Karabekir, Cafer Tayyar, Ali Fuat and Mersinli Cemal Pa ̧sas acquitted with a special request from President, while trials of old CUP and II Group members decided to continue in Ankara. Trials started on 1 August 1926 in Ankara, clearly exposed the political charac- teristics of Tribunals. Defendants never asked if they have a relation to assassi- nation attempt while asked to give an account of their political opposition. Court decided to rule on death penalty for Cavit Bey, Dr. Nazım, Filibeli Hilmi Bey and Yenibah ̧celi Nail Bey. Other defendants simply ruled limited imprisonment and II Group members acquitted. A last note; Dr. Nazım’s defence during this trial is impressive. Actually, we should recall to defence in Mithat Pa ̧sa Trial was also very solid, but these de- fences have no effect on the last judgement. After the trial, member of the CUP that didn’t join to Republican People’s Party(PPP) punished severely. As National Movement and Kemalist State build upon the Unionist ideas and organization, it saw CUP as the biggest threat to itself. Because both of the organizations were addressing to same base. We can conclude that, with this trial CUP ceased to exist physically(in organizational manner).
LOOK BACK AT THE INDEPENDENCE TRIBUNALS / PAST and PRESENT
All of the members of Independence Tribunals were deputies of GNA. 3 Court
board members selected by GNA, from deputies. Only M. Kemal with the
power of Commander-in-Chief law chose members of Independence Tribunal
that formed during I GNA’s 2. period. M. Kemal had a decisive influence.
A judgment system where court board members chosen by political power leaves
no space for any legal assessment of the situation. This is not just a issue of
the past. Contemporary courts with purview area of 10th article of Act on the
Fight Against Terrorism, single-handedly shows similar qualities.
It is no coincidence that, Judges working in Rize courts were the ones wanted
to rule courts with purview area of 10th article of Act on the Fight Against
Terrorism. During the Trial of I ̇zmir Assassination Attempt, Kazım Karabekir
allowed to made a long defense. This upsets M. Kemal and during a prom in
C ̧e ̧sme, he called down court board and scolded them.
The reason Eastern Independence Tribunal acquitted the defendants in Trial of
Journalists, was that they asked M. Kemal for amnesty and he send a telegram
to court for this request.
During the investigation of Trial of I ̇zmir Assassination Attempt, court ruled for
the arrest of Kazım Karabekir, Refet Bele and Ali Fuat Cebesoy. Prime Minis-
ter I ̇smet I ̇n ̈onu ̈ intervened and tried to prevent the arrests, resulting court to
rule another arrest warrant for him. M. Kemal warned him to not intervene
with courts and he personally intervened with the court to remove the decision.
Intervention didn’t end up with this and he asked court to release the comman-
Today trials of all sorts are one of main topics in political parties’ meetings. In- tervening with judicial system is not an issue of the past. Prime Minister points us as targets in Parliament talk and on television. He acted as the prosecutor of the trial. Events surrounding the elections of Supreme Court of Appeals Pros- ecutor and Council of State’s chief justice shows how executive intervenes with judiciary and concludes the trials of forming an organization inside judiciary. — Courts rule with personal conviction, there is no need to investigate evidences. Judgment becomes only an issue of conviction. Today, system of prohibition of evidence is basically disappeared. Courts rule conviction solely with made up evidences. Criminal and Penal Law’s precious evidence became anonymous witness statements. Thus, ruling a decision with- out evidence is not a reality of past but also present. — Decisions can not be appealed and irrevocable. This issue became an ongo- ing debate in I GNA by II Group and finally ended up as capital punishment regulated by parliament. This problem persists today with a different face. Justice and Development Party(JDP) ruled a necessary fee to apply for request of appeal. Until Consti- tutional Court’s rescission of rule, JDP succeeded to limit the exercise of right to appeal. Even grant leave to judicial remedy or regulation by law doesn’t mean a rule is investigated with an appeal(?). Everything can be said about an investigation presented to judge-rapporteur in 4 minutes(Court of Cassation Act Council of State Act) other than an appeal. — They don’t have personal responsibility over the their decisions. Today, with the new regulations after the Ergenekon Trial, judges and prosecu- tors of Turkey don’t have any personal responsibility. — Courts are not bound to judicial review Today, if we do not count the endless harassment from Ministry of Justice and threats from Council of Judges and Prosecutors over appointing the person to another place as judicial review, judiciary is totally out of any inspection. — Pre-trial detainment is the reality of judiciary. If we take a look at the crimes covered by 100. article of Criminal and Penal Law and to our trials, we see a formation of an informal detention act. Even chanting slogans, opening banners and similar actions during political trials are in danger of detention. — These trials were first formed to solve the issue of desertion, but we saw they expanded their purview over time. Rebellion, assassination attempt to Atatu ̈rk, critical media, deserters, communist organization, robbery, manslaugh- ter, defamation, malpractice, bribery, corruption, espionage, opposition to gov- ernment, bride kidnapping were some of the topics of the trials. Court ruled death penalty over opposing to Hat Law to 43 convicts in December 1925, 41 convicts in January 1926 and 13 convicts in February 1926 alongside 75 trials with 163 defendants, 78 trials with 582 defendants and 63 defendants in respective dates. During that period, even the telegram workers went to strike for wage increase were tried with capital punishment. 5.010 people were under trial of Eastern Independence Tribunal for 2 years of running period, 2.779 were acquitted. 420 of them sentenced to death. 2.436 people were under trial of Ankara Independence Tribunal, 1.343 were ac- quitted and the rest were imposed of penalty. 240 of them sentenced to death. Desertion related death penalty is out of this figures. During this period, courts- martial were also in function and there is no statistical information about their decisions. Today, 4. article of Act on the Fight Against Terrorism and ap- proximately one third of Turkish Penal Code is under purview of extraordinary jurisdiction. Criminal provisions of other laws are also covered. And this huge scope is growing steadily. — Newspapers must publish court proceedings. Today, newspapers have bonds with extraordinary courts, has turned from ’must’ to ’voluntary participation’ and it has not lost anything from its at- tached functionality. The difference arises from the relative independence of the newspapers in the face of political power back at that time, as in can be said they are part of the government today. In this sense, the accompaniment of the SAZ(Sabah-Akit-Zaman) to this case can not be underestimated.
— Although there was no article in the Independence Tribunal Law that would
hinder benefiting from lawyer assistance, it was generally not allowed to hire a
lawyer in the proceedings.
In the I ̇zmir Assassination Case, when the deputy of I ̇zmit S ̧u ̈kru ̈ Bey stated
that he wanted to hire a lawyer, the court chief Ali C ̧ etinkaya refused his request
by saying, ”The Independence Courts do not deal with litigation attorneys.”
The right to defense has been gradually abolished by today’s extraordinary
courts. The inability to identify the lawyer you want (the process that started
with Mithat Pa ̧sa Trial), the rejection of the lawyer request (Ankara Indepen-
dence Tribunal) has reached its last point; the arrest of the lawyer today (Istan-
bul 23rd High Criminal Court). Let’s start from the beginning and mark the
dates; 1881, 1926, 2013. The development is truly terrifying!
— Crime and punishment balance has been removed. Again, all principles of
criminal law have been ignored.
Court; in its decisions regarding the deserters, made a sentence saying ”If fugi-
tive fled again, he would be executed immediately by the state forces.” In par-
liament, this situation was criticized as ’capital punishment on credit’. The
Independence Tribunals did not feel attached to the existing legislation during
the trial. At this point, a discussion between the prosecutor and the court is
remarkable in the Eastern Independence Tribunal.
The judges argued that the jurisdiction purview of the court was wide, and that
they were competent in the prosecution of all crimes in all articles of military
penal code, civilian penal code and other laws. The prosecutor stated that their
powers were limited to the Independence Tribunals Law and that they could not
go beyond this authority. In one part of this discussion, the head of the court
board, Lu ̈tfi Mu ̈fit Bey said, ”We have a certain purpose, and we occasionally
go above the law to reach it.”
Indeed, it was asked whether the Turkish Penal Code, which was issued in 1926,
would be applied in this court by the court board to the National Defense and
the prime minister. It was claimed that the Independence Tribunals would suf-
fer in case of enforcement of the Law and requested the Law was not enforced.
Ankara never answered this question.
Today, there is no doubt that this level of discussion is not possible. However, legal exceptions can be created, to enforce the law, which already exists practi- cally. Again, as seen in our case, it is another practice not to apply it by overseeing the law. This is the meaning of including the press releases among accusations, although these actions subject to the Freedom of Thought and Expression in the Judicial Packages of 3 and 4 and are excluded from the scope of the crime. Finally, we would like to point out another difference. Just behind the court committee in the halls of the Independence Tribunals, ”The Independence Court only fears from God alone in their struggle.” Today, they are not afraid of any- thing.
TRIALS OF COMMUNISTS
The communists were defendants of political trials in Turkey in every period.
This situation, which started with the Independence Tribunals, continues with
the courts in charge of article 10 of Act on the Fight Against Terrorism.
Under this section, the courthouse adventures of the communists between 1920-
1951 will be mentioned. It will be seen that both Single-party period and
Democratic Party(DP) government that closed it are in full agreement on their
approach to the communists.
The Ankara Government followed a balance policy against the Soviets in the
first years of its establishment. As a natural consequence of this policy, the
Green Army, People’s Communist Party and Turkish Communist Party have
caused some serious trouble, although they haven’t been subject to much in-
tervention. This policy continued until the Treaty of Ankara with the Soviets.
During this period, M. Kemal even had a legal Communist Party formed by
him. Communists were the target of open attacks, although there were excep-
tions during this period. Mustafa Suphi and his 14 friends were massacred in
the Black Sea on 28-29 January 1921. Although it does not take responsibility
for this massacre, it is known that Ankara organized the massacre today.
Immediately after the signing of the Treat of Ankara, the liquidation of commu-
nist organizations was started through the Ankara Independence Court. In the
secret session on March 21, 1921, GNA, Tokat Deputy Nazım, Afyon Deputy
Mehmet S ̧u ̈kru ̈, Bursa Deputy S ̧eyh Servet Efendi removed the parliamentary
immunity. They were given to the Ankara Independence Tribunal for trial. The
trial continued until 9 May 1921. Dr. Nazım and his friends were given 15 years
in prison, while the other two deputies were acquitted. Thus, for the first time,
a conviction was made against the Communists.
After this date, Communists became the subject of extensive arrests in 1921, 1922, 1923, 1927, 1929, 1930, 1932, 1944, 1946, 1951. Intellectuals, especially the Communist Party of Turkey(CPT), were under constant attack of lawsuits. In terms of the political litigation tradition, the 1929 and 1951 trials are re- markable. The first one is important because it shows how the political power intervenes with judiciary as political power is judiciary’s real owner and the second is the clearest case in terms of its scope and the suspension of rights. On August 6, 1929, the President (M.Kemal) gave the famous anti-communist speech to the President and members of the Court of Cassation who gathered at the Eski ̧sehir station to greet him at 02.30 on the way from Ankara to Istanbul. “The Turkish Nation is not a delegation who wants to work against his own and the high interests of his country, he will not understand and tolerate hidden and dirty ambitions in the delusions of miserable, stateless and nationless imbeciles. The Communists in this country are not only the ones, we put in detention and imprisoned. I will personally take care of this issue”. Do not take this talk as an ordinary ”I told the judiciary, they will do what is necessary” moment. The speaker was president and the audience were the members of the Court of Cassation. Of course, the result was obvious; successive cases and heavy prison sentences …
Political power enacted The Law on the Responsibilities and Jurisdiction of the
Police in 1934, then added articles 141 and 142 to the Turkish Penal Code in
1936. All these legal regulations are intended to strengthen the laws applied
against to communists.
Mass-detention of CPT members on 1951 is the largest anti-communist opera-
tion to this date. In this detention, all of the members of the central committee
of the party arrested including Dr. S ̧efik Hu ̈snu ̈ De ̆gmer, who took over the
leadership of the party after the murder of Mustafa Suphi, the founder of CPT.
Detention numbers reached to the highest number in history until to that day
with 187 people.
Penalties related to articles 141 and 142 of Turkish Penal Code increased, includ-
ing heavy ones especially capital punishment. Again, in this period, repentance
practice was implemented for the first time, and legal changes related to this
were made. With this operation/arrest, CPT had the biggest blow in its his-
A new era was beginning with the apprehensions that began on 26 October
1951. Immediately after the investigation was initiated, the cell section of the
First branch of the Istanbul Police Department in the Sansaryan Inn started to
be used as the Ankara Garrison Command No. 2 Military Criminal and Prison.
The detainees were questioned by the military interrogation judge by a decree
issued by the DP government, as well as the tortured by the anti-communist
section of Police Department. They were tried by the military court on the
grounds that there were soldiers among them. For more than 2 years, the num-
ber of people kept in the cells in Sansaryan Inn has increased considerably, thus
they have been transferred to Harbiye Military Criminal and Detention Center.
The trial was carried out here with closed sessions.
The trial, which started on 15 October 1953, was concluded on 7 October 1954,
with severe prison sentences. In the days when DP and Prime Minister Adnan
Menderes talked about the coffin-like small torture chambers and torture rooms
at the time of the RPP, the upper floor of the former Sansaryan Inn was like a
slaughterhouse. The alternating continuity of this mutual dislike is one of the
important themes of the following sixty years as you know and has now become
In the period that, Turkey was attempted to be part of NATO-as the most direct way to achieve this objective-, communists have been subjected to the heaviest tortures and unlawfulness. In this case where 187 people were tried, the trial was made in the military court since only three defendants were soldiers. However, in the same period a merchant ship belonging to one of the NATO member countries have crashed to a Turkish submarine in the Dardanelles Strait in C ̧anakkale, the submarine sank and 81 sailors died. Crimes against military personal and military vehicles must be brought before the military court according to the law in force, while the Nabolant Case was brought to the civil court, in order to not to offend NATO members and not to damage relations with imperialists.
In the same period, these two different judicial practices in two cases clearly explain the reality of the political judiciary. For the first time in this case, defense was accepted as ’implicit admission’ be- cause of its’ political content. Defending the organization counted as communist propaganda.
years of the Second Imperialist War were a period when the war continued with
the major conquests of Nazi Germany and its allies. During this period, the
fascist movement in Turkey experienced its golden age. They took advantage of
the propaganda opportunities provided to them in the Turkish Nationalist
Associations of the state. Nihal Atsız, R. Oğuz Türkkan, Z. Velidi Togan, who
were the leaders of the movement, had a very large sympathizer group including
pro-German generals and ministerial state officials.
After 1943, when Nazi Germany started to decline, this golden age would end. İsmet İnönü in his speech dated 19 May 1944 said; “We are Turkish nationalists. But we are the enemy of the racism principle in our country… Of course, we will use all the measures of the republic in order not to lose the destiny of the Turkish nation to the depiction of such unconscious and unscrupulous opportunists… My citizens! You can be sure that we will defend our homeland against these new mischiefs with great power”.
He then said
that “the judiciary will do whatever it takes.” On the same day, the
newspapers informed that a secret Turanian organization was uncovered and that
there were extensive arrests.
of the first phase of the fascist movement in Turkey was the 1944 arrests,
after which 23 defendants were tried in the case opened. However, 13 of those
arrested and put on trial on 7 September were acquitted on 29 March 1945, and
the other 10 defendants, who were sentenced to 10 years, were released on 26
October. After the Supreme Court process, all were acquitted in 1947.
noteworthy that the racists were arrested by İsmet İnönü’s open call However,
we can say that these arrests were the first in terms of the fascist movement. This
is until the September 12 coup. However, at that time too, the judicial process
of the same circle was completed with a similar historical experience.
THE CASE OF THE 49
foundation of the republic, the Kurds are one of the constant accused in
political cases. The Eastern Independence Tribunal (Şark İstiklal Mahkemesi) is
the Independence Tribunal that has given the most death sentences. We can
evaluate the Sheikh Said Uprising as the first experience of the Kurds with
extraordinary jurisdiction. The nature of this uprising is still controversial.
There have been various debates about whether it was a religious uprising or a
Kurdish uprising. We now know that the Kurdish political movement has accepted
it in its history and reads it as a Kurdish uprising.
the trial of the Kurds with the judiciary, taking the Case of 49 as an example,
due to the striking of what happened during the trial process, is suitable for
understanding the issue.
happened in The Case of the 49?
It all started
with the news “102 university students claimed Kurdishness”,
announced on the headline of the evening newspaper dated April 15, 1959.
The content of
the news was the parliamentary question submitted by CHP Niğde parliamentarian
Asım Eren about the events that took place in Kerkuk in 1959, where he asked
the prime minister if he thought “it would be suitable if the Kurds in Turkey
were killed in accordance with the retaliation principle and in the amount of
as the Turkmen killed in Kerkuk” During his unforgettable repetition, one
cannot pass without reminding the judiciary’s attitude.
“Killing a BDP
for every soldier’s funeral”, this statement from a local journalist and
politician was seen within the scope of “freedom of thought and expression” and
was justified by the judiciary more recently. It is painful that people have to
remember Marx’s attribution about repetition so often.
changed the agenda. First, on April 16, 1959, the Istanbul 3. Criminal Court of
First Instance issued a decision regarding the banning of all publications on
the subject of ‘Kurdish Legislation’. The DP Government was trying to turn the
crisis into an opportunity. The DP government used this incident to eliminate
internal failures with a ‘Divisive Communist Hazard’ but also to increase US
had not yet decided what to do. President of that period and former secret
society member Celal Bayar said “Let’s hang 1000 Kurds in Taksim Square,
let it be a warning to others:” whilst prime minister Adnan Menderes said “Let’s
hang them, but reflect it to the public as a Communist-Kurdish movement, let’s
turn it into an advantage,”. However, Foreign Minister Fatin Rüştü Zorlu
would oppose the idea and said “Turkey’s reputation to the outside is bad
due to the Armenian issue and 6/7 September events and we should not add the
Kurds to this”.
With the words
of Menderes, a final decision was made, “Friends, these crimes are crimes that
will require execution. We can arrest fifty of them and hang them using the
arrest warrants whose names and surnames were left blank by the Land Forces
Military Prosecutor’s Office were created, and if MIT wanted to arrest them,
their name was written on the warrant. The operation was starting. On December
17, 1959, 50 people, mostly Kurdish youths, who were studying at the university
were arrested and placed in cells of Istanbul Harbiye.
detained in the cells in Harbiye were subjected to torture. After a while, Emin
Batu lost his life, 49 suspects remained in their hands. For this reason, the
case was called the Case of the 49.
continued, but the trial could not be started as it was not possible to decide
where and how they would be tried. Meanwhile, the memorandum of May 27, 1960
was experienced and the 49ers were not included in the amnesty.
arrests were made by the Ankara Court, the detainees were held in Istanbul for
a long time.
The 49ers were
only aware of the charges against them on 8 November 1960. Penalties were
requested from Article 125 of the TCK. (to split the country)
began on January 4, 1961. The prosecutor wanted the execution of 15 people. On
30 April 1964, all the defendants were acquitted due to the absence of
Supreme Court reversed the decision “on the grounds of establishing a society
to destroy and weaken national emotions”, and in the trial the defendants (15
people) were given a 16-month jail sentence plus a 5 year and 10 day exile
trial, the article of law to be applied to the legitimate demands of the
Kurdish People was being pointed out; separatism. After this date, Kurds, in
huge numbers, were massacred and punished for these reasons.
At the point where the extraordinary judiciary lost its functionality, they were killed one by one in the streets, mountains and prisons. Musa Anter, one of the defendants of this case, was among those killed. In 1992 he was kidnapped by the counter guerrilla in Amed.
provisional Constitution adopted by the National Unity Committee after the May
27 1960 coup, it was envisaged to establish an extraordinary court named the
Supreme Court of Justice for the trial of former members of the government,
including the Prime Minister.
Court of Justice is composed of high judges, all of whom come from judicial
levels. The defendants to be tried here are also determined by the High
Lawsuits filed against the Democratic Party (DP) members; 3 serious criminal cases, the subjects of which were murder, instigating an uprising, and intentionally harming property / life, 6 political cases and 9 corruption cases evaluated within the scope of violation of the constitution.
for violation of the constitution was seen in Yassıada. Within the scope of
this case, eight different crime types were counted as a violation of Article
Almost all of
the defendants were punished in this case, where a total of 400 defendants were
tried. Execution decisions regarding the Prime Minister, Minister of Finance
and Foreign Affairs were also implemented. The proceedings began on 14 October
1960, and were completed on 15 September 1961.
Yassıada is a
political trial. Duruşmalar sırasında sanıklardan Samet Ağaoğlu mahkeme başkanı
Salim Başol’a ‘suç sayılan bazı kanunlara oy vermiş veya bizzat teklif
etmiş oldukları halde 27 Mayıs günü DP içinde bulunmayan bazı
milletvekillerinin niçin sanık olmadıklarını sormuş, Başol “Sizi Yassıada’ya
tıkan kudret böyle istiyor” unutulmaz cevabını vermiştir. This dialogue is
sufficient for political litigation. However, a few points should be
to Article 17 of the 1924 Constitution, which is in force, deputies are not
responsible for the declarations and statements in the Assembly. However, these
were the subject of trial in this case.
is a violation of the principle of the natural judge. The court was created
after the acts described as crime.
the element of coercion-intent was required for the violation of the
constitution, this discussion could not be carried out to the extent required.
defendants were isolated, their communications with their families were
restricted, and lawyers were prevented from defending.
the May 27 coup, the third paragraph of TCK was added to the article 146 and
many defendants were punished in accordance with this paragraph. This means a
clear violation of the principle of ‘no penalty without a law’ and non-retroactivity.
government, which previously used the extraordinary judiciary as a tool to
crush opponents (Kurds, Communists), was liquidated this time by the 27 May
At this point,
the situation of the former Parliament Speaker, Refik Koraltan, who was
sentenced to death but was later converted to life imprisonment, is very
interesting. Koraltan is a member of the Istanbul Independence Court
established by the 2nd Assembly. He was one of the members who voted in favour of
punishment in the case of Lütfi Fikri (President of the Istanbul Bar
The quirk of history made a member of an extraordinary judiciary as a defendant this time before another extraordinary judiciary 37 years later, and he was executed.
In the 12 March 1971 period the “fraternal
fighting” between the Chief of General Staff Memduh Tağmaç, Commander of
the Land Forces, Faruk Gürler, Commander of the Navy Celal Eyicioğlu and
Commander of the Air Force Muhsin Batur, has become a note in the diary because
it put the future of the Republic of Turkey into a heavy danger.
Immediately after the coup, martial law was declared in 11 provinces (Istanbul, Kocaeli, Sakarya, Zonguldak, Izmir, Eskisehir, Ankara, Adana, Hatay, Diyarbakir and Siirt).
Martial Law Courts were established on April 30, 1971
to work in places where martial law was declared and appointments were made to
these courts. In accordance with Law No. 357, the appointment was made by the
Minister of National Defense, the Prime Minister and the President with a
The Martial Law was enacted on 13.5.1971, and it was
legally regulated for civilians to be tried in the military court. A serious
extraordinary legal legislation was created by enacting the “Asayişe Müessir Bazı
Fiillerin Önlenmesi Hakkında Kanun”
During this period, large operations and broad arrests
were carried out under the name of “harekât”. Upon the kidnapping of
Israeli Consul General E. Elrom on May 17, 1971 by the THKP-C; Prime Minister
Sadi Koçaş stated that all provocates whose ‘incitement to the people’ who are
close to the action, THKP-C, were ‘detained’, will be taken into custody
immediately, even if they are outside the martial law, and if the consul was
killed the execution of those and those who have been arrested before’ he said
the arrangement would come to parliament immediately. 4.000 people, including
lawyers, doctors, engineers and writers, were detained. Among those detained
are Tarık Zafer Tunaya, Muammer Aksoy, Uğur Mumcu Talas, Çetin Özek (true). In
this period, we can say that torture in detention became institutionalized. So
much so that Ziverbey Mansion has become a symbol of torture.
In accordance with the decisions taken by the martial
law commanders, large collective lawsuits were started. The aim is to
legitimize the pressure and violence against the people by showing “how big the
danger is” and to convince the public. In this context, collective lawsuits
such as THKP – C, THKO, TKP / ML, Dev – Genç, Denizciler cases were opened.
Considering that the law – the judiciary lost its
functionality in carrying out its purpose, the government turned towards street
executions and house executions during this period. It should be noted that
this will of the state has continued uninterrupted until today.
the 12 March period, Turkish justice, with all its energy, on one hand was
bringing Kurds to the court and on the other hand in its indictments it was
putting forward the thesis “There is no Kurd in this country”. DDKO and İsmail
Beşikçi Cases are clear examples of this.
this period, TIP was closed.
were banned, books, magazines, newspapers were banned and burned.
important case of this period is undoubtedly the Ankara THKO case. Deniz
Gezmiş, Yusuf Aslan, Hüseyin Inan were executed in a trial lasting 2 months and
23 days on the grounds that they violated Article 146 of the TCK, and they were
executed on May 6, 1972. In this case, the court discussed whether the
conditions of “Attempt to change the constitution by force” were met;
it concluded that the 14 guns found in the defendants were not even found in
the Turkish Armed Forces inventory, therefore it should be accepted that there
were favourable means.
process due to application and approval to the Constitutional Court, Ankara
Martial Law and 2nd Army commander Semih Sancar made the Martial Law decision
in advance with a signed statement: “Adventurers organized to establish a
Marxist, Leninist and Maoist order will definitely be punished, we are working
to ensure this.”
court president Ali Elverdi joined the Justice Party in 1974, he was a retired
general, and in his speech, he said; “I did not just perform military
duty, I also did my political duty.”. Under the law in force, soldiers are
prohibited from engaging in politics and a soldier has no political duties. The
task mentioned by Ali Elverdi was carried out in the political case, which was
executed in the Martial Law Court and resulted in the execution of our three
people. In the lawsuit filed in Istanbul regarding the same organization
(THKO), the Istanbul Martial Law Court decided that Article 146 of the TCK
could not be applied on the grounds that ‘elverişli vasıta bulunmadığı’
court was pressured not to decide in this direction (Remzi Sirin – Saydam Erdok
– Refik Karaca), this time, the Martial Law Court No. 2 was established under
the chairmanship of the judge Akdemir Akmut, who had the opposite opinion, to
determine the outcome of other cases. This court, which did come in handy,
determined that there were the provisions of Article 146 of the TCK in the case
of the THKP-C case it looked at and went to punishment. Of course, on all these
developments, the Istanbul 1st Martial Law Court, which did not decide to
execute, was closed by the Minister of National Defense, Ferit Melen. The March
12 period, which established a court to approve the requested decision, closed
a court because it did not decide in favour, it was recorded as a step forward
in the institutionalization of the ordinary judiciary.
12, 1980, Chief of General Staff Kenan Evren and the Force Commanders (Gang of
5) confiscated the administration by making a coup. The rising social
opposition, the crisis of the bourgeoisie’s failure to rule, are the main
reasons for the coup with imperialist support.
The National Security Council took over the administration. This council declared martial law throughout the country with Declaration No. 1.
arrangements have been made to strengthen the martial law regime
amendments to the law numbered 1402;
were made in the Gendarmerie Law and police duty and authority law.
the 12 September period from 1980-1983, The Law on Martial Law was amended 15
State Security Courts (previously abolished) in 1983 were re-established by Law
1980 and 1985, 650 thousand people were arrested according to official figures.
230,000 people have been tried in the Martial Law Courts. After these trials,
939 people were sentenced to over 20 years, and 630 people were sentenced to
life imprisonment. The number of those sentenced to death is 420. A lawsuit was
filed against 98 thousand 404 people on charges of being a member of an
organization. 21 thousand 164 of them were convicted of being members of an
12 September 1980 – 25 October 1981 the MGK,
October 1981 – 14 October 1983 the Advisory Council,
1983 the Parliament confirmed the execution of 50 people.
the meeting held in 1979 under the presidency of General Haydar Saltık, an
order was given to open cases collectively, so all at once. Upon this, all
organization and association cases were opened collectively.
19 December 1980 the DİSK Case was opened. Within the scope of this case, 1477
defendants were tried and 52 executions were requested about the unionists. At
the end of the trial, all the properties of DISK were confiscated and the union
with 5 million members was thus finished.
May 17, 1982, the Peace Association Case was filed. Within the scope of this
lawsuit, 44 people were arrested and acquitted at the end of the trial.
August 18, 1984, the Aydınlar Petition Case was filed against 59 people. At the
end of the trial, all the defendants were acquitted.
cases were not limited to these. Mass cases were filed against the armed left
opposition: Dev – Sol, Dev – Yol, TKP / ML, MLSPB. In these lawsuits, the death
sentence was wanted for;
people in the Dev – Sol trial,
in the Dev-Yol trial,
in the PKK trial
iddianamelere konu eylemleri, her biri farklı bir
Sıkıyönetim Mahkemesinde (İstanbul, Ankara ve Diyarbakır) açılan davalarda bu
talep şaşırtıcı bir benzerliğe işaret ediyor.
Dev-Sol and Dev-Yol organizations were charged with
‘attempting to change the Constitution by means of arms’. Again, the charge
requested for the PKK is ‘Violation of the indivisible integrity of the
country’. This crime is regulated in Article 125 of TCK.
As a result, even the similarity in charges in the cases opened only in different martial law
courts shows the nature of the proceedings and proves the purpose of the cases.
September 12 was creating a new ‘judgment’. Trials
were moved to gyms. The prisoners were truncheons and kicked in the courtroom
before the eyes of judges’ and prosecutors. They were deprived of pens, papers,
books, case files for years. There were collective lawsuits, but the defendants
were not allowed to speak among themselves. The prisoners were never able to
meet their lawyers without a soldier. Lawyers were detained, arrested, and
exiled. The Istanbul Bar Association was shut. Torture was made a part of
everyday life. 229 people were killed in detention or in prison. Between 1982
and 1986, 9962 defendants were tried for torture, and only 84 police officers
were sentenced. In April 1981, 1002 police officers were rewarded by the junta.
Judges and prosecutors could not even show a small
resistance against this picture. While the Faculties of Law were competing to
give the chief of the coup an honorary doctorate, the President of the Court of
Cassation was answering the questions of the coupists who asked if they had any
problems, the President replied saying only one, “We need cars”. However, in
the country of Pakistan where Ziya Ülhak began a coup, and who Kenan Evren
called his brother, judges were resigning collectively by not bowing to the
September 12 institutionalized open state fascism. And at this point, law-judgment has played an important role.
Because the State Security Court (DGM), the competent court under law no. 5190 and the competent courts under art. 250 of the code of criminal precedure continued their activities in the same buildings, over the the same files, with the same assurances, only changing their signboards, they were mentioned by one name.
For the Regional High Criminal Courts it was repudiated to continue the same cases under a new name, subsequently new assignments were made and it was decided to establish a new court. At the same time it was decided to continue the activity of the old courts until the open cases were closed.
However, this shouldn‘t be considered as an institutional elimination. There have been arranged the desired changes as regards the judges and prosecutors, but the courts continued in the old tradition.
This situation was prefered since there were no efforts to establish new courts with new juridical-political tendencies. Likewise, the only reason for the change is based on the wish of the MIT (National Intelligence Service of Turkey)- secretary of the prime minister, to be saved from the special court.
Also the legislation, which is based on the the new establish court, is the same. Legal protection, the continuation of the position of legal subjects within trial/investigation (almost like a new department of the special assize courts) need to be considered in the same category.
Actually, the DGM, which was founded as the first special assize court, was established in 1973, but as a result of the actions of the social opposition it had to be closed in 1976.
The DGM‘s were re-established on 16.06-1983 with constitutional assurance after the coup of 12th September 1980 and officially went into action on 1st April 1984.
The existence of a judge advocate, who was on duty in this court, was extinguished in 1999 toward decisions of the ECHR. After this date there were only assigned civil judges in court. But, instead of removing these courts, which had always been part of important disputes and whose removal was consistently demanded, they were just rebranded and continued in the name of democratization. Hereby, these courts had a double funcion. While at the one side, the opposition was oppressed, there was constantly found a tool to legitimize the democratization discourse.
Today, these courts continue their activities in the name of Regional High Criminal Court competent with Art. 10 of the Anti-Terror-Law (TMK).
There have been adopted exceptional decisions in investigations and prosecutions, which are carried out within the scope of these courts.
Lawsuits are carried on with protection measures and similar practises, which lead to violations of privacy, as for example;
– extended detention periods
– extended period of imprisonment
– obstacles to the right to confer with lawyer
– denial of perusal of one‘s file by the reason of confidentiality order
– inequality during execution period, extended periods of judgement enforcement
– increase of amount of penalty at a rate of 50%
– not informing relatives
The adjudication is carried out with protective measures, which lead to the violation of private life and similar practises.
Unions, associations, political parties, lawyers, journalists, public servants, students, workers, ecologists and everyone who is opposed to the politcal power is subjected to trials by these courts. Therefore, Turkey is the country with the largest amount of terror prisoners and convicts in the world. These courts carry out investigations and prosecutions with the instructions of the political power.
Ahead of the fact, that in generally the judgement isn‘t independent, it has been established through the field mission of the judges and prosecutors of these courts that they -beyond the requirements for justice – reflexively act in defence of the state. With the advantages given by the terror law, defendants are sentenced with heavy imprisonment only by convictions without any proof.
At the end you will also make a „judgement“. Indeed, it is an important measure today, to what extent the requests of the rulers are being met politically, to what degree their „enemy“ has been intimidated and to what degree the power is being satisfied. But after years, when the power has gone down, this measure won‘t have weight anymore. It‘s being told, that suleiman ‘the magnificent‘ said on his deathbed ,bury all fatwas of Ebu Suud with me‘ and that Ebu Suud lamented above this news. Indeed, it can be interpreted, that the Sultan, who realized that his death was near, wanted to close this chapter along with his life, because he knew that the fatwas that were released at his own request had nothing to do with religion and law and justice. But the real amusing comment should be made on this saying, that Ebu Suud allegedly had said lamenting: „My fatwas will save him there, but who is going to save me there?“ (or even here, since the power has actually gone).
While our profession was established anew, we should especially settle accounts with the definition of the „traditonally intellectual“. It should be opely said that both the neutrality which was self-attributed by this intellectual, to be merciful, respectfully to property and ‘the honour of store and market‘ and the independence which doesn‘t recognize anyone above and below, is the foster child of capitalism.
This type of ‚goodness‘ lean on the premises of the bourgeois revolution. It is nothing more than „puritanism“, which believes in the reign of law instead of arbitrariness of the ruler, that disunion can be changed by jurisdiction instead of weapons; which reaches out to the poor and desperate people with humane sentiment, which has replaced slavery with wageworkers, inquisition torture with prisons, seizure with execution proceeding, guild with bar association and theological education with trade education. Indeed, it‘s obvious that torture, seizure and slavery surely weren‘t relinquished, whenever they seem necessary.
We don‘t underestimate the role of this modern actor that was created by the illumination, as regards the progress of mankind. But, if this is what‘s being understood from an intellectual, you can find thousands of them in global and local „humanitarian aid“ movements, in the universities, associations and foundations. This intellectual constantly travels around, bewails your pains and writes reports. It is angry with bad people. But badness, mercilessness and scrubbiness is not part of the people but in the character of possession, it is part of the capitalist system, in which we‘re living in.
In another epoch, the transition from feudalism to capitalism, the traditional intellectual has adopted important roles; It has gained prestige with its education, knowledge and constructiveness. Today, we talk about a prestige that was befrauded by the system to a large extent. The last attractiveness that remained from this prestige has been alloted to deceive the poor, who should give their blessing to the system.
We believe, that it is possible to structurally refuse this role which we historically consider remarkable, as well as to destroy and overcome the traditional intellectual identity. We are faced with the duty to define, call and put into practice what really gives prestige to the lawyer in the recent epoch.
“The bourgeoisie has eliminated all professions that have been respected and have been regarded with fearful respect so far. It made his doctors, lawyers, priests, poets and scientists to his own wage worker…”
The crossroads we are facing are therefore very sharp.
Either we advocate with our well-known “independence and impartiality” for the parliamentary democracy, to which we have become paid wage workers, that means, we become “good citizens” who believe in legal aid, compassion, tips, laws and reconciliation or we will re-create ourselves by leaving all these factors aside and first take “sides”. It is time for us to leave the field of “rule of law”, which prefer the interests of the bourgeoisie above all, and take sides by standing up for the oppressed peoples and the interests of class.
So why do we have to make a decision today? Are we experiencing extraordinary days? Of course, no! “The tradition of the oppressed shows that the ‘state of emergency’ we live in is not the exception but the rule. We must reach a corresponding consciousness of history.
Then we will clearly see that it is our duty to create the real state of emergency.”
As lawyers, we must leave the field of defense, where we are locked up. We will face the challenge of defending the rights, accepting the cases, and expanding the opportunities of the poor and the oppressed until bourgeois property and labour and criminal law systems are eliminated. But this is everyday work. On the other hand, a lawyer must stand with his mind and body by those, who resist, to ensure the success of the fight against oppression. This is not taking sides on an abstractly specified principle. This is an organized, resilient, and determined political choice. This is “Revolutionary Advocacy“.
No knowledge, education or sensitivity that does not serve to improve the struggle of the oppressed classes and peoples will carry us beyond the traditional intellectual.
Thousands of staff, from the academy to the media, who do not have the slightest shortcomings in their knowledge and education, have been convinced to work directly for the benefit of the system and to show hostility to their own people. For those who say, “We are not that unprincipled,” what is left is a kind of intellectual morality that is sufficient to ensure reforms in the system and to beg for mercy for those who are oppressed by the rulers. This is not enough for us.
The lawyer who accepts the cases of the poor free of charge, the doctor who treats the poor for free, the teacher who tries to get a scholarship for poor students are of the opinion to do something good.
Instead of fighting against the system that creates poverty, the traditional intellectual who struggles with the results of it and thus justifies it, sees the only way to continue his work in this system. This is the main contradiction of the traditional intellectual.
A revolutionary lawyer, who successfully instead of begging for mercy, demands for rights; instead of feeling pity for the poor; is an enemy of the exploiter; instead of providing social assistance to people in need, fights side by side; instead of being anxious about them; organizes them, knows that it is a part of the organized fight of the peoples and that it belongs to the field of political struggle, not the legal order.
This is a true intellectual attitude that seeks to be part of a total and ultimate fight, rather than just revealing oppression and injustice and diving into balancing and pain-reducing dreams. If this requires a price, we will pay for it. The strong belief in honour and struggle requires that.
What we understand much better and completely now; is if lawyers all over the world and in each period are sent to jail, they are the guarantee and chance of improving prison conditions.
Therefore, it is not possible for a lawyer to maintain self-respect and the respect for his profession, if he considers it as a burden to go at least to prisons in the city where he works and where people still get tortured, isolated and killed.
The examples of lawyers who were killed while fighting against the execution by police, arrested during policing, imprisoned, tortured, sentenced and dismissed from their post and started death fasting against massacres, are the honour of this profession.
This tradition, which we reproduce not only through their memories or practices but also their struggles, raises the level of the law profession and is a traditional heritage as well as a goal that we have in mind.
The lawyer is the only opposition who can eliminate the isolation, where family and friend visits are limited, disciplinary practices are spread to all, and the access to communication, letters, books, and printed publications is impossible.
A wide range of working areas and the regular and continuous work of lawyers is required to effectively run the field of law enforcement, appeals and complaints, to be able to visit prisoners personally, to inform public and to draw the attention of the press and public to the violations of rights in prisons.
Our experience and practice of up to thirty years have shown us that the serious and creative attention of a lawyer can save lives in prisons; places that have been subject to the toughest interventions of fascism.
WHAT KIND OF A COUNTRY, WHAT KIND OF WORLD DO WE LIVE IN?
We are in the geographical region where the open occupation policies of imperialism are the most intense. The Middle East, North Africa, the Balkans and the Caucasus are under constant open occupation, war or constant military threat.
The aggression towards Latin America, the threat of war never ends, the higher the people’s movements, the greater the danger and the possibility of attack. Europe is buried up to its chin in pressure and aggression from ‘Hate to the Immigrants’ to the ‘Terrorist Law’.
We live in an age where even the smallest resistance against imperialist interests is not accepted, where a person who resists is seen as a ‘terrorist’ and their rights which has been won are taken away; these are unperson days where we are threatened with losing citizenship and even the status of humanity.
Countries and organizations included in blacklists are constantly being targeted as military threats with conceptual regimes such as ‘preventive war doctrine’ and ‘anti-terrorism law’.
Yes, we are not the subject of an open occupation in this country. In return, we are enforced not to be under open military occupation every day, and for this reason, a nationalism that imposes loyalty to the national state is imposed on us. The mistake of assuming the state’s monopoly in the legal field, courts, customs, law enforcement, symbols, and political independence is extremely common. However, in the simplest definition, we live in a Neo-Colonial country.
Imperialism is internalised, apart from being an external threat or a military occupation. It is now impossible to struggle against imperialism without struggling against the supposedly local, independent state which is ‘ours’ and is integrated in imperialism.
Allocated military bases, arbitration and similar legal privileges, dependent on hot money and open to market orientation; Like many countries, it is enough to keep governments under the control of imperialism. The fully dependent NATO army has no function other than protecting the interests of imperialism both inside and outside.
Consumer culture, individuality, prostitution, gambling, degeneration, and impunity are imposed on the public, who are prevented from developing their independent and advanced aspects. The Islamic model, which is a kind of state religion and has no social success other than legitimizing power under the control of the Presidency of Religious Affairs, has become a common cultural form of obedience and consent. Leave political organization, they can’t even tolerate social solidarity, and so poverty is organized and made permanent in a state-sponsored community / charity / charity network.
As a reward and compulsory result of keeping the market open; it is supported and tolerated when the state suppresses all kinds of popular opposition in the most brutal way.
From workers to the people of the slums, from the unemployed poor to university students, whoever raises the struggle it is considered normal to suppress under all means and images, from fascist military junta to martial law, from the state of emergency to the so-called ‘parliamentary democracy’.
Socrates explained that he did not escape from the punishment he knew was wrong, but that he was afraid of the damage that the ‘meanings’ of the site and the law could see. Even if it was unfair, he was disgusted with the “uncertainty” and “irregularity” that the impunity would result in the value of the law and the life of the site. His name lived a lot from his site.
However, we are not disgusted from this so-called value of the law, we disgust its epitome; in other words, we are disgusted at the same time of this grinning and sullen being, of this hypocritical head like this janus. Not only your State of Law, but also of what your existence is necessary for what you have, we do not believe it. So, don’t expect the same Socratic gesture from us.
You and your bosses need stability, we are never in the same boat and we have never been. “Oh, no harm to law, judgment, damage to the state, shake the state of the state, or the stock market to fall, interest will not increase!”, because the good words that have been said about nonsense like this has already been told before us, let us be reminded of only one;
“Seyl-i bîdâd-i sitemdir münşiy-i Tufan-ı Nuh
Olmasın gâfil belâdan ehl-i bidâd-ü sitem
Hâne-yi zalim gider seylâba mânend-i hubâb
Tutsa tufan âlemi mazluma tufandan ne gam”
So, the great poet says; The cause of the flood of Noah was the flood of cruelty and evil, the owners of these cruelty and evil should not be saved from trouble. (They could not save themselves anyway) The houses of the oppressors, like foam, (mane-i hubab), will flow away in the flood they created, but if the earth floods, the oppressed would have no problem, no harm from this. He said it very well. So, if their world was to go up in flames, it has no “quilt” in it for us.
As for the demand of power of the oppressed; it’s the same matter, but this time the opportunity is different! In other words, we are not afraid of the flood again, we do not stand still. As in a Chinese Proverb that President Mao enjoys repeating (and which he repeats frequently): “In chaos, God is with the poor!”. Of course, we have a claim to power and we will definitely take it.
Constitution, law, right, judiciary, police, rule, security, stability, government, parliament … Don’t hide anything you rotted anymore; whether you eat and vomit, or burn and smoke it into your lungs. All of it is useless for us, the number of days where it’s useful for you is numbered. Instead, we are looking for ‘Bread, Justice and Freedom’. All will be found and, if not, will be created one by one in this march.
Our story is the story of the transition from ordinary attorneyship to political criminal lawyer advocacy, and from this continuing to the “Attorney of the Revolutionaries”, and now today “Revolutionary Attorneyship” which we defend and carry out by enjoying and believing. This tradition is the name of the thirty-year struggle that deserves to be shared, reproduced and massified. Hasn’t anything changed in these thirty years? Doesn’t it change? Do the same costs have to be paid, similar problems have to be suffered: Yes!
“The crocus can stand pain, it’s used to its own green
Its rightful, neglected, the day of the rain constantly changes
All these flowers gives and takes should be blessed
The rose goes quiet, crocus awake, rifle starts, subject changes
It is believed that this roses story will always continue like this.
It always goes like this, but one day the end will change ”
Of course, the end of the roses story will one day change.”
For now, let’s finish by repeating the most meaningful word ever made at the end of a text: