Law will find its way
There has recently been an interesting “difference of opinions” between high criminal courts and higher judicial institutions in Turkey.
We first saw this in the case of jailed main opposition Republican People’s Party (CHP) deputy Enis Berberoğlu.
An Istanbul appeals court had reversed a ruling by the Istanbul 14th High Criminal Court, which had in the summer sentenced Berberoğlu to 25 years in jail. In return, the 14th High Criminal Court returned the file to the appeals court on the grounds of the related legal arrangement.
The second development took place yesterday.
Ankara Chief Public Prosecutor Yüksel Kocaman told a group of reporters that he did not agree with the decision of the 16th Penal Chamber of the Court of Cassation, which ruled that “being a sympathizer is not enough to be accused of being a member of an organization.”
Kocaman said ongoing cases would not be affected from this decision.
I called Board of Judges and Prosecutors (HSK) deputy head Mehmet Yılmaz to see what he thought about this issue.
“What do you think about such differences of opinion between judicial institutions?” I asked.
“The law is something that has its own life,” was Yılmaz’s first response, emphasizing that every case needs to be handled through its own files and evidence.
“We must never forget that for an action to be considered a crime, it needs to be stated in the laws. If it is confirmed as a crime, then we look at who the offenders are. The jurists, in every stage within the Constitutional Law’s 38th principle, look for this in accordance with the ‘properly obtained’ and ‘convincing’ evidence. But sometimes an appeals court may not consider what one court considers evidence. They then go to the Court of Cassation. If the opinion difference is between the Court of Cassation and the court of first instance, they go to the General Assembly. In other words, the judicial system discusses it within itself and makes a decision,” he said.
Yılmaz added that the authorization problem concerning the appeals courts originated from starting the proceeding very fast at the beginning. He recalled that the argument had started before the case of Berberoğlu, with the applications which some of the court of first instance did in 2016 to the HSK and the Justice Ministry.
Yılmaz said they had taken action to solve the problem, with related training and seminars offered to judges from the appeals courts.
“In the case of Berberoğlu, the appeals court found the demand of court of appeals’ prosecutor’s office correct, and after discussing the file it decided to launch a trial. From now on, the case will be pending at the appeals court. Afterwards, if necessary it will go for an appeal. The law is like this; it finds its own solutions and path,” he added.
Yılmaz also evaluated the statements of Kocaman, saying the 16th Penal Chamber of the Court of Cassation gave a ruling for the court practice purpose and stressed that this court practice had a guiding quality that raised the upper limit.
“This ruling does not mean it will be applied in this way in every case. Every file and evidence has its unique sides. What’s more, every ruling is subject to inspection. If we only leave the law to the jurists, good judgements will be made. Turkey must trust the wisdom of jurists,” he said.