Rule of law with a question mark
In the new bill prepared by the Justice Ministry, even though there are positive aspects, there are also quite a few concerning articles.
It is as if the Justice Ministry wishes to normalize the laws made under the state of emergency and is consequently introducing amendments in criminal and procedural laws.
The details were in daily Hürriyet reporter Oya Armutçu’s story on Oct. 11. It is not possible to address the entire bill due to the technical details. I want to focus on the “hearing the witnesses” issue, remembering the Ergenekon case. Hearing witnesses is one of the most important components of a “fair trial.”
In the Ergenekon case, the prosecutor and the court, in order to project the “Ergenekon terror organization” blueprint in their minds, only recognized the evidence and witnesses they wanted and excluded different evidence and witnesses.
The defendants wanted the force commanders of the time, including Chief of General Staff Gen. Işık Koşaner, to be heard so that what the prosecutor considered to be “organizational” activities could be shown to be routine procedures in the military.
This exceptionally just demand was rejected by the court. When the court issued its rejection, Işık Koşaner and other witnesses came to the court in the next session because, according to the law, the court has to hear those witnesses who voluntarily appeared before the court.
However, the court refused to hear them again! If it had heard the witnesses, the blueprint would have been shattered.
The Code of Criminal Procedure, the basic law regulating the right to a fair trial, has this clause: “Article 178: In cases where the president of the court or the trial judge denies the written application to summon a witness or an expert indicated by the accused or the intervening party, the accused or the intervening party may bring these individuals to the main hearing. These individuals shall be heard at the main trial.”
The judges violated this clause.
In the bill the government has prepared today, Article 178 has been changed. Now, the judges have the right not to hear witnesses who they think have appeared with the “intention of prolonging the case.”
In the Ergenekon case as well, the judges did not hear the witnesses present at the hall on the grounds that “they wanted to prolong the case.”
How can the judges know the intention of the witness without hearing them?
Article 178 was introduced to our legal system in 2004 as part of the harmonization process with EU laws; it is one of the indispensable rules of universal law.
According to our 150-year-old legal conventions, if there is a dispute between a court and the authorized department of the Supreme Court of Appeals, the file goes to the General Assembly of the high court, which reaches a decision.
In the bill, this power of the general assembly of the high court is given to a department of the high court.
In fact, theoretically, it is possible to influence the few members of a department or for them to influence each other. On the other hand, it is not possible to influence the general assembly made up of many members.
In these cases, sending the file to the general assembly is a legal assurance. This is being lifted.
Since thousands of judges have been expelled because of alleged links to the Fethullahist Terror Organization (FETÖ), is there a sense that the government does not even trust the judiciary of today?
This is a very important topic not only because of the sense of justice, but for Turkey to generate assurances of the “rule of law” to the world; it even affects the investment environment.