The solution lies within the justice

The solution lies within the justice

A legal path is being sought in favor of the defendants in the Ergenekon and Balyoz (Sledgehammer) cases. There are several suggestions, one of them being Honorary Chief Prosecutor of Supreme Court of Appeals Sabih Kanadoğlu’s.

Let me state from the very beginning I find Sabih Kanadoğlu’s proposal consistent and correct. I will simplify and explain an otherwise very technical legal topic.

Kanadoğlu model

What Sabih Kanadoğlu is proposing is applying Article 310 of Code of Criminal Procedure (CMK). According to this article, in finalized criminal cases, the Chief Prosecutor of the Supreme Court of Appeals can apply to the high court for the reversal of the verdict in favor of the accused.

In such an occasion, the file, for example the Balyoz case will be processed, not in the 9th Criminal Department, in the General Assembly for Criminal Matters. The 30-person assembly may reverse the verdict in the direction of release and acquittal.

Kanadoğlu’s proposal is to solve the issue within the justice system and at the top body. He is suggesting a natural, normal way of a solution. He does not include the legislative power in the matter.
I also think he trusts the Criminal General Assembly because he has worked many years in this Supreme Court.

Moreover, it is not an indirect way; it is a legal procedure that could be launched immediately within a couple of days.

Would the chief prosecutor do it?

Would a chief prosecutor who has not demanded an appeal “for the sake of law, in favor of the accused” up until today, do it now?

I think he should. The social need has become clear. Now, the President, the Speaker of the Parliament, the Prime Minister and the opposition say a legal way should be found.

Moreover, the government has started sharing the same opinion with the opposition about the subject of “conspiracy.” Columnist Ali Bayramoğlu, who attended the prime minister’s meeting, wrote he was placing “the judiciary at the top of the list of state establishments seized by the Community.” As a person of law, I cannot accept such a generalization, but I would also want to emphasize this: It is extremely essential for the chief prosecutor to make a move for the judiciary to define itself.

Besides, legal remedies such as the Constitutional Court and the European Court of Human Rights (ECHR) are and will still be open.

Weakening the justice

While a solution is being sought in a couple of major cases which contain political sensitivities, if certain powers of the judiciary are to be restricted by changing the law, it should avoid incapacitating the justice system.

If all of the prosecutors and courts that process certain crimes will be made “ordinary” criminal courts, then a weakness may emerge in the fight against corruption, terror and organized crime.

These crimes require monitoring for months, coordination between provinces, technical equipment and expertize. Wouldn’t prosecutors who do not have the required authority and assurance start refraining from these investigations which carry high risks?

Certain cases have gone beyond measure, yes; let us correct these; however, we should take extra care not to weaken the judiciary and drive them to despair.

Let us not again swing from one extreme to the other.

Taha Akyol is a columnist for daily Hürriyet in which this piece was published on Jan 6. It was translated into English by the Daily News staff.