With what powers can they inflict so much torment?

With what powers can they inflict so much torment?


Generating a “new mentality” in Turkey’s legal system is as important as writing a “new constitution.”

The home of a 60-year-old professor is raided at midnight and cluttered. All of her privacy is violated and all of her documents are “serviced” to the “media jackals.” She is handcuffed and taken to a long trip from her summer house to Istanbul. She is kept waiting in front of doors at detention rooms in a sleepless and miserable state after days of interrogation. Not only her summer house in Datça but also her home in Istanbul is turned upside down. These kinds of things are not only done to Büşra Ersanlı. But when it is done to a 60-year-old academic, the gravity of this culture becomes crystal clear. How can a prosecutor and police have this much power?

Not easy for the judiciary to change

With the referendum held Sept. 12, 2010, the structure of Supreme Board of Judges and Prosecutors (HSYK) was changed. A small judicial elite used to be able to close any political party they wanted, to arrest any parliamentarian they wanted and to expel any party leader they wanted from politics. They were able to flatten whichever judge or prosecutor they did not want.

They were dominating almost the entire judicial system with a Sept. 12 authoritarian rationale. They had no other “vision” beyond closing political parties and regarding intellectual and organization activities as enemies. They never abandoned the perception of “What counts is the interest of the mighty state, not the law.”

Certainly, the breakdown of the dominance of this elite was positive. Now, judges and prosecutors, with a wide majority, determine the members of their own supreme judicial bodies.

The fact that this system has been changed does not mean that the judicial logic that has dominated our country for years has also changed.

In the past, prosecutors used to either supervise or ignore tortures. Courts used to encourage torturers with decisions saying, “We cannot know if torture is being done for cruelty or to extract the truth.”

Now, this much does not exist; a serious transformation has been experienced. However, it is seen that the “mentality” deep down has not changed.

You are dealing with a publisher, an academic, a journalist, a bureaucrat: The cruelty and roughness in question are as if these people each were brutal killers.

From the sacred state to the rights of the individual

How much has the perception of the present judges and prosecutors changed? How many of them have reached the stage of “Rights of the individual are essential; human rights cannot be violated based on any sacred excuse”? It can be seen that the practice is so that the concept of the “state” is still perceived quite above the rights and freedoms of the individual.

This is not the first of these objections of mine. When İlhan Selçuk was detained, when Nedim Şener and Ahmet Şık were arrested, I reacted similarly. In the wake of the practice against Büşra Ersanlı and Ragıp Zarakolu, I cannot find any other words to say.

For the dominant mentality of judges and prosecutors in a country to change and to be replaced by a liberal rationale in law is indeed not a change that would happen overnight.

This means a radical cultural transformation.

If you interpret the laws with an “authoritarian state” logic, you end up with different results; if you read them with the logic of “democratic and lawful state,” you reach yet much different results.

 It is the judiciary with its lawyers, prosecutors and judges that moulds the laws into flesh and bones. For this reason, to generate a “new mentality” is as important as writing a “new constitution.”

In Turkey in the past, a great deal of pain was suffered because of long detention periods. People used to be kept waiting for months before they appeared in court. Now, facilities are expanded and the number of judges and prosecutors has been increased, but because the mentality has not changed people still continue to be jailed for months without learning properly what they are charged with.

With this judicial culture, no new vision can be developed, nor can any milestone in terms of democracy be passed.

Oral Çalışlar is a columnist for Daily Radikal in which this piece appeared on Nov. 2. It was translated into English by the Daily News staff.

ORAL ÇALIŞLAR oral.calislar@radikal.com.tr