Duality of justice

Why the prosecutors of the so-called Ergenekon probe and judicial case demanded the arrest of the colonel has not yet been made public. And why the court on duty agreed with the demands of the colonel’s advocates and decided to release him after 19 hours in prison has not yet been disclosed. But the journalist with the almond moustache and dirty beard was saying on TV that the colonel’s release showed not only that the country’s justice system has a duality because of the civilian and military courts, but also that there is a duality between the civilian courts and judges.

"There are judges applying the law and there are judges acting along ideological lines. One is putting the colonel behind bars; the other is releasing him. The release was a political decision," the journalist said.

An 'exception' becomes routine

Under the Turkish law covering trial procedures, an arrest must be an exceptional application. Unfortunately, this is not the case in practice. Though the law underscores that, apart from being captured "in flagrante delicto" Ğ that is, red-handed Ğ committing a crime punishable by serious penalty, a suspect can be arrested only if there is possibility that he or she will conceal evidence or escape. The same law emphasizes that the residences, bureaus or offices of suspects can only be searched with a court order, during daytime hours and in the presence of the suspect’s defense advocate. Furthermore, the law specifies that a detailed list of items taken by the police or gendarmerie must be given to the suspect or his or her advocate, and that Ğ if computers or other electronic data-storing equipment were to be confiscated Ğ a copy of the electronic data to be confiscated must be prepared and given to the suspect or his or her advocate.

These fundamental principles have been blatantly violated during the Ergenekon probe. Not only were residences ambushed in the middle of the night, the suspects’ books, articles, films, music CDs, electronic data-storing equipment and computers were confiscated without giving many of them a copy of what was taken. In addition, suspects were placed behind bars without considering the rule that arrest must be an exceptional application. What the country lived through, and has been living through still, because of the Ergenekon probe is a systematic effort to build an empire of fear in this land and thus to scare and silence the opponents of the political administration.

Apart from unnecessarily restricting individual liberties, as long as there is no possibility of concealing evidence or escape, is there any difference between keeping a suspect behind bars and letting him or her free as long as the investigation or judicial case is continuing? Like Col. Dursun Çiçek, most of those under arrest within the framework of the Ergenekon probe or trial could have been released pending the outcome of the investigation or court process against them. That is a requirement of the law covering trial procedures if arrest or restriction of individual rights is an exceptional practice.

In Çiçek’s case, he is alleged to be the author of a plan aimed at stopping the AKP and the Gülen group. The original version of the plan could not be found. What we have at hand is a photocopy, and a photocopy cannot be legally valid evidence. Çiçek might be facing some other charges and his arrest might have been due to some other evidence that the court has not yet disclosed. His release as the result of appeal by his lawyer might actually be the result of a second evaluation showing that the additional evidence was not strong either, or he might have been released simply because the judge concluded that he cannot conceal evidence and will not escape. Can such a decision be taken as evidence of "duality" in the judiciary?

Why don’t we instead try to understand what Prime Minister Erdoğan might have been trying to imply with his statement that "Police are the guarantee of Turkey." If the military guaranteeing democratic secular governance in Turkey was an indication of this country being under military custody, has Turkey become a police state? Is that why the premier says, "Police are the guarantee of Turkey"?