Today’s Zaman, Turkey
Feb 15 2009

Evidence à la Turca for `late justice is no justice’

The killings of former Confederation of Revolutionary Workers’ Unions
President Kemal Türkler, UÄ?ur Mumcu and various
journalists and the Dev-Yol case, the trial of leftist leaning
suspects charged with undermining Turkey’s constitutional order after
the 1980 military coup, have led to the longest running criminal cases
in the history of Turkey.

These cases, which occupied the agenda of several governments and
hundreds of judges and lawyers, have yet to be concluded. The gravest
concern for the Ergenekon case, the most comprehensive case ever, is
that it will face a statute of limitations and be dropped. It would be
terrible if this case shared the same result as two earlier cases.

Judges change, laws changes but cases do not conclude. Turkey,
frequently criticized by Amnesty International (AI) and in particular
the European Court of Human Rights, cannot ensure the timely delivery
of justice. Although an amendment on concluding cases in a reasonable
period of time was approved in 2001, this period varies depending on
the case and defendant. Many cases are dropped after a long period of
time. The most recent example of this is the Etibank case.

Most of the unresolved cases in Turkey are from the 1980 military coup
period. The Türkler case was opened 26 years ago and the
Dev-Yol case 24 years ago. Operation Hope, which aims to find the
murderer(s) of journalist UÄ?ur Mumcu, has made no progress in
13 years. A shooter and a provocateur have been identified in the case
of Hrant Dink, a Turkish-Armenian journalist assassinated in January
2007, but nothing more has come of it.

For cases that have been closed, 43 percent are reopened after appeals
are filed with the Supreme Court of Appeals.

While reversing the ruling of a lower court suggests lower courts fail
to make proper rulings, it also extends the length of the trial. A
combination of inefficient work practices of court experts, a lack of
judges and defects in forensic medicine result in 30-year-old cases
still waiting to be resolved. For seven years the courts have not been
able to hand down a ruling in the case of former Special Operations
Unit deputy chief Ä°brahim Å?ahin, who was later arrested
as part of the Ergenekon investigation. But it is surprising that no
action has been taken against judicial bureaucrats incapable of
fulfilling their responsibilities.

BozdaÄ?: Time is not responsible

Justice and Development Party (AK Party) parliamentary group deputy
Bekir BozdaÄ? pointed out that the statute of limitations on
these types of cases is the same as that of Europe and added that
cases are not concluded because of deficiencies in the judicial
system.

Noting that the Council of State ruled on the Constitutional Court’s
decision to close 862 district municipalities in three days but has
cases from three years ago that are waiting to be concluded,
BozdaÄ? said decisions could be made immediately if wanted.

BozdaÄ? believes delays in cases with a statute of limitations
are caused by bureaucratic barriers and notes that courts should file
charges against bureaucrats that intentionally delay transferring
information and documents to the court. But since charges can only be
filed based on complaints, victims need to file a complaint early on
in the process. `Almost all delays in cases with a statute of
limitations are caused by authorities not fulfilling their
responsibilities. It is not time’s fault; it is the fault of those who
do not or cannot use time efficiently and the fault of those who do
not allow others to use time efficiently,’ BozdaÄ? said.

Not enough judges

The lack of enough judges is one of the main reasons why it takes so
long for cases to be processed in Turkey. Germany, a country with a
relatively equal population to Turkey, employs 60,000 judges. That
figure drops to 8,000 in Turkey.

According to the Ministry of Defense, the estimated processing time of
cases is 447 days at the Chief Public Prosecutor Office, 120 days at
the General Penal Board of the Court of Cassation, 388 days at the
Council of State, 391 days at the Supreme Court of Appeals Penal
Departments, 126 at Supreme Court of Appeals law departments, 246 at
penal courts, 143 at the penal court of claims and 619 days at
juvenile high criminal courts. The average number of days it takes for
a case to be concluded at high criminal courts is 495, 202 at legal
courts, 102 at claims courts and 619 days at the Court for
Intellectual and Industrial Property Rights.

Two separate torture cases

The case of a Hacettepe University student, Birtan AltunbaÅ?,
who was beaten to death by police while in custody in 1991 concluded
in 16 years.

The four officers who were sentenced to eight years in prison were not
arrested because the Supreme Court did of Appeals not uphold the
ruling.

In 1995 in an incident that became known as the Manisa case, several
police officers were sentenced to 85 years in prison after torturing
16 teenagers who were taken into police custody for writing `No to
paid education’ on a wagon, but the officers were acquitted of the
charges.

The ruling in the case of Engin Ã?eber, who was beaten to death
at the Metris Prison, marked remarkable progress in the history of
Turkish law.

Justice Minister Mehmet Ali Å?ahin apologized to the family of
Ã?eber on behalf of the government and state and 60 suspects, of
whom six were arrested, stood trial. This was an example of how when
wanted, justice can be delivered on time. But a long time interval
corresponds to freed suspects.

The statute of limitations is a safe haven for those trying to escape
the law. While the length of time it takes for a case to be processed
in Turkey varies, on average it takes between seven and 12
years. Unfortunately, many cases that are unsolvable in Turkey have a
statute of limitations and end up being closed. Soldiers, police and
bureaucrats benefit most from this situation.

Former Justice Commission Chairman Emin Kara asserts that most cases
take a prolonged period to be processed because evidence is not
collected quickly. In a special report to Sunday’s Zaman, Kara said
evidence should be collected before the case is opened, but in Turkey
the case is opened and then the search for evidence begins.

Noting that the Ergenekon case is a striking example of this, Kara
said this case is bound to fail just as the Türkler and Mumcu
cases did.

In his explanation of the special reasons for why these types of cases
are irresolvable, Kara points to the lack of effective work to
conclude the case. `A sufficient amount of evidence is not
collected. A conclusion cannot be reached because there are pawns at
play. The only person they have found in the Hrant Dink case is the
shooter,’ Kara said, adding that investigations beyond that are
impossible because of secret powers preventing further
investigation. This, however, harms trust in the law and the
judiciary. Kara also said he fears Ergenekon will still be unresolved
five years from now, as is the case with Susurluk, the name given to a
1996 incident in which links were discovered between the state and
criminal elements.

Kara tied cases that have a statute of limitations to problems in the
way the government functions.

Tayfun İçli, a Democratic Left Party (DSP) deputy,
linked the lengthy processing time of cases to the absence of
internalizing the power of law.

Noting that politicians as well as members of the judiciary utilize
the law according to their self-interests, İçli claimed
penal courts were abusing procedures. He also noted that `in Turkey,
the law depends on the executive power. Judges are audited by Defense
Ministry inspectors, but members of the Supreme Court of Appeals are
not subject to auditing. Therefore, the Supreme Court of Appeals can
make rulings that are against the law. If political leaders wanted,
all cases could be resolved and concluded in Turkey.’

15 February 2009, Sunday
ERCAN YAVUZ ANKARA