THE ORHAN PAMUK CASE: WHO ARE THESE JUDGES?

Hurriyet Daily News
Wednesday, October 14, 2009

Judges have hurt this country too much. So have the appointed, the
so-called judges.

Owing to three military coups we have a chance to better know some
of them.

In the aftermath of the May 27, 1960 coup, the prime minister-elect
was hanged in this country. Foreign and finance ministers were hanged
too. If it was up to judges, 15 more Democrat Party, or DP, members
would have been hanged as well.

Then again, similar backward steps were taken in the period of the
March 12, 1971 coup. Deniz GezmiÅ~_, Huseyin Ä°nan and Yusuf Arslan
were hanged. Judges were so calm. They kept saying that all they did
was apply the law.

Later, we faced the Sept. 12, 1980 coup. Men in black robes this
time were much crueler. They hanged 50 young men. And of course the
courts of appeals approved the rulings. They were high courts applying
the law!

Do you remember Dogan Oz? He was one of the bravest and democratic
prosecutors. Oz dared to crack down on "counter-guerillas." He was
shot by a man in 1978. The murderer was caught; witnesses identified
him and he confessed to the crime.

The court sentenced him to death. But the case file was sent to
the Military Court of Appeals. High judges first quashed the
indictment in form. Following the prosecutor’s objection, the
file was discussed at the General Council of the Military Appeals
Court Criminal Depts. Fifteen high judges were in the courtroom,
eight of whom voted for the release of the murderer due to lack of
evidence. Seven judges voted for the punishment of the perpetrator. But
he was acquitted by the decision of the Military Court of Appeals and
by a margin of one vote. The file was later transferred to the court
having the jurisdiction over the case at the beginning. "Evidence,
witness statements, and documents in hand show the accused committed
the crime. However, we should follow the ruling of the Military Court
of Appeals and we rule for the acquittal of t decided.

I have kept wondering what kind of conscience and understanding
of law that the Military Court of Appeals has. I wonder if someone
whispered something to them since it was the coup period. Otherwise,
it is not easy to come up with such a decision.

***

I am entitled to say "I have known so many judges and prosecutors,
enough to make a general judgment about all" since I have adequate
experience in life. For instance, in the period March 12, 1971, I was
sentenced to eight years in prison for being an administrator in the
case of the Turkey Labor Party, or TIP. But I have never been a TIP
administrator. I had only attended the party convention in 1970 and
made a speech as a delegate. My speech might have been perceived as
"communism propaganda" at that time, but the court decided that I
was a party administrator. The Military Court of Appeals approved
the ruling. The translation is, I was sentenced on a baseless ground.

As I ran across the same judge in another investigation, he said,
"Oral, I did not expect the approval of the ruling on you because
you were not an administrator." I was surprised by his remark. "But
you decided so," I responded. His answer was eerier "Yes, but we kept
in mind that parts of our ruling would not be approved by the Court
of Appeals."

We are living in Turkey. The judges who sentenced the slain
Armenian-Turkish journalist Hrant Dink for belittling Turkishness
in his article criticizing the Armenian diaspora are living in this
country.

***

Some might think that similar past experiences and the understanding
nurturing those experiences are left in the history. But this
understanding still stands without any significant change. The Court
of Appeals decision about Nobel Prize winner author Orhan Pamuk is
only an example of the said understanding.

After Pamuk said: "30,000 Kurds and 1 million Armenians were killed
here. And almost no one dares to talk about," Kemal Kerincsiz and
a group of people submitted a complaint and claimed that they were
insult rejected suits filed by individuals seeking compensation
and ruled that not a particular person was referred to in Pamuk’s
remarks. The said individuals resorted to the Court of Appeals. The
court ruled in favor of them and reached a somewhat binding decision
that the lower court should change the ruling.

If there had not been status of limitations applied, not only these
people but also every single citizen of Turkey could have been able
to sue Pamuk and seek compensation. This is the situation. I am
awfully curious about the judges who reach a decision and find 71
million people eligible for compensation due to Pamuk’s assessment
on history. What a sense, what a mindset, what a law, and what a
conscience this is! I wish I can understand.

In a country where such a judgment is possible, the law has nothing
to do with the "freedom of thought" or "freedom of expression." Even
the most optimistic angle cannot explain this.

We do not deserve to live an environment ruled by arbitrary and
perplexed practices of law.

You may say, "We have seen so much of it."

But that’s enough!

* Mr. Oral Calislar is a columnist for daily Radikal in which this
piece appeared Wednesday. It was translated into English by the Daily
News staff.