Baskın Oran - Radikal - 26/11/2012
The court that had formerly acquitted Pınar Selek three times has ‘repealed the ruling of acquittal’ when the judges changed. I write the words in quotes since such a decision CAN-NOT BE GIVEN legally. Even if it is, that would be merely ubsurd and there would be no law then. But let’s leave philosopy aside and hold a post-mortem for this bizare case.
Case History
1- It is known that a bomb exploded in spice Bazaar on July, 9th July, 1998. Somebody called Abdülmecit Öztürk was arrested. In his interrogation he says, “We prepared the bomb together with Pınar Selek”. Then, he states in the hearing, “I gave this testimony under torture”. Besides, all the expert reports, even the ones prepared by the Police Crime Scene Investigation point out to the same fact: “This is a gas explosion. If it were a bomb, there would be holes of at least 20 inches.”
By the way, a paper arrives to the Court on 19th April, 2001 from the Police Department which is not considered as a party in the case and the report arrived says ‘it is a bomb’. It has neither signature nor date on it. However, the report dated 21th October 2002, prepared by the Middle East Technical University reveales that it was caused by a gas leakage and the place of explosion is the oven. The Chamber 12 of Istanbul High Criminal Court gives acquittal for Pınar Selek on 8th June, 2006.
2- When the Public Prosecuter appeals the ruling, the Criminal Department of the Supreme Court Chamber 9 revokes the decision. The case then is taken back to Istanbul High Criminal Court Chamber 12. The court gives acquittal for the second time. The Prosecutor appeals again and Chamber 9 revokes the decision again.
3-The Chief Prosecutor of the Supreme Court objects against the annulment of the acquittal and sends the file to the Supreme Court General Assembly for Criminal Matters (abbreviated as YCGK in Turkish), asking for a confirmation of this acquittal. On 9th February, 2010 the Supreme Court General Assembly for Criminal Matters rejected the Chief Prosecutor’s objection with 17 votes against 6, asking for an aggravated life sentence for Pınar Selek.
4-On 9th February, 2011, the Istanbul High Criminal Court Chamber 12 resists the reversal given to its acquittal by the Supreme Court General Assembly for Criminal Matters again and gives Pınar Selek an acquittal for the third time.
Now, caution please! Most of us who studied law but is not an expert on either criminal law procedure or criminal law would recall that, "The local court could resist to a decision by a Supreme Court Chamber but not by the Supreme Court General Assembly for Criminal Matters" and what we know is true. But the situation here is totally different. First of all, technically speaking, the reversal given by the Supreme Court General Assembly is not on the basis of Article 307/3 of Turkish Criminal Procedures Act (CMK) but on the basis of Article 308 (CMK).
I will immediately interpret this: The reversal by the Supreme Court General Assembly is not given upon the ruling of the Local Court (Istanbul High Criminal Court Chamber 12. ) but upon the Chief Public Prosecuter’s objection. Therefore,the Local Court still has the right to resist, which it has not used yet. The reasoning of the Criminal Court Chamber 12 evidently explains this: “To accept the reverse would mean to ignore the right and authority to resist, which is given to local courts by Article 307/3 (CMK) and this respect would be inconsistent with the spirit of law, with international law principles and with face-to-face principle and purpose of criminal law.” In any case, the third ruling of acquittal was given on the basis of the Local Court’s right to resist after which the Prosecutor immediately appealed.
Consequently, Istanbul High Criminal Court Chamber 12 has given its final declaration, which means the job is done. Now, the case file will directly be taken to the Supreme Court General Assembly for Criminal Matters. Whatever the Assembly says will have to be obeyed. The Local Court Chamber 12 now waits for the completion of procedural deficiencies in the ancillary cases that were consolidated with the “Spice Bazaar” case in order to send Pınar’s file to the General Assembly.
Unbelievable things in the last hearing
In the last hearing another Chief Judge was there since the actual Chief Judge was on a 45-days sick-leave. One of the judges among court members had also been changed. The hearing would start at 10.00 am but the doors were closed and locked at that time. Lawyers sent messages inside when the time closes to 12.00 pm but the anwer from the new Judge is, "It is our right to eat something, isn’t it?." It is announced that the hearing would start at 2.00 pm but it does at 04.00 pm. The lawyers take their places in the court room, routine identification would take place but they unintentionally see the screen of the computer which is switched on. The clerk is correcting a word in a written document on the computer. They realize that the judgement has already been given by the Judges in the meantime! Since the word corrected by the Clerk is in one of the last pragraphs, they also see the sentence, "The court therefore rules as follows…". It means that they see the judgement. It says: " Since the Supreme Court General Assembly for Criminal Matters (YCGK) rejected the Chief Prosecutor’s objection, resisting on the previously given ruling of acquittal is irregular. Therefore, the court rules that aforementioned ruling should be disregarded.” Good heavens! What kind of a sentence is this? The reasons for asking this are:
1- Istanbul High Criminal Court Chamber 12 gave its final decision on 9th February, 2011. there is nothing else to to be said, to be decided or be done anymore. This is not a daily account book of a grocery store that you cross things out and write something else down as the court members change.
In such situation, it means that the Court makes assumption of authority. This happens in two ways: a) Acting as the Parliament by creating new laws. b) Acting as the the Supreme Court General Assembly for Criminal Matters by the appellate review of the judgment given by itself.
2- The Public Prosecuter who appeals against all rulings of acquittal, thanks the Court, immediately reads his ‘delibaration’ , which seems to have been taken by him to the hearing, and of course, asks for an aggravated life sentence for Pınar Selek again. In other words, he gives his second ‘delibaration’ in a case file for which the final judgement was given a year ago and which was appealed by himself. What surprises me most is the sentence he said to the journalists, "I am shocked." However, he is inside when the doors are closed and locked. Did not the Judges let even him know about the decision while writing it down? Even if he did not hear about that, why would he carry his second ‘delibaration’ ready in his hands?
The last occasion as interesting as the case itself
Two days after the hearing, on 24th of October, there was a short interview given to a journalist from Vatan Newspaper, Burak Bilge: “I have 93 percent contraction in one of my veins; thus cardiac failure. I was down with pneumonia dependent on the failure. I take antibiotics.” That was the actual Chief Judge Vedat Yılmazabdurrahmanoğlu speaking.
By the way, there is a Judge among Court Members from the old member’s group, and agrees the decision of reversing the acquittal. The actual Chief Judge Yılmazabdurrahmanoğlu talks about that, as well: “It is not usual that a Judge changes the ruling in the same case file. It is not very common that a Judge changes his decision in the same case file.”
About the Public Prosecuter's remarks, he says, The standpoint of the Prosecuter was obvious from the very beginning. Why would he get surprised? There is no change in his opinion and he must not have said that he was shocked." And he adds, “Now I feel better. So, I might not necessarily finish my 45-days sick-leave if I feel myself better. I might come back to my job earlier." The Court has given date for 3-4 months later for the next hearing of other cases on the same day while the date given for the next hearing of this case is only 20 days later. When one thinks about this keeping the previous quotation in mind, it makes sense.
So, here is the situation. Pınar, her family and frineds have tried to deal with this for 14 years. How many years would you bear it? Have you ever heard that the Judiciary has given justice so much damage? One takes refuge in the State escaping from villains. If the criminal is the State itself, one takes refuge in Law. Where would one escape in this case? Is the only way shown, "Either love or go"?
Of course, not. One would go to ‘Civil Society’ as long as the State treats its own citizens in this way. There will be a meeting tomorrow (27th 0f November) at 8.00 pm in Cezayir Restaurant. Are you aware of the fact that the democratic Turkey is constracted gradually like this? The history is written.
http://www.radikal.com.tr/Radikal.aspx?aType=RadikalDetayV3&ArticleID=1109396