Prosecutor writes the ’Digor Criteria’
Güncelleme Tarihi:
by Åžafak Timur
OluÅŸturulma Tarihi: Haziran 13, 2009 00:00
ISTANBUL - A prosecutor in the town of Digor decides speaking Kurdish in election campaigns is not a crime, setting a precedent the country sees as a new set of rules similar to the Copenhagen Criteria that Turkey had to follow to begin EU membership talks.
A prosecutor’s decision not to prosecute three Kurdish politicians for speaking their mother tongue in their election campaigns is a brave step that promises hope, according to lawyers and experts. Â
They say the decision should pave the way to change the Political Parties Law, which bans the use of any language other than Turkish in political propaganda.
In February 2009, during the opening ceremony for the election communication desk of the pro-Kurdish Democratic Society Party, or DTP, in the Digor district of the eastern province of Kars, three politicians, Ayhan Erkmen, Veli Mükyen and Cemal Coşkun, delivered their speeches in Kurdish. Digor police made a criminal complaint against them, saying that the three candidates had acted against the Political Parties Law, which prohibits the use of any language other than Turkish in campaign materials and speeches or in party regulations.
But Digor prosecutor Ömer Tütüncü declined to prosecute the three politicians for their alleged act. What was critically significant about the decision is that Tütüncü said the relevant articles of the law had become null and void since the state-owned Radio and Television Corporation, or TRT, has been broadcasting in Kurdish since the beginning of 2009 and since high-level state officials address "Turkish citizens from the Kurdish race" in Kurdish during their visits.
"Once a person does what they are supposed to do, it is seen as an act of courage in Turkey. And what the prosecutor did is a courageous thing," said lawyer Mithat Sancar.
"The European Convention on Human Rights is a part of our law that is above domestic law. According to our Constitution, if a law is in contradiction with [it], you should apply the [convention]. The prosecutor, in a very simple and normal way, fulfilled the Constitution’s order." Lawyer Fikret İlkiz also weighed in on the decision not to prosecute. "This is a lawful decision. A prosecutor not only collects evidence against suspects, but also collects [evidence] for the benefit of the suspect," he said. "This is a non-prosecution decision indicating that the relevant laws have, in a sense, lost their function."
The prosecutor’s decision came at a time when state television is broadcasting in Kurdish on TV channel TRT 6, Prime Minister Recep Tayyip Erdoğan spoke in Kurdish at the station’s opening, and Chief of General Staff Gen. İlker Başbuğ, in his visit to southeastern Anatolia, spoke with people of Kurdish origin with the help of a translator.
But Kurdish politicians have still been judged for speaking in Kurdish. Kurdish politician Orhan Miroğlu, who is also a columnist for daily Taraf, said the prosecutor’s decision is very significant. "Someone had to make this decision," said Miroğlu, who last year was convicted for speaking in Kurdish during the campaign for the 2007 general elections.
MiroÄŸlu applied to the European Court of Human Rights, which accepted his case. MiroÄŸlu was prosecuted again this year in a separate case for the same reason; although he spoke in both Kurdish and Arabic, he was only charged with speaking in Kurdish.
Those who commented on the issue said the next step is to amend the Political Parties Law. "The law on political parties should be changed," MiroÄŸlu said. Lawyer Sancar, like MiroÄŸlu, said that using Kurdish in all aspects of the society while avoiding it during political campaigns was irrational. "It was a schizophrenic situation, and it was not difficult to amend that," Sancar said. "In the end, a prosecutor came out and with extremely clear and effective reasoning, under the light of international law principles, attempted to end this situation."
Sami Tan, the head of the Istanbul Kurdish Institute, agreed that the decision eliminates the contradiction between the law and common practice. "There is a TV channel broadcasting in Kurdish 24 hours a day, while people are tried for speaking in Kurdish. This was our critique against TRT 6," Tan said.
Unlawful decision
Not everyone applauded the decision, however. "If the Justice and Development Party wants to amend the Law on Political Parties, it will make a proposal and change it. How can this law be regarded as non-existing while it exists?" asked Oktay Vural, the head of the parliamentary group of the opposition Nationalist Movement Party, or MHP.
Vural found the decision politically oriented. Lawyer Hakan Hanlı found the prosecutor’s decision unlawful, saying that only the legislative power is entitled "to enact or to vacate a law."
The judicial power "applies and interprets" the law in general, he said, but only in exceptional cases would it enact a law. Hence, the legislative body is not entitled "to interpret the law" since the interpretation would be done by higher courts. "A prosecutor does not have the authority to interpret a law," said Hanlı, who added that a decision by a prosecutor cannot create jurisprudence; only the decisions of supreme or higher courts can create that..
*Göksel Bozkurt contributed to this report.
They say the decision should pave the way to change the Political Parties Law, which bans the use of any language other than Turkish in political propaganda.
In February 2009, during the opening ceremony for the election communication desk of the pro-Kurdish Democratic Society Party, or DTP, in the Digor district of the eastern province of Kars, three politicians, Ayhan Erkmen, Veli Mükyen and Cemal Coşkun, delivered their speeches in Kurdish. Digor police made a criminal complaint against them, saying that the three candidates had acted against the Political Parties Law, which prohibits the use of any language other than Turkish in campaign materials and speeches or in party regulations.
But Digor prosecutor Ömer Tütüncü declined to prosecute the three politicians for their alleged act. What was critically significant about the decision is that Tütüncü said the relevant articles of the law had become null and void since the state-owned Radio and Television Corporation, or TRT, has been broadcasting in Kurdish since the beginning of 2009 and since high-level state officials address "Turkish citizens from the Kurdish race" in Kurdish during their visits.
"Once a person does what they are supposed to do, it is seen as an act of courage in Turkey. And what the prosecutor did is a courageous thing," said lawyer Mithat Sancar.
"The European Convention on Human Rights is a part of our law that is above domestic law. According to our Constitution, if a law is in contradiction with [it], you should apply the [convention]. The prosecutor, in a very simple and normal way, fulfilled the Constitution’s order." Lawyer Fikret İlkiz also weighed in on the decision not to prosecute. "This is a lawful decision. A prosecutor not only collects evidence against suspects, but also collects [evidence] for the benefit of the suspect," he said. "This is a non-prosecution decision indicating that the relevant laws have, in a sense, lost their function."
The prosecutor’s decision came at a time when state television is broadcasting in Kurdish on TV channel TRT 6, Prime Minister Recep Tayyip Erdoğan spoke in Kurdish at the station’s opening, and Chief of General Staff Gen. İlker Başbuğ, in his visit to southeastern Anatolia, spoke with people of Kurdish origin with the help of a translator.
But Kurdish politicians have still been judged for speaking in Kurdish. Kurdish politician Orhan Miroğlu, who is also a columnist for daily Taraf, said the prosecutor’s decision is very significant. "Someone had to make this decision," said Miroğlu, who last year was convicted for speaking in Kurdish during the campaign for the 2007 general elections.
MiroÄŸlu applied to the European Court of Human Rights, which accepted his case. MiroÄŸlu was prosecuted again this year in a separate case for the same reason; although he spoke in both Kurdish and Arabic, he was only charged with speaking in Kurdish.
Those who commented on the issue said the next step is to amend the Political Parties Law. "The law on political parties should be changed," MiroÄŸlu said. Lawyer Sancar, like MiroÄŸlu, said that using Kurdish in all aspects of the society while avoiding it during political campaigns was irrational. "It was a schizophrenic situation, and it was not difficult to amend that," Sancar said. "In the end, a prosecutor came out and with extremely clear and effective reasoning, under the light of international law principles, attempted to end this situation."
Sami Tan, the head of the Istanbul Kurdish Institute, agreed that the decision eliminates the contradiction between the law and common practice. "There is a TV channel broadcasting in Kurdish 24 hours a day, while people are tried for speaking in Kurdish. This was our critique against TRT 6," Tan said.
Unlawful decision
Not everyone applauded the decision, however. "If the Justice and Development Party wants to amend the Law on Political Parties, it will make a proposal and change it. How can this law be regarded as non-existing while it exists?" asked Oktay Vural, the head of the parliamentary group of the opposition Nationalist Movement Party, or MHP.
Vural found the decision politically oriented. Lawyer Hakan Hanlı found the prosecutor’s decision unlawful, saying that only the legislative power is entitled "to enact or to vacate a law."
The judicial power "applies and interprets" the law in general, he said, but only in exceptional cases would it enact a law. Hence, the legislative body is not entitled "to interpret the law" since the interpretation would be done by higher courts. "A prosecutor does not have the authority to interpret a law," said Hanlı, who added that a decision by a prosecutor cannot create jurisprudence; only the decisions of supreme or higher courts can create that..
*Göksel Bozkurt contributed to this report.