Presumption of innocence

In a democratic country, obviously, no one should bother to learn what the answer of the above question because it is none of the business of the military, or the government, or the main opposition party. In a democratic country there has to be separation of powers and under that principle neither the civilian executive (or the opposition parties), the military command, nor the legislative can attempt to interfere in justice or try to influence the process of a judicial case. Indeed, such an attempt is not only a gross violation of international norms of justice but as well is a crime under the existing Turkish Constitution, as well as the law on procedures of trial. The government, opposition, media, academia and the society by and large can and should of course demand full respect to the procedures of trial which in effect guarantee that a judicial case will be processed in full conformity with established rules and regulations guaranteeing fair treatment and protection of fundamental rights. For example, under existing procedures of trial in Turkey, there is no detention mechanism. A prosecutor must invite individuals to give a testimony. If an individual refuses to heed to the invitation only then a court may issue a warrant for him be captured and brought to court. Only under such a condition or if there is probability of concealing evidence or the accused fleeing justice, the court may order arrest of the accused. That is, under procedures of trial while detention is totally excluded, arrest of the accused is accepted as an exceptional application.

Summary execution on the front pages
Not only in the Ergenekon case, but in general there has been a gross violation in Turkey of that principle. People are being detained contrary to the laws of the country and arrest of them has become a routine practice. While this wrong application has been a major concern hampering justice in the country, over the past 18 months or so since the start of the Ergenekon probe, we have been witnessing a rather awkward tradition of summary execution on the front pages of the media in allegiance to the Islamist Justice and Development Party, or the AKP. Such attitudes, of course, violate the presumption of innocence underlined in both in international norms of justice, the Turkish Constitution as well as the Penal Code.

This major violation of law has been the source of our criticisms right from the start of the Ergenekon probe while those who have converted this entire process into some sort of a character assassination and a witch hunt have been defending themselves saying, "Forget about the procedures of trial, instead focus on the substance. There is a group of people composed from various sections of the society trying to plot creating conditions that could trigger a military coup. We have to stand against these coup plotters."However, no one has ever said those people accused of plotting a coup should not be brought to justice. All we have been stressing is that if once procedures of trial, that is the clauses protecting the individual, are being violated, that is the end of justice. If people are to be subjected to summary execution and they are to be denied the right to defense and a fair trial, how can we talk of supremacy of law or equality of all in front of the law. Or, if we are to condemn people as guilty before they are being brought in front of court and given the right to defend themselves, how can we talk about the fundamental presumption of innocence principle of law.

A legitimate concern
That was why, the military stressing yesterday that, "It is being observed that fundamental human rights and basic norms of law such as the presumption of innocence that was enshrined in the 38th Article of the Constitution that ’no one can be considered as guilty unless he was sentenced by a court verdict’ are being violated," was very important as it showed the military was sharing our concerns. But, at the same time it demonstrated the grave situation the politicization of the Ergenekon case has landed the country in.

Was the military wrong in stressing that "This sensitive atmosphere which was created by sections that ought to be most sensitive, has been gravely harming individuals, institutions, justice and eventually the Turkish state?"