The Demirtaş verdict and 'enemy criminal law' – Open Democracy

letter to Selahattin Demirtaş, MP and co-president of HDP, in pre-trial
detention since November 4, 2016.

lead Selahattin Demirtas, co-chairman of Turkey’s pro-Kurdish Peoples’ Democratic Party (HDP) is escorted by Turkish gendarmerie. He and nine other HDP MPs were arrested in November 2016,to international condemnation. Depo Photos/Press Association. All rights reserved.

Dear Selahattin Demirtaş,

As a criminal lawyer, to make an evaluation
of your verdict in your context is not easy. This despite the fact that you are
one of the most competent individuals to do this, while making people smile and
think at the same time. Isn’t the main or even the sole reason of your ongoing
detention since November 4, 2016, about the content and form of your possible
assessments in the parliament, party group meetings, rallies, on the radio and
television and thus your utmost
ability to wear out the current government?

The Constitutional Court General Assembly
(CCGA) rejected the objection against your detention on the basis of speeches
you made while you were an MP, an MP fulfilling his duty. It was stated that
this decision is a pilot judgment for the other MPs in a similar situation. This CCGA decision, when compared to the
contrary decisions given by the same court for two MPs in 2013 and 2014 in this
regard, shows that in Turkey, ‘enemy criminal law’ principles are being applied
side by side with citizen criminal law ones. The
decision of the CCGA once again demonstrates the registration and declaration
of this fact by the current state of emergency jurisdiction.

The main feature of ‘enemy criminal law’ is
that the criminal law in force focuses on the perpetrator rather than the act
or fault itself. Today, the criminal law in force is predicated on the
protection of fundamental rights and freedoms of citizens to a certain extent.
On the other hand, ‘enemy criminal law’, which is applied to those who are not regarded
as full citizens, is now put into effect for an ever-expanding circle of
people. Dear Selahattin Demirtas, as a person who has been a human rights
lawyer for many years, this is a subject you know a lot better than I do: this ‘enemy
criminal law’.

You would have explained it better than I
ever could: but for this very reason, your voice and actions are constrained.
Günther Jakobs, a German professor of criminal law and philosophy of law,
introduced this concept for the first time in 1985. Then he developed it in
three stages. After the 2001 Twin Towers attack, in 2003, he finalized his
analysis, which has more or less become a part of the
“anti-terrorism” policy implemented in many states today. One of the
main features of ‘enemy criminal law’ is that the principle of presumption of
innocence does not apply to the defendant. 

Today, the criminal justices of the peace who
automatically rule the continuation of detention, act as the keystone of ‘enemy
criminal law’. This criminal law, which is applied to those who exhibit or can
exhibit hostility towards the State, corresponds to a generalization of the
state of exception, both in content and in procedure. It sets to work by
defining the opposition elements which disturb the government or challenge its
power, as the ‘enemy.’ It is the ‘internal enemy’ and therefore is even
deprived of the rights enjoyed by an external enemy. Today, in Turkey, the internal
enemy is composed of large masses of undesirable citizens who are either accused
of being “a member of a terrorist organization” or engaging “in
terrorist propaganda”.

Enemy criminal law, while promoting the
notion of raison d’état, is bringing
all the institutions of the state, primarily the judiciary, under the absolute
dominion of the ruling power. It is functioning as the criminal law of a
system, where all the people openly opposing a government with oligarchic
tendencies, are declared as the enemy. 
However, the government itself is the real enemy of the rule of law. First,
it is identifying the people as the internal enemy; then it is incriminating
them without any court decision, and finally, by making its suspects the legal
enemy, it is depriving them of all their citizenship rights.

Dear Selahattin Demirtaş, today a despotic
regime is in power. This regime not only incarcerates you but also defines your
statements in court as hostile and disturbing. But I still keep my faith that
you and the other citizens of Turkey like you, who have never deviated from
democracy and non-violent solutions, will manage to transform this despotic
regime that feeds off animosity.

I wish you, and the thousands like you, who
have been held as hostages by enemy criminal law, patience, and I hope the new year
will be brighter than the previous one for the sake of Turkish democracy.

This open letter was originally published
in Cumhuriyet, on December 23, 2017.

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