“Do the words of Metin Akpınar constitute an offence?” It will be decided by the courts, and justice will be fully served sooner or later!
But upon the harsh and strong reaction of President Erdoğan, the Public Prosecutor commenced a criminal prosecution one Sunday, and on Monday morning the police put pressure on Metin Akpınar, forcing him to attend the Public Prosecutor’s office to provide a statement. I am sure that this event created a sense of injustice even in the minds of those who dislike him or his words.
Although he was not taken by police car but instead was permitted to make his own way to the courthouse, nor was he the first to be interrogated in the police station, and was summoned directly before the Public Prosecutor, this is by no means the usual way of prosecution. What’s more, the fact that not everyone is deemed eligible for the same “unusually respectful” treatment as received by Metin Akpınar was recently made clear. At dawn, police raided the house of Prof. Dr Turgut Tarhanlı, one of Turkey’s the most respected and competent academics and Dean of the Faculty of Law in a university. We are now facing a strange and illogical situation of unlawfulness comprised of unjust acts.
If you criticise the President by using inappropriate language, a Public Prosecutor may immediately send the police force to bring you in, take your statement, or put out a warrant for your arrest, and may thus restrict your freedom until a judge comes and releases you.
Even if the words constitute an offence, they have already got out and been told, and arrest warrants are put out even for suspects whose age, social position and financial means preclude them from escaping from the power and access of the government, and this has in turn concretised the fear of losing our freedom suddenly even due to a couple of words…
In such an atmosphere of apprehension, the Public Prosecutors’ tendency and capacity of restricting freedoms cause even greater anxiety within our society.
In the absence of an underlying court decree, summoning citizens before the Public Prosecutor for giving a statement or deposition by sending a call either through police or by mail, even implying that they will be taken to the Public Prosecutor forcibly if they do not accept the call, is by no means something different from giving full control of the individual and personal freedoms to the Public Prosecutors. In my personal opinion, authorising Public Prosecutors to restrict the freedoms of individuals solely due to an ongoing investigation or prosecution breaches the fundamental rights and freedoms outlined in our Constitution. The natural function of Public Prosecutors is only comprised of charging individuals with an offence and bringing forward a criminal action in competent courts in the public interests if and when they are of the opinion that the relevant offence has actually been committed.
However, today, Public Prosecutors are equipped with many court-like powers and authorities in terms of the restriction of our freedoms.
Until comprehensive judicial reform is pursued, and in our judicial system, Public Prosecutors will remain unequal to lawyers and the judicial powers currently used by Public Prosecutors will continue to be held, rather than transferred to specialised courts solely in charge of inquiry and evidence collection. We will continue to endure and bear similar troubles and breaches of rights whilst missing out on the atmosphere of freedom experienced in developed countries. We will continue to be deprived of our freedoms whilst under the sole discretion and instructions of Public Prosecutors by being summoned before Public Prosecutors either directly like Metin Akpınar or indirectly after being interrogated first by the police like Turgut Tarhanlı. Some of us will be taken by the police out of our houses, some out of our hotel rooms, while others will continue to receive summons asking us to apply to the office of the Public Prosecutor to give a statement.
Of course, this trouble is not only an issue of today but is a result of the worsening of human rights in recent years and, in particular, a result of the amendments made by some foolish individuals close to the military junta leaders, shutting down the inquiry courts in 1980s, and vesting in the Public Prosecutors some important powers and authorities which are definitely required to be used by the judges.
First of all, as a manifestation of attribution to Public Prosecutors of a level of importance and confidence far above their natural functions in a manner contrary to the nature and requirements (dialectics) of fair trial principles, Public Prosecutors are sharing the same bench, case files and building with judges in courthouses. Though they share the same level as the defence during trial, Public Prosecutors, i.e. the prosecution side, are in practice sitting at a level higher than the defence, i.e. counsel for suspects, and are almost engaged with judges which has been a subject of due criticism for some time.
More importantly, Public Prosecutors are using extraordinary and unusual powers akin to those of judges. They issue arrest warrants for the detention of suspects, then summon and interrogate them, even using the security forces for interrogation and questioning purposes before questioning the suspects themselves. Though they do not have legal authorisation, it is sometimes customary for security forces to take statements from suspects, thus taking the place of Public Prosecutors, as if they are authorised to do so by law.
Ultimately, though they are required to be taken to a trial before a competent judge as soon as possible after the moment they are deprived of their freedom, suspects are first detained in police stations. Subjected to an atmosphere of intimidation after having being caught and then sitting in the police station, individuals give their statement to and are interrogated by security forces. Thus, suspects are exposed to a treatment not audited at all, such as being detained for the longest possible period at the sole discretion of security forces, and are subject to a kind of disciplining dependent on the attitude of security forces. Though already detained and questioned in the police station, suspects are again repeatedly interrogated by the Public Prosecutors before whom they “appear”. It is unequivocally obvious that only one of these two interrogations is necessary, and in both cases, it is a retributory and punishing act on the part of the suspect interrogated as above without his consent.
The fact that the suspect is entitled to call his lawyer or legal counsel and to raise an objection to the proceedings in the course of detention and interrogation does by no means enable the defence to effectively audit and supervise all steps taken by security forces and to remedy and correct the unlawful acts. As a result, the constitutional rights and freedoms of the suspects remain unprotected.
Another problem is that the courthouses are administered and managed by Public Prosecutors. Being assigned to administer the courthouses where judges also work, the Public Prosecutors are working in rooms adjacent to the offices of judges and are even making use of wider and more splendid facilities than the courts therein. The appearance of the offices of Public Prosecutors impairs the reputation needed for independence of the courts.
All these powers and authorities vested in Public Prosecutors should be withdrawn and should be returned to the inquiry and evidence courts which were shut down – inconsiderately – in 1980s.
No-one should be accusable or chargeable by a unilateral act, for instance, by a bill of indictment issued by Public Prosecutors, being only one side of the trial. The restriction of freedoms of individuals during investigations conducted by Public Prosecutors, or the accusation of an individual at the end of an investigation should be absolutely dependent upon a court decree, and this court decree should be given only as a result of an assessment of evidence collected in full by an inquiry and evidence judged by the court in the course of legal proceedings.
There are examples of this system in many developed judicial systems. The inquiry courts, standing in a fully neutral and impartial position against both prosecution and defence sides, should escalate and transfer the case files completed with all evidence collected and with preliminary inquiries made to the competent courts having jurisdiction over the subject matter for the final trials and judgment. This is a precedent for the implementation of a healthy and effective trial system and even the single trial principle.
In so doing, freedoms of individuals may be secured and protected more effectively.