Do the police have the right to hide investigation?

The arrests of journalists Nedim Şener and Ahmet Şık on March 6, 2011, within the scope of an investigation led by the Specially Authorized Prosecutor Zekeriya Öz, caused a huge crisis. Immediately after the incident, the deputy security director of Istanbul in charge of intelligence, Ali Fuat Yılmazer, was dismissed. On March 30, Prosecutor Zekeriya Öz was also removed from the investigation. There are conflicting rumors on whether or not the government was informed beforehand about the Şener-Şık operation.

Similarly, it was an even bigger crisis when Specially Authorized Prosecutor Sadrettin Sarıkaya acted to detain the head of national intelligence Hakan Fidan on Feb. 7, 2012. Sarıkaya was then removed from the investigation on Feb. 11. 

In other words, the pattern that emerged from the Şener-Şık operation was repeated. This incident was regarded as equivalent to a “coup attempt” in government circles, and the focus turned to the head of the Istanbul Police Department, Hüseyin Çapkın: Was he aware of this preparation? Was it possible to conduct such an investigation without his knowledge? 

We don’t know the answer, but the fact that Çapkın kept his position after this, and also the fact that Prime Minister Recep Tayyip Erdoğan always keeps Çapkın at his side during his Istanbul trips shows that he has the confidence of the prime minister.

Now, we come to the hand-burning third file that has again emerged from the axis of the Istanbul Police Department. Tuesday’s enormous corruption file concerning three Cabinet ministers resonated all across Turkey and led to the repositioning of police executives around the country.

Once more, eyes turned to Çapkın. There were two possibilities: 

1. He knew about the investigation that his staff members were conducting and he kept this information secret from Governor Hüseyin Avni Mutlu and Interior Minister Muammer Güler; more precisely, from the government. 

2. He didn’t know because his staff members even hid it from him, for the safety of an investigation that reached right into the government. As a matter of fact, Deputy Prime Minister Bülent Arınç’s statements the other day pointed to that direction. 

So, Hüseyin Çapkın was removed from his post on Thursday. If the second option is valid, then we can rule that he was removed because he wasn’t in control of his organization. If the first option is true then we can say that an issue of trust emerged.

Now, the most critical question is this: Is there a legal obligation for department heads, and other top executives of the Istanbul Police Department who were conducting the investigation, to inform their highest command, Hüseyin Çapkın? 

The answer is clearly written in the 5271 numbered Code of Criminal Procedure (CMK). Let’s take a look at the 164th article of the CMK, issued by this government in 2004. Its first item defines the security forces that conduct the legal investigations as “justice enforces.” They can be either the police or the gendarmerie.

The second item of this article is as follows: “Investigation operations are primarily conducted by justice enforces under the orders and directions of the public prosecutor. Officers of justice enforcement carry out the orders of the public prosecutor related to legal duties.” 

The third item is as follows: “The justice enforcers, in those duties other than their legal duties, are under the command of their superiors.”

The law is perfectly clear. A police officer, from the moment he or she starts dealing with an investigation, is responsible only to the prosecutor. He or she is not under the command of his or her superior. According to the law, he or she does not have an obligation to inform his or her superior. 
There is also another relevant article that states the following: “Justice enforcement officers cannot be given orders or directions by their superiors, who do not have a legal duty.” 

In other words, even if Hüseyin Çapkın knew about the investigation, he did not have the power to give orders or directions to his staff officers. 

While evaluating the recent corruption debate, this legal framework that protects the justice enforcers against the political authority should also be taken into consideration. 

Sedat Ergin is a columnist for daily Hürriyet in which this piece was published on Dec 20. It was translated into English by the Daily News staff.