Though Haşim Kılıç counted on the Supreme Court judges…

Head of the Constitutional Court Haşim Kılıç said, “I have known our colleagues in the Supreme Court of Appeals [Yargıtay] for years. They have been conducting their duties successfully. They are equipped, informed and experienced … It is a qualified and meticulous team, in good command of incidents.”

Kılıç issued this statement immediately after the high court’s Ninth Penal Department approved the Istanbul court’s jail sentences for 236 defendants in the “Balyoz” (Sledgehammer) case.

After praising the relevant department of the high court, Kılıç also said, “For this reason, it is a very low probability that these colleagues of ours have made a mistake. Not only I, but the entire Supreme Court knows this.” This statement from Kılıç was published Oct. 12, 2013 in daily Hürriyet.

For a high court judge, in this case the highest, to express an opinion for a court file that will be submitted to himself/herself is not an ordinary situation, because it would be considered as acting against the principle of “refraining from stating his/her views/prejudices on the case before the verdict” because he is publicly guaranteeing the competence of the judges making this decision and the Supreme Court judges who approve the ruling.

However, after reviewing the file in question, the decision to rule for a “violation [of human rights],” that the Constitutional Court president ruled unanimously with 16 other members, casts a shadow on his opinion and his trust of the Supreme Courts of Appeals Penal Department No. 9.

Kılıç told columnist Taha Akyol last week: “The shortcomings in hearing witnesses and the debate on evidence can affect all of the 236 defendants’ situation. The right to fair trial has been violated in these two aspects. The only way to correct this is a retrial. There is no other way.”

According to Kılıç, the biggest defect was that even though the court declared that the coup attempt in 2003 was prevented by then-Chief of General Staff Hilmi Özkök and Land Forces Commander Gen. Aytaç Yalman, there was no document, no evidence showing this in the file. In this case, Özkök and Yalman should have been heard as witnesses and should have been asked to testify.” This is the first violation.

The second violation is that the digital evidence was not adequately discussed in the court and the complaints of the defense were not resolved. Even though a final technical examination should have been conducted to eliminate the controversies in expert and referee reports, this has not been done. According to Kılıç, while the court was also referring to the evidence in its verdict, contradictions existed.

The Specially Authorized Istanbul Court could have made all of these mistakes. In this case, shouldn’t the Supreme Court of Appeals, as a cassation court, focus on these problematic situations that the defendants have pointed out in their petitions? The Supreme Court has not hesitated in approving the lower court’s decision for a majority of the defendants, despite all its faults, gaps and shortcomings.

All of Kılıç’s findings, he told Akyol, together belong to the Supreme Court, as well as the Istanbul court. Ultimately, the Ninth Penal Department of the Supreme Court of Appeals headed by Ekrem Ertuğrul has approved a court’s verdict, which was the result of a trial where the hearing of witnesses was obstructed and contains controversies.

In conclusion, both the Specially Authorized Court in Istanbul and the Supreme Court of Appeals in Ankara have violated the sixth article of European Convention on Human Rights (ECHR) regarding the right to fair trial.

In this case, we can say there is a huge gap between the evaluations of the Head of the Constitutional Court in his statements to Hürriyet’s Metehan Demir and Taha Akyol, eight months apart from each other.

The equipped, knowledgeable, experienced and meticulous colleagues in the Supreme Court, with a good command of the incidents did not deter them from violating the defendants’ rights to a fair trial.

Even though there was a very low probability for them to make a mistake, it has occurred; the mistake has returned from the Constitutional Court.

At the end of the day, the writer of this column has been convinced that while Kılıç, as an objective jurist, was reviewing the file submitted to him, did not involve his personal opinions with his work.