Supreme Court decision

takyol@hurriyet.com.tr

The verdict reached by the Supreme Court of Appeals on the Balyoz (Sledgehammer) case should be correctly analyzed from a legal perspective.

The sorrow and the reactions of the families of those whose sentences were confirmed are exceptionally human and natural. There are also others who indeed criticize the decision politically. However, in these kinds of cases the road to reach a lawful outcome is again through the law.

The legal road ahead for those whose sentences have been confirmed by the top court is “individual application” to the Constitutional Court and then is the European Court of Human Rights (ECtHR). The Constitutional Court and the ECtHR will not take into consideration political and ideological discourses, it should be the language of the law that is spoken.

Let me state this: The head of Penal Department No. 9 of the Supreme Court is a judge of 18 years, one of the members has 15 years of service at the Supreme Court, the other has 12 years of service.

In truth, they are not judges who landed at the Supreme Court of Appeals after the 2010 referendum.

It is not the correct way out to accuse the judges of the February 28 case for reaching release decisions, while the court in the Balyoz case and the judges at the Supreme Court do not rule for release decisions and do not acquit. There may of course be legal errors, but it should not be the judges themselves that are criticized, but rather their decisions.

The Supreme Court of Appeals has confirmed 237 sentences from the first court out of the 361-defendant Balyoz case. It validated the evidence. The ECtHR also found the evidence serious. For them, now that domestic remedies are exhausted, the road to the Constitutional Court and the ECtHR has been opened.

For 25 defendants sentenced by the first court, the high court reversed the decision and acquitted them. You may remember the female secretary, Güllü Salkaya. Her sentencing to 16 years in jail caused bleeding in the public conscience. The Supreme Court ruled that Salkaya should be acquitted. Another aspect I find especially important legally is this: Sixty-three jail sentences of the court were reversed by the high court on the grounds that, “The act is not attempting to stage a coup; it is the crime of agreeing with a crime.” The court decided there was no need for legal action.

What does that mean? Even if the defendant was involved in one way in the act of attempting to stage a coup, he later gave up, did not follow up, was retired, or was not engaged in any behavior that could be regarded as action. In other words, effective repentance.

Viewing the Balyoz and Ergenekon cases as a “counter revolution” and making political agitations do not mean anything legally. However, when looked through the glasses of legal difference between “attempting to stage a coup” and “agreeing with a crime,” then other convictions ruled for other people could also be reversed.

In the high court decision, it was also stated that following military orders that do not contain criminal intent or that a person was assigned to perform in the action in his or her absence do not constitute a crime and decided on acquittal. Even when viewed through a political eye, these cannot be seen.
Using the decisions for “political agitation” does not benefit the defendants. On the contrary, in the event that they are viewed through concepts such as “attempting to stage a coup, agreeing with a crime, following orders, and being given an assignment in absentia,” which may create very different legal outcomes, then the legal errors that have been noticed can be corrected. If they are proven guilty as charged then there is nothing that anyone can say.

Taha Akyol is a columnist for daily Hürriyet in which this piece was published on Oct. 10. It was translated into English by the Daily News staff.