GuNAL – Reverse criminal law

Reverse criminal lawMehmet Baransu, a journalist for Taraf daily who is known for revealing illegal military coup plans in the famous Sledgehammer and Ergenekon cases, was detained by the Istanbul 5th Penal Court of Peace a few days ago. First, police searched his house and seized hundreds of documents, CDs, Ds, etc.

On the same day, he was detained according to the new penal procedures. My colleagues and I have said, written and emphasized many times previously that this new penal procedure will be applied to journalists, intellectuals and human rights defenders in order to intimidate them Now, weand#39ve started to see the examples of this.

As far as I understood, Baransu has been detained under Article 327 of the Turkish Penal Code (TCK), which is about the disclosure of confidential information. The article reads as andldquoAny person who discloses confidential information, especially about the Public security or domestic and foreign political interest of the State with the intention of spying on political and military affairs, is sentenced to life imprisonment.

andrdquoAccording to Baransuand#39s lawyer Ahmet Emre Bayrak, the judicial process itself is unlawful, as Baransu and other members of the Taraf daily who wrote about the Sledgehammer case were previously acquitted of similar accusations. andldquoBaransu was not arrested for forging the documents but [for] publishing them, which is not an appropriate reason for an arrest,andrdquo Bayrak says.

Turkiye daily columnist and a well-known government supporter YIrdIray OIur, who previously wrote for the Taraf daily, wrote yesterday that Baransu has been detained because of a plan called the Egemen Action Plan that Baransu failed to deliver to the jury. OIur claims that Baransuand#39s detention is not related to the plans he disclosed, but it is related to the ones that he did not deliver to the court.

It looks like this path of thinking is shared by the court. The problem is this path is contrary to the basic principles of criminal law, and it reverses all pillars that we know and defend on behalf of the post-Enlightenment contemporary criminal law.

There is no evidence and despite this, the court thinks andldquobeyond a reasonable doubtandrdquo that Baransu is hiding it to prevent it from being seized. The crux of the problem is the seized documents, and it looks like the police couldnand#39t find what they were looking for inside Baransuand#39s house.

If there is no evidence proving the existence of a fictional plan, how can a court use a fictional idea as grounds for detention? Letand#39s assume you have been accused of a crime that you have not committed and the prosecutor is blaming you by saying you hid the gun. There is no crime committed and there is no gun, but the court can detain you according to reasonable doubt.

This is ridiculous.Baransuand#39s lawyer also reiterated that the documents, the key evidence in the Balyoz (Sledgehammer) investigation, had been submitted to the Istanbul Chief Public Prosecutorand#39s Office by Baransu in 2010.

According to Bayrak, the justification for Baransuand#39s arrest confirms the confidentiality of the documents in the Balyoz case under Article 327 of the TCK, and thus their authenticity. Bayrak also said copies of these documents were also seized from the Glcuk Navy Command in raids in 2011.

There cannot be enough grounds for the detention until the prosecutor presents concrete evidence that Baransu has other secret documents. However, the court shows no hesitation in detaining a journalist who is simply doing his job.

This will lead to new criticism from human right groups and international journalist unions, but the authorities in Turkey do not listen to this criticismAs great Italian criminal lawyer Cesare Beccaria says in his brilliant book andldquoOn crimes and punishmentsandrdquo: andldquoFor every crime that comes before him, a judge is required to complete a perfect syllogism in which the major premise must be the general law the minor, the action that conforms or does not conform to the law and the conclusion, acquittal or punishment. If the judge were constrained, or if he desired to frame even a single additional syllogism, the door would thereby be opened to uncertainty.


SOURCE: Today’s Zaman