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Demirtaş Verdict and the Criminal Law Based on Hostility

Ahmet İnsel

Dear Selahattin Demirtaş, as a criminal lawyer, to make an evaluation of your verdict in your context is not easy. Moreover, you are one of the most competent individuals who can do this while making people smile and think, at the same time. Isn't the main or even the sole reason of your ongoing detention since the 4th of November, 2016, about the content and form of your possible assessments in the parliament, party group meetings, rallies, on the radio and television thus your utmost ability to wear out the government?

The Constitutional Court General Assembly (CCGA) rejected the objection against your detention on the basis of speeches you made while you were an MP, an MP fulfilling his duty. It was stated that this decision is a pilot judgment for the other MPs in a similar situation. This CCGA decision, when compared to the contrary decisions given by the same court for the two MPs in 2013 and 2014 in this regard, shows that in Turkey, enemy criminal law principles are applied side by side with citizen criminal law ones. The decision of the CCGA once again demonstrates the registration and declaration of this fact by the current state of emergency jurisdiction.

The main feature of the enemy criminal law is that the criminal law in force focuses on perpetrator rather than the act or faults itself. Today, the criminal law in force is predicated on the protection of fundamental rights and freedoms of citizens to a certain extent. On the other hand, the enemy criminal law, which is applied to those, who are not regarded as full citizens, is now put into effect for an ever-expanding circle of people. Dear Selahattin Demirtas, as a person who has been a human rights lawyer for many years, there is a subject you know a lot better than I do: enemy criminal law. You would have explained it better than I ever could, but for this very reason, your voice and actions are restrained. Günther Jakobs, a German professor of criminal law and philosophy of law, introduced this concept for the first time in 1985. Then he developed it in three stages. After the 2001 Twin Towers attack, in 2003, he finalized his analysis, which has more or less become a part of the "anti-terrorism" policy implemented in many states today. One of the main features of the enemy criminal law is that the principle of presumption of innocence does not apply to the defendant. Today, the criminal peace judgeships who automatically rule the continuation of detention, act as the keystone of the enemy criminal law. This criminal law, which is applied to those who exhibit or can exhibit hostility towards the State, corresponds to the generalization of the state of exception, both in content and in procedure. It sets to work by defining the opposition, which disturbs the government or challenges its power, as "enemy." It is the "internal enemy" and therefore is even deprived of the rights enjoyed by an external enemy. Today, in Turkey, the internal enemy is composed of large masses of undesirable citizens who are either accused of being "a member of a terrorist organization" or engaging “in terrorist propaganda”. Enemy criminal law, while promoting the notion of raison d'état, is bringing all the institutions of the state, primarily the judiciary, under the absolute dominion of the ruling power. It is functioning as the criminal law of a system, where all the people, openly opposing the government with oligarchic tendencies, are declared as the enemy. However, the government itself is the real enemy of the rule of law. First, it is identifying the people as the internal enemy; then it is incriminating them without any court decision, and finally, by making its suspects the legal enemy, it is depriving them of all their citizenship rights.

Dear Selahattin Demirtaş, today a despotic regime is in power. This regime not only incarcerates you but also defines your statements in court as hostile and disturbing. But I still keep my faith that you and the other citizens of Turkey like you, who have never deviated from democracy and non-violent solutions, will transform this despotic regime that feeds off animosity. I wish you, and the thousands like you, who have been held as hostages by the enemy criminal law, patience and I hope the new year will be brighter than the previous one for the sake of Turkish democracy.

Published in daily Cumhuriyet, December 23, 2017