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KurdishMedia, UK
March 12 2006
Counter indictment: Full translated text of Oran's defense [II]
3/12/2006 KurdishMedia.com
Read in Ankara at the "Minority Report" trial on 15 Feb. 2006
Baskin Oran, Professor of International Relations, Faculty of
Political Science, Ankara University.
To sum up, Distinguished Judge, the Corsican Island is like a state
within a state.
Alsace-Moselle is also a state within a state. It allows the use of
German, the language of its historical enemy, at the court houses. It
has a multi-legal system. This is unbearable for even the most
tolerant nation-states.
There is no mistake in analogy, but this is just like validating
Arabic language and Syrian Law in Hatay, and Russian language and
Muscovite Law in Kars and Ardahan. This is the kind of country which
the indictment quotes as an example for Turkey.
Seventh Issue
Let us go on.
The Office of the Public Prosecutor makes another assertion in page
5; this page is a very productive one indeed.
This is also completely ideological. It says:
"In the Report there is a new definition and application of minority
other than the one accepted by Lausanne . This would lead to chaos."
Further, it continues:
"This would also bring about a result which would jeopardize the
unitary structure of the state, integrity of the country, and
indivisible integrity of the nation."
For the sake of law, I ask: It says it would cause chaos, destroy
integrity. It again mentions an intent, a possibility. What do all
these mean? What kind of criminal law is this?
When one says "It's cloudy" should we immediately conclude that it
might rain, a lake might emerge, birds might come, and bird flue
develop?
Let us go on. The Office of the Public Prosecutor mentions these
important arguments in only 3.5 lines, but does not elaborate on
them. Of course, it does not prove them by giving examples from our
Report.
Although we published our Report 17 months ago, Turkey has not yet
encountered such hazards. I don't know what might happen in 17 years.
But I do know that the Prime Minister Erdogan is constantly using the
terminology and method of the Report to keep the Kurds happy: In
Hakkari and elsewhere he said that all the sub-identities be they
Kurdish, non-Muslim, Turk, Circassian etc. should be respected and
that they are under the supra- identity of being a Citizen of Turkey.
What else was there to say? Who in Turkey knew about the notions of
sub and supra identity before our Report?
But let's continue to elaborate on the arguments of the indictment,
show how incorrect they are and prove them wrong by giving examples
from the Report. Let us show the Office of the Public Prosecutor how
an indictment should not be written.
1) First of all, just where did we propose a new definition of
minority in our Report? Which sentence or which paragraph? There is
no such sentence or paragraph...
Then, how can the Office of the Public Prosecutor see a thing which
does not exist? The reason is that because it wears ideological
eyeglasses it cannot see certain things. In addition, it does not
know the difference between the "existence of minority" which is a
sociological phenomenon and the "status of minority" which is a legal
category.
Distinguished Judge, in our Report we did not say that Lausanne
should not be implemented or should be amended. On the contrary, we
argued that it is not implemented and that it should be. This is
exactly what we wrote in our Report.
We have doubts whether the Office of the Public Prosecutor read the
Report or forgot it because its investigation took exactly 10 months.
2) The Office of the Public Prosecutor wrote that we jeopardize the
"unitary structure of the State and the integrity of the country" in
our Report.
Let me ask the same question again: In which line and with which
words did we do that? If the Office of the Public Prosecutor is
unable to answer this question, it would set forth an unfounded
claim. If an ordinary man had done what the Office of Public
Prosecutor did, s/he would be called a "slanderer." This is why this
indictment has from the very beginning been nothing but an
Iftira-name (calumniation).
Distinguished judge, we did exactly the contrary:
a) The Report does not want to change the unitary structure of the
State and it does not even include the word "unitary" as this is none
of our business.
In addition, although I don't want to linger over this subject, I
really don't know where to start to correct in this indictment. The
indictment uses the word "unitary" in a wrong way and confuses it
with the concept of centralism; furthermore, it also confuses
centralism with the indivisibility. These are completely different
subjects. Let me explain:
The US is not a unitary but a federal State. However it is not
divided at all. Look at Iraq's current situation; it was not federal
but unitary.
In both federal and unitary State structures, democracy and
dictatorship can be seen. For example, the USSR was a federation but
there was no democracy. Spain is not a federation but a unitary state
but is one of the most tolerant democracies of the world. Last month
Mr. Aguado, No. 2 general of the Spanish Land Forces, attempted to
intervene in democracy; he was sentenced to house arrest first and
then dismissed from his post. He will be retired in March.
b) Further still, I'm bored of telling these, I hope you don't get
bored of listening to me, our Report does not include either the
words federal or confederal even once. So, what is this all about?
But that's what the indictment argues.
In the Report, we defended the indivisibility of the State / homeland
because we base our arguments on the discipline of international
relations which argues that if the States of the World are
re-structured according to ethnic and linguistic lines, this will go
on like mitosis division.
Here is what we wrote in the Report word by word: the Report p.3,
subtitle 3: "The indivisible integrity of the State with its
territory is profoundly natural and is an indisputable issue all
around the world."
Now, what is wrong with this sentence? Which part of our Report
divides the country / homeland? This indictment is a statement of
slander, is it not? Why is it so? What are we doing here? What are we
summoned here for?
3) The Office of the Public Prosecutor mentions the "integrity of the
nation."
Distinguished Judge, political science rules that State / Homeland is
"undivided" and nation is "united". Just like independence is an
attribute of the State, just like freedom is an attribute of the
nation. The nation is free, the State is independent.
"Undivided" refers to a whole without any parts and attachments.
There is no nation which is not made up of parts, except maybe for
Iceland, Korea, Portugal, and maybe one more. All nations are made up
of different ethnic and religious groups. Even Japan is not
homogenous.
You cannot render a nation a "whole" by denying the existence of
these groups. On the contrary you just tear it up and put it into
pieces as each part has its own original personality, in other words,
sub-identity. People cannot put up with the denial of their
sub-identity. They rebel. People rebel when you give them a wrong tea
cup; why wouldn't they rebel when their identities are denied.
These various sub-identities might create "unity" only if there is a
supra identity that embraces all of them and that does not reflect
any particular ethnical - religious identity. That is why if you
reduce nation into "oneness" you destroy the unity. Oneness is enemy
to unity.
No one can write an indictment without knowing these. If you do, the
result is inevitably like this.
4) I am thrilled when I read some parts of the indictment. It's as if
the Office of the Public Prosecutor's Office develops new laws and
theories. It says the following - I'm trying to correct the sentence
a little bit:
"As the country has a central / unitary structure physically, people
who live there have also a unitary structure ." It says this for our
Constitution.
The indictment starts writing a "Constitutional Law" book this time.
But a completely wrong one. I don't know where to start as there are
too many mistakes:
a) Again, it confuses centralism with unitary structure. I've given
sufficient information on this issue.
b) Secondly, by writing " Turkish Republic is a unitary state with
its country and nation" it applies the adjective of unitary to the
nation, which is in fact an attribute of the State.
Distinguished Judge, let me explain this way:
In cases of freedom of expression, your colleagues in Strasbourg
reject any case if defendant State argues and proves that " national
security of the country" and / or "territorial integrity of the
country" is at stake.
However, when defendant State defends itself by arguing that "
integrity of the nation is at stake", plaintiff wins the case and
gets compensation according to Art.10 of the European Convention of
Human Rights.
The reason is the following: When the issue is to limit individual
rights, the notion of the "integrity of nation" is alien to European
countries, although the first two concepts are respected there. Such
a concept cannot be accepted because if it were, there would be no
democracy. In the second half of the 19th century the definition of
democracy was "the will of the majority", and this definition became
"respect for sub-identities" in the second half of the 20th century.
We are in the 21st century now.
5) This indictment quotes the famous Article 2 of the Spanish
constitution and does it with great imprudence. I don't know what to
say about it. Let me cite you the said article and explain it:
"The Constitution is built on the indissoluble unity of the Spanish
nation, the common and indivisible homeland of all Spaniards; it
recognizes and guarantees the right to autonomy of all the
nationalities and regions of which it is composed, and solidarity
amongst them all."
Let me ask the question again: When we discuss whether our Report
constitutes a crime - which should not be discussed due to freedom of
expression - why the Spanish constitution? The indictment at this
point starts writing a "Comparative Politics" textbook this time.
Besides, it would be extremely reasonable if I myself had quoted this
Article, as this 3-line Article completely disproves the arguments of
the Office of the Public Prosecutor but confirms mine in 2 points:
a) Please pay attention: the adjective used for nation is "unity".
The adjective used for homeland is "indivisible". Just like I said
two seconds ago, word for word. I don't understand at all why the
Office of the Public Prosecutor included this Article which in fact
disproves its arguments.
I can't really believe that the indictment goes on as follows:
"As you can see, the Spanish Constitution, just like the Constitution
of Republic of Turkey, mentions the principle of the indivisibility
of nation."
Would it be an exaggeration if I said that the Office of the Public
Prosecutor is making fun of us? This is not an indictment but a
statement of mockery.
b) Please pay attention again: After semicolon, Article 2 of the
Spanish Constitution states that the nation is made up of autonomous
nationalities and regions.
What did I say above? I gave a much lighter version of the same
statement: I said that the nation is made up of various ethnical and
religious sub-identities. Some call themselves Turks, some Muslims,
some Kurds, some Alevis, etc. The Spanish Constitution takes a huge
step further and says that the nation is made up of nationalities and
autonomous regions which are guaranteed by the constitution itself.
Heaven forbid, if we had repeated this Article in our Report, in
other words, if we had said that in Turkey the nation should be made
up of autonomous nationalities and regions, what in the world would
happen to us? The answer is very simple indeed: We would be
separatists.
I will return to this point later. But before ending this issue, I
have to show you what kind of Spain is cited by the Prosecution so
that the Indictment is displayed for your eyes [26].
- Art. 2 of the Constitution was saying: "The Spanish nation is
composed of Autonomous Nationalities and Autonomous Communities".
- Constitutional Article 3/2: "Autonomous Communities can use their
own languages along with Spanish." What we mean by Spanish here is
the language of the Castilian region.
- Constitutional Article 4/2: "Along with the Spanish flag,
autonomous communities shall be able to hoist their own flags on
their public buildings ."
- Constitutional Article 69/5: " The Spanish Parliament is composed
of two chambers. Autonomous communities are represented at the Senate
in accordance with proportional representation principle."
- Constitutional Article 87/2: `Autonomous Communities shall have
their respective assemblies, which -in addition to governing their
own communities- may submit Bills to the Spanish Parliament."
- Constitutional Article 133/2: `Assemblies of the Autonomous
Communities shall be empowered to levy taxes."
These autonomous communities have their specific statutes. For
instance let us have a look at the Autonomy Statute of the Basque
Country, dated 1979. [27]
- Article 17: To ensure order in the autonomous territory, there
shall be an autonomous police force. The command of the police forces
shall lie with the Government of the Basque Country. State security
and armed forces are competent in cases with extra- or
supra-Community nature (like entry into and exit from the State,
foreigners, customs, airports, smuggling etc.)
- Article 38/1: "The laws of the Basque Parliament shall be subject
to the control of the Constitutional Tribunal concerning their
compliance with the Constitution only ."
- Article 40: "Basque Country shall have its own autonomous treasury
and budget. In order not to distort the inter-regional balance in
Spain, a portion of the budget shall be transferred to the central
government to meet general expenses ."
***
Now let us come to Spain for the practice concerning mother tongue
and education of mother tongue. I will only cite examples from the
Basque Country and Catalonia:
Basque Country: [28]
Since the 1982 law, 4 models have been implemented in the Basque
Country:
Model A) The curriculum is in Spanish, some subjects are in Basque
(Euskara).
Model B) Spanish and the Basque Language are used 50-50.
Model D) The curriculum is in Basque.
Model X) The curriculum is in Spanish.
In this system, the student can choose any model s/he wants. The most
commonly used two models are models B and D.
Model X appears to be fading away since in certain areas it is
necessary to know the Basque language to find a job. On the other
hand, the number of those who only speak Basque is almost none.
Catalonia: [29]
The Catalan language has been taught at primary schools in the
Autonomous Community of Catalonia since 1978. After 1982, tests on
Catalan language were also included in the university examination.
Since the Language Law of 1983, it is decided that at least one
course will be taught in Catalan.
In Catalonia, Catalan is the official language along with Spanish
(Article 3 of the Autonomy Statute for Catalonia, dated 1979).
The Catalan language - the "own language of Catalonia"- is the
official language of all Generalitat [30], Catalan Territorial
Administration, Local Administration, and all official departments of
the Generalitat. Catalan and Spanish will be used as official
languages by the Administration (Language Law of 1983, article 5).
The documents that will be conveyed by the Generalitat to other
official departments within Catalonia will be in Catalan language.
The documents that will be sent outside of Catalonia will be in
Spanish or -where necessary- in the official language of that
administration (Decree dated 1987 and numbered 254, article 5).
All announcements, minutes and relevant documents that concern the
meetings of local administration departments will be in Catalan, and
no translation will be provided (Law dated 1987 and numbered 8,
article 2).
Judges, public prosecutors, other employees at courts, parties of
court cases and their representatives can use the official language
of the Autonomous Community in writing and verbally. The court
documents drafted in the official language of an autonomous community
are valid without further need for translation into Spanish (Organic
Law dated 1985 and numbered 6, articles 2, 3, and 4).
The names of official places in Catalonia will only be in Catalan,
except for Vall d'Aran (Language Law of 1983, article 12 ).
Catalan is the language of education at all levels. In primary
education, children can choose between Catalan or Spanish, but they
are obliged to learn them both (Language Law 1983, Article 14).
I just finished introducing a summary of the Spanish example given by
the Office of the Public Prosecutor for indivisibility of nation. I
think this summary is sufficient.
Eight Issue:
The Office of the Public Prosecutor on page 7 accuses us of using the
term " Türkiyeli" (people of/from Turkey, citizen of Turkey) rather
than "Turk" as a supra-identity.
Later it said, "Turk is used to indicate the citizenship and it is
not used in racial context."
There are so many things here to say but again I don't know where to
begin. The best would be referring to them one by one:
1) Why is the Office of the Public Prosecutor concerned with the
proposal in our Report to use "Türkiyeli" rather than "Turk" as the
supra-identity? I could not understand this at all. This is not a
crime in Turkey. If it is a crime, then I would like to learn in
which paragraph of which article of which law this is considered a
crime.
The indictment does not refer to these at all. It only alleges that
what we said is wrong. This is what the Office of the Prosecutor
writes in its "Counter-Report."
If there is freedom of expression in this country, I can propose any
term I like for any concept I like as long as it does not contain an
insult or violence.
Am I interfering with the Office of the Public Prosecutor because it
is not using "Türkiyeli"? Am I filing a criminal complaint against
him with the demand of a 5-year imprisonment?
I'm not, because I believe that one cannot interfere in anyone else's
freedom of expression - as I keep repeating, as long as it does not
incite to crime or violence or involve an insult -- and I won't allow
anybody to interfere with mine.
I won't, because I know that this is in line with the laws of the
Republic of Turkey. I'm sure that at the end of this case, the Office
of the Public Prosecutor too, will learn.
2) He claims that in Turkey the term "Turk" is not used in the racial
context.
What is this analysis doing in this indictment? Does an indictment
write theses? A Constitutional Law thesis?
The indictment is saying completely incorrect things. In fact it is
very seldom that one comes across so many wrongs put together in a
single text. We wrote in the Report, and I explained to him in
length, but it must have been in vain:
Leave aside the fact that the term "Turk" is alienating for those who
are not Turks or who do not consider themselves a Turk in this
country. I'm saying one more time clearly, the term "Turk" in this
country is used both as the name of the supra-identity and also as
the name of the dominant ethnic/cultural group.
You can simply open the 24-volume Meydan Larousse Dictionary and
Encyclopaedia, which is the largest dictionary ever published in
Turkey. Volume 19, page 471. Under the term "Türk," the first
sentence says: " A person of Turkish race." As simple as that.
But I don't think this is a simple thing. If the term "Turk" is not
the name of an ethnic group, then the Public Prosecutor's Office must
answer the following four questions:
a) What does "Domestic foreigners (Turkish citizens) " mean? This
term was used in the "Regulation For Protection Against Sabotages"
dated December 28, 1988, as it listed which categories were most
likely to carry out sabotages.
If this did not mean non-Muslim citizens, then what did it mean?
Didn't the Office of the Prosecutor claim that the term "Turk" was
used for citizenship only?
b) What does "of Turkish origin and of Turkish citizenry" mean? This
term is used to describe the characteristics of the Deputy Principal
to be assigned by the Education Ministry to a foreign or minority
private school, as listed in Article 24/2 of the Law Number 625 still
in force now.
Once you say "of Turkish citizenry " why do you repeat it by saying
"of Turkish origin"? Did not the indictment claim that the term
"Turk" was used for citizenry only?
c) What does "Turkish citizen with foreign nationality " mean? This
term was used in the Istanbul Administrative Court Number 2 decision,
dated April 17, 1996. Whom did the court mean when it used this term?
It was our Greek Orthodox citizens.
Didn't the indictment claim that the term "Turk" was used to indicate
citizenship only? Has anybody in this court room or in entire Turkey
heard of a more weird "legal" term than this? A person is either a
foreigner or a citizen.
d) What does "Foreigners are not permitted to acquire immovable
property in Turkey " mean? This sentence is from the Court of
Cassation Grand Chamber dated May 8, 1974. Who did the Court of
Cassation have in mind while using it? It used it for the
administrators of the Balikli Greek Orthodox Hospital Foundation
established by our Greek Orthodox citizens.
Didn't the indictment claim that the term "Turk" is used to indicate
citizenship only?
I'm passing this since there are many more things in the indictment.
3) Again about the supra-identity, the Public Prosecutor's Office's
Office gives examples from some countries. It says very interesting
things.
It says, "In Spain, the State calls its citizens Spanish [Ispanyol]
and not 'from Spain' [Ispanayali]"."
Has an ethnic group called "Spanish" been discovered in Spain that I
don't know about? If the answer is negative, what is the difference
between "Spaniard" and "Spanish" or "from Spain"?
The Office of the Public Prosecutor said, "The State of France calls
its citizens French and not of/from France."
Sorry, but what is the difference between the two? Or was an ethnic
group called "Frank" that I did not know about was discovered in
France recently?
In fact the Ottomans used to call the citizens of France " Fransevi"
and this is the very same word with "Fransiz" (French)
He claimed, "The State of England calls its citizens English and not
of/from England ."
Distinguished Judge, this is really one of the peaks of the
indictment. It is such a highlight that it dazzles one's eyes since
the term "English" used by the Prosecutor's Office is not used by the
people in England. Since Wales united under one parliament with
England in 1707, the people in England says " I'm British." Since 300
years.
I did not call this indictment an Icat-name (invention) for nothing.
I recommend that anyone travelling abroad and stopping by England
never ask a citizen of England on the street "Are you English?"
Because if they do not realize that you are a foreigner who does not
know the land at all, they can make you suffer dearly. Because unless
he belongs to the English ethnic group, this person would harshly
respond: "No, I'm Scottish/Welsh/Irish!" Because for the Irish, Welsh
and Scottish elements of this country, being called an Englishman is
a pure insult and may lead to major incidents.
In this country all sub-identities are united under the British
supra-identity. "English" is a mistaken term that some in Turkey
think is the supra-identity of that country. It is used to indicate
the sub-identity of those who are of English origin only.
Indeed using the sub-identity is not in the interest of the
English-origin people because they are afraid to provoke people of
other sub-identities. Asking a person "Are you English?" in that
country is the same as asking a man on the street in Turkey "Are you
a Kurd, an Alevi?" Indeed it is much worse.
Also in the indictment this country is referred to as England but its
name is the United Kingdom of Great Britain and Northern Ireland. If
it had used only Great Britain or only United Kingdom it still would
be acceptable, but England does not work. Don't listen to those who
are chanting " England, England" in soccer games. Those are The
Skinheads.
Indeed the most comprehensive encyclopaedia published in Turkey was
AnaBritannica (Encyclopaedia Britannica) and in volume 11, p. 571 it
says the following in the first sentence of the entry "England": "
The prominent country of the Great Britain and the United Kingdom of
the Northern Ireland." The encyclopaedia article continues: " One
cannot talk about the Constitutional existence of England.... Scotland
and Wales have their own ministries and Northern Ireland is
autonomous in its domestic affairs, England does not have its own
rights or institutions. Official statistics on foreign trade, tax and
defence are part of the statistics of the United Kingdom. The only
institution that is English is the Anglican Church ."
Then how can people, who lack even this encyclopaedic information,
put forward convictions, introduce examples, introduce rules and then
demand 5-year imprisonment for us for writing an academic report?
I'll not continue since there is a lot more to talk about. Let me
just say the following and thus we will mention something that the
Office of the Public Prosecutor said right among all these wrongs.
His last example is correct. In fact the German state calls its
citizens German ( Alman) and not of/from Germany (Almanyali).
There are two ways to nation-building:
1) French Method
2) German Method
The first one is also called "territorial method" or "Renan method".
Indeed the term "Turkiyeli" in our Report is a pure reflection of
this method. The second one is the German Method. It is also called
the "Blood Method."
I don't know whether explaining this much is enough.
Let me finish this point by saying: The situation in Germany is not
like before anymore. As the number of people from Turkey only has
reached 2.5 million, as the number of minorities and foreigners
increased in Germany, the German State had to dilute the Blood
Method. For example, now not only those born to German parents but
those who were born on German soil (territorial method) can get
citizenship as well.
Here the important question is:
What do we call a Turk who assumes German citizenship by applying or
by being born there? Do we call him a "German Turk?"
Indeed, there cannot be such thing as a Bulgarian Turk but a Turk of
Bulgaria, not a Greek Turk but a Turk of Greece. What kind of a
response would you get if you call, say, a Turk who emigrated from
Bulgaria to Turkey a "Bulgarian Turk?" Indeed these people strongly
protested Fikret Bila, the Ankara representative of daily Milliyet
for using the term "Bulgarian Turk" in his column.
Here, Distinguished Judge, for all these reasons, one cannot say
Turkish Armenian but Armenian of Turkey, not Turkish Greek but Greek
of Turkey, not Turkish Kurd but a Kurd of Turkey.
But Türkiyeli suits just fine. Just like Iranian, Iraqi, Syrian,
Laotian, American, Thai, Austrian, Canadian, Chinese etc.
Yes, Chinese. In China there is no ethnic group called Chinese. The
name of the ethnic group that constitutes 95% of the people is the
"Han" group. "Chinese" is the supra-identity of this country that was
drawn by the territorial method. Just like the term Türkiyeli.
Leaving everything aside, I wonder whether the Office of the
Prosecutor has ever thought of the following:
In case the Greek Parliament said: "If the word Turk is not an ethnic
term, then in our country, too, everybody is Greek because this is
not an ethnic term either." What if, God forbid, Greece introduces an
"Article 66" [of the Turkish Constitution] to its Constitution and
says: "Everybody who is tied by citizenship to the Greek state is a
Greek"? What will then happen to the 120,000 Western Thrace Muslim
Turks? Are they going to become "Greek"?
More interestingly: When we keep saying: "There is no Kurdish issue
but a Southeast issue," or, when we tell people who call themselves
Kurds: "No, you are not Kurds, you are Southeasterners (
Güneydogulu)" we think we are saving the country from getting
divided. Then are we dividing the country when we talk on a bigger
scale and use the term " Türkiyeli"? Is it not very clear that then
and only then we are actually saving the country? What kind of a
double standard is this? What are we doing with logic?
This is all what the Report was about, Distinguished Judge.
***
I earlier said that I would come back to the "intent" issue. I come
now because the Office of the Public Prosecutor invents an intent on
every page. As I repeatedly said before, a jurist cannot question
intent. He has no such authority. In the indictment p. 8, it says:
"While proposing to use the term 'Turkiyeli' rather than the term
'Turkish' in the Report, indeed it was not noticed that the name of
the country, in other words the name Turkey, has an ethnic
connotation. Was it not noticed or is it too early to make such a
warning yet?"
How can a man of law say such a thing? Making such a warning requires
great courage for two reasons:
1) While saying " Is it too early to make such a warning yet?" the
Office of the Public Prosecutor openly tries to mean the following:
"The report writers actually wanted to name this country Kurdistan
but since they don't have the courage to do so now, for the time
being they are satisfied with the term ' Türkiyeli.' When the time
comes, they will suggest Kurdistan as well."
Should I here remind of the Zanardelli Report again?
This is abuse of duty. No one is allowed to do that. At the end of my
remarks, we will certainly return to this.
2) The second reason may be more interesting. The indictment claims
that the term "Turkiyeli" has an ethnic connotation.
Again we are in the world of symbols, projections, probabilities,
dangers, dangers, dangers. But the only missing thing is criminal law
itself.
Fine, but didn't the Office of the Public Prosecutor repeatedly say
that the term " Türk" had no ethnic meaning at all? If the term
"Turk" does not have an ethnic meaning, then "Türkiyeli " won't
either. How can a person and a man of law be in such a contradiction
with himself between pages 7 and 8 of the same text?
***
To sum up, we introduced the term "Türkiyeli " for the sake of this
country. And we did something very good. This is the only concept
that embraces all citizens of the Republic of Turkey without making
any discrimination. We are all Turkiyeli here.
Those who like it will use it, and those who don't won't. But one
cannot interfere with those who use it.
Can anybody say something to a person who says "I'm a Turk?" If he
says he is a Turk, that is it.
But what if he does not? What if he cannot? What if he is not a Turk
or considers himself a Turk? What shall we do? Kill him? Or shall we
force him to say that he is a Turk? Let me ask The Public
Prosecutor's Office, which one should we do? The first one, the
second, which one?
Turk or Turkiyeli. This country will discuss and come to a decision
over time. How can the indictment attempt to restrict our freedom of
expression? From which article of which law does it draw this
authority?
Is the Public Prosecutor's Office opening a case against us because
it did not or could not open cases against the bullies who tore our
scientific and official Report in front of TV cameras?
***
On this issue the indictment also refers to Ataturk. Fine. In fact I,
too, wanted to come exactly to this. Let me ask the Public
Prosecutor's Office's now: Does it think that it was us who
introduced the term " Turkiyeli" for the first time in Turkey?
Let me inform him: That person was Ataturk. Was the Public
Prosecutor's Office aware of this? Please listen to the following
articles:
"Article 12: Except for exceptional circumstances in Turkey the
Turkiyelis are free to travel ."
"Article 13: Education is free. Every Turkiyeli is eligible to take
public and private education."
"Article 14: Schools and all such institutions are subject to
supervision and inspection of the State. The education of the
Turkiyeli must be in unity and order."
"Article 15: All Turkiyelis are eligible to establish all types of
companies to be involved in commerce, industry and agriculture in
line with laws and regulations. "
What are these? From where were they taken?
The date was July 1923. This is the first draft Constitution amending
some articles of the 1921 Constitution and mentioning, for the first
time, that the administrative form of the State is a "republic". In
Mustafa Kemal Pasha's own handwriting. [31]
If there is separatism in saying "Turkiyeli ", it was first initiated
by Mustafa Kemal. I'm not making a comment; I'm only presenting this
to the attention of the Office of the Public Prosecutor.
Ninth Issue
Let us come to the section in our Report concerning the
Constitutional Court.
I believe the Office of the Public Prosecutor is making injustice to
us when he claims that we presented the Constitutional Court as an
obstacle in front of democracy. We did the same with the Court of
Cassation, the administrative courts and the Council of State as
well. We stated that some decisions by these institutions were
discriminatory and thus were hurting democracy in Turkey. How come
did the Office of the Prosecutor miss these points? Is this not
neglect of duty?
Distinguished Judge, I'm an academician. I can say anything I like
without insulting or inciting to crime or violence. I can make any
criticism I like. This is why I get a salary from the State.
I did not commit a crime. But the indictment here commits 3 crimes:
1) Abuse of duty. Criticizing the Constitutional Court decisions is
not a crime. The Office of the Public Prosecutor attempted to silence
criticism only because it did not suit his ideology. This is a crime.
Also, this is pure dictatorship mentality.
2) Neglect of duty. If these comments were denigrating the
Constitutional Court, then why were they published in the Supreme
Court's 2003 "Constitutional Law" periodical, pages 61-93? The Office
of the Public Prosecutor should have filed a lawsuit against this
Court also. This is neglect of duty.
3) Denigration of the Constitutional Court. My remarks, which were
interpreted as denigrating the judicial organs of the State, were
quotes that I took from the paper that I read in the presence of the
President and members of the Constitutional Court on April 25th,
2003, at the symposium organized to the honor of the 41 st
anniversary of the Court.
Now the Office of the Public Prosecutor seems to say, "You,
Constitutional Court. This person humiliated you. You are not even
aware of it. What kind of carelessness is this? I'm immediately
saving your honor and filing a lawsuit."
So the Constitutional Court did not get the message but only the
Public Prosecutor's Office did? So the Constitutional Court was
unable to make a complaint all these years? Is the Public
Prosecutor's Office acting as a caretaker of the Court?
Tenth Issue
Distinguished Judge, finally let me say why I call this
pseudo-indictment an Itiraf-name (document of confession).
1) The Office of the Public Prosecutor says at the end (p.10): "This
text has great similarities with the provisions on minorities of the
Sèvres Treaty that put our country under occupation. In the face of
such a resemblance, one should not find it strange that one falls for
the Sevres paranoia. "
The last sentence is the climax of the indictment: " In the face of
such a resemblance, one should not find it strange that one falls for
the Sevres paranoia." This is an unbelievable sentence Distinguished
Judge. This is a sentence that would tremendously ridicule not only
the Public Prosecutor's Office, but anybody in Turkey. The Office of
the Public Prosecutor, also reflecting the general atmosphere of the
entire indictment, finds itself close to the Sevres paranoia!
Of course this is up to him. I personally would not want to say, not
even think of, such a thing. The indictment does so.
2) On the other hand, the indictment accuses our Report of resembling
the minority provisions of the Sèvres Treaty.
Let me repeat. Even if for a moment this should be the case, why
would this be a matter for the indictment? The Sèvres Treaty was made
in 1920 and was buried in history in 1923. Even if there might be
resembling sentences with such historical text, why does this bother
the Office of the Public Prosecutor? Who says this is a crime?
But this is such a case that I won't drop it here with only this
much. Here there is an invention again. I'm asking the Public
Prosecutor's Office: Which sentence of the Report resembles which
provision of the Sèvres Treaty on minorities? I want him it cite one
single article. One single article.
It cannot. If it could, it would have already done so in the
indictment.
Then there are only two possibilities:
1) The Public Prosecutor's Office read the Sèvres Treaty's articles
on minorities but could not find any resemblances to our Report. That
was why he did not cite any articles.
2) The Public Prosecutor's Office was so much affected by the Sèvres
Paranoia environment that it did not have the courage to read the
Treaty, but, since the Report was lso very repellent, the Office
thought it would be similar to the scary Sevres Treaty, therefore the
Office found it correct to simply claim that one "resembles" the
other.
I'm leaving it up to the esteemed court to decide which possibility
is stronger. But let me draw the attention of the esteemed court to
the fact that the Office kept repeating such void allegations
throughout the indictment.
It claimed that the Report resembled Sevres but the indictment is
mute when we ask which sentences resembled which articles.
It claimed that the Report introduces a new minority definition but
the indictment remains mute when we ask in which sentence this was
proposed.
It is claimed that the Report was endangering the unitary structure
and integrity of the country but the indictment remains mute when we
ask in which sentence this was implied.
It is claimed that the Report was committing a crime by introducing
the term " Turkiyeli" rather than "Türk" as the supra-identity, but
when we ask which article of which law makes this a crime, the
indictment remains mute.
It is claimed that the Report was denigrating the Constitutional
Court but when we asked in which sentence and with what word have we
done so, the indictment remains mute.
It is claimed that the Report was inciting animosity and hatred among
people but when we ask with which sentence we did that, the
indictment remains mute.
We are all tired now. I will not give any more examples.
Because of all this, this is not an indictment but a
pseudo-indictment. This style of indictment in our country was left
behind back in the military coup periods.
***
For all these reasons, Distinguished Judge, this pseudo-indictment
reminded me of great novelist Yasar Kemal's "Akcasaz'in Agalari"
series. It reminded me of what Mr. Dervis said in the "Demirciler
Carsisi Cinayeti" (Murder in the Ironsmith Market) story.
Dervis Bey had Akkoyunlu Mustafa Bey's brother killed. Mustafa Bey is
a feudal lord in Cukurova (Cilicia) just like himself. In response,
Mustafa Bey should have Dervis Bey himself killed because the latter
has no brother.
Since Dervis Bey never leaves his house, Mustafa Bey can not get him
killed. So instead, he gets somebody burn the heap of grain of one of
Dervis Bey's laborers.
Upon this incident Dervis Bey says, "You are not going to starve.
Everybody will be paid for his damages. I'm not complaining about
this. My complaint is that I did not deserve such a rival. I feel
sorry for this."
I do not feel sorry for all the time that I could have devoted to my
students and to my wife. I feel sorry that such an indictment was
written against me. I think that I'm qualified to be subject to a
better indictment. I believe that I deserve better than a document
which tries to undermine a scientific thesis but which puts itself in
a worse situation in every step.
I believe that I deserve a better indictment than this indictment,
which invents both the action and the law, and later wants me to be
prosecuted according to those inventions.
If the criminal theory has lost its fundamental basis so much in this
country, and if the elements of crime have been hurt so much, then
I'm afraid there is nobody who can do anything and there is no place
left to take refuge.
But I cannot accept that there is none left. There must be some, and
this counter-indictment should be a proof of that.
***
So that no other indictment attempts to do something similar again, I
demand that the Office of the Public Prosecutor be punished in a way
it deserves. I want to list the crimes he committed in this
indictment and I want to file the following criminal complaint
against it:
With this indictment many articles of laws were violated by ignoring
the rule of law that respects human rights as stipulated in
Constitutional Article 2 and in line with the principles of a
democratic state.
1) Academic freedom and autonomy as described in the Constitution and
in Art.15/3 of the 1966 UN International Covenant on Economic,
Social, and Cultural Rights were violated and the interests of the
State were undermined.
2) The lawsuit filed violated the freedom of expression which is
under the guarantee of the Constitution and of the European
Convention.
3) The TPC was violated by the indictment because it attempted to
make analogies and also because it questioned the "intent".
4) The court was denigrated because of a very carelessly prepared
file.
5) Europe, the main objective of the Republic of Turkey has been
portrayed as an enemy. This indictment and this case will be used as
a major obstacle to prevent Turkey's entry into the EU. From this
angle too the basic interests of the State of Turkey were hurt.
6) The indictment was written with the logic of Millet-i Hakime
(Dominating Nation). It divides the nation in two and tries to
revitalize the basic order of the Ottoman Empire that collapsed.
7) The indictment abused its duty by putting forward alternative
ideological theses known to be ultra-nationalist.
8) The indictment neglected its duty by not filing in certain
lawsuits against us.
9) The indictment denigrated the Constitutional Court, a judiciary
organ of the State.
10) By stating that the term "Turkiyeli" incited people to hatred and
animosity and that it is a divisive term, the indictment insulted
M.K. Ataturk who first used it in four separate articles in the first
draft Constitution in July 1923.
11) By attacking the freedom of expression the indictment attempted
to eliminate the democratic State based on that freedom.
12) The indictment committed the crime of separatism by dividing the
nation into basic (Muslim) and secondary (non-Muslim) elements.
[1] "3.Some State parties which claim that they do not discriminate
on ethnic, linguistic or religious grounds, claim in an unfair manner
that there are no minorities in their country because of this very
reason " and "5.2 The existence of an ethnic, religious or linguistic
minority in a given State party does not depend upon a decision by
that State party but requires to be established by objective criteria
". Office of the High Commissioner for Human Rights, General Comment
no.23: The Rights of minorities (Art.27), 08/04/94.
CCPR/C/21/Rev.1/Add.5, General Comment no.23 (
www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8b b21c12563ed004df111?Opendocument).
Also see: "2. It appears from the periodic reports submitted to the
Committee under article 9 of the International Convention on the
Elimination of All Forms of Racial Discrimination, and from other
information received by the Committee, that a number of States
parties recognize the presence on their territory of some national or
ethnic groups or indigenous peoples, while disregarding others.
Certain criteria should be uniformly applied to all groups, in
particular the number of persons concerned, and their being of a
race, colour, descent or national or ethnic origin different from the
majority or from other groups within the population ", Office of the
High Commissioner for Human Rights, General Recommendation no.24:
reporting of persons belonging to different races, national/ethnic
groups, or indigenous peoples ( Art.1): 27/08/99. Gen.Rec.No.24.
(General Comments)
(www.unhchr.ch/tbs/doc.nsf/(Symbol)/9ce4 cbfde77a452a8025684a0055a2d0?Opendocument)
I thank my friend Professor Patrick Thornberry for his valuable
assistance.
[2] Bilal Eryilmaz, Osmanli Devletinde Millet Sistemi (The Millet
System In the Ottoman Empire), Istanbul, Agaç Yayincilik, March 1992,
p.13.
[3] Indictment dated 23.10.1971, no.1971/160 (1971/130); Merit No:
1971/144 (1971/33-30), Decree No: 1971/100. See. DDKO Dava Dosyasi-1
(DDKO Case File-1)-, Ankara, Komal Yayinlari, 1975, p.22.
[4] ibid, p.24
[5] See the following three books for this information on the
Lausanne Treaty: Türk Dis Politikasi Kurtulus Savasindan Bugüne
Olgular, Belgeler, Yorumlar ((Turkish Foreign Policy - Facts,
Documents, Comments since the War of Independence), Ed. B.Oran, Vol.
I, 10 th edition, Istanbul, Iletisim Publications, 2005, pp.225-231;
B.Oran, Türkiye'de Azinliklar - kavramlar, teori, Lozan, iç mevzuat,
içtihat, uygulama (Minorities in Turkey - concepts, theory, Lausanne,
domestic legislation, jurisprudence, implementation) , 3rd edition,
Istanbul, Iletisim Publications, 2004, pp.61-80; B.Oran, Küresellesme
ve Azinliklar (Globalization and Minorities), 4th Edition, Ankara,
Imaj Publications, 2001, pp.152-162.
[6] Sami Selçuk, Özlenen Hukuk / Yasanan Hukuk (Desirable Law,
Existing Law), Ankara, Yeni Türkiye Yayinlari, 2002, s.206, dn.15.
[7] D élégation G énérale à la langue française et aux langues de
France, Le Corpus juridique des langues de France, Etude r éalisée
par Violaine Eyss éric, Paris, Avril 2005, s.67.
[8] Les langues de France: un patrimoine mé connu, une réalit é
vivante , web site of French Ministry of Culture and Communication :
www.culture.gouv.fr/culture/dglf/lgfrance/lgfran ce_presentation.htm
[9] www.languefrancaise.net/dossiers/dossiers.php?id_d ossier=45
[10] Corpus..., s.18.
[11] Corpus..., s.68.
[12] Interview with Assoc. Prof. Samim Akgönül at Max Bloch
University in Strasbourg, January 10, 2006.
[13] Corpus..., s.71.
[14] Corpus..., s.71 ve 79.
[15] Le Monde , 04.10.2005.
[16] www.uoc.es/euromosaic/web/document/basc/fr/i3/i3.h tml #3.1
[17] Corpus..., s.18.
[18] www.uoc.es/euromosaic/web/document/basc/fr/i3/i3.h tml #3.1
[19] Les langues de France: un patrimoine mé connu, une ré alité
vivante, web site of French Ministry of Culture and Communication:
www.culture.gouv.fr/culture/dglf/lg france/lgfrance_presentation.htm
[20] Jean-Luc Valens, "Le maintien d'un droit local en
Alsace-Moselle", Quand la France se nomme diversité , Partie 2,
Problè mes politiques et sociaux, no.909, Février 2005, s.46-47.
[21] Interview with S.Akgönül .
[22] For further information on legal minority privileges in
Alsace-Moselle see Le Guide du Droit local: le droit applicable en
Alsace et en Moselle de A à Z, Paris, Publications de l'Institut du
Droit Local/Ecomica, 2002. For further information on minority rights
in France see Norbert Rouland, Stephane Pierre-Caps, Jacques
Poumarede, Droit des minorité s et des peuples autochtones, Paris,
Presses Universitaires de France, 1966, p.307-345 .
[23] For references for minority privileges in Corsica see: Le Statut
particulier de la Corse,
www.corse.pref.gouv.fr/scripts/display.asp? P=COstatut ; Collectivité
Territoriale de Corse,
www.corse.fr/institution/assemblee/?id=1&am p;id2=47 ; Pré sentation du
statut de la Collectivité Territoriale de Corse,
www.eurisles.com/Textes/presentation/PresSt atut_CTC_FR.html ; Vie
Publique.FR - Découverte des institutions, La Corse,
www.vie-publique.fr/decouverte_instit/approfondi ssements/approf_083.htm
; La collectivit é territoriale de Corse,
www.corse.pref.gouv.fr/scripts/display.asp? P=COloi91legis .
[24] www.transcript-review.org/section.cfm?id=232&l an=fr
[25] www.tlfq.ulaval.ca/ax1/europe/corsemotion.htm
[26] I thank my assistant Elçin Aktoprak for the fundamental
information she provided concerning Spain ( European Minorities and
Turkey her Ph.D thesis in writing). Also see:
www.spainemb.org/information/constitucionin.h tm ;
http://www.lehendakaritza.ejgv.euskadi.net/r48-23 12/en/contenidos/informacion/concierto_economico/e n_467/concierto_i.html
; Pedro Ibarra ve Igor Ahedo, "The Political Systems Of The Basque
Country: Is A Non-Polarized Scenario Possible In The Future?",
Nationalism and Ethnic Politics, Vol. 20, 2004, p. 355-386.
[27]
www.lehendakaritza.ejgv.euskadi.net/r48-448 /en/contenidos/informacion/estatuto_guernica/en_45 5/adjuntos/estatu_i.pdf
[28] Estibaliz Amorrortu, "Bilingual Education in the Basque Country:
Achievements and Challenges after Four Decades of Acquisition
Planning", www.rci.rutgers.edu/~jcamacho/363/amorrortu.pdf
[29] Jude Webber ve Miguel Strubell i Trueta, "The Catalan Language:
Progress Towards Normalisation", The Anglo-Catalan Society Occasional
Publications, 1991.
http://www.anglo-catalan.org/publications/ac sop/07The_Catalan_language/pdf/issue07.pdf
[30] "Generalitat" is a concept representing the administration of
Catalonia in general. It is used to cover the parliament, the
president and the whole government. For this structure, see
www.gencat.net/generalitat/eng/guia/mapainstit .htm
[31] Türkiye Cumhuriyeti Ilk Anayasa Taslagi (First Constitutional
Draft of the Republic of Turkey), Istanbul Boyut Yayin Grubu, Ekim
1998. This draft was discovered by Can Dündar's team as they were
conducting a research at the Cankaya Palace Library for a documentary
film; it was conveyed to me by my "accomplice" professor Ibrahim
Kaboglu.)
http://www.kurdmedia.com/news.asp?id=11626
From: Emil Lazarian | Ararat NewsPress
March 12 2006
Counter indictment: Full translated text of Oran's defense [II]
3/12/2006 KurdishMedia.com
Read in Ankara at the "Minority Report" trial on 15 Feb. 2006
Baskin Oran, Professor of International Relations, Faculty of
Political Science, Ankara University.
To sum up, Distinguished Judge, the Corsican Island is like a state
within a state.
Alsace-Moselle is also a state within a state. It allows the use of
German, the language of its historical enemy, at the court houses. It
has a multi-legal system. This is unbearable for even the most
tolerant nation-states.
There is no mistake in analogy, but this is just like validating
Arabic language and Syrian Law in Hatay, and Russian language and
Muscovite Law in Kars and Ardahan. This is the kind of country which
the indictment quotes as an example for Turkey.
Seventh Issue
Let us go on.
The Office of the Public Prosecutor makes another assertion in page
5; this page is a very productive one indeed.
This is also completely ideological. It says:
"In the Report there is a new definition and application of minority
other than the one accepted by Lausanne . This would lead to chaos."
Further, it continues:
"This would also bring about a result which would jeopardize the
unitary structure of the state, integrity of the country, and
indivisible integrity of the nation."
For the sake of law, I ask: It says it would cause chaos, destroy
integrity. It again mentions an intent, a possibility. What do all
these mean? What kind of criminal law is this?
When one says "It's cloudy" should we immediately conclude that it
might rain, a lake might emerge, birds might come, and bird flue
develop?
Let us go on. The Office of the Public Prosecutor mentions these
important arguments in only 3.5 lines, but does not elaborate on
them. Of course, it does not prove them by giving examples from our
Report.
Although we published our Report 17 months ago, Turkey has not yet
encountered such hazards. I don't know what might happen in 17 years.
But I do know that the Prime Minister Erdogan is constantly using the
terminology and method of the Report to keep the Kurds happy: In
Hakkari and elsewhere he said that all the sub-identities be they
Kurdish, non-Muslim, Turk, Circassian etc. should be respected and
that they are under the supra- identity of being a Citizen of Turkey.
What else was there to say? Who in Turkey knew about the notions of
sub and supra identity before our Report?
But let's continue to elaborate on the arguments of the indictment,
show how incorrect they are and prove them wrong by giving examples
from the Report. Let us show the Office of the Public Prosecutor how
an indictment should not be written.
1) First of all, just where did we propose a new definition of
minority in our Report? Which sentence or which paragraph? There is
no such sentence or paragraph...
Then, how can the Office of the Public Prosecutor see a thing which
does not exist? The reason is that because it wears ideological
eyeglasses it cannot see certain things. In addition, it does not
know the difference between the "existence of minority" which is a
sociological phenomenon and the "status of minority" which is a legal
category.
Distinguished Judge, in our Report we did not say that Lausanne
should not be implemented or should be amended. On the contrary, we
argued that it is not implemented and that it should be. This is
exactly what we wrote in our Report.
We have doubts whether the Office of the Public Prosecutor read the
Report or forgot it because its investigation took exactly 10 months.
2) The Office of the Public Prosecutor wrote that we jeopardize the
"unitary structure of the State and the integrity of the country" in
our Report.
Let me ask the same question again: In which line and with which
words did we do that? If the Office of the Public Prosecutor is
unable to answer this question, it would set forth an unfounded
claim. If an ordinary man had done what the Office of Public
Prosecutor did, s/he would be called a "slanderer." This is why this
indictment has from the very beginning been nothing but an
Iftira-name (calumniation).
Distinguished judge, we did exactly the contrary:
a) The Report does not want to change the unitary structure of the
State and it does not even include the word "unitary" as this is none
of our business.
In addition, although I don't want to linger over this subject, I
really don't know where to start to correct in this indictment. The
indictment uses the word "unitary" in a wrong way and confuses it
with the concept of centralism; furthermore, it also confuses
centralism with the indivisibility. These are completely different
subjects. Let me explain:
The US is not a unitary but a federal State. However it is not
divided at all. Look at Iraq's current situation; it was not federal
but unitary.
In both federal and unitary State structures, democracy and
dictatorship can be seen. For example, the USSR was a federation but
there was no democracy. Spain is not a federation but a unitary state
but is one of the most tolerant democracies of the world. Last month
Mr. Aguado, No. 2 general of the Spanish Land Forces, attempted to
intervene in democracy; he was sentenced to house arrest first and
then dismissed from his post. He will be retired in March.
b) Further still, I'm bored of telling these, I hope you don't get
bored of listening to me, our Report does not include either the
words federal or confederal even once. So, what is this all about?
But that's what the indictment argues.
In the Report, we defended the indivisibility of the State / homeland
because we base our arguments on the discipline of international
relations which argues that if the States of the World are
re-structured according to ethnic and linguistic lines, this will go
on like mitosis division.
Here is what we wrote in the Report word by word: the Report p.3,
subtitle 3: "The indivisible integrity of the State with its
territory is profoundly natural and is an indisputable issue all
around the world."
Now, what is wrong with this sentence? Which part of our Report
divides the country / homeland? This indictment is a statement of
slander, is it not? Why is it so? What are we doing here? What are we
summoned here for?
3) The Office of the Public Prosecutor mentions the "integrity of the
nation."
Distinguished Judge, political science rules that State / Homeland is
"undivided" and nation is "united". Just like independence is an
attribute of the State, just like freedom is an attribute of the
nation. The nation is free, the State is independent.
"Undivided" refers to a whole without any parts and attachments.
There is no nation which is not made up of parts, except maybe for
Iceland, Korea, Portugal, and maybe one more. All nations are made up
of different ethnic and religious groups. Even Japan is not
homogenous.
You cannot render a nation a "whole" by denying the existence of
these groups. On the contrary you just tear it up and put it into
pieces as each part has its own original personality, in other words,
sub-identity. People cannot put up with the denial of their
sub-identity. They rebel. People rebel when you give them a wrong tea
cup; why wouldn't they rebel when their identities are denied.
These various sub-identities might create "unity" only if there is a
supra identity that embraces all of them and that does not reflect
any particular ethnical - religious identity. That is why if you
reduce nation into "oneness" you destroy the unity. Oneness is enemy
to unity.
No one can write an indictment without knowing these. If you do, the
result is inevitably like this.
4) I am thrilled when I read some parts of the indictment. It's as if
the Office of the Public Prosecutor's Office develops new laws and
theories. It says the following - I'm trying to correct the sentence
a little bit:
"As the country has a central / unitary structure physically, people
who live there have also a unitary structure ." It says this for our
Constitution.
The indictment starts writing a "Constitutional Law" book this time.
But a completely wrong one. I don't know where to start as there are
too many mistakes:
a) Again, it confuses centralism with unitary structure. I've given
sufficient information on this issue.
b) Secondly, by writing " Turkish Republic is a unitary state with
its country and nation" it applies the adjective of unitary to the
nation, which is in fact an attribute of the State.
Distinguished Judge, let me explain this way:
In cases of freedom of expression, your colleagues in Strasbourg
reject any case if defendant State argues and proves that " national
security of the country" and / or "territorial integrity of the
country" is at stake.
However, when defendant State defends itself by arguing that "
integrity of the nation is at stake", plaintiff wins the case and
gets compensation according to Art.10 of the European Convention of
Human Rights.
The reason is the following: When the issue is to limit individual
rights, the notion of the "integrity of nation" is alien to European
countries, although the first two concepts are respected there. Such
a concept cannot be accepted because if it were, there would be no
democracy. In the second half of the 19th century the definition of
democracy was "the will of the majority", and this definition became
"respect for sub-identities" in the second half of the 20th century.
We are in the 21st century now.
5) This indictment quotes the famous Article 2 of the Spanish
constitution and does it with great imprudence. I don't know what to
say about it. Let me cite you the said article and explain it:
"The Constitution is built on the indissoluble unity of the Spanish
nation, the common and indivisible homeland of all Spaniards; it
recognizes and guarantees the right to autonomy of all the
nationalities and regions of which it is composed, and solidarity
amongst them all."
Let me ask the question again: When we discuss whether our Report
constitutes a crime - which should not be discussed due to freedom of
expression - why the Spanish constitution? The indictment at this
point starts writing a "Comparative Politics" textbook this time.
Besides, it would be extremely reasonable if I myself had quoted this
Article, as this 3-line Article completely disproves the arguments of
the Office of the Public Prosecutor but confirms mine in 2 points:
a) Please pay attention: the adjective used for nation is "unity".
The adjective used for homeland is "indivisible". Just like I said
two seconds ago, word for word. I don't understand at all why the
Office of the Public Prosecutor included this Article which in fact
disproves its arguments.
I can't really believe that the indictment goes on as follows:
"As you can see, the Spanish Constitution, just like the Constitution
of Republic of Turkey, mentions the principle of the indivisibility
of nation."
Would it be an exaggeration if I said that the Office of the Public
Prosecutor is making fun of us? This is not an indictment but a
statement of mockery.
b) Please pay attention again: After semicolon, Article 2 of the
Spanish Constitution states that the nation is made up of autonomous
nationalities and regions.
What did I say above? I gave a much lighter version of the same
statement: I said that the nation is made up of various ethnical and
religious sub-identities. Some call themselves Turks, some Muslims,
some Kurds, some Alevis, etc. The Spanish Constitution takes a huge
step further and says that the nation is made up of nationalities and
autonomous regions which are guaranteed by the constitution itself.
Heaven forbid, if we had repeated this Article in our Report, in
other words, if we had said that in Turkey the nation should be made
up of autonomous nationalities and regions, what in the world would
happen to us? The answer is very simple indeed: We would be
separatists.
I will return to this point later. But before ending this issue, I
have to show you what kind of Spain is cited by the Prosecution so
that the Indictment is displayed for your eyes [26].
- Art. 2 of the Constitution was saying: "The Spanish nation is
composed of Autonomous Nationalities and Autonomous Communities".
- Constitutional Article 3/2: "Autonomous Communities can use their
own languages along with Spanish." What we mean by Spanish here is
the language of the Castilian region.
- Constitutional Article 4/2: "Along with the Spanish flag,
autonomous communities shall be able to hoist their own flags on
their public buildings ."
- Constitutional Article 69/5: " The Spanish Parliament is composed
of two chambers. Autonomous communities are represented at the Senate
in accordance with proportional representation principle."
- Constitutional Article 87/2: `Autonomous Communities shall have
their respective assemblies, which -in addition to governing their
own communities- may submit Bills to the Spanish Parliament."
- Constitutional Article 133/2: `Assemblies of the Autonomous
Communities shall be empowered to levy taxes."
These autonomous communities have their specific statutes. For
instance let us have a look at the Autonomy Statute of the Basque
Country, dated 1979. [27]
- Article 17: To ensure order in the autonomous territory, there
shall be an autonomous police force. The command of the police forces
shall lie with the Government of the Basque Country. State security
and armed forces are competent in cases with extra- or
supra-Community nature (like entry into and exit from the State,
foreigners, customs, airports, smuggling etc.)
- Article 38/1: "The laws of the Basque Parliament shall be subject
to the control of the Constitutional Tribunal concerning their
compliance with the Constitution only ."
- Article 40: "Basque Country shall have its own autonomous treasury
and budget. In order not to distort the inter-regional balance in
Spain, a portion of the budget shall be transferred to the central
government to meet general expenses ."
***
Now let us come to Spain for the practice concerning mother tongue
and education of mother tongue. I will only cite examples from the
Basque Country and Catalonia:
Basque Country: [28]
Since the 1982 law, 4 models have been implemented in the Basque
Country:
Model A) The curriculum is in Spanish, some subjects are in Basque
(Euskara).
Model B) Spanish and the Basque Language are used 50-50.
Model D) The curriculum is in Basque.
Model X) The curriculum is in Spanish.
In this system, the student can choose any model s/he wants. The most
commonly used two models are models B and D.
Model X appears to be fading away since in certain areas it is
necessary to know the Basque language to find a job. On the other
hand, the number of those who only speak Basque is almost none.
Catalonia: [29]
The Catalan language has been taught at primary schools in the
Autonomous Community of Catalonia since 1978. After 1982, tests on
Catalan language were also included in the university examination.
Since the Language Law of 1983, it is decided that at least one
course will be taught in Catalan.
In Catalonia, Catalan is the official language along with Spanish
(Article 3 of the Autonomy Statute for Catalonia, dated 1979).
The Catalan language - the "own language of Catalonia"- is the
official language of all Generalitat [30], Catalan Territorial
Administration, Local Administration, and all official departments of
the Generalitat. Catalan and Spanish will be used as official
languages by the Administration (Language Law of 1983, article 5).
The documents that will be conveyed by the Generalitat to other
official departments within Catalonia will be in Catalan language.
The documents that will be sent outside of Catalonia will be in
Spanish or -where necessary- in the official language of that
administration (Decree dated 1987 and numbered 254, article 5).
All announcements, minutes and relevant documents that concern the
meetings of local administration departments will be in Catalan, and
no translation will be provided (Law dated 1987 and numbered 8,
article 2).
Judges, public prosecutors, other employees at courts, parties of
court cases and their representatives can use the official language
of the Autonomous Community in writing and verbally. The court
documents drafted in the official language of an autonomous community
are valid without further need for translation into Spanish (Organic
Law dated 1985 and numbered 6, articles 2, 3, and 4).
The names of official places in Catalonia will only be in Catalan,
except for Vall d'Aran (Language Law of 1983, article 12 ).
Catalan is the language of education at all levels. In primary
education, children can choose between Catalan or Spanish, but they
are obliged to learn them both (Language Law 1983, Article 14).
I just finished introducing a summary of the Spanish example given by
the Office of the Public Prosecutor for indivisibility of nation. I
think this summary is sufficient.
Eight Issue:
The Office of the Public Prosecutor on page 7 accuses us of using the
term " Türkiyeli" (people of/from Turkey, citizen of Turkey) rather
than "Turk" as a supra-identity.
Later it said, "Turk is used to indicate the citizenship and it is
not used in racial context."
There are so many things here to say but again I don't know where to
begin. The best would be referring to them one by one:
1) Why is the Office of the Public Prosecutor concerned with the
proposal in our Report to use "Türkiyeli" rather than "Turk" as the
supra-identity? I could not understand this at all. This is not a
crime in Turkey. If it is a crime, then I would like to learn in
which paragraph of which article of which law this is considered a
crime.
The indictment does not refer to these at all. It only alleges that
what we said is wrong. This is what the Office of the Prosecutor
writes in its "Counter-Report."
If there is freedom of expression in this country, I can propose any
term I like for any concept I like as long as it does not contain an
insult or violence.
Am I interfering with the Office of the Public Prosecutor because it
is not using "Türkiyeli"? Am I filing a criminal complaint against
him with the demand of a 5-year imprisonment?
I'm not, because I believe that one cannot interfere in anyone else's
freedom of expression - as I keep repeating, as long as it does not
incite to crime or violence or involve an insult -- and I won't allow
anybody to interfere with mine.
I won't, because I know that this is in line with the laws of the
Republic of Turkey. I'm sure that at the end of this case, the Office
of the Public Prosecutor too, will learn.
2) He claims that in Turkey the term "Turk" is not used in the racial
context.
What is this analysis doing in this indictment? Does an indictment
write theses? A Constitutional Law thesis?
The indictment is saying completely incorrect things. In fact it is
very seldom that one comes across so many wrongs put together in a
single text. We wrote in the Report, and I explained to him in
length, but it must have been in vain:
Leave aside the fact that the term "Turk" is alienating for those who
are not Turks or who do not consider themselves a Turk in this
country. I'm saying one more time clearly, the term "Turk" in this
country is used both as the name of the supra-identity and also as
the name of the dominant ethnic/cultural group.
You can simply open the 24-volume Meydan Larousse Dictionary and
Encyclopaedia, which is the largest dictionary ever published in
Turkey. Volume 19, page 471. Under the term "Türk," the first
sentence says: " A person of Turkish race." As simple as that.
But I don't think this is a simple thing. If the term "Turk" is not
the name of an ethnic group, then the Public Prosecutor's Office must
answer the following four questions:
a) What does "Domestic foreigners (Turkish citizens) " mean? This
term was used in the "Regulation For Protection Against Sabotages"
dated December 28, 1988, as it listed which categories were most
likely to carry out sabotages.
If this did not mean non-Muslim citizens, then what did it mean?
Didn't the Office of the Prosecutor claim that the term "Turk" was
used for citizenship only?
b) What does "of Turkish origin and of Turkish citizenry" mean? This
term is used to describe the characteristics of the Deputy Principal
to be assigned by the Education Ministry to a foreign or minority
private school, as listed in Article 24/2 of the Law Number 625 still
in force now.
Once you say "of Turkish citizenry " why do you repeat it by saying
"of Turkish origin"? Did not the indictment claim that the term
"Turk" was used for citizenry only?
c) What does "Turkish citizen with foreign nationality " mean? This
term was used in the Istanbul Administrative Court Number 2 decision,
dated April 17, 1996. Whom did the court mean when it used this term?
It was our Greek Orthodox citizens.
Didn't the indictment claim that the term "Turk" was used to indicate
citizenship only? Has anybody in this court room or in entire Turkey
heard of a more weird "legal" term than this? A person is either a
foreigner or a citizen.
d) What does "Foreigners are not permitted to acquire immovable
property in Turkey " mean? This sentence is from the Court of
Cassation Grand Chamber dated May 8, 1974. Who did the Court of
Cassation have in mind while using it? It used it for the
administrators of the Balikli Greek Orthodox Hospital Foundation
established by our Greek Orthodox citizens.
Didn't the indictment claim that the term "Turk" is used to indicate
citizenship only?
I'm passing this since there are many more things in the indictment.
3) Again about the supra-identity, the Public Prosecutor's Office's
Office gives examples from some countries. It says very interesting
things.
It says, "In Spain, the State calls its citizens Spanish [Ispanyol]
and not 'from Spain' [Ispanayali]"."
Has an ethnic group called "Spanish" been discovered in Spain that I
don't know about? If the answer is negative, what is the difference
between "Spaniard" and "Spanish" or "from Spain"?
The Office of the Public Prosecutor said, "The State of France calls
its citizens French and not of/from France."
Sorry, but what is the difference between the two? Or was an ethnic
group called "Frank" that I did not know about was discovered in
France recently?
In fact the Ottomans used to call the citizens of France " Fransevi"
and this is the very same word with "Fransiz" (French)
He claimed, "The State of England calls its citizens English and not
of/from England ."
Distinguished Judge, this is really one of the peaks of the
indictment. It is such a highlight that it dazzles one's eyes since
the term "English" used by the Prosecutor's Office is not used by the
people in England. Since Wales united under one parliament with
England in 1707, the people in England says " I'm British." Since 300
years.
I did not call this indictment an Icat-name (invention) for nothing.
I recommend that anyone travelling abroad and stopping by England
never ask a citizen of England on the street "Are you English?"
Because if they do not realize that you are a foreigner who does not
know the land at all, they can make you suffer dearly. Because unless
he belongs to the English ethnic group, this person would harshly
respond: "No, I'm Scottish/Welsh/Irish!" Because for the Irish, Welsh
and Scottish elements of this country, being called an Englishman is
a pure insult and may lead to major incidents.
In this country all sub-identities are united under the British
supra-identity. "English" is a mistaken term that some in Turkey
think is the supra-identity of that country. It is used to indicate
the sub-identity of those who are of English origin only.
Indeed using the sub-identity is not in the interest of the
English-origin people because they are afraid to provoke people of
other sub-identities. Asking a person "Are you English?" in that
country is the same as asking a man on the street in Turkey "Are you
a Kurd, an Alevi?" Indeed it is much worse.
Also in the indictment this country is referred to as England but its
name is the United Kingdom of Great Britain and Northern Ireland. If
it had used only Great Britain or only United Kingdom it still would
be acceptable, but England does not work. Don't listen to those who
are chanting " England, England" in soccer games. Those are The
Skinheads.
Indeed the most comprehensive encyclopaedia published in Turkey was
AnaBritannica (Encyclopaedia Britannica) and in volume 11, p. 571 it
says the following in the first sentence of the entry "England": "
The prominent country of the Great Britain and the United Kingdom of
the Northern Ireland." The encyclopaedia article continues: " One
cannot talk about the Constitutional existence of England.... Scotland
and Wales have their own ministries and Northern Ireland is
autonomous in its domestic affairs, England does not have its own
rights or institutions. Official statistics on foreign trade, tax and
defence are part of the statistics of the United Kingdom. The only
institution that is English is the Anglican Church ."
Then how can people, who lack even this encyclopaedic information,
put forward convictions, introduce examples, introduce rules and then
demand 5-year imprisonment for us for writing an academic report?
I'll not continue since there is a lot more to talk about. Let me
just say the following and thus we will mention something that the
Office of the Public Prosecutor said right among all these wrongs.
His last example is correct. In fact the German state calls its
citizens German ( Alman) and not of/from Germany (Almanyali).
There are two ways to nation-building:
1) French Method
2) German Method
The first one is also called "territorial method" or "Renan method".
Indeed the term "Turkiyeli" in our Report is a pure reflection of
this method. The second one is the German Method. It is also called
the "Blood Method."
I don't know whether explaining this much is enough.
Let me finish this point by saying: The situation in Germany is not
like before anymore. As the number of people from Turkey only has
reached 2.5 million, as the number of minorities and foreigners
increased in Germany, the German State had to dilute the Blood
Method. For example, now not only those born to German parents but
those who were born on German soil (territorial method) can get
citizenship as well.
Here the important question is:
What do we call a Turk who assumes German citizenship by applying or
by being born there? Do we call him a "German Turk?"
Indeed, there cannot be such thing as a Bulgarian Turk but a Turk of
Bulgaria, not a Greek Turk but a Turk of Greece. What kind of a
response would you get if you call, say, a Turk who emigrated from
Bulgaria to Turkey a "Bulgarian Turk?" Indeed these people strongly
protested Fikret Bila, the Ankara representative of daily Milliyet
for using the term "Bulgarian Turk" in his column.
Here, Distinguished Judge, for all these reasons, one cannot say
Turkish Armenian but Armenian of Turkey, not Turkish Greek but Greek
of Turkey, not Turkish Kurd but a Kurd of Turkey.
But Türkiyeli suits just fine. Just like Iranian, Iraqi, Syrian,
Laotian, American, Thai, Austrian, Canadian, Chinese etc.
Yes, Chinese. In China there is no ethnic group called Chinese. The
name of the ethnic group that constitutes 95% of the people is the
"Han" group. "Chinese" is the supra-identity of this country that was
drawn by the territorial method. Just like the term Türkiyeli.
Leaving everything aside, I wonder whether the Office of the
Prosecutor has ever thought of the following:
In case the Greek Parliament said: "If the word Turk is not an ethnic
term, then in our country, too, everybody is Greek because this is
not an ethnic term either." What if, God forbid, Greece introduces an
"Article 66" [of the Turkish Constitution] to its Constitution and
says: "Everybody who is tied by citizenship to the Greek state is a
Greek"? What will then happen to the 120,000 Western Thrace Muslim
Turks? Are they going to become "Greek"?
More interestingly: When we keep saying: "There is no Kurdish issue
but a Southeast issue," or, when we tell people who call themselves
Kurds: "No, you are not Kurds, you are Southeasterners (
Güneydogulu)" we think we are saving the country from getting
divided. Then are we dividing the country when we talk on a bigger
scale and use the term " Türkiyeli"? Is it not very clear that then
and only then we are actually saving the country? What kind of a
double standard is this? What are we doing with logic?
This is all what the Report was about, Distinguished Judge.
***
I earlier said that I would come back to the "intent" issue. I come
now because the Office of the Public Prosecutor invents an intent on
every page. As I repeatedly said before, a jurist cannot question
intent. He has no such authority. In the indictment p. 8, it says:
"While proposing to use the term 'Turkiyeli' rather than the term
'Turkish' in the Report, indeed it was not noticed that the name of
the country, in other words the name Turkey, has an ethnic
connotation. Was it not noticed or is it too early to make such a
warning yet?"
How can a man of law say such a thing? Making such a warning requires
great courage for two reasons:
1) While saying " Is it too early to make such a warning yet?" the
Office of the Public Prosecutor openly tries to mean the following:
"The report writers actually wanted to name this country Kurdistan
but since they don't have the courage to do so now, for the time
being they are satisfied with the term ' Türkiyeli.' When the time
comes, they will suggest Kurdistan as well."
Should I here remind of the Zanardelli Report again?
This is abuse of duty. No one is allowed to do that. At the end of my
remarks, we will certainly return to this.
2) The second reason may be more interesting. The indictment claims
that the term "Turkiyeli" has an ethnic connotation.
Again we are in the world of symbols, projections, probabilities,
dangers, dangers, dangers. But the only missing thing is criminal law
itself.
Fine, but didn't the Office of the Public Prosecutor repeatedly say
that the term " Türk" had no ethnic meaning at all? If the term
"Turk" does not have an ethnic meaning, then "Türkiyeli " won't
either. How can a person and a man of law be in such a contradiction
with himself between pages 7 and 8 of the same text?
***
To sum up, we introduced the term "Türkiyeli " for the sake of this
country. And we did something very good. This is the only concept
that embraces all citizens of the Republic of Turkey without making
any discrimination. We are all Turkiyeli here.
Those who like it will use it, and those who don't won't. But one
cannot interfere with those who use it.
Can anybody say something to a person who says "I'm a Turk?" If he
says he is a Turk, that is it.
But what if he does not? What if he cannot? What if he is not a Turk
or considers himself a Turk? What shall we do? Kill him? Or shall we
force him to say that he is a Turk? Let me ask The Public
Prosecutor's Office, which one should we do? The first one, the
second, which one?
Turk or Turkiyeli. This country will discuss and come to a decision
over time. How can the indictment attempt to restrict our freedom of
expression? From which article of which law does it draw this
authority?
Is the Public Prosecutor's Office opening a case against us because
it did not or could not open cases against the bullies who tore our
scientific and official Report in front of TV cameras?
***
On this issue the indictment also refers to Ataturk. Fine. In fact I,
too, wanted to come exactly to this. Let me ask the Public
Prosecutor's Office's now: Does it think that it was us who
introduced the term " Turkiyeli" for the first time in Turkey?
Let me inform him: That person was Ataturk. Was the Public
Prosecutor's Office aware of this? Please listen to the following
articles:
"Article 12: Except for exceptional circumstances in Turkey the
Turkiyelis are free to travel ."
"Article 13: Education is free. Every Turkiyeli is eligible to take
public and private education."
"Article 14: Schools and all such institutions are subject to
supervision and inspection of the State. The education of the
Turkiyeli must be in unity and order."
"Article 15: All Turkiyelis are eligible to establish all types of
companies to be involved in commerce, industry and agriculture in
line with laws and regulations. "
What are these? From where were they taken?
The date was July 1923. This is the first draft Constitution amending
some articles of the 1921 Constitution and mentioning, for the first
time, that the administrative form of the State is a "republic". In
Mustafa Kemal Pasha's own handwriting. [31]
If there is separatism in saying "Turkiyeli ", it was first initiated
by Mustafa Kemal. I'm not making a comment; I'm only presenting this
to the attention of the Office of the Public Prosecutor.
Ninth Issue
Let us come to the section in our Report concerning the
Constitutional Court.
I believe the Office of the Public Prosecutor is making injustice to
us when he claims that we presented the Constitutional Court as an
obstacle in front of democracy. We did the same with the Court of
Cassation, the administrative courts and the Council of State as
well. We stated that some decisions by these institutions were
discriminatory and thus were hurting democracy in Turkey. How come
did the Office of the Prosecutor miss these points? Is this not
neglect of duty?
Distinguished Judge, I'm an academician. I can say anything I like
without insulting or inciting to crime or violence. I can make any
criticism I like. This is why I get a salary from the State.
I did not commit a crime. But the indictment here commits 3 crimes:
1) Abuse of duty. Criticizing the Constitutional Court decisions is
not a crime. The Office of the Public Prosecutor attempted to silence
criticism only because it did not suit his ideology. This is a crime.
Also, this is pure dictatorship mentality.
2) Neglect of duty. If these comments were denigrating the
Constitutional Court, then why were they published in the Supreme
Court's 2003 "Constitutional Law" periodical, pages 61-93? The Office
of the Public Prosecutor should have filed a lawsuit against this
Court also. This is neglect of duty.
3) Denigration of the Constitutional Court. My remarks, which were
interpreted as denigrating the judicial organs of the State, were
quotes that I took from the paper that I read in the presence of the
President and members of the Constitutional Court on April 25th,
2003, at the symposium organized to the honor of the 41 st
anniversary of the Court.
Now the Office of the Public Prosecutor seems to say, "You,
Constitutional Court. This person humiliated you. You are not even
aware of it. What kind of carelessness is this? I'm immediately
saving your honor and filing a lawsuit."
So the Constitutional Court did not get the message but only the
Public Prosecutor's Office did? So the Constitutional Court was
unable to make a complaint all these years? Is the Public
Prosecutor's Office acting as a caretaker of the Court?
Tenth Issue
Distinguished Judge, finally let me say why I call this
pseudo-indictment an Itiraf-name (document of confession).
1) The Office of the Public Prosecutor says at the end (p.10): "This
text has great similarities with the provisions on minorities of the
Sèvres Treaty that put our country under occupation. In the face of
such a resemblance, one should not find it strange that one falls for
the Sevres paranoia. "
The last sentence is the climax of the indictment: " In the face of
such a resemblance, one should not find it strange that one falls for
the Sevres paranoia." This is an unbelievable sentence Distinguished
Judge. This is a sentence that would tremendously ridicule not only
the Public Prosecutor's Office, but anybody in Turkey. The Office of
the Public Prosecutor, also reflecting the general atmosphere of the
entire indictment, finds itself close to the Sevres paranoia!
Of course this is up to him. I personally would not want to say, not
even think of, such a thing. The indictment does so.
2) On the other hand, the indictment accuses our Report of resembling
the minority provisions of the Sèvres Treaty.
Let me repeat. Even if for a moment this should be the case, why
would this be a matter for the indictment? The Sèvres Treaty was made
in 1920 and was buried in history in 1923. Even if there might be
resembling sentences with such historical text, why does this bother
the Office of the Public Prosecutor? Who says this is a crime?
But this is such a case that I won't drop it here with only this
much. Here there is an invention again. I'm asking the Public
Prosecutor's Office: Which sentence of the Report resembles which
provision of the Sèvres Treaty on minorities? I want him it cite one
single article. One single article.
It cannot. If it could, it would have already done so in the
indictment.
Then there are only two possibilities:
1) The Public Prosecutor's Office read the Sèvres Treaty's articles
on minorities but could not find any resemblances to our Report. That
was why he did not cite any articles.
2) The Public Prosecutor's Office was so much affected by the Sèvres
Paranoia environment that it did not have the courage to read the
Treaty, but, since the Report was lso very repellent, the Office
thought it would be similar to the scary Sevres Treaty, therefore the
Office found it correct to simply claim that one "resembles" the
other.
I'm leaving it up to the esteemed court to decide which possibility
is stronger. But let me draw the attention of the esteemed court to
the fact that the Office kept repeating such void allegations
throughout the indictment.
It claimed that the Report resembled Sevres but the indictment is
mute when we ask which sentences resembled which articles.
It claimed that the Report introduces a new minority definition but
the indictment remains mute when we ask in which sentence this was
proposed.
It is claimed that the Report was endangering the unitary structure
and integrity of the country but the indictment remains mute when we
ask in which sentence this was implied.
It is claimed that the Report was committing a crime by introducing
the term " Turkiyeli" rather than "Türk" as the supra-identity, but
when we ask which article of which law makes this a crime, the
indictment remains mute.
It is claimed that the Report was denigrating the Constitutional
Court but when we asked in which sentence and with what word have we
done so, the indictment remains mute.
It is claimed that the Report was inciting animosity and hatred among
people but when we ask with which sentence we did that, the
indictment remains mute.
We are all tired now. I will not give any more examples.
Because of all this, this is not an indictment but a
pseudo-indictment. This style of indictment in our country was left
behind back in the military coup periods.
***
For all these reasons, Distinguished Judge, this pseudo-indictment
reminded me of great novelist Yasar Kemal's "Akcasaz'in Agalari"
series. It reminded me of what Mr. Dervis said in the "Demirciler
Carsisi Cinayeti" (Murder in the Ironsmith Market) story.
Dervis Bey had Akkoyunlu Mustafa Bey's brother killed. Mustafa Bey is
a feudal lord in Cukurova (Cilicia) just like himself. In response,
Mustafa Bey should have Dervis Bey himself killed because the latter
has no brother.
Since Dervis Bey never leaves his house, Mustafa Bey can not get him
killed. So instead, he gets somebody burn the heap of grain of one of
Dervis Bey's laborers.
Upon this incident Dervis Bey says, "You are not going to starve.
Everybody will be paid for his damages. I'm not complaining about
this. My complaint is that I did not deserve such a rival. I feel
sorry for this."
I do not feel sorry for all the time that I could have devoted to my
students and to my wife. I feel sorry that such an indictment was
written against me. I think that I'm qualified to be subject to a
better indictment. I believe that I deserve better than a document
which tries to undermine a scientific thesis but which puts itself in
a worse situation in every step.
I believe that I deserve a better indictment than this indictment,
which invents both the action and the law, and later wants me to be
prosecuted according to those inventions.
If the criminal theory has lost its fundamental basis so much in this
country, and if the elements of crime have been hurt so much, then
I'm afraid there is nobody who can do anything and there is no place
left to take refuge.
But I cannot accept that there is none left. There must be some, and
this counter-indictment should be a proof of that.
***
So that no other indictment attempts to do something similar again, I
demand that the Office of the Public Prosecutor be punished in a way
it deserves. I want to list the crimes he committed in this
indictment and I want to file the following criminal complaint
against it:
With this indictment many articles of laws were violated by ignoring
the rule of law that respects human rights as stipulated in
Constitutional Article 2 and in line with the principles of a
democratic state.
1) Academic freedom and autonomy as described in the Constitution and
in Art.15/3 of the 1966 UN International Covenant on Economic,
Social, and Cultural Rights were violated and the interests of the
State were undermined.
2) The lawsuit filed violated the freedom of expression which is
under the guarantee of the Constitution and of the European
Convention.
3) The TPC was violated by the indictment because it attempted to
make analogies and also because it questioned the "intent".
4) The court was denigrated because of a very carelessly prepared
file.
5) Europe, the main objective of the Republic of Turkey has been
portrayed as an enemy. This indictment and this case will be used as
a major obstacle to prevent Turkey's entry into the EU. From this
angle too the basic interests of the State of Turkey were hurt.
6) The indictment was written with the logic of Millet-i Hakime
(Dominating Nation). It divides the nation in two and tries to
revitalize the basic order of the Ottoman Empire that collapsed.
7) The indictment abused its duty by putting forward alternative
ideological theses known to be ultra-nationalist.
8) The indictment neglected its duty by not filing in certain
lawsuits against us.
9) The indictment denigrated the Constitutional Court, a judiciary
organ of the State.
10) By stating that the term "Turkiyeli" incited people to hatred and
animosity and that it is a divisive term, the indictment insulted
M.K. Ataturk who first used it in four separate articles in the first
draft Constitution in July 1923.
11) By attacking the freedom of expression the indictment attempted
to eliminate the democratic State based on that freedom.
12) The indictment committed the crime of separatism by dividing the
nation into basic (Muslim) and secondary (non-Muslim) elements.
[1] "3.Some State parties which claim that they do not discriminate
on ethnic, linguistic or religious grounds, claim in an unfair manner
that there are no minorities in their country because of this very
reason " and "5.2 The existence of an ethnic, religious or linguistic
minority in a given State party does not depend upon a decision by
that State party but requires to be established by objective criteria
". Office of the High Commissioner for Human Rights, General Comment
no.23: The Rights of minorities (Art.27), 08/04/94.
CCPR/C/21/Rev.1/Add.5, General Comment no.23 (
www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8b b21c12563ed004df111?Opendocument).
Also see: "2. It appears from the periodic reports submitted to the
Committee under article 9 of the International Convention on the
Elimination of All Forms of Racial Discrimination, and from other
information received by the Committee, that a number of States
parties recognize the presence on their territory of some national or
ethnic groups or indigenous peoples, while disregarding others.
Certain criteria should be uniformly applied to all groups, in
particular the number of persons concerned, and their being of a
race, colour, descent or national or ethnic origin different from the
majority or from other groups within the population ", Office of the
High Commissioner for Human Rights, General Recommendation no.24:
reporting of persons belonging to different races, national/ethnic
groups, or indigenous peoples ( Art.1): 27/08/99. Gen.Rec.No.24.
(General Comments)
(www.unhchr.ch/tbs/doc.nsf/(Symbol)/9ce4 cbfde77a452a8025684a0055a2d0?Opendocument)
I thank my friend Professor Patrick Thornberry for his valuable
assistance.
[2] Bilal Eryilmaz, Osmanli Devletinde Millet Sistemi (The Millet
System In the Ottoman Empire), Istanbul, Agaç Yayincilik, March 1992,
p.13.
[3] Indictment dated 23.10.1971, no.1971/160 (1971/130); Merit No:
1971/144 (1971/33-30), Decree No: 1971/100. See. DDKO Dava Dosyasi-1
(DDKO Case File-1)-, Ankara, Komal Yayinlari, 1975, p.22.
[4] ibid, p.24
[5] See the following three books for this information on the
Lausanne Treaty: Türk Dis Politikasi Kurtulus Savasindan Bugüne
Olgular, Belgeler, Yorumlar ((Turkish Foreign Policy - Facts,
Documents, Comments since the War of Independence), Ed. B.Oran, Vol.
I, 10 th edition, Istanbul, Iletisim Publications, 2005, pp.225-231;
B.Oran, Türkiye'de Azinliklar - kavramlar, teori, Lozan, iç mevzuat,
içtihat, uygulama (Minorities in Turkey - concepts, theory, Lausanne,
domestic legislation, jurisprudence, implementation) , 3rd edition,
Istanbul, Iletisim Publications, 2004, pp.61-80; B.Oran, Küresellesme
ve Azinliklar (Globalization and Minorities), 4th Edition, Ankara,
Imaj Publications, 2001, pp.152-162.
[6] Sami Selçuk, Özlenen Hukuk / Yasanan Hukuk (Desirable Law,
Existing Law), Ankara, Yeni Türkiye Yayinlari, 2002, s.206, dn.15.
[7] D élégation G énérale à la langue française et aux langues de
France, Le Corpus juridique des langues de France, Etude r éalisée
par Violaine Eyss éric, Paris, Avril 2005, s.67.
[8] Les langues de France: un patrimoine mé connu, une réalit é
vivante , web site of French Ministry of Culture and Communication :
www.culture.gouv.fr/culture/dglf/lgfrance/lgfran ce_presentation.htm
[9] www.languefrancaise.net/dossiers/dossiers.php?id_d ossier=45
[10] Corpus..., s.18.
[11] Corpus..., s.68.
[12] Interview with Assoc. Prof. Samim Akgönül at Max Bloch
University in Strasbourg, January 10, 2006.
[13] Corpus..., s.71.
[14] Corpus..., s.71 ve 79.
[15] Le Monde , 04.10.2005.
[16] www.uoc.es/euromosaic/web/document/basc/fr/i3/i3.h tml #3.1
[17] Corpus..., s.18.
[18] www.uoc.es/euromosaic/web/document/basc/fr/i3/i3.h tml #3.1
[19] Les langues de France: un patrimoine mé connu, une ré alité
vivante, web site of French Ministry of Culture and Communication:
www.culture.gouv.fr/culture/dglf/lg france/lgfrance_presentation.htm
[20] Jean-Luc Valens, "Le maintien d'un droit local en
Alsace-Moselle", Quand la France se nomme diversité , Partie 2,
Problè mes politiques et sociaux, no.909, Février 2005, s.46-47.
[21] Interview with S.Akgönül .
[22] For further information on legal minority privileges in
Alsace-Moselle see Le Guide du Droit local: le droit applicable en
Alsace et en Moselle de A à Z, Paris, Publications de l'Institut du
Droit Local/Ecomica, 2002. For further information on minority rights
in France see Norbert Rouland, Stephane Pierre-Caps, Jacques
Poumarede, Droit des minorité s et des peuples autochtones, Paris,
Presses Universitaires de France, 1966, p.307-345 .
[23] For references for minority privileges in Corsica see: Le Statut
particulier de la Corse,
www.corse.pref.gouv.fr/scripts/display.asp? P=COstatut ; Collectivité
Territoriale de Corse,
www.corse.fr/institution/assemblee/?id=1&am p;id2=47 ; Pré sentation du
statut de la Collectivité Territoriale de Corse,
www.eurisles.com/Textes/presentation/PresSt atut_CTC_FR.html ; Vie
Publique.FR - Découverte des institutions, La Corse,
www.vie-publique.fr/decouverte_instit/approfondi ssements/approf_083.htm
; La collectivit é territoriale de Corse,
www.corse.pref.gouv.fr/scripts/display.asp? P=COloi91legis .
[24] www.transcript-review.org/section.cfm?id=232&l an=fr
[25] www.tlfq.ulaval.ca/ax1/europe/corsemotion.htm
[26] I thank my assistant Elçin Aktoprak for the fundamental
information she provided concerning Spain ( European Minorities and
Turkey her Ph.D thesis in writing). Also see:
www.spainemb.org/information/constitucionin.h tm ;
http://www.lehendakaritza.ejgv.euskadi.net/r48-23 12/en/contenidos/informacion/concierto_economico/e n_467/concierto_i.html
; Pedro Ibarra ve Igor Ahedo, "The Political Systems Of The Basque
Country: Is A Non-Polarized Scenario Possible In The Future?",
Nationalism and Ethnic Politics, Vol. 20, 2004, p. 355-386.
[27]
www.lehendakaritza.ejgv.euskadi.net/r48-448 /en/contenidos/informacion/estatuto_guernica/en_45 5/adjuntos/estatu_i.pdf
[28] Estibaliz Amorrortu, "Bilingual Education in the Basque Country:
Achievements and Challenges after Four Decades of Acquisition
Planning", www.rci.rutgers.edu/~jcamacho/363/amorrortu.pdf
[29] Jude Webber ve Miguel Strubell i Trueta, "The Catalan Language:
Progress Towards Normalisation", The Anglo-Catalan Society Occasional
Publications, 1991.
http://www.anglo-catalan.org/publications/ac sop/07The_Catalan_language/pdf/issue07.pdf
[30] "Generalitat" is a concept representing the administration of
Catalonia in general. It is used to cover the parliament, the
president and the whole government. For this structure, see
www.gencat.net/generalitat/eng/guia/mapainstit .htm
[31] Türkiye Cumhuriyeti Ilk Anayasa Taslagi (First Constitutional
Draft of the Republic of Turkey), Istanbul Boyut Yayin Grubu, Ekim
1998. This draft was discovered by Can Dündar's team as they were
conducting a research at the Cankaya Palace Library for a documentary
film; it was conveyed to me by my "accomplice" professor Ibrahim
Kaboglu.)
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From: Emil Lazarian | Ararat NewsPress