Justice in Turkey-Interview with Lawyer of Assasinated Journalist Dink

Kezban Hatemi, a lawyer representing the Dink family in the trial of the suspects in journalist Hrant Dink's 2007 assassination, has said the only way the Dink family can find consolation is if it sees justice served regarding the case.

”The only thing the Dink family wants is justice, and more specifically to hear the state accept that Hrant's words fall within the scope of freedom of expression and not under Article 301, not a defense by the state saying that Hrant deserved to be murdered,” Hatemi told Today's Zaman for Monday Talk, referring to a controversial official statement submitted to the European Court of Human Rights (ECtHR) to defend the prosecution of Dink.

There are also signs that the Turkish government is seeking a compromise with the Dink family. ”The best thing for Turkey to do is to withdraw its defense from the ECtHR. There is no other way to get rid of this disgrace. In addition, illegal structures should be disclosed, since Hrant's death accelerated the process of unraveling Ergenekon's makeup,” Hatemi added, referring to the investigation into Ergenekon, a neo-nationalist gang believed to be the extension of a clandestine network of various groups with members in the security forces. Ergenekon stands accused of being behind a number of unsolved murders of journalists, academics, public opinion leaders and writers.

The disclosure of the Turkish state's defense statement in Dink's infamous trial for ”insulting Turkishness” has caused embarrassment to the government, which says expanding rights and freedoms is a priority.

The official defense, which was presented to the European court in November 2009 and whose content was recently revealed in the media, cited the case of a leader of a neo-Nazi organization in Europe while defending the trial of Dink under Article 301 of the Turkish Penal Code (TCK).

Dink, a Turkish journalist of Armenian descent who was shot dead by a teenage assailant in January 2007, had filed a case at the ECtHR seeking the annulment of his conviction for ”insulting Turkishness” under Article 301.

Following his assassination, his family filed another complaint at the European court against Turkey, saying that despite the fact that the gendarmerie and police had been informed about threats and murder plans against Dink, they failed to take action to prevent the murder. The two cases were then combined by the ECtHR.

Dink's family, friends and human rights organizations complain that light has yet to be shed on the details surrounding his murder, which triggered widespread anger and shock in Turkey.

There is a lengthy list of suspicious irregularities in the investigation into Dink's murder, including deleted records and hidden files suggestive of an attempted police cover-up. The Dink family's lawyers have said much of the evidence indicates that the murder could have been prevented.

Hatemi answered our questions on recent developments regarding the issue.

What was your reaction when you saw the government's defense at the ECtHR regarding Dink?

The Foreign Ministry has adopted an attitude that treats Hrant Dink as if he were not a Turkish citizen. Unfortunately, this document shows the undesirable ”red lines” of the Turkish Foreign Ministry. We know how the state acted previously at the ECtHR. Take as an example the headscarf ban case. Such defenses in the European court make us feel that we live in a foreign land in our own country. Even a foreigner would not behave in such a relentless way towards you. I can't find words to describe this defense other than to say that it's disgraceful. First of all, it is a defense that does not befit a state in which the rule of law exists. An appropriate statement should have been along the lines of expressing regret because the state was unable to protect Hrant Dink. And the state should have accepted the case.

Who do you think might have prepared this defense?

What bureaucrat prepared it should be made public. Also, who ordered this bureaucrat to prepare this defense, this should also be revealed. In short, the defense says that Hrant Dink deserved to be murdered; he got what was coming to him! That's it. It's horrifying that there are bureaucrats who could prepare such a defense in the Foreign Ministry. This defense is neither appropriate for the Foreign Ministry nor for Turkey, which is in the process of democratization. Moreover, this defense presents a conflict to state institutions.

How is that?

The justice minister said they didn't prepare it and expressed deep regret over the issue. The foreign minister, who signed this defense document before it was sent to the ECtHR, said he was personally very disturbed by the defense being used in court and that it weighed on his soul heavier than many other crises. In addition, this defense puts dynamite under efforts exerted by Prime Minister Recep Tayyip Erdoğan, who has been taking positive steps over the past five years to meet the demands of Turkey's minority communities. Another revelation that came with this defense is that there are ultranationalists within the Justice and Development Party [AK Party]. The prime minister said in a speech he gave a few days ago that he has warned his ministers about the possibility of the rug being pulled from underneath them. In that speech, the prime minister for the first time expressed concern that some people within the ministries could not be trusted.

What else is very clear here? What else does this defense tell us?

This resistance is very much related to Ergenekon. Whatever you call it, the existence of an illegal formation within the state has been accepted by all. But instead of mobilizing the judiciary to eliminate it, excuses are being produced to support its existence. The state's defense at the European court clearly shows that there are illegal and unethical forces, ones that resist change, within the state which use Hrant's case to defy the rule of law. Therefore, it should be made public who wrote this defense.

‘Judiciary the clumsiest institution in democratization process'

Now that the court has found Turkey guilty in the Dink case, what options does the government have at this point?

Instead of accepting the guilt, the state has reinstated the deep state's arguments in its defense. It's a shame and does not suit a state governed by the rule of law. Turkey should immediately withdraw this defense from the ECtHR.

You mentioned the statements of the ministers of justice and foreign affairs. Indeed, the person holding the highest rank in the country, the president, rejected the defense, saying Dink was killed because of the state's failure to protect him.

Yes, he did. This defense is almost a carbon copy of the defendants' arguments in the Hrant Dink case. It hurts us and Hrant's family deeply.

This defense also obviously hurts the ongoing case here in Turkey. Can the president order the State Audit Institution [DDK] to take up the case to reveal the truth?

The Prime Ministry has already done this through a parliamentary investigation commission, but the court ignored its findings despite there being recommendations on who needs to be investigated more. They conducted detailed interviews with family members, lawyers, defendants and witnesses. The commission included names in its report and, as I said, the court ignored that serious report. Some people are obviously being protected. This has been a long-lasting problem of Turkey, especially in the judiciary. But there is nothing to prevent a new investigation on the president's initiative. In the first hearing of the court, I told the judge that the court is responsible for finding the officials who were negligent in their duties and that it should not allow this case to go to the ECtHR. In that sense, I see the [upcoming] referendum [on constitutional amendments] as an opportunity.

Is this because one of the articles in the constitutional amendment package will allow individuals to petition the Constitutional Court, thereby leading to a decrease in the number of cases going to the ECtHR?

Yes, but the dilemma is which Constitutional Court. The Constitutional Court should act within the law in order to evaluate those cases fairly.

The foreign minister said an agreement might be reached with the Dink family. What do you think of this idea?

The only thing the Dink family wants is justice, and more specifically to hear the state accept that Hrant's words fall within the scope of freedom of expression and not under Article 301, not a defense by the state saying that Hrant deserved to be murdered. The best thing for Turkey to do is to withdraw its defense from the ECtHR. There is no other way to get rid of this disgrace. In addition, illegal structures should be disclosed since Hrant's death accelerated the process of unraveling Ergenekon's makeup.

Do you expect any positive changes to the judiciary's point of view after the ECtHR ruling?

Unfortunately, the clumsiest institution in the democratization process has been the judiciary. The judiciary should be restructured in line with adopting the principles of universal law and get rid of the ”red lines” of the official ideology. The judiciary should be able to function in line with the rule of law. It should also get rid of its racist and fascist tendencies.

‘Halki Seminary should be opened tomorrow'

And the Halki Seminary? It still remains closed.

There is nothing to prevent its reopening tomorrow. It would be best to reopen it immediately. When it is opened, Turkey will gain the backing of its 300,000 Orthodox citizens.

Do you also tie the issue to the influence of Ergenekon supporters or the deep state over the government?

Yes. There is a challenge both against the government and by the government. As a result, every step forward is followed by two steps back with respect to the problem, although the easiest issue to solve in Turkey right now is the opening of the seminary. Every state institution has an element of the deep-state, but the Foreign Ministry is among the worst when it comes to this influence. There are bureaucrats and professors who interpret the demands put forth in the Treaty of Lausanne in a crooked way. Although the treaty talks about parallel obligations, this has been interpreted as ”reciprocity.” This is the mentality. It is not enough that the prime minister desires a solution to the problem. There are nationalist reflexes which turn into ultranationalist reactions within the AK Party as well. These are obstacles in front of a democratic state where the rule of law should reign.

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‘Deep-state uncomfortable'

Another ruling by the ECtHR in June states that the Turkish government should re-register a historic Orthodox orphanage on Büyükada to the İstanbul-based Fener Greek Orthodox Patriarchate. What are the developments regarding that issue?

In August of last year, the prime minister came together with the religious representatives of minority groups in Turkey to address their demands in a more efficient way. The prime minister ordered his bureaucrats in front of the media to immediately handle the long-lasting issue of property ownership. But the Foreign Ministry was bold enough to tell the prime minister that re-registering the orphanage to the patriarchate carries a ”dangerous potential.” Is this the Foreign Ministry's duty? Is the duty of the Foreign Ministry to prepare a defense for the ECtHR on behalf of the state in the Hrant Dink case? Apparently, there is a need to comb through the bureaucracy to ensure everyone acts in line with their duty and within the limits of the rule of law.

And the future of the orphanage's ownership? The ECtHR has ordered that the orphanage be returned to the patriarchate within three months.

It is known that the orphanage belongs to the patriarchate. This makes the deep state very uncomfortable, and they put forward several false claims to prove that it does not belong to the patriarchate. The clergy at the patriarchate cannot fully understand the reasons for this and only watch the developments with horror. After the ECtHR ruling, the orphanage will probably be turned into a global environmental center, as the patriarch -- who has been nicknamed the ”green patriarch” -- told the prime minister. But the historic building has been exposed to harsh weather conditions. We expect the state and international organizations to contribute to its restoration.

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‘The only thing the Dink family wants is justice, and more specifically to hear the state accept that Hrant's words fall within the scope of freedom of expression and not under Article 301, not a defense by the state saying that Hrant deserved to be murdered. The best thing for Turkey to do is to withdraw its defense from the ECtHR. There is no other way to get rid of this disgrace. In addition, illegal structures should be disclosed since Hrant's death accelerated the process of unraveling Ergenekon's makeup'.

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‘Even the Constitutional Court did not annul the reform package'

What are your views on the constitutional amendment package?

If the constitutional amendment package was considered harmful to society, the Constitutional Court -- which looked into the substance despite not being supposed to – would object to it. The most important reason to approve the package is that it would break with the Constitution prepared after the Sept. 12 military coup. But of course the country needs a whole new constitution. The government tried to make a new constitution; the opposition did not allow it, exposing the ruling party to a closure case. So this is the best the government could do under the circumstances.

How do you think the non-Muslim minority communities will vote in the upcoming referendum?

The minority communities will say ”yes” to the package. They are quite aware of the situation, and they know who respects their rights.

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Kezban Hatemi graduated from İstanbul University's school of law in 1972 and started to practice as an independent attorney registered under the İstanbul Bar Association. In 1995 she joined the Humanity Initiative for Bosnia (Bosna İçin İnsanlık Girişimi) to draw attention to problems in the region. She contributed to efforts to fight against drugs and save street children. Hatemi also works with the Secretariat-General for EU Affairs (ABGS) and the European Commission Turkey Desk on issues of religious freedom and legal issues regarding non-Muslim minorities. She has worked with UNESCO with regard to dialogue among civilizations. She co-authored the report ”The Story of an Alien(ation): Real Estate Ownership Problems of Non-Muslim Foundations and Communities in Turkey,” released in 2009.

YONCA POYRAZ DOĞAN  

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