A legal sensitivity unfamiliar to us at the YAŞ

The most important agenda item at this year's YAŞ is the right to promotion of the 102 soldiers whose arrest was requested last week in the Balyoz case. That this decision came out right on the eve of the YAŞ, after a situation just a week earlier in which not a single detainee remained in the Balyoz case, easily raises the suspicion that the decision was taken to block these soldiers' promotions.

The victimization that the pretrial detention of the Balyoz defendants, whose first hearing will be held in December, would cause is on everyone's lips. We would like to count this as a gain in terms of human rights. It is a fact that unnecessary pretrial detention during proceedings causes a series of victimizations in Turkey, but that this issue arises in countless cases and yet is raised so much in none of them could, from an optimistic perspective, be taken as a contribution of this case to our legal history.

On the other hand, the grounds of "strong suspicion of crime" regarding the acts attributed to the defendants whose arrest is requested, and that "the soundness of the fair trial process requires detention," cannot be ignored either. The likelihood of their flight or of tampering with evidence has, at least in this particular case, already emerged. That is, none of the soldiers for whom arrest warrants were issued has come and surrendered to justice for days, nor can it be said that evidence was soundly collected in the investigation concerning them. The soldiers in question are still fugitives and, worse, despite the grave accusations attributed to them, they are at their posts.

While the proceedings continue, it is of course not possible to declare them guilty. The presumption of innocence requires that those against whom a crime is alleged be regarded not as convicted, but not as innocent either, only as defendants. That is why it is extremely problematic for these persons, against whom the allegations have been made and for whom strong suspicion has been established by court decision, to remain at their posts, both for the soundness of the investigation and with regard to the nature of the post they hold.

How can one defend a person who, though duty-bound to fight terrorism, is accused of organizing an act of terror remaining at his post? The simple truth on this matter is just this. Indeed, one of the commanders against whom an arrest warrant was issued was involved afterward in several incidents outside the act for which he is being tried, which reveal the scale of this problem. In a report published in the newspaper Taraf, the commander who took no measures although the Gediktepe attack had been communicated by police units 30 hours in advance is also one of those against whom an arrest warrant was issued. Two years ago, the same commander was also revealed, in his own voice, to have himself laid the mines that were believed to have been planted by the PKK and that caused 7 of our soldiers to be martyred. Now what is the meaning of such insistence that this commander remain at his post?

At one point in the Balyoz case, when the detention of 27 generals was at issue, it was said that detaining "nearly ten percent of the generals in the TSK" would hamper the fight against terrorism. Yet looking at the information that has emerged, it may well be seen that the fight against terrorism is perhaps not succeeding precisely because of these generals. We cannot know. In all of the PKK's recent actions regarded as large-scale, one sees almost systematic negligence, perhaps even open or indirect support to the PKK.

It is also impossible to understand why such intense concern is felt for the promotion at the YAŞ of soldiers against whom there are charges. It is not as if they have recorded an irreplaceable success in the fight against terrorism. Success in the fight against terrorism is measurable. In a situation of clear failure like today's, pausing to leave some room for suspicion is an extremely healthy reaction.

It is certainly not right to declare those tried in Balyoz or in any other case guilty in advance, but when there are this many accusations, the measures that these accusations require must also be taken.

There is a more interesting point here: we are in fact accustomed, every year, to the extrajudicial dismissal by YAŞ decisions of a large number of soldiers whose names we do not even learn, and about whom we cannot even know what accusation was made. The justification that military discourse has so far tried to get accepted for this was the heavy disciplinary conditions required by the TSK. When necessary, these conditions made it reasonable and excusable to dismiss some officers on the basis of files formed merely from trivial denunciations about their lifestyles. The Prime Minister was even subjected to criticism for finally dissenting, by attaching a note of reservation, against these dismissals.

By comparison, there is a trial in the Balyoz case, and although the accusations attributed are in fact much easier to decide on in the YAŞ process than the others, it is impossible to understand the sensitivity displayed. Of course it is not necessary for the officers in question to be dismissed before the trial ends, as with many officers dismissed by YAŞ decision, but at least it is indisputable that these officers should be removed from their posts as a precaution during the trial.