The law of criminals

Until the course of events reached this point, I did not feel like saying a single word about the Ergenekon trial, as if afraid of breaking the spell.

Curiously, a different kind of this verbal blockage had come over me just a week ago, owing to the fact that even though a full year had passed since the murder of Hrant Dink, not an inch of progress had been made in terms of establishing justice. Now, even if things go no further than this—that is, even at this stage where things have arrived—it is encouraging and exciting enough simply to see with peace of mind that the will to hold the culprits to account has not vanished. Still, we hope for its continuation.

However, it is necessary to touch upon some problems regarding the continuation of the process while we are on the subject. Right at the time when the Ergenekon operation was being carried out, a decision rendered by the 10th Chamber of the Council of State came to the fore. This decision is quite interesting in that it shows where legal struggles aimed at advancing human rights have ultimately brought the justice system, and who ultimately benefits more from these expanded human rights.

Upon the application of the Istanbul Bar Association, the regulation provision concerning the "recording of lawyers when a crime relation or connection is observed, even if they are not suspects" was annulled. In other words, under these circumstances, even when a crime relation and connection of lawyers are observed, wiretap recordings cannot be counted as evidence. Today, no legal action can be taken against people whom nobody doubts are first-degree perpetrators of certain murders, lynch campaigns, organized crimes, terrorist organizations, and provocations, simply due to the lack of evidence that can be evaluated legally.

It must be the greatest tragedy of the law that statutes developed to advance human rights benefit organized criminals before anyone else. Since such people know all the loopholes of the law and professionally take into account the opportunities it affords them, they can establish their organized crime schemes in an untouchable place right above this legal system. The widening gap between law and justice increasingly serves those who commit crimes knowingly and deliberately while factoring in all the loopholes in the laws.

Frankly, whether after the Council of State attack, the murder of Hrant Dink, or subsequently the killing of the missionaries in Malatya, even if all the interconnections between them were known, it did not seem possible to extract conclusive evidence from these relations that would be legally valid to accuse anyone. Had it not been for the lapses caused by the organization's reckless behavior and the persistent pursuit of the police force, we would most likely have had to content ourselves with merely expanding our collection of murders whose perpetrators are well-known to the conscience but remain legally unsolved.

This paradox of law has been emphasized as a major problem not only in our country but also in the West. Although the development of an autonomous legal system has been characterized as an important factor ensuring economic and social developments—and of course equality—in the West during the modern era, it has been emphasized that even within this legal system there are very serious issues in this regard. Even Max Weber, the famous sociologist who emphasized these positive aspects of Western law, dwells on the fact that the claims of equality contained in this law are a lie that everyone loves to believe. According to Weber, the legal system, even in England—which represents the most advanced stage of modern and capitalist development—is so complex that in order to emerge victorious from this legal system, one needs powerful lawyers who can engage in demagoguery very well, and consequently influential connections and money. There is a world of difference between the probability of a poor person being proven right in this legal system and that of a rich person.

Indeed, Weber went a step further, arguing an assertion quite contrary to the very thesis that made him famous, claiming that "economic development (capitalism) in the West developed perhaps despite this legal system, rather than thanks to it" (see Bryan S. Turner, Max Weber and Islam).

Particularly during the EU harmonization process, our legal system—which perhaps went even beyond what exists in the EU in many respects—has an aspect that protects criminals (within the framework of CMUK) while neglecting to protect the innocents victimized by these crimes. Yet organized criminals can bypass the legal system by calculating the opportunities provided to them by law and skillfully adjusting the crime and evidence. Consequently, the justice-providing aspect of the law is rendered dysfunctional.

The Ergenekon operation is a turning point for Turkey from this perspective as well, for demonstrating a stance of equal skill within legal standards against an organization that had mastered appropriating the law through all its interpretations and procedures.

Ultimately, it is not a matter of abandoning the law simply because it benefits criminals more; on the contrary, it is necessary to develop an effective line of defense, still within the possibilities of the law.