The Demirtaş verdict and ‘enemy criminal law’

Open letter to Selahattin Demirtaş, MP and co-president of HDP, in pre-trial detention since November 4, 2016.

Ahmet Insel
28 December 2017

Selahattin Demirtas, co-chairman of Turkey's pro-Kurdish Peoples' Democratic Party (HDP) is escorted by Turkish gendarmerie. He and nine other HDP MPs were arrested in November 2016,to international condemnation. Depo Photos/Press Association. All rights reserved.

Dear Selahattin Demirtaş,

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

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

The main feature of ‘enemy criminal law’ is that the criminal law in force focuses on the perpetrator rather than the act or fault itself. Today, the criminal law in force is predicated on the protection of fundamental rights and freedoms of citizens to a certain extent. On the other hand, ‘enemy criminal law’, which is applied to those who are not regarded as full citizens, is now put into effect for an ever-expanding circle of people. Dear Selahattin Demirtas, as a person who has been a human rights lawyer for many years, this is a subject you know a lot better than I do: this ‘enemy criminal law’.

You would have explained it better than I ever could: but for this very reason, your voice and actions are constrained. Günther Jakobs, a German professor of criminal law and philosophy of law, introduced this concept for the first time in 1985. Then he developed it in three stages. After the 2001 Twin Towers attack, in 2003, he finalized his analysis, which has more or less become a part of the "anti-terrorism" policy implemented in many states today. One of the main features of ‘enemy criminal law’ is that the principle of presumption of innocence does not apply to the defendant. 

Today, the criminal justices of the peace who automatically rule the continuation of detention, act as the keystone of ‘enemy criminal law’. This criminal law, which is applied to those who exhibit or can exhibit hostility towards the State, corresponds to a generalization of the state of exception, both in content and in procedure. It sets to work by defining the opposition elements which disturb the government or challenge its power, as the ‘enemy.’ It is the ‘internal enemy’ and therefore is even deprived of the rights enjoyed by an external enemy. Today, in Turkey, the internal enemy is composed of large masses of undesirable citizens who are either accused of being "a member of a terrorist organization" or engaging “in terrorist propaganda”.

Enemy criminal law, while promoting the notion of raison d'état, is bringing all the institutions of the state, primarily the judiciary, under the absolute dominion of the ruling power. It is functioning as the criminal law of a system, where all the people openly opposing a government with oligarchic tendencies, are declared as the enemy.  However, the government itself is the real enemy of the rule of law. First, it is identifying the people as the internal enemy; then it is incriminating them without any court decision, and finally, by making its suspects the legal enemy, it is depriving them of all their citizenship rights.

Dear Selahattin Demirtaş, today a despotic regime is in power. This regime not only incarcerates you but also defines your statements in court as hostile and disturbing. But I still keep my faith that you and the other citizens of Turkey like you, who have never deviated from democracy and non-violent solutions, will manage to transform this despotic regime that feeds off animosity.

I wish you, and the thousands like you, who have been held as hostages by enemy criminal law, patience, and I hope the new year will be brighter than the previous one for the sake of Turkish democracy.

This open letter was originally published in Cumhuriyet, on December 23, 2017.

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