Brussels, April 23, 2006        

I. Introduction: “Chronology & History”

These two branches are confused in general; unfortunately, we witness such confusion initiated by several persons, having studied history.

In fact, while the first of these branches places the events in time and place, the second branch researches or is obligated to research reasons and consequences of such events. While the history is making the research, it shall stick to the time-table presented by the chronologist, but at the same time evaluate its information on legal, cultural, geographical, sociological matters and the like.

We will able to get the conclusion only after the examination we would carry out under the following titles:

II. Reasons Triggering Degeneration of the Ottoman-Armenian Relations

 1. Sovereignty Fight Lasted for five (5) Centuries in the Balkans: “Bogomilism”  

When the Ottoman/Turkish Army entered the Balkans in the mid of XIVth century, both anarchy and despotism existed in the peninsula. The political power was tyrannically exploiting small principalities based on territory and the village class people through these principalities and the village class people were not able to resist impositions and insistences of the political power and were being oppressed by the bandits living in the rural areas.

On the other hand, the real victims of the fight between the churches were the small principalities and the villagers; while the Catholics on one hand and the Orthodoxies on the other hand were fighting. Large blocks of people were wildly being exterminated by these two denominations, as they have strictly believed in Bogomilism.

The Ottoman Empire has benefited such situation by the way of securing and protecting the oppressed classes; and therefore in a short period of time, it could find the way to settle in the Balkan peninsula. In the meantime, Turk tributes continuously and Sufistic Connoisseurs (“Tasavvuf Erbabı”) migrating from Asia were constantly being placed in the Balkans. Although this spread was suspended and even regressed upon lost of Ankara war in the East and dissolution of the Ottoman Empire, it was going to be completed more strongly than ever within fifty years and the South and Central Balkans were going to be Ottomanized/Turkicized. In the mid of the XV^th century.   Ottoman-Germen fight was going to continue for one more century in the North Balkans, constituting the current Hungary. The challenge on the Balkans was going to continue until the beginning of the XVIII^th  century and until even today. The difference is that Austria, representing the Germen authority, left its role to the Tsarist Russia since XVIII.

Russia, which has been more dangerous than the Austrian Empire, has planned the policy of “sailing along the warm waters” for establishing its sovereignty in the territory and considered this as a matter of life and death. However, this has been considered by Austria as an economic development area. Then, having eliminated its powerful neighbor Sweden, it has edged towards the Ottoman Empire with all of its power but had to divide its power, as Austria could not have solved its problems in the Western Europe. However, the most important point is that as Austria was catholic, the Orthodox Church was on the side of the Ottoman Empire. At that time, Russia usurped the church. Furthermore, Russia’s being a Slav Country was going to turn the conflict between the church and the nationalists to its own pims; so the Ottoman was going to gradually be considered to be a foreigner or occupier in that territory.

2. Russia and Pan-Slavism: “Küçük Kaynarca Treaty & First Political Losses”

 Nobody should doubt that that the date to be considered to be milestone in  Ottoman-Russian fight was the execution of 1774 Küçük Kaynarca Treaty. Until this date, Ottoman Empire from time to time lost or won the wars it entered; but, no records other than border arrangements and/or commercial matters have been kept to bear political consequences. However, it was the first time that it was accepted in this treaty that: “Russia was the protector of the orthodoxies in the Ottoman State and  they would be able to open a consulate anywhere they wish”. 

This situation, considered unimportant by many of our well-known historians, has been described by Hammer, Austrian Historian as follows: “…this peace has been the reason for all the troubles of the Republic of Turkey (“Turkiye”) since then and has been the commencement of dissolution of this Empire and was going to cause disintegration of the same at least in the West”.

Before ending this matter, we should emphasize: “these provisions, considered to be critical, have been continuously imposed to Turks thereafter and are still imposed even today”. We invite you to think on this matter !.

However, we would like to draw attention to the expression of “at least in the West”. This is because, at that time, Armenians were still considered “Loyal Nation” as expressed as “Tebaa-i Sâdıka or Millet-î Sıdıka” in the Ottoman Turkish and they were not expected to have contrary acts against the State. Anyhow, there has been no reason for such a contrary action; this loyal nation has increased their welfare by conducting the activities of trade and by governing the foreign relations of the Ottoman Empire.

Upon the execution of Küçük Kaynarca Treaty, the Russians have increased their activities in the Balkans. They have established consulates and accordingly, sensitive zones. They have firstly formed armed committees by sending weapons and ammunition and even rebels; and afterwards caused rebellions. They had roles in establishment of independent Romania, Greece and Serbia. However, they could not in any way rouse the Armenian public mind in the Eastern Anatolia; because Armenians have preferred to be under the control of the Ottoman Empire where they have dominant situation in economic terms, as they had fear for religious sovereignty to possibly be established by Orthodox Russia. This lasted until the mid of the XIX^th century.

3. Events until Paris Imperial Reform Edict: “The Issue of Minorities”

Russia already seized the Eastern Anatolia in 1828s and has been in close contact with the Armenian population. A significant change occurred in the mid of XIXth century. Having expanded, Russia reached the border of India; and England has suffered from this progress and France has suffered from availability of Russian navy in the Mediterranean. In the future these two countries, would on the side of the Ottoman Empire (in the future the Kingdom of Piedmont would join to them) declare war against Russia by using Russia’s request of control of the straits as an excuse.

Although Russia lost the war, the peace settlement was going to cause dissolution of the Ottoman Empire. However, after England had secured the Indian border and together with France, settled the matter of Straits, these two countries put the  “Matter of Minorities” in the Ottoman Empire on the agenda, as if they won the war together with Russia against the Ottoman Empire; and thereafter, commenced to discuss the articles required to be accepted by the Grand Governorship. Sublime Porte, afraid of such a plot hatched against it, was obligated to declare in Istanbul a mandate including a series of arrangement upon recommendation and even intervention of  a French Representative, while Paris Conference was going on. This mandate was briefly regarding equal rights and liabilities granted to non-Muslims in the Empire.

It is quite strange that the objection to the provisions of this mandate was raised by the non-Muslims, who have been granted equal rights with the Muslims. Moreover, even Fener (“Phanar”) Greek Patriarch has read the mandate and stated  “I hope it would not any longer come out of its bag” and replaced it into the bag.  The reason is quite simple: “Equal rights and liabilities as well as the status of the Muslim Ottoman Society, who spent 20 years of their lives in the military service and failed to penetrate into the commercial life, do not suit the purpose of the other societies in the Empire, who have been exempted from the military service until that time”. However, Europe has placed pressure on this matter and the non-Muslims would have been exempted from such duty by the way of payment of the “cost” of the military service and would have maintained their economic superiority.

During all of these arrangements, Armenians were still loyal Ottoman citizens, who have been stuck to the State.  However, this was not going to last long !..

Due to the influence of the missioners, who have entered from the borders, opened following Paris Conference, and due to enthusiasm for the scholarships granted, Armenians were going to be willing to go to Europe or Russia and start to be organized against the State there. However, it is not coincidence that committees, which were going to be, in the future, a great trouble to both Armenians and Turks, have been established in either Europe or Russia: “Taşnakustyan (“Taşnak” or “Tashnak”) Committee was established in Tiflis and Hinchak (“Hınçak” or “Hinchak”) Committee was established in Geneva.”

Following the Treaty of Ayastefanos executed on March 3, 1978 after the war called  “93 War”, concluded with great defeat of the Ottoman Empire and following the Berlin Conference, which is a darned version of the preceding Treaty in terms of borders; the Ottoman shrinked in the east; therefore, 800 years of Turkish sovereignty in the North-East Anatolia ended; and the territories as well as the Muslim society living thereon were left on the hook of the Armenians together with whom they have lived for 800 years. 

The Ottomans, aware of the aforementioned facts, have been obligated to ignore a series of agitations in the country due to binding treaties and in order to prevent any jeopardy to the Muslims left on the hook of Armenians. Of course, this situation was going to be considered to be soft spot of the Ottoman Empire and the Armenian societies were going to aggravate the situation. For instance, members of Hinchak Committee were going to start consecutive rebellions.

4. Ottoman-Russian War: “Erzurum Cemetery, Dram & Muslims Force to Emigrate”

While border arrangement was being made following the Ottoman-Russian War in 1978, Russian delegates and Ottoman Delegates gathered at the provincial house. Russians demanded the province of Erzurum in addition to Kars, Ardahan and Ağrı, they occupied in this war. As support, or in other terms proof, for such demand, they asserted the claim that the majority of the population of these territories was constituted by Armenians. Upon such claim, one of the Ottoman delegates took the Russian delegate by the arm to the window and said: “this is the Erzurum Cemetery; this large land from here to there is the cemetery of the Muslims and this small part is the cemetery of Armenians. As we know, Armenians bury their corpses as we do, but don’t eat !..”. This dialogue is in fact quite dramatic.

Then, the idea adopted in the East was: “If a peace negotiation is held and the population of one of the parties is higher than the other one’s, the other party is going to loose the relevant territories”. Therefore, the Muslims on the other side of the border were forced to emigrate with pressure of any nature. When the war was started, Armenians on this side of the border were compulsorily being repressed. We should particularly state that while the oppressions to the Muslims in the Russian side were wildly being made by Tashnak Armenian Guerillas,  the obligatory emigration on this side of the border was conducted by the disciplinary gendarme.

5. 1914 Declaration of War against Russia and Armenian Rebellions: “Obligatory Emigration & Muslim Emigrants”

As soon as war was declared against Russia in 1914 autumn, Russia forced approximately 387,000 Muslims to immediately cross the border and emigrate into the Ottoman Side. Afterwards, the Sublime Porte decided that the villages would be evicted excluding Armenians, such as the doctors, pharmacists and veterinaries, offering public services in the villages on the borders; and the emigrant Armenians would be transferred and placed in the South under security; and the immigrants coming from the Russia would be placed in the evicted villages.

Three points should be considered in this decision:

i.                    The decision was made after Russia had forced the Muslim society to emigrate.

ii.                  The decision is not related to emigration of Armenians and members of several occupational group living in the provinces. This means that this is not a decision made against a group, as they are Armenians.

iii.                The decision has arrangements with respect to that Armenians would be sent to South for residence (emigrate) and the assets of these Armenians would be sold and the revenues of the same would be delivered to them or to the Armenian church, in case of failure in finding the owners of such assets. Documents evidencing such arrangements are available.

6. Obligatory Emigration Circumstances: “Fatigue, Diseases & Kurdish Bandits”

At the preliminary stage, 180,000 – 300,000 Armenians were gathered together and repressed from their villages and collectively caused to depart towards the South. This departure lasted under quite hard circumstances and particularly old population died of fatigue and diseases and young population in considerable number died of the attacks of the Kurdish Bandits. There are many telegrams filed by the guardian officers requesting subsidiary forces.

7. Armenian Rebellions: “Erzurum, Yozgat, Tokat, Sivas”

In the meantime, there has been considerable number of Armenians stayed. These have been Armenians living in the provinces or those, succeeded in staying in the villages by hiding or bribing. Those staying in the territory (Erzurum, Oltu, Erciş, Van, Malazgirt, Muş surrounding, Tekman), occupied by general attacks of the Russian Army upon Sarıkamış Disaster and in the provinces left to Russia by 1978 Treaty, have put to the torture and killed the Muslim society in the territory. As for Armenians living in the provinces; the major evidence that these Armenians have not been forced to emigrate is 1917 Yozgat, 1917 and 1918 Sivas Armenian Rebellions. If these Armenians had been murdered, it is so hard to understand, HOW THEY WERE UP IN ARMS !..

8. The fact of Van: “Paris of the Orient”

We kindly ask you to allow us to disclose a fact, the evidence of which still exists today, about Van with respect to which we have talked to the old people:

The city of Van has born the title of “Paris of the Orient” and the Muslim or Non-Muslim ladies of Van had been wandering around the lake by silver embossed phaetons at sundown at the beginning of the last century according to the claims.  The population of Van had consisted of 1/3 Muslims, 1/3 Armenians and 1/3 Jews.

Well off Muslim society had resided in the quarter on the coast of the lake in the skirts of the castle, remained from the ancient Urartu times, and all of the aforementioned societies had lived together in the skirts of the mountain, 4-5 km far from the lake.

After Russian Army had arrived, a considerable number of Muslims left Van together with Turkish Army falling back towards Edremit. Afterwards, Armenians of Van set fire to Turkish quarters and in their own words “they left not a stick standing”. Relevant evidences are available.

Even, according to what told by an old native of Van; “Armenians of Van, who hide their neighbors, have shipped these people in the vessels for the so-called purpose of missing them, brought them to Akhtamar Island under the Armenian Control and shot them”.

When Turkish Army pulled back Van, Armenians of Van, afraid of retaliation, evicted their quarters together with the Russian Army falling back. Turks coming resided in the evicted Armenian quarters. Then, magnificent city of Van on the coast of the lake disappeared and today’s Van became a land city.

9. Kars: “Armenian State & Armenia”

Armenians, surviving compulsory emigration, has put to the North together with Russian Army falling back in all directions. They have settled down in the “Kars centered Armenian State”. The life of this State has been so short and they have been repelled by Kazım Karabekir Pascha as far as today’s Armenia and left Anatolia.

III. Incrimination of Armenian Genocide: “Malta & Berlin”

1. Malta: “NO EVIDENCE”

As mentioned in the first section hereof, Cabinet in London had difficulties,  as no evidence could have been collected about 140 high officials of the State sent to Malta by English forces, based on a series of crime regarding massacres against Armenians in South Caucasus (refers to Eastern Anatolia within the borders of the Ottoman Empire).

However, the Cabinet in London has called off establishment of courts as per Article 230 of Sèvres Treaty, as they could not have found any evidence either in the archives under their possession or in the archives of the Ottoman. Nevertheless, they have decided to request from the USA authorities to submit evidences and documents these authorities have been supposed to possess (!), in order to procure that those in Malta were going to be arrested to no purpose.

In the meantime, the Chief Public Prosecutor of England, with its Note dated July 29, 1921, stated that there had been no possibility to file an action based on  the documents submitted to them as evidences or statements, the reality of which had been impossible to be believed by any court.”

Having made the situation worse, the response coming from USA has caused disappointment. Washington Embassy in England (dated 13 July 1921 and by British Ambassador Mr. R.C. Craigie in Washington), in its Letter issued to Lord CURZON Committee, authorized to prepare files of the actions against the arrested officials in Malta, has stated: “There is no evidence available regarding the aforementioned arrested officials and there are several groundless oral complaints about two of them. The original of this document is as follows:

“………. I regret to inform Your Lordship that there was nothing there in which could be used as evidence against the Turks who are being detained for trial at Malta…..

Having regards to this stipulation and the fact that the reports in the possession of the Department do not appear in any case to contain evidence against these Turks which would be useful even for the purpose of corroborating information already in the possession of His Majesty’s Government.”

We would like to draw attention to one point herein: “NO EVIDENCE could have been found against the arrested officials at Malta”. We would later on return to this matter while evaluating the legal situation.

When the required evidences could not have been found in USA, the English Government has waived from all of its claims and converted the arrested officials into political hostages from the status of possible offenders and accepted their exchange with the prisoner Englishmen in the Anatolia on a subsequent date; but this matter is out of the scope of our matter in respect of its feature.

2. Berlin: “Tayleryan who murdered Talat Pascha” & “Andonian Documents”

The second stage of the request of referral of the event to international platforms has been launched in Berlin.

Talat Pasha, the second important person of the Union and Progress Government (İttihat and Terakki) and the last Grand Vizier of the Ottoman Vizier, was shot by an Armenian commissioner named “Tayleryan” in May 1921. The murderer was caught. At the trial of the relevant case, it was claimed: “Talat Pasha is responsible for genocide against Armenians (the first pronunciation of the word “genocide”) and Tayleryan is not a murderer but an executor and he acted in such a manner under a grievous provocation”. As evidence for this case, telegram texts, which were going to be named “Andonian Documents” in the future; which have been claimed to have been issued from Istanbul Internal Affairs Office (Ministry) (to Şam and Halep Administrations), then handwriting copies of the same were submitted to the court, as the “originals”, have been burned in a fire, as claimed. In these documents, expressions ordering eradication of Armenians brought for imprisonment were used. The Court REJECTED to take these into consideration as evidence.

These documents have been quite important in claims regarding Armenian Genocide and have even been known as the only source.

Although the Turkish side has claimed that these documents have been false; and that neither the style nor the numbers thereon nor the writing technique has not been compatible; nobody has believed this. Consequently, 75 years has elapsed from these events and falsity of these documents has been detected after the archives* were opened and examined.

[* A Technical Matter: “A internal affairs telegram may not be deleted from the archives; this is because it is registered in at least six books from the Ministry (Office) to the Administrations (Ministry’s roes, telegram arrival book, telegram acceptance book, receiver telegram house entry book , telegram delivery roes and administration’s entry book)”. Moreover, nobody claims this; but we wrote for those, who may possibly not know.]

When it was detected that these telegrams were false, came the most ridiculous defense from the Armenian supporters: They firstly claimed; “Armenian genocide has been carried out in the past because Andonian Documents evidence this genocide”, later they started to claim: “Falsity of the Andonian documents does not change anything, this is because it is real that these events occurred (Chalian; Les Armenians)”.

IV. Sèvres Peace Treaty: “Negotiations”

In the meantime, Sèvres peace negations have been held in Paris. Some of you may perhaps wonder why Sèvres Peace Treaty Negotiations have been held in Paris (and signed on August 10, 1920). This is quite simple; Sèvres Peace Treaty was negotiated by and between the winners at a hotel room in Paris; furthermore, they have neither accepted the interview request of Ottoman Grand Vizier, who has begged for being heard, nor read the letter send by this Grand Vizier.

During these negotiations, any and all opposing groups or ethnic groups, including but not limited to Armenians, were heard but Turks were REJECTED. After issuance of a decision, the Ottoman delegates were called to Paris and notified of this decision.

Referral of the event to the international platform by Armenians has not come to naught and they have been granted the Eastern Anatolia by a treaty.

When during the war of liberation, the Eastern Provinces were taken back by the 3^rd Army, the Armenian events were completely forgotten.

After execution of the Peace Treaty of Gümrü (dated December 3, 1920) which ended this action, the chief delegates of both sides each uttered only one but expressive word:

- “Having left the pen, Turkish chief delegate, asked the Armenian Chief Delegate: “WHY ?.” 

- The response of the Armenian Chief Delegate was “WE’VE BEEN DELUDED !..”.

V. Armenian Diaspora: “ASALA” & Kurds: “PKK”

Hereafter, deceptions were tended from Armenians to the Kurds. The requests of Armenians have been forgotten due to the effects of Dersim and Sheik (“Şeyh”) Sait rebellions, financial crisis of 1930s, 2^nd World War, Korean War and Cold War.

Communities of interest, which have considered in 1960s that they would do nothing with the Kurds, organized the Armenian Diaspora and founded and supported ASALA.

After each murder by ASALA, the Western Media had repeated the same sentences and supported Armenians. Then, the public, which has not been accustomed to ask any questions, has accepted the same as “AN EVENT”. Another update, the number of the lost people, notified by the Patriarchy as 180-300 thousands in 1920s, was mentioned to be  one (1) million as of 1966, and thereafter as 1.5 – 2 million.

Accordingly, we guess that “these Armenians, the only nation whose population continues to increase although they die, have losses in 1915 !..”.

After seriously acting for approximately 15 years, ASALA has disintegrated officially due to internal conflicts and non-officially as a result of the efforts of the Turkish Intelligence Service.

Afterwards, somehow, Kurds were started to be used and “PKK” was caused to be established. You know thereafter.

Today, precipitation of PKK, other than small PKK groups, has leaded the effort to re-agitate Armenians” or “create a new purpose”. What would these excitements lead against us in the future ?.

Sometime several games have been intended to be played on “Alevi society” and they have started to be organized seriously in Germany and Belgium; but the majority of the Alevi society disregards such efforts for the time being. 

VI. Armenian Emigration and Rebellions:  “Obligatory emigration & Revolts”

The act of 1915 Armenian forced emigration (obligatory emigration) was not against  a group of a religion or a race.

According to the documents under our possession, the political will relating to the event was for non-erudite Armenians, supposed to be Russian comsymps or under the influence of the Russians in the territories adjacent to the front line and it has been understood that such forced emigration was conducted particularly for wiping out of the territory in military terms and making the territory convenient for a military act. However, at the beginning, erudite Armenians such as doctors, pharmacists etc., as well as Armenians living in the cities, Armenians working in the state authorities, sick and older villager Armenians were exempted;

We have a memory; 2 Turkish officers told how they have been taken prisoners and how their imprisonments have been. These two officers could have gone to the 3^rd Army in Erzurum from Istanbul in 42 days. The most important reason for their delay has been interruption of their travels due to the Armenian gangs or their short laps. These gangs’ generally being Protestant Armenians might have been taken as basis for issuance of decision on emigration. However, in our opinion, the trigger of the event was the intention to clear a field in the critical zone for about 300,000 Turks, forced to emigrate from Russian side to Turkish side. In fact, firstly 300,000 Turks were banished; thereupon 300,000 – 600,000 Armenians were forced to emigrate to the South.  

Has the Armenian population been as mentioned above? No, but I could not understand the importance of the number of this population; because the entire of this population has not been forced to emigrate. The evidences are the rebellions, which have consecutively broken out after 1915 and particularly upon regression of the Russian Army after dissolution of the Tsarist Russia in the last years of the war. Even if, we disregarded the zones under Russian occupation in 1915s such as Kars, Ardahan, Doğu Beyazıt. If there have not been Armenians in the zones such as Yozgat, Sivas and Merzifon,  how would these rebellions been explained then ? !…

According to what we told in our article relating to lives of the entire of Armenians in the territory of Van in 1916, how could general emigration of Armenians be mentioned without any bad faith? It is hard for a normal person to consider the same! You know that any single Armenian has not been disturbed in the territories of Maraş and Kilikya (“Cilisia”). Moreover, a telegram is regarding refusal by the Armenians in the relevant zone of the efforts for placement, in Kilikya, of Armenians forced to emigrate from the East. We should deem well of the same !..

One day, an Armenian Professor, during his visit to Ani Ruins, told us: “The worst behavior of you was conscription of the men and assassination of the women and children in the villages without men”. We told him that “his knowledge was completely wrong. Regardless of whether the women and children in these villages have been murdered, the Armenian men in this zone have established Tashnak gangs and attacked the Turkish villages or taken shelter of the Russian Army and constituted Armenian troops”. We told him that “the Armenian soldiers he mentioned were the aforementioned villagers. He had never heard something like this !..”. We would like to repeat that it was calculated that the Armenian men, taken shelter of the Russian Army and taken part in the newly formed Armenian troops immediately upon commencement of the war before 1915 events counted at least 70,000. Moreover, during the Russian occupation, these are the Armenians, who have caused injustices to the extent these have stroked the Russian officers the wrong way !..

VII. Conclusions: “Documents, Proof, Our Specialists & Situation”

1. In Terms of Political Will: “FALSE Documents of Lewy Aram Andonyan”

We told in our article that Armenians’ attitude was so illogical and extraordinary that the lawyers even could not understand. After the archives had been opened and the falsification of the Andonian documents had been understood, Armenians and their supporters, who at the beginning, made the availability of this political will depend on completely falsified Andonian documents, wisely and coolly stated: “This changes nothing; because the Armenian Genocide is anyhow real and other documents are absolutely available (?!); but, nowadays they are not accessible !..”.

2. In Legal Terms: “Burden of Proof”

Objective side, contrary to the logic of law, is that the world public opinion has taken the burden of proof from Armenians asserting the claim and given the same to us, Turks.  They asked us to prove that such claim is not true instead of asking Armenians to prove their claim. Moreover, they have even not heard our defense.  Let’s say  “c’est de bonne guerre” in French terms up to that point.  Interests prevail instead of rights and law between the states.

However, the point, which desolates us and which we have difficulty in understanding is that: WE STILL HOLD OURSELVES RESPONSIBLE FOR THIS MATTER; AND WE PREFER ACCEPTANCE OF PRESSURE OF THE FOREIGNERS TO WHAT TOLD BY OUR ESTEEMED MEN OF LETTERS AND OUR HISTORIANS.

3. In Other Terms: “Climate, Kurdish Gangs, Patriarchy, Experts(!?)”

 Yes, this is true; this act has not been conducted without blood. We guess that approximately 60,000 Armenians have died on the ways and nearly same number of Armenians in the communication zones due to climatic conditions in the territory on one hand and their insufficient supply on the other hand and particularly due to continuous attacks by the Kurdish Gangs to these public processions, emigrating with their precious belongings.

However, Istanbul Armenian Patriarchy has firstly mentioned that 300,000 Armenians have died. The figures, claimed today, are not true and are for the purpose of stirring up disorder in the public opinion. Those wondering the facts may reach information on census of population held during the Constitutional Monarchy (“Meşrutiyet”) and may notice that the population in the territory may not be enough for this.

We would conclude our article with a current event: A program to which a Turkish specialist (!?) attended was held in a Belgian-French Channel. On the matter of acceptance of Armenians by the European Union and request from Turkey for recognition of the Armenian Genocide and if not acceptable, request from EU Parliament for issuance of a decision on this matter, this Expert (!?) only and only stated that this is not possible under EU negotiation conditions and such a condition may not be claimed. He even uttered any other unfortunate sentences. If we were in his shoes, we would state that there has been no Armenian Genocide and the claims on this matter are factitious instead of stating that negotiation of this matter is not possible.

Do you consider the claim of Armenians that those accepting the Armenian Genocide has been made are sentenced to imprisonment according to the Former Turkish Criminal Code (“TCK”), A specialist (!?), being at the same time a legal advisor, did not state that there is not such a provision in the Turkish Former Criminal Code; but instead he stated that there has been no person put in the prison for such reason. Do you consider our situation ?!..

Consequently, Mustafa Kemal ATATÜRK, at his speech during the opening of the Turkish Grand National Assembly (in March 1, 1922) stated: “The problem called as “Armenian Problem” and intended to be resolved according to the economic interests of the world capitalists rather than according to the requests of the Armenian Nation was resolved by the Treaty of Kars in the most correct manner. Good faith relations of the two hardworking societies living together in amity for centuries were re-established with pleasure.”

Please take into consideration my writings as a knowledge sharing. How come that everybody informs its studies and such studies are not considered to be abnormal, we would also like to share our knowledge as they do.

Kindly submitted…

Hakan HANLI, Esq

Senior Attorney-at-Law

Member at Ankara & Brussels Bars

International & European Law, Ph.D

GLOBAL TOP TEN COUNSEL of YEAR 2010

« IUS EST ARS ÆQUI »

UN 1973 Decision vs. UN 1950 Nuremberg Principles: ‘Mr Sarkozy & War Crimes’

İstanbul, 26 March 2011

The United Nations Security Council, or UNSC’s, decision numbered 1973 that was taken during its session numbered 6498 convened on the date of March 17 (“Decision”) states that “any member country is entitled to intervene in order to implement this decision ‘solely’” in contrary to the intervention decisions made previously regarding Iraq, Somalia and Afghanistan. 

The UNSC Decision draws borders around intervention in the broadest sense, e.g. refuses occupation of Libya, breaching its independence and national sovereignty and disintegration thereof. 

At the same time, the UNSC Decision refers to the decisions of the League of Arab States, the African Union, and the Organization of Islamic Conference, or OIC, dated March 10 and 16. Under none of the referred decisions, an intervention of any U.N. member state is addressed. 

The UNSC Decision numbered 1973 was voted on at 18:45 p.m., New York time, and made upon “affirmative votes” from 10 member states, whereby five member states “abstained from voting”. 

According to information that has not been published yet, the first French Mirage fighter jets took off at 23:45 p.m. GMT, which means at the same time ! 

Under these circumstances, it is questionable whether granting authorization to implement UNSC Decision to “any member state solely” as stated under the 4th and 8th articles of the UNSC Decision, is necessarily an effort and a victory for French diplomacy !  We have no information about this. The impatience of the French government and its president has put them under serious liability from a legal point of view, which we cannot deny. 

French diplomacy has made a serious mistake in interpreting the 8th article of the UNSC Decision. A matter that is being avoided nowadays as a result of political reasons puts France and its officers in a position of “initiation of an attack on a sovereign country without a declaration of war” under the U.N.’s 1950 Nuremberg Principle VI*. 

Since it would not be possible to accept an implementation such as “We comply with some provisions of U.N. decisions and we avoid some others,” the France’s cannot be perceived as being in accordance with U.N. decisions. 

According to our opinion, this liability emerged in two stages: 

1. Firstly, sabotaging the U.N. general-secretary’s seeking of an amicable solution according to the 2nd Article of the Decision numbered 1973 through its special representative and constitution of a committee by the African Union for the same purpose and imposing of the immediate actual war status on the U.N.  Especially, the 4th and 8th articles of the UNSC Decision, in particular the latter, clearly stipulates close collaboration between U.N. member state and members of the Arab League that will use power subject to informing them by virtue of a “notification” thereto. However, the French government and its president did not comply with such a stipulation, instead they applied another activity by bombing the Socialist People’s Libyan Arab Jamahiriya without complying with the stipulations established by the UNSC Decision. 

2. Keeping this in mind, let’s scrutinize the second stage of liability. Following World War II, a “madness” of so-called democracy took over in the victorious countries. Man imagined that the superiority of the law would prevent any war, and as a result the United Nations was organized. The first duty of the organization was to prevent states from going to war. Although it has been everyone’s will for prevention to be sustained through legal means, unfortunately many times arms have been taken up. We know that…

However, we tend to forget the definitions of certain concepts and penalties implemented by the United Nations legally. For example, following World War II, the criteria on which the prosecution of the arrested Nazi war criminals would be based, the punishments they would receive, and adjustments regarding “Crimes Against Humanity” and “War Crimes” in the following years have always been decided by the U.N.

Consequently, whether its excuse is humanitarian, such as providing aid to Libya, or political, such as saving the prestige Mr. Sarkozy has lost in his own country, the bombing of Libyan territory without complying with U.N. decisions would constitute a “War Crime” under U.N. 1950 Nuremberg Principles* (particularly I, III, VI, VII). And requires a serious thought thereon!

Let’s see if the international community is going to send the losing party to the International Criminal Court of Justice, as it has done so previously, or if they will really seek the Right and Justice.

Sincerely yours

Hakan HANLI, Ph.D 

Senior Attorney-at-Law

Member of Ankara & Brussels Bars

International Arbitrator, ICC

GLOBAL TOP TEN COUNSEL of YEAR 2010

« IUS EST ARS ÆQUI »

* Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 1950.

Principle I: Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.
Principle III: The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
Principle VI: The crimes hereinafter set out are punishable as crimes under international law:
             (a) Crimes against peace:
                 (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
                (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
             (b) War crimes: Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
             (c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.
Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

Pursuant to the Principle of Ban on Retroactive Execution of Law in disfavor, the rule is: “Enforcement of the law in force at the time of committal of a crime. Exception: If provisions of a new law which comes into effect following the committal of a crime are: (i) in favor of the perpetrator, the law is enforced retroactively; that is, the law is applied and the perpetrator benefits from these provisions; (ii) in disfavor, the law is not applied”.

According to the 2nd paragraph of Article 7 titled “Ratione Temporis Execution” in the New Turkish Penal Code (numbered 5237 and dated 26 September 2004) (“TCK”), “If provisions of a law in force at the time of committal of a crime are not identical with that of prospective laws, the law in favor of the perpetrator is applied and executed.”

II. Old CMUK & New CMK: “Period of Detention”

According to Article 110 of the old Code of Criminal Procedure (“CMUK”) (numbered 1412 and dated 4 April 1929) titled “Period of Detention on Remand” states that: “The period of detention on remand is six months at maximum. In case a public law suit is filed, this period, including period of detention on remand past during the investigation process, cannot exceed two (2)years.

…… Punishments restricting freedom for seven years, or longer, and in the cases requiring death sentence, depending on the reason for arrest, on the conditions of evidences and personal attitudes of the perpetrator, the court may rule for continuation of the detention period or termination thereof or for the release of the perpetrator on condition of a proper bail out.”

Article 102 of the New Code of Criminal Procedure (numbered 5271 and dated 4 December 2004) (“CMK”) titled “Detention Period on Remand” (effective from 31 December 2010), states that: “… (ii) Detention Period on Remand in the jurisdiction of the High Criminal Court is two (2) years at maximum. In the presence of compelling reasons, such period may be extended by justifying it. The extension period cannot be longer than three (3) years in total. (iii) The decisions concerning the extension periods according to this article shall be given after consulting the views of the public prosecutor, the suspect or the defendant and the defense lawyer.”

III. Ergenekon Case & Detention Period

Detention Period of the defendants in the Ergenekon case cannot exceed two years according to Article 110 of the old CMUK. However, according to the 3rd paragraph, the detention period may be extended depending on the personal attitude of the defendant and evidences.

According to Article 102 of the new CMK, detention period is two (2) years at maximum, which can be extended in the presence of compelling reasons by justifying it. As it is clearly stated without need for any debate in the Vol. 66 of the 26th Session (3 December 2004) in the 3rd Legislative Year and 22nd Term of Turkish Parliament, in line with the will of lawmakers, it is apparent that detention period cannot exceed 2+1= 3 years in total.

Vol. 66 of the 26th Session (on 3 December 2004) in the 3rd Legislative Year and 22nd Term of Parliament

“On behalf of the governing Justice and Development Party (“AKP”), Aydın Deputy Semiha Öyüş – Thank you.

Mr. Speaker and the distinguished members of Parliament, I took speech to express our opinion in general concerning regulations among Article 101 and 156 of the Draft Code of Criminal Procedure numbered 698. I salute honorable Parliament.

With Article 100 of the Draft Code of Criminal Procedure, reasons for detention are enlisted and reduced in number as a result of a regulation in the subject matter.

With Article 100, it is stated that: “In case of strong suspicion of offense, and of a reason for arrest, decision for the detention of the suspect or the defendant may be reached. During the investigation process, the person is a suspect. In this case, public prosecutor conducting an investigation on the suspect resorts to the judge of Criminal Court of Peace and asks for a decision to arrest.

During the trial period, the individual is the defendant. In this case, decision to arrest the defendant is given by the demand of the prosecutor or ex-officio. Such type of demands should be justified.

Besides, as a new regulation in our criminal justice system, legal and actual reasons are explained why implementation of judicial control remains incapable.

Regarding the decision for arrest, or continuation of arrest or overruling of request for acquittal, legal and actual reasons on which such decision is based shall be provided. The suspect or the defendant shall be verbally informed about the content of ruling; along with that a written copy shall be provided and that also shall be mentioned in the ruling.

The suspect or the defendant is entitled to ask for assistance of a defense counselor to be appointed by the bar or someone chosen at the suspect or the defendant discretion. In case no decision for detention has been reached, the suspect or the defendant shall be released immediately. S/he can appeal to reasons and decision for detention.

In cases not subject to the duty of the High Criminal Court, detention period is six months at maximum. If needed, detention period shall be extended for four months by stating its reason. In cases subject to the duty of the High Criminal Court, detention period can be two (2) years at maximum; but it could be extended up to three (3) years.

With this article, detention period on remand is classified as offenses subject or not subject to the jurisdiction of the High Criminal Court, rather than being contingent upon abstract punishment period. Accordingly, detention period on remand is regulated as six months in minimum, two years in maximum; the six-month period should be extended four more months, if needed and the two-year (2) period for one (1) additional year”.

According to Article 121 of the rationale of the CMK in regard to its Article 102 says that: “Detention period should be reasonable according to the Article 5 of European Human Rights Convention, which is a fundamental principle. As seen in some decisions of the European Court of Human Rights (“ECHR”), if detention exceeds a reasonable period of time requires the payment of damages. It is known that the ECHR decisions are taken into account by all European countries and amendments in national laws are made accordingly.

With these in mind, envisaged in the Article are: 1. Six months is the maximum detention period for offenses requiring an upper limit of five years punishment, or less, 2. One year is the maximum detention period for offenses requiring an upper limit exceeding five (5) years punishment.

With this Article, however, the Draft Code giving importance to an effective justice system and to the rights of the defendant, maintains a reasonable balance and agrees for up to six months extension in cases requiring potential punishment of over five years.

 In case the punishment of the crime does not exceed five years, the extension can be four months. In law suits subject to the duty of the High Criminal Court, detention period is two (2) years in maximum. The decisions concerning the extension periods shall be given after consulting the views of the public prosecutor and the defense. In terms of faults, the last paragraph of the article envisages three month detention period in maximum.

The article entirely serves to protect the rights of the suspect and the defendant.”

IV. Conclusion: “Detention Period”

Since according to 3rd paragraph of Article 110 of the old CMUK, continuation of detention period seems to be “unlimited” at some point, in the Article 102 of the new CMK (2+1) years in total up to three (3) years in maximum detention period (by reserving that the extension of the period could be debatable based on the personal attitude of the defendant, evidences or compelling circumstances) is applicable, because it seems as a law-in-favor.

However, the double-time implementation of the new TCK on terror and organized crime against State shall only be valid for offenses committed after the article’s date of entry into force. The article, however, cannot be implemented for offenses prior to the article’s date of effect, because it shall be law-in-disfavor.

Under the light of aforementioned assessments, according to TCK and CMK, maximum detention period is two plus one (2+1=) three (3) years.

The said laws are applicable to offenses committed prior to 1 June 2005, if they are law-in-favor.

Truly yours

Hakan HANLI, Esq.

Senior Attorney-at-Law

Member of Ankara & Brussels Bars

International & European Law, Ph.D

GLOBAL TOP TEN COUNSEL of YEAR 2010

« IUS EST ARS ÆQUI »

As an expected maneuver, upon the criminal complaint with respect to the statement of  The Higher Education Institution’s President Özcan providing that “the student will in no way be dismissed from the class”  the Prosecutor Tanrıöver has decided to a verdict of non-prosecution with the justification “Those who are covered by turbans and scarves are also human beings. All of the human beings have the right for reading and education.”
                                                                                                                                                                                          
In this case, since the Prosecutor would not be entitled to present a scientific evidence that “those who are covered by chador, veil and even burga are not animals”, there should not be any inconvenience for their registration with the universities and even for their employment in public institutions since “working right” is an universal right.
 
Since Özcan as well as Tanrıöver do not argue that the scarf and turban are not “a religious requirement”, the prohibition of the above mentioned outfits would not be appropriate by claiming that they are religious outfits.
 
As far as the objections with respect to the security concerns, we are in the opinion that they should not be appreciated. In the century we are living, Elhamdürillah !, it is possible to determine the identity of any person without having seen her/his face. Everywhere, there are systems which recognize the “iris”, or authenticate the identity by “fingerprint” if the person is not willing to show her/his eye to infidel. The government’s duty should be to the extent that such systems are delivered and situated in the required places. Since Holly Quran refers to the century (modern times) as a witness, it is obvious that the mentioned systems are permissible.
 
The question with respect to the clarification of who will bear the costs associated with this remains. However, there should be a response for this too.
 
As it is known, the disabled are secured by the constitution and the government aid is required for all of the disabled persons regardless of “their physical or mental disability”.

Cordially yours  
 
Hakan HANLI, Esq.
Senior Attorney-at-Law
Member of Ankara & Brussels Bars
International & European Law, Ph.D
« IUS EST ARS ÆQUI »

I. Introduction: « Socrates and Democracy » 

Spartans blockade Athens fleet under the commandership of Colon at the Lesbos Island in 406 B.C.  Afterwards, Athens sends a new fleet to save Colon.

Athens sinks Spartan ships, and saves Colon in the battle. However, upon their return, 8 strateges, commanding the fleet, are tried in court for failing to save Athenian marines who fell into the sea during the battle. But they were hanged as a result of a voting. Only Socrates stands against the court, defending that 8 strateges were supposed to be voted individually, not altogether as a whole.

Socrates asserts that if the voting ends with only a single “Yes” and “No”; but if there are multiple items to be voted, a single voting could not be healthy or it could be misleading.

He was found right, in time, and this is set as a principle in democracies.

II. Referendum: « Voting for Political Will rather than the Constitutional Amendment Package »  

We will have a referendum on September 12, 2010.

Just like in Athens in 406 B.C., we are asked to vote for a whole package instead of item by item voting. 

In fact, in our recent history as well as within the European Union, there have been votes held similarly.

However, what is people are asked during such votes, though indirectly, is to show if they agree with “the politics imposed those votes”; it is not to see whether or not people accept any of the amendments.

Today, the opposition is in the opinion to carry the referendum into a similar platform.

If the opposition had wished, they could have approved all articles except temporary items, Articles 144 and 149, in particular, and could have force the Parliament to drop these articles off the package.

Their permission to keep these Articles within the package, in fact, cannot be explained otherwise unless the Administrators of the Republican People’s Party (CHP) are perfectly aware of the situation.

In both cases, we will see in the referendum in front of us, how risky is their behaviors.

III. Legal Systems: « Judicial Independence and Impartiality»

On the other hand, in objections to the amendment of Articles 144 and 149 in addition to temporary ones, it is claimed “amendments will remove independence of the judiciary”.

There is a misunderstanding here. As known, symbol of justice is the justice lady wearing a blindfold with a set of scales and sword in her hands (Themis).

The focus here is not independence, but impartiality of justice. In fact, symbolizing a woman rather than a man, even indicates that women in history were not independent when this symbol was accepted.

In the Continental European system, the judiciary is “impartial”, but not “independent” (except Anglo-Saxon legal system).

For this reason, the expression of “democratic state government” is easily recognized in the states adopting the Anglo-Saxon legal system.

In the Continental legal system, although the judiciary is impartial, but it generally depends on laws promulgated by a legislative body.

However, we cannot say this for the Constitutional Court established by the 1982 Constitution.

IV. Democracy: « Stability, Balance and Control»

Our High Court is not an ordinary Constitutional Court. As you know, the Constitution in force abolished the double house (bi-cameral) system of the 1961 Constitution.

But in democracies, significance of double house lays in that both have different election date, period of duration and renewal system.

Significance also lays in preventing radical changes in state policies from one election to other. This is a legacy inherited from ancient Hittite to modern democracies.

Current Constitution introduced the “Constitutional Court” in replacement of the “Senate” which was abolished by the 1961 Constitution.

In other words, decisions disturbing the government today and decisions somewhat political are the Constitutional Court’s very nature. Besides, all decisions are democratic.

If willing parties examine the struggle between the US President Franklin Delano Roosevelt and the US Supreme Court, they will realize this does not take place only in Turkey.

V. Conclusion: «Judiciary’s Impartiality and Serious Threat Against Democracy»

The most critical amendment, we believe, jeopardizes the said inherent characteristic of the Constitutional Court.

As for the amendments in the package, we will not repeat the objections here.

We will only satisfy to say that through these amendments the Constitutional Court becomes dysfunctional.

Let us give one single example: “If a politician dominant in Parliament gains required majority tomorrow, he would be able to remain in office lifetime”. Today’s Constitutional Court can stop it, but after amendments it will not be able to do so.

Even this single fact is enough for us to think seriously when we vote.

Brussels, August 30, 2010

Hakan HANLI, Esq.

Senior Attorney-at-law

International & European Law, Ph.D

Member at Ankara & Brussels Bars

« IUS EST ARS ÆQUI »

I. Introduction: “THE CONSTITUTIONAL AMENDMENT PACKAGE”

On June 5, 2008, the Constitutional Court repealed constitutional amendments seeking the lift of “Headscarf Ban” in the universities following an examination of the substance. And the decision has been inserted as a judicial opinion by the High Constitutional Court (the “Court”) in the legal literature.

Several jurists speaking on TVs or making statements to newspapers have claimed despite the existing judicial opinion that “with the decision the Court has exceeded its authority for it can only squash decisions after a thorough examination of form”. THIS IS TOO MUCH, INDEED !

According to the 4th Article of the chapter “Irrevocable Provisions” (Approved on October 18, 1982 at the Founding Assembly, announced in the Official Gazette on October 20, 1982-17844, endorsed by a popular vote on November 7, 1982, announced in the Official Gazette on November 9, 1982-17863 repetition), the first article of the Constitution, “form of the state” and the second article on the “characteristics of the Republic, and the third article are irrevocable or amendments on them CANNOT EVEN BE OFFERED.

On June 8, 2010, President of the Constitutional Court announced that “the Court has agreed to take the motion to squash suspension of execution and that the Court would examine the form only check to see if the motion is in line with the first three articles of the Constitution”.

II. The Constitution: “PROVISIONS OF FORM & ESSENCE”

We have been educated by Ord. Professor Ali Fuat Başgil and Professor Hüseyin Nail Kubalı in the school of law. It is impossible for us to accept the claims stated above.

Besides, we are stunned to hear such simple remark “The Constitutional Court has exceeded the authority” to which daily ordinary politicians and legalists resort very often.

Let me remind at this point, the Court has not exceeded the authority theoretically, but fulfilled a duty in the following way:

The Constitution authorizes the Court to overrule suggested amendments if not in accordance with form.

Although the term “provisions of form” is applied very frequently in science of law, it is not perceived completely. The accurate meaning of the term is “essence (statutory) conditions”.

In fact, either in form or essence what is examined is not the quorum for meeting or voting or latency time. But what is looked for is “whether or not an amendment is in line with any statutory conditions states in the Constitution”.

As the Constitution introduced the quorum aforementioned, it has clearly stated that some articles are inalterable (1st, 2nd and 3rd articles) and that no motion can be made for amendment of these articles. This is of a more important legal condition or legal form than latency time or quorum. Naturally, in case of violation, the Court must squash changes; it is not “may annul”, but “MUST CANCEL”.

And on June 5, 2008, the Court examined an amendment on lifting the Headscarf Ban in the universities, looked into both FORM and ESSENCE of the relevant articles and CANCELLED the motion.

III. The Constitution: “LETTER &  SPIRIT”

As the Founding Assembly prepared this Constitution, they had never envisaged a government-elected would seek or attempt to seek illegal applications of the law.

The Constitutional Court Rapporteur Osman Can suggests: “If the Constitutional Court cancels some articles, it should be annulled” what “AN ILLEGAL” suggestion to make !.

The Government today doesn’t care about the Council of State decisions, neither the decisions of the Court of Appeals !.. Please be careful, if the result of the referendum becomes a “Yes” to the constitutional amendments, the following hypothetical conditions may occur:

Pose for a second and think. Let’s say that the Constitutional Court has no authority to overrule amendments in the irreversible articles. Then, in this case, which office will regard this “caduceus”. The Army ?!.

If this is a legal issue and if it should be discussed in legal terms, the only statement could be: “Whether or not the Constitutional Court provision is applied in the following circumstances”: It is applied on the text of the irrevocable articles, i.e. ‘letter’, or applied in ‘spirit’ through the modification of some other articles and by-passing the irrevocable ones, which is the case today…

Let’s simplify it more and say that Parliament follows all necessary legal rules, such as quorum and latency time, and approves an amendment by majority of votes:

• If Parliament decides “Recep Tayyip Erdoğan will be a lifetime prime minister” and if necessary quorum and latency time is fulfilled, then will the claim that the irrevocable articles remain untouched and the article “The form of the state is Republic” be justified ?. I wonder if the Constitutional Court has no authority to overrule such a decision.
• Even more so, if Parliament adopts an amendment unanimously and states:

Article 1001: “As long as Erdoğan lives, there will be no elections held. He will be a lifetime prime minister, Abdullah Gül will be a lifetime president, Erdoğan will appoint new parliamentary members in every five years and incumbents may be re-appointed.”

Besides, if a constitution is agreed on that some articles cannot be touched, this is something about the form, not the essence, for it is a procedural issue. The statement “…modification CANNOT EVEN BE RECOMMENDED” means “provision of form”. Is it not?

What is we are missing here is that fulfillment of the irrevocable articles is also a provision of FORM, one of the most important ones.

IV. Conclusion:  “REAL DANGER”

And the real danger is if the current government makes illegal attempts (by using democracy) as mentioned above, there will be no Court or any Resort to stop this !..

In short summary, what should we do against such an illegal offer, if any, that violates the constitutional articles ?.  Let’s leave this to Republic Prosecutors !.

Cordially yours

Hakan HANLI, Esq.
Senior Attorney-at-Law
Member of Ankara & Brussels Bars
International & uropean Law, Ph.D
International Arbitrator, ICC
« IUS EST ARS ÆQUI »

An important note: The Constitutional Court does not drag the country into trouble, as claimed, but governments which do not have any experience in state and which overlooks the Supreme Charter. If governments respect the Constitution and know their limits, the country will not be swept into difficulty. But if they don’t know where to stop, the country will be fall into trouble despite the Constitutional Court.

As the Minister, Ahmet Davudoğlu, several retired ambassadors and experts claim that “A Government is not entitled to interfere to a ship of another government in international waters”.

But, we claim that this opinion is not true.

In this respect let us give examples:

• During the incidents in Cuba, USA drew a line 200 miles away to the island and thousand (1.000) miles away from USA and declared that it would sink the Russian ship if they pass such line. Russian ships stopped five (5) miles away and returned.
• Currently, off Somalia, 40-120 miles away from Somali coasts, pirate boats are being stopped, searched, and sunk.
• In order to prevent cocaine smuggling, USA stop and search ships in the Gulf of Mexico even “in the Colombian territorial waters let alone the international waters”.

In this respect, the practice can be summarized as follows: “If it constitutes a threat for our country, we would search those ships by stopping them within a reasonable distance appropriate for proving our claim.”
The claim here is: “The suspicion in our being of the target rather than their threat against us.”

IN THIS REGARD, ISRAEL IS RIGHT, BUT THEIR METHOD WAS PARTICULARLY DISTURBING US AND THE WORLD !.

That is, as a rule, Israel needed at first “to notify the ships that they are ready to intervene by showing themselves.”

Then in sequence: (a) to ensure that it is fired in front of the ship for easing their speed down or changing their route; (b) if the ship would not ease its speed down, the fire would not continue, will be abreast to its own ship and the direction of the ship would be changed.

Israel’s ships there, all of them have the hardware and power required for easily doing this.

In the meantime, Israel, would contact other states, especially Turkey through diplomatic channels immediately in order to ensure that “the country of which flag the ship is bearing would order the ship’s captain for changing route of the ship.”

Meanwhile, the international diplomacy would be activated. If a result would not have been obtained in spite of every effort, then the ship may be boarded and a fire may be started…

However, without having taken these measures, a sudden attack would not be right.

The fact here is: A Strong State would have met the requirements, would not even dare to come five (5) miles near to the ship, let alone to grave the ship to the Port of Ashdod!.

Hakan HANLI, Esq.
Senior Attorney-at-Law
Member of Ankara & Brussels Bars
International & uropean Law, Ph.D
International Arbitrator, ICC
« IUS EST ARS ÆQUI »

I. Introduction: Sincan 1st High Criminal Court Decree: “Turkish President Abdullah Gül Should Be Tried”

Our legal opinion on the decree of Sincan 1st High Criminal Court providing that “Criminal investigation can be opened for Turkish President Abdullah Gül” is as follows: As this issue was addressed in press and policy circles, as «Accountability of Turkish President», we would like to have a look at the concept of “immunity” which is granted to the President (Turkish Constitution, Article 105 titled “Presidential Accountability and Non-Accountability”), Turkish Deputies (Members of Turkish Parliament) (Turkish Constitution, Article 83 titled “Parliamentary Immunity”) and Civil Servants and other public officials (Turkish Constitution, Article 129 titled “Duties and Responsibilities, and Guarantees During Disciplinary Proceedings”) along with the public institutions and professional organizations, except for the Civil Servants, by appealing to the broad interpretation of the second paragraph of the same last Article. (for example, Attorneyship Law Article 58 – as Amended on 23/1/2008-5728/331 and following articles).

II. Turkish Constitution: “Absolute or Relative Immunity”

Current Turkish Constitution introduces two status of “immunity”:

• “Absolute Immunity” which is granted to President and Turkish Deputies to give them the freedom to act with their conscientious during the performance of their duties defined in Turkish Constitution;
• In cases, where the above does not apply and they are subject to Penal Code, “relative immunity” is applied, which means “the criminal prosecution is subject to permission”.

The Constitutions have to define the enactment, which limits the provision that requires the prosecution of a crime explicitly, and the current Turkish Constitution has stipulated this definition. In other words, we cannot talk about neither absolute nor relative immunity in cases, which are not explicitly defined in Turkish Constitution.

III. Turkish Constitution Article 105: “Presidential Accountability and Non-Accountability”

Article 105 of Turkish Constitution provides exactly that: “All Presidential decrees except those which the President of the Republic is empowered to enact by himself without the signatures of the Prime Minister and the minister concerned, in accordance with the provisions of the Constitution and other laws shall be signed by the Prime Minister, and the ministers concerned.

The Prime Minister and the ministers concerned shall be accountable for these decrees.” This means, if the President executes his responsibilities jointly with the Council of Ministers, the Prime Minister and the minister in concern will be exclusively accountable/liable for the fulfillment of such responsibility.

In the next paragraph it exactly states that: “No appeal shall be made to any legal authority, including the Constitutional Court, against the decisions and orders signed by the President of the Republic on his or her own initiative.” In conditions covered by the above two paragraphs, the absolute accountability/ liability of the President cannot be discussed. In the last paragraph of the same Article exactly states: “The President of the Republic may be impeached for high treason on the proposal of at least one-third of the total number of members of the Turkish Grand National Assembly, and by the decision of at least three-fourths of the total number of members.” Thus, the “relative immunity”, in other words “immunity that is subject to permission” is mentioned.

IV. Conclusion: “Turkish Constitution is Chary of Presidential Immunity”

It is against the legal methodology/technique to act as if Turkish President has other immunities, especially like the ones Turkish Deputies have, except for the above mentioned. Because in relative immunity, Turkish Constitution has to appoint “an authority” which will decide on whether to withdraw the immunity or not, and however, this authority has not been appointed for Turkish President.

Turkish Constitution, while inspired by French Constitution, has stated its decree by not including the provisions in French Constitution related to legal protection or immunity granted to the President.

In other words, Turkish Constitution has NOT GRANTED additional rights to the President except the above mentioned ones which are defined explicitly.

Finally, we can say that Turkish Constitution has been fairly chary of the immunities. For example, without any doubt even the Presidential Residence can be searched with the permission of the Court.

Faithfully yours

Hakan HANLI, Esq.
Senior Attorney-at-Law
Member of Ankara & Brussels Bars
International & uropean Law, Ph.D
International Arbitrator, ICC
« IUS EST ARS ÆQUI »