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Falling penal procedure.

ySTANBUL (CyHAN)- Two days ago a bill was passed by Parliament restricting human rights. According to its provisions, security forces will be able to use protective measures such as arrest, custody, detention and search and seizure based on reasonable doubt instead of strong doubt.

Simply put, reasonable doubt is a standard that is used by security forces in order to collect evidence where the probability that the suspect committed the crime is higher than that of his innocence as well as a standard of obtaining evidence by means of search. Strong doubt reflects a higher probability than reasonable doubt in Turkish law, and is required for some protective measures because of their nature. Arrest, custody and detention are measures that restrict human freedoms, and according to the Constitution, basic human rights and freedoms can only be restricted when prescribed by law. In the Code on Criminal Procedure (CMK), it was prescribed that strong doubt is necessary for such measures. Now, the Justice and Development Party (AKP) passed this bill to maintain the "union and progress" in Turkey.

Although it is not published in the Official Gazette and has not entered into force yet, the first application of this new law was somehow accomplished in Denizli. A Denizli Criminal Judge of Peace ordered the seizure of flyers that a newly formed leftist group was distributing. A group of leftists and socialists who came together this autumn formed the United June Movement (BirleE-ik Haziran Hareketi) and declared that they would continue in the struggle for democracy without any form of violence. The Denizli branch of the organization planned a meeting and flyers were posted to advertise it. It appears that the judge in Denizli saw reasonable doubt, although he had no concrete indications of a crime, and ordered that the leaflets and flyers be seized. It is a historic moment when we see the application of a law before it has even entered into force.

This law is a clear violation of basic human rights and therefore unconstitutional and contrary to the provisions and implementations of the European Convention on Human Rights (ECHR). I believe that Turkish lawyers will bring this law first to the Constitutional Court and then to the European Court of Human Rights (ECtHR)so that it will be abolished soon, but let's be careful not to be hit by it until that time.

During 2003 and 2004, we saw clear forward steps being taken on behalf of human rights, but that was 10 years ago. It was during the time that the EU put a clear agenda in front of Turkey and the EU vision of Turkey was accepted by this government at every step. After 2005, we did not see any positive steps, except a few amendments to the Constitution and other laws. Instead, we see the AKP taking steps backward since 2010 and this new law may be the last nail in the coffin.

It is also clear to me that the AKP is making these kinds of amendments because of its so-called "enemies." "Othering" and discrimination became government policy after the Gezi protests, and the Hizmet movement and the Kurds were openly declared enemies of the government in 2014. While the Kurdish movement was a traditional enemy of the nation state, the Hizmet movement became another enemy of the AKP government after the graft probe of Dec. 17. I think the first interlocutors on this new law are these two groups. The saddest point is that while the AKP is preparing itself for a revenge operation, it is ruining the penal procedure principles and all democratic values with a single blow, like an elephant in a glass shop.

German philosopher Max Weber once said: "The modern view of criminal justice, broadly, is that public concern with morality or expediency decrees expiation for the violation of a norm; this concern finds expression in the infliction of punishment on the evil doer by agents of the state, the evil doer, however, enjoying the protection of a regular procedure."

GE[pounds sterling]NAL KURE[currency]UN (Cihan/Today's Zaman) CyHAN

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Publication:Cihan News Agency (CNA)
Date:Dec 5, 2014
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