HSYK 2Nd Chamber Member: No One Can Be Called A Criminal Based On 'Red Book'

A member of the Supreme Board of Judges and Prosecutors (HSYK) 2nd Chamber, Mahmut Şen, has said judges cannot make decisions based on a national security document known as the “Red Book” and a recent police document regarding the so-called “parallel state” as they are not legally binding, but instead must only use the Constitution and existing laws as the basis for their decisions.

Posting successive tweets on his Twitter account on Sunday evening, Şen strongly criticized the so-called “parallel state structure” (PDY) document that was recently sent by Zeki Çatalkaya, the deputy chief of the National Police Department, to the Ankara Chief Public Prosecutor's Office, as well as a judge's reference to the “Red Book” as the basis for the decision to arrest four police chiefs who were detained following a complaint from a member of a group linked to al-Qaeda.

The National Security Strategy Concept Paper (MGSB), often referred to as the "Red Book," is a national security document in which major threats against the nation are enumerated.

Şen highlighted that judges can only make rulings based on the Constitution and existing laws, adding: “How the allegations concerning a crime are proved is determined by the procedural provisions. Any document that is not in accordance with [those procedural provisions] cannot be considered evidence. No one can be declared a criminal based on documents that do not exist in the hierarchy of norms or based on statements by people or institutions that are not courts.”

Pointing to the separate authorities of the legislative and judicial bodies, Şen said the legislative body is authorized to determine the country's policy regarding the criminal justice system and what is to be considered a crime, but only judges are authorized to determine whether or not a person is a criminal. “Statements or publications that declare people criminals without a court verdict clearly violate the presumption of innocence. A judge must be independent from his ideology, faith or worldview while giving a decision,” Şen emphasized.

The classified document is drafted by the National Security Council (MGK) to assess threats to the state and has no legal status, but rather acts as a guide for the government.

Out of the 20 police officers detained in June as part of an investigation built on the alleged existence of a plot against an al-Qaeda-affiliated group known as Tahşiyeciler, four were arrested while 16 were subsequently released. Judge Recep Uyanık of the İstanbul 5th Penal Court of Peace, who ordered the arrest of the four police officers, said in his decision that Fethullah Gülen, a prominent Turkish Islamic scholar, was mentioned in the “Red Book” as a threat.

Kemal Karanfil, a distinguished judge in Zonguldak who was demoted to a lower-ranking court when he was transferred from his previous post in Eskişehir, posted a tweet on Sunday to criticize the judge's decision based on the “Red Book,” writing: “As long as those prosecutors and judges who are not aware of the difference between a security document [Red Book] and legislation, no one can talk about the supremacy of law in the country. Almost everyone is aware of what is going on. However, they believe in what is beneficial for them.”

The “Red Book” has long been the subject of criticism from opposition parties and civil rights advocacy groups as political and military authorities have often abused it to justify their witch hunts of critics and opponents. Although it was unconstitutional, the Justice and Development Party (AK Party) government used the book to classify unsuspecting citizens based on their ideological and political beliefs, as well as their ethnic and religious affiliations. There is no reference to the book in either the Turkish Penal Code (TCK) or the Code on Criminal Procedure (CMK).

A document similar to the “Red Book,” the PYD document prepared by the National Police Department, defines the alleged “parallel structure” as an organization that aims to “seize all the constitutional institutions of the Turkish Republic and become a large-scale and influential political and economic force on the international level.” The report also states that the fact that the organization has these aims “is understood from the statements of those who were once a part of this organization.”

Speaking to the Bugün daily in a report that was published on Monday, opposition Nationalist Movement Party (MHP) deputy İsmet Büyükataman also condemned the fact that the document prepared by the National Police Department classifies the Gülen movement, which is inspired by Gülen, as a “terrorist organization.”

Calling the police document “funny,” Büyükataman said the government resorts to any method, regardless of whether it is lawful or not, to eliminate the movement, adding that is it impossible for him to accept a document “prepared so recklessly.”

The “parallel structure” is a term invented by then-prime minister and current President Recep Tayyip Erdoğan to refer to followers of the Gülen movement, also known as the Hizmet movement, particularly followers within the state bureaucracy, such as the police department. Erdoğan launched this large-scale battle against the movement because he and the AK Party-led government believe the movement was behind a major corruption and bribery investigation that implicated Erdoğan, his relatives, four former ministers and pro-government businessmen that first went public on Dec. 17, 2013.

Faruk Alan, İstanbul (Cihan/Today's Zaman)