TURKEY’S OMBUDSMAN PROVES TO BE A JOKE

January 23, 2007, Dink’s funeral (panoramic photo by Kerem Özcan)

A landmark event in the recent political history of Turkey has been the assassination of Hrant Dink, a Turkish-Armenian journalist, who seemed to have the rare gift of charming all, including some of his adversaries, through his artless warmth in personal contact, and his boundless, naïve faith in people. An active member of the beleaguered Armenian community, he was critical nonetheless of the campaign by Armenians worldwide to increase the diplomatic pressure on the Turkish government towards an official acknowledgement of the genocide of Armenians in Ottoman Turkey during World War I. Thinking this pressure triggered securitising reflexes in Turkey first and foremost, resulting in a boost in mindless nationalism and increasing alienation of Turkey internationally, with a tightened squeeze on people on the domestic level, clearly inimical to rights and freedoms in the country, he favoured instead improvement in Turkish perceptions of the issue through future promises entailed in Turkey’s gradual integration with the wider world.

January 19, 2007, Dink assassinated, lying covered on the pavement (note the sole of the right shoe)

Ogün Samast, who pulled the trigger and shot Dink dead, with law-enforcement officers in Samsun, where he was caught. From the judgement of the European Court of Human Rights in the case Dink vs Turkey (2010): “[A] criminal investigation was opened concerning members of the Samsun police and gendarmerie on charges of defending the crime. While the suspected perpetrator was in police custody the persons concerned had had their photograph taken with the suspect, who was seen holding a Turkish flag: on the wall behind them were the words ‘Our country is sacred – its future cannot be left to chance.’ In June 2007 the Samsun public prosecutor’s office decided to discontinue the proceedings against the officers in question, taking the view that defending a crime was only an offence if it was done in public.”

He was assassinated on January 19, 2007, right in front of the building in the centre of Istanbul that housed the office of the small Turkish-Armenian weekly he edited, Agos. When caught, the boy who had pulled the trigger received a hero’s welcome at the gendarmerie station where he was taken, posing memorably to cameras with a Turkish flag he was instructed to hold wide as he was being patted on the back by admiring officers. It soon turned out that Dink had been the victim of a huge nationalist conspiracy that included a number of high-ranking officials at various levels of the administrative machinery, plus, paramilitary elements controlled apparently by a number of retired military officers and high-profile nationalist leaders. The criminal case  initiated into the killing has not yet been concluded, lingering on, amidst cries of a cover-up by Dink’s family and a group of friends, who have been closely monitoring the progress, or lack thereof, in the dark judicial jungle. 

Dink

Why Dink — a person, as everyone asked immediately, who had been so very hard no to like, a person with a strikingly disarming grace? That, apparently, had been precisely the point. The aim had been to shock, anger and, in turn, create lasting chaos, which would give the military a good excuse to attempt and take over the administration from the Party for Justice and Development (AKP) of the Prime Minister (PM) Erdoğan, which had been defying, for the first time in modern Turkey, the long-established, securitising policies of the bureaucracy (with three legs: the military, the judiciary, and the higher education), seeking to mix with the outside world in the face of such formidably no-go issue areas ruled by the bureaucracy in the past as the Kurdish question, Cyprus, Armenian genocide, all now reassessed with fresh insights as enabled by greater rights and freedoms brought about by the intensified relations with the European Union. In addition to stirring trouble for the government domestically, the murder would also expose the ruling AKP to the whole world as an Islamist political movement under which anti-Christian bigots were becoming bolder, coupled, in particular, with the slaughter of a priest and three unsuspecting missionaries, taking place almost simultaneously with the Dink murder.

“We are all Hrants, we are all Armenians!”

Yet, the nationalist plans to cause confusion and carnage seemed to backfire big time. (1) The loose coalition around the AKP became somewhat tighter, democrats and liberals being rendered even more committed to the regime change led by the AKP. (2) Because hundreds of thousands of people, Istanbulites, took to the streets immediately after the murder, in mourning and solidarity, with banners “We are all Hrants, we are all Armenians!” signalling a new type of protest in the land, to be repeated, we may as well note, later at Gezi, the Dink murder actually served to endear Turkey under the AKP rule to the outside world — despite the initial faltering of Erdoğan in the matter (as recounted at the bottom of this piece), a tell-tale sign perhaps of the days to come from the late 2010.

This is more or less what happened after the assassination of Dink. Before this, and not yet over, he had been notoriously subjected to an ordeal in the hands of the Turkish judiciary. In the column he wrote for Agos in the early 2004, Dink addressed and criticised Armenians, those in the diaspora in particular, for their obsession with Turkey, pointing out this consuming preoccupation as unhealthy, poisonous, drawing attention instead to the urgency of a renewed bonding with Armenia. He stated at some point: “the purified blood that will replace the blood poisoned by the ‘Turk’ can be found in the noble vein linking Armenians to Armenia, provided that the former are aware of it.”

Illustration by Fırat Yaşa, 2007

A publicly known nationalist figure filed immediately a criminal complaint against Dink, under Article 301 of the Criminal Code, a much-discussed norm partly to be amended later, for “denigrating Turkishness” (Türklük, a term which refers in the local nationalist discourse to an objectified ethnic stock that also includes Turkic people outside Turkey). Clearly, the statement was notabout Turks but Armenians. The blood, “poisoned” by a compulsive preoccupation with Turks, was the Armenian blood. The claim in the litigation was, however, that since the “Turk” was claimed to have poisoned the Armenian blood, it was the Turkish blood that had to be “poisonous” in the first place. In April 2004, criminal proceedings were instituted against Dink before an Istanbul court.

As the case was being processed, something radical, something miraculous even, happened in May 2004. Through one of the “democratising” legislative packages introduced by the government seeking full membership in the European Union, the Turkish Constitution was amended in May 2004 and international agreements in the area of democracy and human rights became part of the domestic law in the land, to be applied by courts directly. This was a dramatic shift from a so-called “dualist” approach in law (in which international agreements would only have effect if integrated into the domestic law, separately and formally) to a “monism,” the approach long adopted in democracies in Europe and in north America.

Turkish Parliament (TBMM), Ankara

More, the newly amended Article 90 of the Constitution stated that in the event of a possible clash between those international agreements and the domestic law (such as Article 301 of the Criminal Code on denigrating Turkishness), provisions in the former would prevail. This simply meant that Article 10 of the European Convention on Human Rights, an international agreement binding on Turkey since 1954, yet, having remained only as window dressing, never implemented, was now the law to be applied in cases of the freedom of expression, such as that of Dink, regardless of the content of the domestic law, Article 301 of the Criminal Code in the present case.

As if this was not enough, an expert consulted by the court submitted in his report that the remark by Dink was not insulting Turkishness, stating unequivocally that it was a remark only about Armenians.

Court of Cassation, the supreme appeal court of both civil and criminal cases, Ankara

Finally, on top of all this, following the judgement of the Istanbul court in October 2005, which found Dink guilty as charged regardless of the expert report, the public prosecutor at the court of appeal, the Court of Cassation (Yargıtay), argued in favour of Dink, stating in his observations that there was no insult or denigration in Dink’s remark, and that the “poison” in question was not in relation to the Turkish blood but the “perception of Turkish people” by Armenians — a form of big-heartedness that rarely happens, as the public prosecutor is usually the figure that casts accusations.

Once again, nevertheless, despite this opinion by the public prosecutor, the high court ruled in May 2006 to uphold the judgement of the first instance court. It was over.

The European Court of Human Rights would later describe this judgement of the Turkish high court as what principally “made [Dink] a target for extreme nationalists” (Dink vs Turkey, 2010). The unanimousjudgement of the European court in the case found Turkey in violation of both the right to life (Article 2 of the European Convention on Human Rights) and the freedom of expression (Article 10).

Çetin, in addition to being a friend and lawyer of Dink, is of “My Grandmother” fame, the beautifully-written, heart-breaking memoir of her own grandmother, only one of many “Turkified” Armenian children left behind by massacred or exiled parents in 1915

Utanç Duyuyorum: Hrant Dink Cinayetinin Yargısı (I Feel the Shame: Judiciary in Hrant Dink Murder) by Çetin

Dink’s lawyer, Fethiye Çetin, has recently published in a book on Dink’s ordeal a rather revealing account of what happened at the Court of Cassation, asreprinted in a newspaper report subsequently. According to the eye-witness testimony of a high court judge who was present, and who later spoke to Çetin, as all 24 judges from various sections of the Court of Cassation had gathered for the Dink case, forming the Grand Criminal Chamber, one of the judges was unusually pushy, stating at the very outset: “We, as majority, find the judgement of the first instance court right.” The judge relating this to Çetin says that he was practically dumbfounded, as this was highly unorthodox, and that the person making this statement could not possibly know the opinion of all of the judges at that stage, before the voting. Unless, of course, there had been a prior meeting excluding judges who would be likely to dissent. Further, he adds, as the discussion started and went on, there was pressure on the dissenting judges of the kind not hitherto experienced, with six of them who ended up voting against the majority branded then and there as traitors by some. A specifically mobbing remark resounding among the staff on the premises of the high court in the days to come was: “Now we know the number of Armenians among us.” Çetin actually names the high court judge who appeared to be the gang leader, totally heedless of the common courtesy towards his colleagues as well as of the law.

The newspaper, which printed this account from the newly published book by Çetin, received a disclaimer, rather promptly, from the office of the Chief Ombudsman. The so-called “Ombudsman Institution” was created in Turkey, as, again, a “democratising” measure, in June 2012. It started receiving complaints from March 29, 2013. The institution is expected to review administrative acts on behalf of the public “within the framework of an understanding of human-rights-based justice and … principles of fairness” (Article 1 of the Law on the Ombudsman). According to the disclaimer sent to the paper, Dink had been found guilty by the Court of Cassation in 2006 not because of some extra-legal bias, but “because the material and psychological elements constitutive of the offence were in place, judging from the evidence in the case file, and because this is how judges ultimately evaluated the whole thing relying on nothing but their personal convictions.”

European Court of Human Rights, Strasbourg

In charge to review administrative acts following individual complaints, in accordance with a notion of justice based on human rights, the office of the Chief Ombudsman was, for some reason, defending a lamentable, universally condemned judgement of the Turkish high court, described by the European Court of Human Rights in 2010 as what principally “made [Dink] a target for extreme nationalists.”

Now, let us list all those factors that should have normally prevented the outcome, namely the regrettable decision of the high court, that led to Dink’s murder: (a) the statement by Dink itself, sufficiently clear when understood in its context, (b) Article 10 of the European Convention on Human Rights that Turkish courts were under obligation to apply directly, and if necessary in the place of the domestic law, from May 2004, (c) the expert report submitted to the Istanbul court, stating clearly that there is no insult, and finally (d) the official remarks of the public prosecutor at the Court of Cassation, arguing that Dink is innocent. On top of all this (e) we also have now the judgement of the European Court of Human Rights, which finds in the overall result a violation of the freedom of expression, beside a violation of the right to life. Are all these not convincing enough for the Chief Ombudsman?

But, wait, what is the Chief Ombudsman doing, having a disclaimer sent by his office to a newspaper for an account of what happened at the Court of Cassation seven years ago, when a group of high court judges, led by a gang leader, decided to throw Dink before lions?

Chief Ombudsman Ömeroğlu

The gang leader, a judge at the Court of Cassation at the time, by the name Nihat Ömeroğlu, was picked by the ruling AKP as the first Chief Ombudsman, soon after Ömeroğlu retired from the high court, having his new office do his dirty work now, and refute the account in the newspaper; not even bothering, that is, to write to the paper himself, in his private capacity, which a self-respecting person would normally do, because the event has nothing whatsoever to do with the function of the Ombudsman.

When Ömeroğlu became the Chief Ombudsman, this naturally caused a stir and some of Dink’s friends called on him to resign from the post. Ömeroğlu defended himself in an interview, stating that when he voted the way he did on that day in 2006, he had no idea that the case was about Hrant Dink (taking refuge in the fact that Dink’s name on official records was Fırat Dink). It was quickly pointed out to him that the case was, after all, about a piece of writing published by a certain “Hrant Dink,” and that this pen name had been noted, with the official name, practically on every page of the case file; even if we buy, that is, that Ömeroğlu was so very incredibly removed from his time, from social life and media, when the Dink case was one of the hottest topics around.

Yes, as pathetic as this.

OK. Is all this an accident, then? Why did the AKP, leading the democratic transformation in the country, at least to start with, had to direct its deputies in the parliament to go for Ömeroğlu? What went wrong?

PM Erdoğan

Nothing. PM Erdoğan knew well what he was doing when he picked Ömeroğlu. Check out this sentence in the very first statement made by Erdoğan himself on the day Dink was assassinated: “We find it significant that this murder has been committed at a time when, in particular, claims about the purported Armenian genocide are being debated in some countries.” (Özellikle bazı ülkelerde sözde Ermeni soykırımı iddialarının gündemde olduğu günlerde bu cinayetin işlenmiş olmasını manidar buluyoruz.) What?

Özel

The following statement by İsmet Özel, a leading Islamist intellectual, made in an interview in the weekly Nokta soon after the assassination of Dink, fully explains what some people, including Erdoğan perhaps, thought of Dink’s death:

“My impression is that Hrant Dink is also in it. I mean, we all know that Hrant Dink had dropped hints in one of his writings that he was going to be killed. Was this a premonition or information, we have to think about this. Did Hrant Dink sacrifice himself, or not? Was this his burden, or task? This is how I tend to evaluate these things … If all this was part of a grand plan, it is possible that Hrant Dink had to consent to his death. If Hrant Dink had died of avian flu, would Patriarch Mutafyan [of the Turkish Armenian community] enunciate a ten-day mourning?”

General Küçük, in the middle, wearing a cap; to his immediate left is Kemal Kerinçsiz, who filed the criminal complaint about Dink; both were sentenced to life imprisonment in August 2013 for offences not related to the Dink case

Hints by Dink that he was going to be killed? After noticing that some of the leaders of the nationalist paramilitary, especially a retired general called Veli Küçük, allegedly responsible for many forced disappearances while serving, were keenly attending his court hearings, steering personally the abuses by nationalist protesters at Dink in the courtroom and outside, Dink told some of his friends that he was now, for the first time, scared. He wrote a week before his assassination in his Agos column: “I find myself frightened, rather like a dove perhaps, but I know that people in the land would never harm a dove.”