A judge's rebellion and the principles of advocacy

I would like to talk about the hotel fire in Bolu and the killing of a 15-year-old child at a marketplace in Istanbul. 

These events contain examples regarding the understanding of the law-politics relationship and how legal professionals should conduct themselves when expressing their opinions.

A Parliamentary Inquiry Commission was established in the Grand National Assembly of Turkey regarding the fire that occurred in Kartalkaya, Bolu. 

https://www.tbmm.gov.tr/MeclisArastirmasiKomisyonlari/KartalKayaYangin-Anasayfa

Abdurrahman Gençbay, the father of intern doctor Yiğit Gençbay, who lost his life in the fire, delivered a speech during the session at the commission. The grieving father, Mr. Abdurrahman, has been serving as the President of the 9th Chamber of the Council of State since 2019. 

As a legal professional who knows well how the state and the law function in our country, I would like to share some of the words he uttered during his speech at the commission, without making any commentary. 

Frankly, when I first read the news, I thought these statements by a high-level judge would be discussed much more. In this period when there is intense pressure on the judiciary, I congratulate him for his candid and courageous observations.

(You can find the full text of the news report at the link at the end of the article.)

Gençbay, referring to those who spoke before him, "Look, what are we doing here? Why aren't we just living through our grief? Why are we chasing after reading fire reports, labor inspector reports, or investigating the authorities of the Ministry of Tourism? What business do we have here?" by referencing these questions, "Yes, the real problem is knotted exactly here. Do you know what the problem is? The problem is actually the issue of trust in the judiciary" he said.

I taught at the Justice Academy for thirteen years, and in my final lecture to those students... It has been eight or ten years since I left, because even then, we had brought trust in the judiciary down to 20 percent. Today, trust in the judiciary has fallen to the 20 percent level. I used to tell the colleagues whose classes I taught: Our generation has failed the test regarding trust in the judiciary.”

Gençbay emphasized, “No one should say 'I am a good judge,'” adding, “we have all failed, we have been defeated, our generation has failed the test.”

Ultimately, organized evil has emerged. On one side the municipality, on another the provincial administration, on another the Ministry of Tourism, and on another the Ministry of Labor; all of them are responsible.

On the second day, before we had even laid our children to rest, the Minister of Tourism appeared on television, opposite someone who considers themselves a broadcaster, and said, 'I am not responsible.' He listed a bunch of regulations. Are you the Minister of Tourism or a public law expert? I said this to the Bolu Chief Public Prosecutor. Three days later, when we went to collect our child's belongings from the judicial depository, he called us to his office. I said: ‘Mr. Chief Prosecutor, what is this if not an attempt to influence the judiciary?’ If you are responsible, the judiciary will already grab you by the collar; if you are not responsible, why are you crying out? You sit in your place, and no one will touch you.”

Stating that he has been within the judiciary for many years, Gençbay said, "In this judicial process, the Ministry of Justice is no different from the Ministry of Agriculture and Forestry, the Ministry of Tourism, or whatever else you might call it, from any other ministry. The Ministry of Justice should not be involved in an investigation; in fact, the Ministry of Justice should show sensitivity and stay completely away from the investigation." he said.

"Can the Ministry of Justice give instructions to the prosecutor's office conducting an investigation? It cannot. Does the prosecutor's office or the chief public prosecutor's office wait for instructions from the Ministry of Justice? It does not."

The issues raised by the President of the 9th Chamber of the Council of State should be read carefully by everyone who thinks and reflects on law and the state.

The other incident I would like to briefly touch upon concerns the knife used in the murder of a child named Mattia Ahmet Minguzzi. 

Due to an expert report prepared by the Istanbul Police Department Criminal Police Laboratory Directorate stating that the knife seized from the child offender (SSÇ) B.B., who is being tried for intentional homicide, did not possess the characteristics specified under Law No. 6136 on "Firearms, Knives, and Other Instruments," a decision of non-prosecution was issued regarding the child offender solely for this specific offense.

This knife, which serves as the "crime weapon" in the intentional homicide case, does not fall under the scope of Law No. 6136. However, this situation does not eliminate or mitigate the crime committed. There are two separate offenses: intentional homicide and the crime of carrying a knife of the type specified in the law. The fact that the elements of the latter were not met does not affect the crime of intentional homicide.

Even though the situation is very clear, I do not find it appropriate for lawyers to make statements contrary to the facts regarding a decision of non-prosecution, unfortunately for the sake of publicity and to increase public pressure on the case. 

Following these statements, citizens who are unfamiliar with criminal law are essentially being incited, caught up in the wind, especially on social media. 

I believe that the Bar Associations to which these lawyers are affiliated should take action and initiate disciplinary investigations into such statements made in pursuit of fame and professional advancement.

https://haber.sol.org.tr/haber/boludaki-yanginda-oglunu-kaybeden-danistay-daire-baskani-sorumlulari-topa-tuttu-bu-yargiyi