The state does not set traps

On January 7, 2022, the Diyarbakır 5th High Criminal Court issued two separate conviction rulings against Abdullah Zeydan, the DEM Party candidate who was elected Mayor of Van Metropolitan Municipality by receiving 55.48% of the votes in the March 31 Local Elections, for the crimes of aiding a terrorist organization and engaging in terrorist propaganda.

The 3rd Criminal Chamber of the Court of Cassation, which conducted the appellate review of these convictions, ruled on December 20, 2022, to uphold the conviction for terrorist propaganda, and that decision became final. The Chamber ruled to overturn the conviction against Abdullah Zeydan for the crime of aiding a terrorist organization.

The Diyarbakır 5th High Criminal Court, as a result of its trial, assessed that the statements made by Abdullah Zeydan in his speech to the crowd gathered in the Yüksekova district center on July 26, 2015, constituted “propaganda in a manner that legitimizes or praises the methods of a terrorist organization involving force, violence, or threats.”

The court sentenced him to 3 years, 1 month, and 15 days in prison, taking into account his status as a member of parliament, his power to influence the masses, the gravity of the words he uttered, the dangerous nature of the organization for which he conducted propaganda, and the extent of the damage caused to the indivisible integrity of the state and nation to date.

An additional decision was issued by the Diyarbakır 5th High Criminal Court on April 4, 2023, regarding Abdullah Zeydan, who had applied for the restoration of his banned rights. In accordance with this additional decision, it was ruled that Abdullah Zeydan’s banned rights be restored. However, for an application for the restoration of banned rights, a period of three years must have passed since the date the execution of the sentence was completed. In this case, the additional decision of the Diyarbakır 5th High Criminal Court regarding the restoration of banned rights is actually erroneous and a non-existent decision, because the required three-year period for the restoration of banned rights had not passed. Furthermore, the decision had acquired the status of a final judgment.

Abdullah Zeydan, whose banned rights were ruled to be restored, submitted the restoration of rights document and the final court decision to the Supreme Election Council (YSK) along with the required documents during his application for the Van Metropolitan Municipality mayoral candidacy. The YSK, which examined Zeydan’s documents and papers, accepted Zeydan’s application in the final list of candidates it announced in February.

However, on Friday, March 29, 2024, five minutes before the end of the workday and two days before the election, the Ministry of Justice, through an administrative decision and letter, objected to the banned rights of Zeydan, who had received his rights in 2022 and passed all legal audits. The Diyarbakır 5th High Criminal Court complied with this objection and, on March 29, 2024, just two days before the March 31 elections, canceled the decision to restore his banned rights. In this situation, the second decision issued by the Diyarbakır 5th High Criminal Court to correct the error in the first final decision is also erroneous.

The Diyarbakır 5th High Criminal Court has no authority to take up and revoke its own final decision and issue a new one. Because the Diyarbakır 5th High Criminal Court, which issued the first decision, cannot revoke the old decision and issue a new one by saying that its previous final decision was erroneous. A decision made by a court that is not tasked or authorized to review its own final decision carries no legal consequences and is null and void.

Only an extraordinary legal remedy can be sought against a court decision that has acquired the status of a final judgment. In this case, the necessary action is to seek a reversal for the benefit of the law against the decision of the Diyarbakır 5th High Criminal Court, and the application must be made to the Ministry of Justice. Consequently, the decision of the Diyarbakır 5th High Criminal Court dated March 29, 2024, has no legal validity.

In fact, the problem lies here: 1 to 1.5 years have passed since the decision to restore Abdullah Zeydan’s banned rights was made. Then, they waited until the end of the workday on the last Friday just before the local elections and made this objection through Ministry of Justice inspectors. All of these are actually traps. If this objection had been made after receiving the certificate of election, a new election would have had to be held in the municipality. In that case, the DEM Party candidate would have been elected again. But since the objection was made before the certificate was issued, the certificate would have had to be given to the next candidate.

In fact, even this is debatable: According to the Constitution, “those who have been convicted of one of the crimes of participating in terrorist acts or inciting and encouraging such acts cannot be elected as members of parliament, even if they have been pardoned.” Furthermore, in accordance with Article 11 of the Parliamentary Elections Law, those convicted of terrorist acts cannot become members of parliament. Additionally, Article 9 of Law No. 2972 extends this provision to the office of mayor. In this case, Abdullah Zeydan should not have been a mayoral candidate at all. However, this issue is controversial in YSK decisions.