The legal aspect of the CHP cases and the real objective

CRIMINAL CASE

1- The crime of "tampering with the voting, counting, and tabulation at the party congress," regulated in Article 112 of the Political Parties Law (SPY), only occurs in situations where the voter's will is not reflected.

2- A voter giving their vote to someone else "of their own free will," even under any influence (personal gain, etc.) as alleged, NEVER constitutes this crime. Even if the vote was changed under influence, the existence of free will prevents the formation of the crime.

3- Allegations of gain, etc., aimed at changing a voter's choice are unethical and could at most be a disciplinary offense.

4- A disciplinary offense concerns the internal functioning of the party. The party's internal operations can never be interfered with under the guise of a criminal case or investigation.

5- Those who resorted to "denunciation/complaint/criminal report" for a criminal investigation did not file a disciplinary investigation application against the people they accused within the party, and the party did not find this allegation serious enough to open an investigation on the matter.

6- Actions that remain at the level of a disciplinary offense and do not exceed it (especially since people voted with their own free will "by any means") do not constitute a judicial crime, and these actions, which are at most disciplinary offenses, can never constitute a situation of severe invalidity (nullity).

7- A criminal case has been opened for a non-existent crime, and the party's organs, administrators, and activities have been interfered with under the name of a criminal case.

8- In this case, representatives of the previous administration hold the status of those harmed by the crime (victims) by law.

9- Victims have the right to become participants in the case, that is, to become a party. For this, they can notify the court in writing/orally upon service of the invitation whether they are complainants/whether they wish to join the case. If they remain silent despite the service of the invitation, the court will not resort to forcing these people to appear and testify or asking whether they are complainants; this situation means that those individuals are not participating in the case.

10- If victims have "concrete knowledge" about the actions subject to the case, they are issued an invitation to attend the hearing (with the warning that they will be heard according to the provisions regarding witnesses and will be brought by force if they do not come). If they do not comply with the invitation, they are brought to the hearing by force. Kılıçdaroğlu falls within this scope. His statement in the courthouse corridor that he would not allow his party to be debated, and his failure to go when summoned by the prosecutor's office during the investigation phase, does not bind the court. When they attend the hearing, they are heard without an oath according to the provisions regarding witnesses. After this hearing, they are asked whether they are complainants against the defendants (i.e., İmamoğlu and others who are the defendants in the criminal case) and, if they are, whether they wish to join the case. This procedure will take place in any case.

11- So far, Kılıçdaroğlu has not clarified whether he has knowledge of the event or whether he is a complainant against İmamoğlu and the other defendants. The court will ask whether he is a complainant in any case (by bringing him by force if necessary). His failure to go to the courthouse during the prosecution phase has not eliminated this situation.

12- Since a criminal case has been opened for a non-existent crime, the court can even issue an acquittal without taking a defense for an event that has no crime or criminal. However, it is seen from the attitude so far that it will not take this path.

13- In political party closure cases filed with the Constitutional Court, since a political ban is in question for the individuals who caused the closure decision, and since a political ban would also be in question in the event of a conviction in this case, which has no legal basis, a case has been filed that circumvents the law and effectively imposes a kind of political ban (even if the party is not closed), similar to a closure case.

CIVIL CASE

14- A lawsuit has been filed for nullity with the allegation that "the voting was tampered with" at the Congress.

15- In cases other than nullity, those who attended the Congress can file a lawsuit within one month, and those who did not attend can file within three months.

16- Because this deadline was missed and a lawsuit can be filed without being bound by a deadline in the case of nullity, the lawsuit was filed with this justification.

17- Lawsuits regarding the voting issue can be filed by those who have the right to vote (delegates) or those who applied for the right to be elected.

18- Since the filed lawsuit is subject to the type of trial called simple trial procedure, it is mandatory to show all grounds for the lawsuit and all evidence in the petition. These cannot be expanded in any way later without the consent of the defendant.

19- Since the action in the criminal case does not actually exceed a disciplinary offense and is not of a weight that could be subject to nullity, and since there is no allegation that people's own will was changed against their wishes, these situations are not considered nullity; when there is no nullity, the lawsuit not filed in time must be rejected.

20- Candidacy, voting, counting, and tabulation processes that "remain within the election judiciary and are not based on a defect of will" cannot be subject to examination anyway.

21- Due to the regulation in Article 121/1 of the Political Parties Law, the issue of nullity has come to the agenda. Article 121/1 of the Political Parties Law does not state that "in cases where there is no provision in this law, the Associations Law and the Civil Code apply." Article 121/1 of the Political Parties Law contains the provision that the provisions of the Turkish Civil Code and the Associations Law that are "not contrary to this law" also apply to political parties. The phrase "provisions not contrary to this law" is ambiguous according to Constitutional Court jurisprudence, and the Constitutional Court cancels such regulations due to ambiguity and lack of predictability. The court must either reject the case, or if it does not, it must apply to the Constitutional Court with this justification, regardless of whether it waits for the criminal case or not.

22- The actions relied upon regarding nullity are only the actions that are also the subject of the criminal case. Since the criminal court has the authority to conduct a broader investigation regarding the material truth of whether these actions took place, although it is at the discretion of the law, considering the practice and jurisprudence, the conclusion of the criminal case should be made a pending issue. Whether the decision of lack of jurisdiction in the criminal case is appealed or not, and whether the appeal is accepted or rejected, is not important.

23- If the state of nullity is considered justified, if a decision is not to be made, the most correct action is to both apply to the Constitutional Court and wait for the result of the criminal case.

24- If a nullity decision is made at this stage or in any case without waiting for the criminal case and without applying to the Constitutional Court, since innovative decisions cannot be applied before they become final, this decision cannot be applied before it becomes final, that is, before it passes through the appellate and supreme court stages and is approved, and the previous administration can never take office before this process passes.

25- In the meantime, since the 2-year ordinary congress period calendar has effectively started, this process proceeds according to the mandatory rule of the law, and since there is no problem in the formation of district and provincial congresses, the existing district and provincial organizations will elect new district and provincial organizations and delegates, and the 39th ordinary congress will be held. With this congress being held, the subject of the lawsuit regarding the previous 38th ordinary congress elections will no longer exist.

26- If a nullity decision is made but a trustee is not appointed, the current administration will continue to serve until the new congress or the Supreme Court approval decision.

27- If a nullity decision is made and the path of appointing a measure/trustee is taken, this trustee issue is different from the trustee in municipalities. The trustee appointed as a measure must necessarily be one or more CHP members. Making this decision is entirely at the discretion of the court.

28- If a nullity decision is made and a trustee is appointed, this trustee cannot be those from the previous administration or Kılıçdaroğlu. This means that the decision is applied before it becomes final, without waiting for the appellate and Supreme Court process.

29- If a nullity decision is made in some way, a trustee decision is made in some way, and a Supreme Court decision is awaited for a new ordinary congress, which means two or three years from any perspective, Kılıçdaroğlu can never be at the head of the party in this process. The possibility of the new congress not being held in this process is already out of the question. The 39th ordinary congress process is already a process that is effectively working. Even if the opposite of all these were to be thought for a moment, the only action Kılıçdaroğlu, who would come to office upon the Supreme Court decision, would take is to open the congress for the elections that are the subject of the lawsuit and hand over the duty to the congress council. He cannot take the powers of a chairman and act like a fully authorized chairman.

30- In the face of the decision to allow the intervention of the party headquarters organs, the hearing of the people in these organs will take at least one or two hearings, and this situation will also cause the case to be extended by a few more hearings.

31- If it is asked what the effect on local and general elections would be if an adverse decision were made for a moment, the votes used in local and general elections and the legal status of those nominated, as well as the legal status of those elected to the party's provincial and district organs, will never be affected. Legal regulations and YSK (Supreme Election Council) decisions are in this direction.

32- The issue of the call committee has nothing to do with this case. The call committee is related to the situation of appointing a board to convene the congress if the congress does not convene despite the conditions for convening the congress being met.

33- In Article 15/6 of the Political Parties Law, there is a provision that in case of a vacancy in the chairmanship, the Party Assembly will convene and "entrust" this duty to a Party Assembly member from within itself for a limited time, and it is also legally possible to resort to appointment as a measure (effectively called a trustee) in accordance with the Turkish Civil Code and the Law on Civil Procedure pursuant to Article 121/1 of the Political Parties Law. There is no disagreement on this matter in practice and doctrine. If there is a vacancy in the organs representing the party, it is also possible to appoint a trustee in accordance with Article 121/1 of the Political Parties Law and Article 427 of the Turkish Civil Code.

(34- During the September 12 period, the activities of parties were stopped and banned by the National Security Council declaration and the law it enacted, and it was later stated that a trustee could be appointed for the management of assets with the law it enacted. The Ankara Civil Court of Peace also resorted to appointing a trustee for the CHP, acting on the provisions of the Turkish Civil Code. This situation covers the period between 1980 and 1992. With the law enacted regarding the reopening of banned parties, a regulation was made regarding the formation of a call committee to convene the grand congress for the opening of the parties and how this would be formed. These provisions between the 1980-1992 period are the interim period and transitional provisions brought by the coup law.)

35- The duty of the election judiciary regarding party congresses is limited to candidacy, the right to vote and be elected, and the counting and tabulation of the votes cast. The authorized election board, in our case the Ankara Çankaya No. 4 Election Board presidency, is authorized to perform this examination. These decisions are subject to objection, and the authority to examine the objection belongs to the Ankara Provincial Election Board. The decision of the Provincial Election Board on this matter is final and is outside judicial review. The subject has nothing to do with the YSK. Outside of the cases listed here, the civil court of first instance is authorized to examine the subject according to the simple trial method.

36- Through the civil lawsuit, the party is being interfered with, and the atmosphere that the activities of the current organs will be stopped at any moment is kept alive. This situation is no different from the stopping of party activities during the September 12 period. However, in the face of the instrumentalized judiciary, the legal struggle is being continued to the end, and by protecting law and democracy, it is revealed in every aspect that the party's coming to power cannot be prevented.

DIPLOMA CASE

37- It was not enough to put the party under siege with the criminal and civil cases against the CHP, but a presidential candidate nominee was also arrested and put in prison.

38- This situation is a state of being held in prison unlawfully, just like the mandatory residence of party chairmen during the September 12 period. The current government, like in September 12, suspends democratic rights and disables its rivals in order to stay in power.

ASSESSMENT

39- It was not enough to put the party under siege with the criminal and civil cases against the CHP, but a presidential candidate nominee was also arrested and put in prison. None of the proceedings have a legal basis.

40- İmamoğlu's arrest is a state of being held in prison unlawfully, just like the mandatory residence of party chairmen during the September 12 period. The current government, like in September 12, suspends democratic rights and disables its rivals in order to stay in power.

41- With the criminal case, civil case, diploma proceedings, and the country's agenda being occupied with these, a perception has been created as if there were a closure case, the subject has been turned into a de facto closure case, and an attempt is being made to put the CHP under siege in every aspect, politically and through the judiciary.

42- When the banning of political parties, the stopping of their activities, the mandatory residence of their chairmen, the appointment of trustees, etc., during the September 12 period are remembered, the CHP has been made the addressee of these September 12-style proceedings.

43- The military coup closed the CHP, made its own constitution, and left. The traces of the military coup and military tutelage have been erased over the years, and their place has been taken by the government and AKP tutelage.

44- Seeing that it would lose power, the AKP took the MHP with it, and seeing that this was not enough, it has now taken the DEM. When this was not enough, it increased its operations on the CHP, which will come to power.

45- Erdoğan, who was investigated for the Istanbul Metropolitan Municipality in his own time, has targeted the Istanbul Metropolitan Municipality of this period; Erdoğan, whose own diploma was questioned, has targeted İmamoğlu's diploma; Erdoğan, whose own party was subject to a closure case, has turned to blockading the CHP as if there were a closure case; he has not even been satisfied with these, he has targeted the founding values of the 1924 Constitution and Lausanne, and has directed his hatred and animosity towards the Republic at the CHP.

46- The AKP's goal is not to leave power, to make the constitution of the BOP (Greater Middle East Project) that will keep itself in power after 2010 and 2017, as the imperialists want, and for this, to disable the founding party, the CHP.

47- If Kılıçdaroğlu has a claim to management, the requirement of law and democracy for this is to be a candidate in the 39th ordinary Congress to be held after the congress calendar, which will start in a very short time.

48- Coups are no longer carried out militarily with cannons, tanks, and rifles, but through the judiciary, whose independence has been taken away and instrumentalized, and the interventions and civilian coup intended to be carried out through the judiciary will not be successful.


(Ömer Faruk Eminağaoğlu) Above