Ruşen Gültekin writes: One of the trials where the law has lost its mind: Ayşe Barım

Detention is the most severe protective measure that can be resorted to in criminal proceedings. The legislator has regulated this measure as an exceptional path to be applied only in mandatory cases and when it is concretely demonstrated that the objective cannot be achieved by any other measure. However, in practice, detention has ceased to be a measure and has become a preliminary tool for punishment.

Indeed, in the Ayşe Barım case, the Istanbul 26th High Criminal Court first accepted the indictment, and after hearing the defendant in the first hearing and all witnesses and the informant in the second hearing, ruled that the conditions for the detention measure had not been met at this stage and ordered her release. Upon this, the Istanbul Chief Public Prosecutor's Office objected to the release decision of the Istanbul 26th High Criminal Court; the Istanbul 27th High Criminal Court, where the objection was filed, issued a new detention order.

In fact, for many years, there was no such path in the Code of Criminal Procedure (CMK). That is, there was no possibility for the prosecutor to object to release decisions. Indeed, in a libertarian Code of Criminal Procedure, it would be a strange situation for a release decision made by a court conducting a trial according to the principle of immediacy to be subject to objection. However, in one of the regulations made under the name of "reform," the path of objection to release decisions was opened. Thus, courts of the same rank became able to invalidate each other's decisions. This created an absurdity: another judge of the same rank, who does not know the file at all, overturning the decision of another judge who knows the file down to the smallest detail... This situation not only damages the sense of justice but also violates the essence of the right to personal liberty and security.

In the process, although this provision was brought to the Constitutional Court by a judge in a pending case, the Constitutional Court rejected the application on procedural grounds. However, it was very clear that if it had entered into the merits of the file, it would have annulled this rule. Because limiting the absolute discretionary power of the court conducting the prosecution regarding release is to reverse the philosophy of criminal procedure, which should only be in favor of the defendant.

The detention practice we constantly experience in the hearings held these days offers vivid examples pointing to this problem. A similar picture was encountered in both the Bekir Aslan (Basel) and Fatih Altaylı files. So, while only "evidence tampering" and "suspicion of flight" are determined as reasons for detention according to Article 100 of the CMK, why, for example, in the Fatih Altaylı file, when the evidence consists only of a video and there is no concrete evidence that Altaylı will flee, was the continuation of the detention measure decided? Or why was Ayşe Barım re-detained?

This situation shows that, although not in the law, two other motives are also taken into account as reasons for detention: The first of these is, does the person have the potential to influence the masses? And the second is, is the person making implications that could mobilize the masses against the government?

If the detentions we have experienced in recent years that do not coincide with Article 100 of the CMK are viewed with these reasons in mind, it is understood that even if the detentions are not in accordance with the law, they are in accordance with the purpose.

Detention has lost its character as an exceptional measure foreseen by the law; it has exceeded its ordinary limits and evolved into a tool of arbitrary intervention. These practices are compatible neither with the right to a fair trial nor with the principle of the rule of law guaranteed by the Constitution.

As a result, it is clear that there are no conditions for detention in both the Fatih Altaylı and Ayşe Barım files. There is no crime, nor is there any evidence. For this reason, we call such investigations and prosecutions "investigations and prosecutions where the law has lost its mind."

Atty. Mehmet Ruşen Gültekin-Atty. Deniz Ali İlkem Demir