It has emerged that Newborn Gang leader Fırat Sarı applied to the ECHR and the Constitutional Court to be exempted from long-term military service

Burak Demirbaş 12punto.com.tr

The investigation into the gang that generated illicit profits by referring babies to contracted hospitals in Istanbul and caused their deaths through negligent behavior has been completed, and a summary of proceedings (fezleke) has been prepared.

While the court's process of reviewing the indictment continues, the testimony of one of the organization's leaders, Fırat Sarı, has emerged.

HE SERVED TIME IN PRISON FOR PKK

In his initial testimony, Sarı said, "I graduated from Trakya University Faculty of Medicine. While I was studying at the medical faculty, I was convicted of membership in the PKK terrorist organization and served about 5 years in prison. After prison, I returned to my school, finished it, and graduated." 

HE FILED AN INDIVIDUAL APPLICATION TO THE CONSTITUTIONAL COURT

It has emerged that in 2019, Sarı filed an individual application to the Constitutional Court (AYM), claiming that his right to a fair and independent trial had been violated.

HE REQUESTED TO COMPLETE SERVICE AS A RESERVE OFFICER

In the Constitutional Court's decision, it was noted that Sarı had requested to complete his mandatory military service as a reserve officer, stating that he was working as a specialist physician. The decision included statements that "a reserve officer candidacy decision was made regarding the applicant with the Ministry of National Defense (MSB) letter dated 3/11/2008," and that "on 24/11/2008, the decision for reserve officer candidacy was amended to private status on the grounds that there were convictions for crimes that prevent one from becoming an officer."

It was revealed that Sarı filed a cancellation lawsuit at the Military High Administrative Court (AYİM) against the decision to amend his military service status from reserve officer candidate to long-term private, but the case was rejected in 2011.

HE ALSO WENT TO THE ECHR!

The Constitutional Court's decision also included that after his request for rectification was rejected, Sarı applied to the European Court of Human Rights (ECHR), claiming that his rights were violated due to the AYİM decision and that his right to a fair trial by an impartial and independent court had been breached, and that he requested a retrial from the Ankara Administrative Court in 2018 before a decision was reached.

LONG-TERM MILITARY SERVICE DECISION

The Ankara Administrative Court decided to accept the request, stating that the conditions for a retrial were met in the concrete case; as a result of the retrial, a cancellation decision was issued.

The court's reasoned decision included the following statements:

"While stating that the decision made by the administration not to make him a reserve officer was appropriate, it noted that individuals in the same status as the applicant in terms of educational background performed short-term military service, and considering this situation, the assignment of the applicant as a long-term private constituted a form of punishment. In light of the principles set forth by the Constitutional Court in the Kenan Özteriş decision (App. No: 2012/989, 19/12/2013, §§ 41-65), it reached the conclusion that the subject of the lawsuit constituted a violation of equity."

MINISTRY OF NATIONAL DEFENSE FILED AN APPEALI

The defendant, the Ministry of National Defense (MSB), appealed against the decision of the Ankara Administrative Court.

In 2019, the Regional Administrative Court decided by majority vote to accept the defendant administration's appeal, overturn the 2018 administrative court decision, and reject the case on its merits with final effect.

'REINTEGRATION INTO SOCIETY LAW' DETAIL

The reasoned decision of the Regional Administrative Court included the following statements:

"While stating that the acceptance decision given by the court of first instance regarding the applicant's request for retrial was in accordance with procedure and law pursuant to provisional article 9 of Law No. 2577, it points out that the decision regarding the cancellation of the proceedings was not accurate." 

"Pointing out that the applicant was sentenced to 12 years and 6 months in prison for being a member of the YCK, the youth organization of the terrorist organization PKK, and for aiding and abetting the PKK-YCK terrorist organization, and that the said sentence was upheld and finalized on 19/10/1998, the Regional Administrative Court stated that the applicant's criminal file was re-examined within the scope of the Law on Reintegration into Society No. 4959 dated 29/7/2003, which entered into force in 2003, that his sentence was amended to 2 years and 6 months through an additional decision, and that this decision also became final after passing through appellate review; it provided detailed explanations that after the Turkish Penal Code No. 5237 dated 26/9/2004 entered into force, a favorable law application was made on 9/2/2007, the applicant was sentenced to 1 year, 6 months, and 22 days in prison, and the conviction decision became final after passing through appellate review on 26/1/2010; it stated that, unlike the Constitutional Court's Kenan Özteriş decision, there was no deferral decision regarding the sentence given to the applicant, that the date of restoration of prohibited rights for the applicant was 6/10/2016, that the sentence imposed on the applicant required dismissal from officer status, and that those with the right to reserve officer status have the right to benefit from the 6-month military service period, and concluded that it was not possible for the applicant to serve as a six-month short-term private according to Article 5 of the Military Service Law No. 1111 dated 21/6/1927."

HE FILED AN INDIVIDUAL APPLICATION IN 2019

In his application, Sarı claimed that individuals in the same situation as him benefited from the right to perform military service as reserve officers, that not being allowed to perform his military service as a reserve officer due to the crime he committed constituted a violation of the prohibition of discrimination and the principle of legality in crimes and punishments, that it was unlawful to conscript him during a period when he was banned from public rights, that he could not receive a salary because he performed his military service as a long-term private, that it was unlawful for the file to be finalized by the appellate court, that his right to access the court was taken away because he could not appeal the decision, and that his right to a trial within a reasonable time was violated.

CONSTITUTIONAL COURT DECISION ON STATUTE OF LIMITATIONS

The Constitutional Court emphasized that an individual application must be made within thirty days from the date the legal remedies are exhausted, or from the date the violation is learned if no legal remedy is provided, and decided that the application was inadmissible due to the expiration of the time limit without being examined.