Demirtaş Verdict and the Criminal Law Based on Hostility
Ahmet İnsel

Dear Selahattin Demirtaş, as a criminal lawyer, to make an evaluation of your verdict in your context is not easy. Moreover, you are one of the most competent individuals who can do this while making people smile and think, at the same time. Isn't the main or even the sole reason of your ongoing detention since the 4th of November, 2016, about the content and form of your possible assessments in the parliament, party group meetings, rallies, on the radio and television thus your utmost ability to wear out the government?

The Constitutional Court General Assembly (CCGA) rejected the objection against your detention on the basis of speeches you made while you were an MP, an MP fulfilling his duty. It was stated that this decision is a pilot judgment for the other MPs in a similar situation. This CCGA decision, when compared to the contrary decisions given by the same court for the two MPs in 2013 and 2014 in this regard, shows that in Turkey, enemy criminal law principles are applied side by side with citizen criminal law ones. The decision of the CCGA once again demonstrates the registration and declaration of this fact by the current state of emergency jurisdiction.

The main feature of the enemy criminal law is that the criminal law in force focuses on perpetrator rather than the act or faults itself. Today, the criminal law in force is predicated on the protection of fundamental rights and freedoms of citizens to a certain extent. On the other hand, the enemy criminal law, which is applied to those, who are not regarded as full citizens, is now put into effect for an ever-expanding circle of people. Dear Selahattin Demirtas, as a person who has been a human rights lawyer for many years, there is a subject you know a lot better than I do: enemy criminal law. You would have explained it better than I ever could, but for this very reason, your voice and actions are restrained. Günther Jakobs, a German professor of criminal law and philosophy of law, introduced this concept for the first time in 1985. Then he developed it in three stages. After the 2001 Twin Towers attack, in 2003, he finalized his analysis, which has more or less become a part of the "anti-terrorism" policy implemented in many states today. One of the main features of the enemy criminal law is that the principle of presumption of innocence does not apply to the defendant. Today, the criminal peace judgeships who automatically rule the continuation of detention, act as the keystone of the enemy criminal law. This criminal law, which is applied to those who exhibit or can exhibit hostility towards the State, corresponds to the generalization of the state of exception, both in content and in procedure. It sets to work by defining the opposition, which disturbs the government or challenges its power, as "enemy." It is the "internal enemy" and therefore is even deprived of the rights enjoyed by an external enemy. Today, in Turkey, the internal enemy is composed of large masses of undesirable citizens who are either accused of being "a member of a terrorist organization" or engaging “in terrorist propaganda”. Enemy criminal law, while promoting the notion of raison d'état, is bringing all the institutions of the state, primarily the judiciary, under the absolute dominion of the ruling power. It is functioning as the criminal law of a system, where all the people, openly opposing the government with oligarchic tendencies, are declared as the enemy. However, the government itself is the real enemy of the rule of law. First, it is identifying the people as the internal enemy; then it is incriminating them without any court decision, and finally, by making its suspects the legal enemy, it is depriving them of all their citizenship rights.

Dear Selahattin Demirtaş, today a despotic regime is in power. This regime not only incarcerates you but also defines your statements in court as hostile and disturbing. But I still keep my faith that you and the other citizens of Turkey like you, who have never deviated from democracy and non-violent solutions, will transform this despotic regime that feeds off animosity. I wish you, and the thousands like you, who have been held as hostages by the enemy criminal law, patience and I hope the new year will be brighter than the previous one for the sake of Turkish democracy.

Published in daily Cumhuriyet, December 23, 2017


Other Articles
Obstacles to a Return to Lenin
Ahmet İnsel
Obstacles to a Return to Lenin
Yet there is another legacy of Lenin—a leader acutely aware of the “socialism or barbarism” dilemma and determined to overcome the barbarism that plagued Russia and, later, much of humanity amid global war. This legacy serves as a reminder of the paths we must avoid while pursuing similar resolve in today’s struggles against rising barbarisms that threaten humanity’s future. As we ask, “What is to be done?” this legacy also illuminates the question of “What not to do?” to ensure that the fundamental socialist principles of liberation and equality are not sacrificed for the sake of “socialist power’s survival.”
Ahmet İnsel
Erdoganisme a trébuché mais reste debout
Face à ce tableau un tant soit peu optimiste pour une possibilité d’alternance en Turquie à l’horizon de 2028, il faut néanmoins rester prudent. D’abord les élections locales n’ont pas réduit l’immense pouvoir concentré dans les mains d’Erdoğan. Le système hyper-présidentiel va continuer à fonctionner et Erdoğan peut espérer attirer les députés des partis dissidents de la droite libérale et nationaliste. Ces partis ont quasiment disparus de l’échiquier politique au soir des élections du 31 mars 2024.
Ahmet İnsel
Crimes contre l'humanité commis réciproquement en Israël et en Palestine
Dans cet environnement de guerre de facto, l'entrée préméditée et planifiée de militants armés du Hamas dans des maisons pour tuer délibérément des civils constitue des crimes de guerre sans aucune contestation. Le fait que les auteurs de ces crimes soient morts n'enlève rien au fait que ceux qui les ont ordonnés et dirigés sont également aussi des complices et en sont tout autant responsables.
Alp Kayserilioğlu
How (not) to cut the Gordian Knot of institutionalized authoritarian populism? Reflections on the elections of May 14th, 2023 in Turkey
Oğan has declared he will talk with both sides and present his demands for support. These can basically be reduced to the demand to show respect to hardcore Turkish nationalism and anti-refugee sentiment. Oğan for now seems to lean toward supporting Kılıçdaroğlu on May 28th while already calculating for early elections in two to three years, no matter who wins, as he – not completely wrong in this regard – foresees an unstable situation emerging after May 28th.
Ahmet İnsel
The fault lines of Erdoganism before the 2023 elections
When the AKP came to power in 2002, just three years after the devastating Izmit earthquake severely damaged the image of the previous coalition government, its leader Recep Tayyip Erdoğan presented himself as an ambitious yet responsible and law-abiding contractor. However, a few days after his appointment as Prime Minister in March 2003, Erdoğan passed a bill in parliament that legalized constructions that were previously considered illegal.