Prof. Osman Can: HDP cannot be closed with this indictment

* Photo: Tarafsız Haber website

Click to read the article in Turkish

"We expect the Chief Public Prosecutor's Office of the Court of Cassation to launch an inquiry against the HDP. If the Constitutional Court, based on evidence and documents, concludes that the HDP is the focus of terrorist acts... There is already no other option.

"It will no longer be possible to mention a party called the HDP or its members and executives leading to the closure. If Turkey is a state of law, the closure of the HDP is urgent, vital and is a must."

This statement was made by Devlet Bahçeli, the head of Nationalist Movement Party (MHP), which is in alliance with the ruling Justice and Development Party (AKP) of President Recep Tayyip Erdoğan.

15 days after these remarks were uttered in the weekly group meeting of the MHP on March 2, Bekir Şahin, the Chief Public Prosecutor of the Court of Cassation, filed a closure case against the Peoples' Democratic Party (HDP) by applying to the Constitutional Court on March 17, when HDP's Ömer Faruk Gergerlioğlu was also stripped of his MP status.

This indictment now demands that the HDP be closed, the treasury grants to the party be entirely cut and 687 HDP politicians be given a political ban.

We have spoken with Prof. Osman Can, a former Constitutional Court Rapporteur, about the closure case filed against the HDP, the indictment lodged against the party and whether it is possible to close the party based on this indictment mostly consisting of ongoing investigations.

The first comment of Prof. Can on the indictment is the following: "This indictment is no different than the indictments prepared in old Turkey, where the Kemalists were the dominant party in the country. The figures have changed, but the format of thought is the same."

NOTE: Prof. Can, who was the Rapporteur of the closure case filed against the AKP in 2008, expressed an opinion against the closure of the AKP. The party was not closed and Can's opinions in the report as to the procedure were unanimously approved as a resolution.

'An indictment prepared in a hurry

According to Prof. Can, the indictment filed against the HDP is similar to the one lodged by former Chief Public Prosecutor of the Court of Cassation Sabih Kanadoğlu, Vural Savaş and Nuri Ok. Can tells bianet:

"There is a chauvinist indictment which starts with the fifth paragraph of the Constitution, which we say should change and no legal value should be attributed to.

"I have examined a major part of the indictment. There is mention of a thousand acts, in fact, even more than that... 900-950 of them are in the investigation phase. It is hard to close a political party by citing the actions that are still in the investigation phase.

"The investigation that will determine whether these acts were committed or not has not yet been completed. If you set out to close a political party, you cannot do it with files that are still in the investigation phase.

"It looks like an indictment prepared in a hurry or under political pressure. The prosecutors just sent whatever they had."

'ECtHR's stance is quite clear'

Talking about the charges the indictment brings against the party and the quality of these charges, Prof. Osman Can says:

"A vast majority of the acts that I see in the indictment are related to the charge of 'propagandizing for a terrorist organization'; but in a great majority of the cases filed on this charge, the European Court of Human Rights (ECtHR) concludes that it falls within 'freedom of expression.'

"For instance, speaking or working at the Democratic Society Congress (DTK) is defined as constituting the crime of 'membership of a terrorist organization.' I do not know when the DTK was declared a terrorist organization, but as far as I know, it has a political ground.

"There are charges from the indictment filed against [imprisoned former HDP Co-Chair] Selahattin Demirtaş. But the ECtHR handed down a judgement on all of the charges against him. The ECtHR said, "There is no evidence, it falls within freedom of expression; there is no legal ground for arrest. There is a trial held for political purposes'.

"The Kobani incidents constitute the center of gravity of the indictment. The people who were in the Central Executive Board of the HDP at the time are held accountable for the Kobani incidents. A tweet was posted and people took to the streets due to this tweet. The stance of the ECtHR about this issue is quite clear: 'You cannot relate it with this.'

"The case file where a ruling of conviction was given against Ömer Faruk Gergerlioğlu is also cited as a ground for party closure.

"Two speeches by Erol Katırcıoğlu are cited as 'propaganda.' The file of Sırrı Süreyya Önder, which the ECtHR gave a judgement on, is in the indictment. When we take all these into consideration, it is a bit hard to have a picture of a party that has become the focus of anti-Constitutional acts."

'What is a national matter?

Drawing attention to the evaluation part of the indictment, Prof. Can says that the party will not be closed with the indictment at hand and adds:

"It talks about 'being against the Parliament on national matters.' What is this national matter that you talk about? It refers to the party being against the Parliament on Cyprus issue; it does not have to be on its side. It is something really dangerous to describe what is a national matter depending on the position of the government or that of its partners.

"And one more thing is the expression of following the same aims as the PKK [Kurdistan Workers' Party]. What makes the PKK a terrorist organization in terms of principles of democracy is its methods.

"PKK defends education in mother language, PKK defends cultural autonomy... It is not possible to identify them with one another just because a political party defends the things that it puts forward politically.

"This is against sociology and human life; it is not something acceptable in democracy. Terrorism is about methods, it is not about aims. The ECtHR does not accept it. As far as I have examined the indictment so far, this indictment will not suffice to close the party."

'Bahçeli triggered it'

Prof. Can also talks about the political ban intended for 687 HDP politicians: "Even when the party is closed, the people facing a ban will not be banned from politics. Which actions in the indictment make one face a political ban? A separate ruling must be handed down for this.

"When we look at the 687 people facing a political ban, we see an aim of political purge, a political destruction. This aim reminds us of Devlet Bahçeli's statements. In fact, Devlet Bahçeli triggered this. There is an indictment drafted in the way how Bahçeli expressed it."

'They say 'Resort to violence' to Kurds'

Concluding his remarks, Prof. Can draws our attention to the aim of this indictment. Noting that "the government is in a crisis of legitimacy", he says, "There is a possibility that the government will lose the elections and it felt the need to make such a move. The objective message is 'I do not recognize any addressee in Kurdish question other than the PKK.'

"It means saying, 'I close the democratic channels and I will only accept violence as my addressee. Turkey is cosing the political channel, it leaves no other political channel. This means, 'Resort to violence.' Everyone needs to stop and think what this comes to mean."

CLICK - How will the closure case against HDP proceed?

(RT/SD)