Prosecutor protects high-ranking military officers, high court protects the prosecutor

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Prosecutor Ali İhsan Demirel was on trial on charge of "neglect of duty" before the 5th Criminal Chamber of the Court of Cassation. He was acquitted of the offense at his hearing yesterday (December 8).

Demirel was the prosecutor investigating the "Operation Return to Life" in Bayrampaşa Prison as part of the "Tufan" (Deluge) plan.

NOTE: On December 19-26, 2000, around 10,000 soldiers occupied 48 prisons to end 2-month hunger strikes and death fasts by hundreds of political prisoners. "Operation Return to Life", which left at least 31 prisoners and two soldiers dead, lasted a few hours in most prisons and up to 3 days in one prison. Eight prisoners "disappeared" and at least 426 prisoners were wounded, according to reports.

Prosecutor Demirel has been acquitted by a majority of votes. Two members of the five-member court board, namely Presiding Judge Şakir Aktı and court board member judge Zeynep Şahin, have not agreed with the majority opinion and written a dissenting opinion.

The two have noted that the prosecutor should have been penalized: "In consideration of the state of the evidence within the scope of the file, the prosecutor is to be found guilty of the charged offense of neglect of duty; as we are of the opinion the the defendant should be penalized on the offense charged, we do not agree with the opinion of the majority."

• The lawsuit filed against prosecutor Ali İhsan Demirel on charge of "misconduct in office" ended in April 2015; the 5th Criminal Chamber of the Court of Cassation sentenced Demirel to 1 year in prison. The General Assembly of Criminal Chambers of the Court of Cassation argued that Demirel's workload was beyond normal and overturned the prison sentence. The retrial of the prosecutor ended yesterday.

Acquittal to be taken to appeals court

Speaking to bianet after the hearing, Güçlü Sevimli, one of the intervening lawyers of the case, has said that they will appeal against the ruling of acquittal and the file will be sent back again to the General Assembly of Criminal Chambers of the Court of Cassation upon the appeal.

Recalling that the ruling has been handed down not unanimously but by a majority of votes, lawyer Sevimli has noted:

"The court did not rule unanimously. One of the members who did not agree with the reversal of the General Assembly of Criminal Chambers is the Presiding Judge; he thinks Demirel should be penalized. This is important despite everything. At least two members have detected the situation of Demirel. We will see it more clearly when the justified ruling is written."

'He disrupted the investigation'

Lawyer Güçlü Sevimli has said that prosecutor Demirel kept the file about the Bayrampaşa Prison waiting for 10 years without taking any action, caused evidence to go missing and acted with the motive of protecting high-ranking military officers, filing a suit only against plain soldiers.

• During the prosecution process that started after Ali İhsan Demirel, a second indictment was issued and a lawsuit was filed against not only the 39 plain soldiers on trial, but against some low-ranking military officers as well. The trial is still ongoing.

Lawyer Sevimli has indicated that the General Assembly of Criminal Chambers of the Court of Cassation, which overturned the prison sentence of prosecutor Demirel, "acted in some kind of collegiality and ruled for the acquittal of the prosecutor in an unlawful manner":

"Considering the evidence in the file, the prosecutor cannot possibly be acquitted in this way. The report of the Board of Judges and Prosecutors, evidence and the disruption of the investigation by Demirel... They are all obvious. But as the General Assembly of Criminal Chambers of the Court of Cassation is the top board, the 5th Chamber cannot stick by its first ruling."

• Prosecutors can be put on trial before the Court of Cassation; in this file, the 5th Criminal Chamber of the Court of Cassation, which has five members, including the presiding judge, is in the position of a first-degree court. The General Assembly of Criminal Chambers of the Court of Cassation is the appeals court. If it insists on the ruling on acquittal for the second time, the ruling will be final.

What happened?

After 12 people lost their lives and 55 people were wounded in the operation conducted in the Bayrampaşa Prison in İstanbul on December 19, 2000, the Eyüp Chief Public Prosecutor's Office launched an investigation, which was carried out by Ali İhsan Demirel for 9 years.

According to a document signed by the Gendarmerie Regional Command and added to the investigation file on May 22, 2002, the İstanbul Halkalı Gendarmerie Commando Troop, Bayrampaşa Prison Protection Company Command, Elazığ Gendarmerie Commando Trooğ and Ankara Gendarmerie Command Special Security Unit joined the operation.

The documents requested from these military units were either missing or wrong or not given to the prosecutor's office for years.

In the criminal complaint filed against Demirel on April 4, 2011, it was said that "he did not even take the statements of the commanders who had their signatures under the operation order, protected the real responsible parties by not filing a suit, did not complete the investigation for 13 years, acted imprecisely in issuing the indictment."

Following this criminal complaint against himself, the then Eyüp Public Prosecutor Ali İhsan Demirel was put on trial on charges of "acting in breach of the requirements of the duty" and "acting negligently or belatedly in fulfilling the requirements of the duty".

The indictment issued by Mustafa Atagün against the prosecutor referred to an "impression that prosecutor Ali İhsan Demirel could not fulfill his duty regarding the documents of the Operation Return to Life investigation correctly and impartially."

Demirel had the statements of the soldiers who participated in the operation 13 years ago taken where they were upon instruction. In the indictment against him, it was said that he acted in such a way to protect the public personnel: "Even though there was also a criminal complaint, he did not hear the İstanbul Chief Public Prosecutor who did not sign the minutes of the operation and the prosecutor of the prison."

"Conducting the investigation as an unidentified case", Demirel was accused of doing the following in the indictment:

"He did not bring legal proceedings against the responsible ones who did not respond to the writs regarding the identification of those that joined the operation and who did not send the requested information and documents. [...] For 13 years, he had not obtained the Bayrampaşa Prison Intervention Plan called 'Tufan' (Deluge).

"He did not act sensitively enough to identify the personnel of the Ankara Gendarmerie Commando Special Protection Command, who were on duty in the C Block, where incidents of death and injury occurred, or to identify their actions. [...] He gave a decision of non-prosecution based on their statements. He settled for the statements about the 39 plain soldiers taken by high-ranking military officers during the preliminary investigation; he did not question from whom they received orders and who caused the deaths and injuries."

The indictment also said that "there was no effective investigation" carried out by Demirel: "Based on the own statements of the high-ranking military officers, he gave a decision of non-prosecution."

In his defense, prosecutor Ali İhsan Demirel said that "he did his duty as required and had no fault in the investigation."

Found guilty by the 5th Criminal Chamber of the Court of Cassation and sentenced to 1 year in prison, Demirel's prison sentence was overturned by the General Assembly of Criminal Chambers of the Court of Cassation. Demirel has been acquitted in the retrial. (AS/SD)