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Counter indictment: Full translated text of Oran's defense [II]

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  • Counter indictment: Full translated text of Oran's defense [II]

    KurdishMedia, UK
    March 12 2006


    Counter indictment: Full translated text of Oran's defense [II]

    3/12/2006 KurdishMedia.com

    Read in Ankara at the "Minority Report" trial on 15 Feb. 2006
    Baskin Oran, Professor of International Relations, Faculty of
    Political Science, Ankara University.

    To sum up, Distinguished Judge, the Corsican Island is like a state
    within a state.

    Alsace-Moselle is also a state within a state. It allows the use of
    German, the language of its historical enemy, at the court houses. It
    has a multi-legal system. This is unbearable for even the most
    tolerant nation-states.

    There is no mistake in analogy, but this is just like validating
    Arabic language and Syrian Law in Hatay, and Russian language and
    Muscovite Law in Kars and Ardahan. This is the kind of country which
    the indictment quotes as an example for Turkey.

    Seventh Issue

    Let us go on.

    The Office of the Public Prosecutor makes another assertion in page
    5; this page is a very productive one indeed.

    This is also completely ideological. It says:

    "In the Report there is a new definition and application of minority
    other than the one accepted by Lausanne . This would lead to chaos."
    Further, it continues:

    "This would also bring about a result which would jeopardize the
    unitary structure of the state, integrity of the country, and
    indivisible integrity of the nation."

    For the sake of law, I ask: It says it would cause chaos, destroy
    integrity. It again mentions an intent, a possibility. What do all
    these mean? What kind of criminal law is this?

    When one says "It's cloudy" should we immediately conclude that it
    might rain, a lake might emerge, birds might come, and bird flue
    develop?

    Let us go on. The Office of the Public Prosecutor mentions these
    important arguments in only 3.5 lines, but does not elaborate on
    them. Of course, it does not prove them by giving examples from our
    Report.

    Although we published our Report 17 months ago, Turkey has not yet
    encountered such hazards. I don't know what might happen in 17 years.


    But I do know that the Prime Minister Erdogan is constantly using the
    terminology and method of the Report to keep the Kurds happy: In
    Hakkari and elsewhere he said that all the sub-identities be they
    Kurdish, non-Muslim, Turk, Circassian etc. should be respected and
    that they are under the supra- identity of being a Citizen of Turkey.
    What else was there to say? Who in Turkey knew about the notions of
    sub and supra identity before our Report?

    But let's continue to elaborate on the arguments of the indictment,
    show how incorrect they are and prove them wrong by giving examples
    from the Report. Let us show the Office of the Public Prosecutor how
    an indictment should not be written.

    1) First of all, just where did we propose a new definition of
    minority in our Report? Which sentence or which paragraph? There is
    no such sentence or paragraph...

    Then, how can the Office of the Public Prosecutor see a thing which
    does not exist? The reason is that because it wears ideological
    eyeglasses it cannot see certain things. In addition, it does not
    know the difference between the "existence of minority" which is a
    sociological phenomenon and the "status of minority" which is a legal
    category.

    Distinguished Judge, in our Report we did not say that Lausanne
    should not be implemented or should be amended. On the contrary, we
    argued that it is not implemented and that it should be. This is
    exactly what we wrote in our Report.

    We have doubts whether the Office of the Public Prosecutor read the
    Report or forgot it because its investigation took exactly 10 months.


    2) The Office of the Public Prosecutor wrote that we jeopardize the
    "unitary structure of the State and the integrity of the country" in
    our Report.

    Let me ask the same question again: In which line and with which
    words did we do that? If the Office of the Public Prosecutor is
    unable to answer this question, it would set forth an unfounded
    claim. If an ordinary man had done what the Office of Public
    Prosecutor did, s/he would be called a "slanderer." This is why this
    indictment has from the very beginning been nothing but an
    Iftira-name (calumniation).

    Distinguished judge, we did exactly the contrary:

    a) The Report does not want to change the unitary structure of the
    State and it does not even include the word "unitary" as this is none
    of our business.

    In addition, although I don't want to linger over this subject, I
    really don't know where to start to correct in this indictment. The
    indictment uses the word "unitary" in a wrong way and confuses it
    with the concept of centralism; furthermore, it also confuses
    centralism with the indivisibility. These are completely different
    subjects. Let me explain:

    The US is not a unitary but a federal State. However it is not
    divided at all. Look at Iraq's current situation; it was not federal
    but unitary.

    In both federal and unitary State structures, democracy and
    dictatorship can be seen. For example, the USSR was a federation but
    there was no democracy. Spain is not a federation but a unitary state
    but is one of the most tolerant democracies of the world. Last month
    Mr. Aguado, No. 2 general of the Spanish Land Forces, attempted to
    intervene in democracy; he was sentenced to house arrest first and
    then dismissed from his post. He will be retired in March.

    b) Further still, I'm bored of telling these, I hope you don't get
    bored of listening to me, our Report does not include either the
    words federal or confederal even once. So, what is this all about?
    But that's what the indictment argues.

    In the Report, we defended the indivisibility of the State / homeland
    because we base our arguments on the discipline of international
    relations which argues that if the States of the World are
    re-structured according to ethnic and linguistic lines, this will go
    on like mitosis division.

    Here is what we wrote in the Report word by word: the Report p.3,
    subtitle 3: "The indivisible integrity of the State with its
    territory is profoundly natural and is an indisputable issue all
    around the world."

    Now, what is wrong with this sentence? Which part of our Report
    divides the country / homeland? This indictment is a statement of
    slander, is it not? Why is it so? What are we doing here? What are we
    summoned here for?

    3) The Office of the Public Prosecutor mentions the "integrity of the
    nation."

    Distinguished Judge, political science rules that State / Homeland is
    "undivided" and nation is "united". Just like independence is an
    attribute of the State, just like freedom is an attribute of the
    nation. The nation is free, the State is independent.

    "Undivided" refers to a whole without any parts and attachments.
    There is no nation which is not made up of parts, except maybe for
    Iceland, Korea, Portugal, and maybe one more. All nations are made up
    of different ethnic and religious groups. Even Japan is not
    homogenous.

    You cannot render a nation a "whole" by denying the existence of
    these groups. On the contrary you just tear it up and put it into
    pieces as each part has its own original personality, in other words,
    sub-identity. People cannot put up with the denial of their
    sub-identity. They rebel. People rebel when you give them a wrong tea
    cup; why wouldn't they rebel when their identities are denied.

    These various sub-identities might create "unity" only if there is a
    supra identity that embraces all of them and that does not reflect
    any particular ethnical - religious identity. That is why if you
    reduce nation into "oneness" you destroy the unity. Oneness is enemy
    to unity.

    No one can write an indictment without knowing these. If you do, the
    result is inevitably like this.

    4) I am thrilled when I read some parts of the indictment. It's as if
    the Office of the Public Prosecutor's Office develops new laws and
    theories. It says the following - I'm trying to correct the sentence
    a little bit:

    "As the country has a central / unitary structure physically, people
    who live there have also a unitary structure ." It says this for our
    Constitution.

    The indictment starts writing a "Constitutional Law" book this time.
    But a completely wrong one. I don't know where to start as there are
    too many mistakes:

    a) Again, it confuses centralism with unitary structure. I've given
    sufficient information on this issue.

    b) Secondly, by writing " Turkish Republic is a unitary state with
    its country and nation" it applies the adjective of unitary to the
    nation, which is in fact an attribute of the State.

    Distinguished Judge, let me explain this way:

    In cases of freedom of expression, your colleagues in Strasbourg
    reject any case if defendant State argues and proves that " national
    security of the country" and / or "territorial integrity of the
    country" is at stake.

    However, when defendant State defends itself by arguing that "
    integrity of the nation is at stake", plaintiff wins the case and
    gets compensation according to Art.10 of the European Convention of
    Human Rights.

    The reason is the following: When the issue is to limit individual
    rights, the notion of the "integrity of nation" is alien to European
    countries, although the first two concepts are respected there. Such
    a concept cannot be accepted because if it were, there would be no
    democracy. In the second half of the 19th century the definition of
    democracy was "the will of the majority", and this definition became
    "respect for sub-identities" in the second half of the 20th century.
    We are in the 21st century now.

    5) This indictment quotes the famous Article 2 of the Spanish
    constitution and does it with great imprudence. I don't know what to
    say about it. Let me cite you the said article and explain it:

    "The Constitution is built on the indissoluble unity of the Spanish
    nation, the common and indivisible homeland of all Spaniards; it
    recognizes and guarantees the right to autonomy of all the
    nationalities and regions of which it is composed, and solidarity
    amongst them all."

    Let me ask the question again: When we discuss whether our Report
    constitutes a crime - which should not be discussed due to freedom of
    expression - why the Spanish constitution? The indictment at this
    point starts writing a "Comparative Politics" textbook this time.

    Besides, it would be extremely reasonable if I myself had quoted this
    Article, as this 3-line Article completely disproves the arguments of
    the Office of the Public Prosecutor but confirms mine in 2 points:

    a) Please pay attention: the adjective used for nation is "unity".
    The adjective used for homeland is "indivisible". Just like I said
    two seconds ago, word for word. I don't understand at all why the
    Office of the Public Prosecutor included this Article which in fact
    disproves its arguments.

    I can't really believe that the indictment goes on as follows:

    "As you can see, the Spanish Constitution, just like the Constitution
    of Republic of Turkey, mentions the principle of the indivisibility
    of nation."

    Would it be an exaggeration if I said that the Office of the Public
    Prosecutor is making fun of us? This is not an indictment but a
    statement of mockery.

    b) Please pay attention again: After semicolon, Article 2 of the
    Spanish Constitution states that the nation is made up of autonomous
    nationalities and regions.

    What did I say above? I gave a much lighter version of the same
    statement: I said that the nation is made up of various ethnical and
    religious sub-identities. Some call themselves Turks, some Muslims,
    some Kurds, some Alevis, etc. The Spanish Constitution takes a huge
    step further and says that the nation is made up of nationalities and
    autonomous regions which are guaranteed by the constitution itself.

    Heaven forbid, if we had repeated this Article in our Report, in
    other words, if we had said that in Turkey the nation should be made
    up of autonomous nationalities and regions, what in the world would
    happen to us? The answer is very simple indeed: We would be
    separatists.

    I will return to this point later. But before ending this issue, I
    have to show you what kind of Spain is cited by the Prosecution so
    that the Indictment is displayed for your eyes [26].

    - Art. 2 of the Constitution was saying: "The Spanish nation is
    composed of Autonomous Nationalities and Autonomous Communities".

    - Constitutional Article 3/2: "Autonomous Communities can use their
    own languages along with Spanish." What we mean by Spanish here is
    the language of the Castilian region.

    - Constitutional Article 4/2: "Along with the Spanish flag,
    autonomous communities shall be able to hoist their own flags on
    their public buildings ."

    - Constitutional Article 69/5: " The Spanish Parliament is composed
    of two chambers. Autonomous communities are represented at the Senate
    in accordance with proportional representation principle."

    - Constitutional Article 87/2: `Autonomous Communities shall have
    their respective assemblies, which -in addition to governing their
    own communities- may submit Bills to the Spanish Parliament."

    - Constitutional Article 133/2: `Assemblies of the Autonomous
    Communities shall be empowered to levy taxes."

    These autonomous communities have their specific statutes. For
    instance let us have a look at the Autonomy Statute of the Basque
    Country, dated 1979. [27]

    - Article 17: To ensure order in the autonomous territory, there
    shall be an autonomous police force. The command of the police forces
    shall lie with the Government of the Basque Country. State security
    and armed forces are competent in cases with extra- or
    supra-Community nature (like entry into and exit from the State,
    foreigners, customs, airports, smuggling etc.)

    - Article 38/1: "The laws of the Basque Parliament shall be subject
    to the control of the Constitutional Tribunal concerning their
    compliance with the Constitution only ."

    - Article 40: "Basque Country shall have its own autonomous treasury
    and budget. In order not to distort the inter-regional balance in
    Spain, a portion of the budget shall be transferred to the central
    government to meet general expenses ."

    ***

    Now let us come to Spain for the practice concerning mother tongue
    and education of mother tongue. I will only cite examples from the
    Basque Country and Catalonia:

    Basque Country: [28]

    Since the 1982 law, 4 models have been implemented in the Basque
    Country:

    Model A) The curriculum is in Spanish, some subjects are in Basque
    (Euskara).

    Model B) Spanish and the Basque Language are used 50-50.

    Model D) The curriculum is in Basque.

    Model X) The curriculum is in Spanish.

    In this system, the student can choose any model s/he wants. The most
    commonly used two models are models B and D.

    Model X appears to be fading away since in certain areas it is
    necessary to know the Basque language to find a job. On the other
    hand, the number of those who only speak Basque is almost none.

    Catalonia: [29]

    The Catalan language has been taught at primary schools in the
    Autonomous Community of Catalonia since 1978. After 1982, tests on
    Catalan language were also included in the university examination.
    Since the Language Law of 1983, it is decided that at least one
    course will be taught in Catalan.

    In Catalonia, Catalan is the official language along with Spanish
    (Article 3 of the Autonomy Statute for Catalonia, dated 1979).

    The Catalan language - the "own language of Catalonia"- is the
    official language of all Generalitat [30], Catalan Territorial
    Administration, Local Administration, and all official departments of
    the Generalitat. Catalan and Spanish will be used as official
    languages by the Administration (Language Law of 1983, article 5).

    The documents that will be conveyed by the Generalitat to other
    official departments within Catalonia will be in Catalan language.
    The documents that will be sent outside of Catalonia will be in
    Spanish or -where necessary- in the official language of that
    administration (Decree dated 1987 and numbered 254, article 5).

    All announcements, minutes and relevant documents that concern the
    meetings of local administration departments will be in Catalan, and
    no translation will be provided (Law dated 1987 and numbered 8,
    article 2).

    Judges, public prosecutors, other employees at courts, parties of
    court cases and their representatives can use the official language
    of the Autonomous Community in writing and verbally. The court
    documents drafted in the official language of an autonomous community
    are valid without further need for translation into Spanish (Organic
    Law dated 1985 and numbered 6, articles 2, 3, and 4).

    The names of official places in Catalonia will only be in Catalan,
    except for Vall d'Aran (Language Law of 1983, article 12 ).

    Catalan is the language of education at all levels. In primary
    education, children can choose between Catalan or Spanish, but they
    are obliged to learn them both (Language Law 1983, Article 14).

    I just finished introducing a summary of the Spanish example given by
    the Office of the Public Prosecutor for indivisibility of nation. I
    think this summary is sufficient.

    Eight Issue:

    The Office of the Public Prosecutor on page 7 accuses us of using the
    term " Türkiyeli" (people of/from Turkey, citizen of Turkey) rather
    than "Turk" as a supra-identity.

    Later it said, "Turk is used to indicate the citizenship and it is
    not used in racial context."

    There are so many things here to say but again I don't know where to
    begin. The best would be referring to them one by one:

    1) Why is the Office of the Public Prosecutor concerned with the
    proposal in our Report to use "Türkiyeli" rather than "Turk" as the
    supra-identity? I could not understand this at all. This is not a
    crime in Turkey. If it is a crime, then I would like to learn in
    which paragraph of which article of which law this is considered a
    crime.

    The indictment does not refer to these at all. It only alleges that
    what we said is wrong. This is what the Office of the Prosecutor
    writes in its "Counter-Report."

    If there is freedom of expression in this country, I can propose any
    term I like for any concept I like as long as it does not contain an
    insult or violence.

    Am I interfering with the Office of the Public Prosecutor because it
    is not using "Türkiyeli"? Am I filing a criminal complaint against
    him with the demand of a 5-year imprisonment?

    I'm not, because I believe that one cannot interfere in anyone else's
    freedom of expression - as I keep repeating, as long as it does not
    incite to crime or violence or involve an insult -- and I won't allow
    anybody to interfere with mine.

    I won't, because I know that this is in line with the laws of the
    Republic of Turkey. I'm sure that at the end of this case, the Office
    of the Public Prosecutor too, will learn.

    2) He claims that in Turkey the term "Turk" is not used in the racial
    context.

    What is this analysis doing in this indictment? Does an indictment
    write theses? A Constitutional Law thesis?

    The indictment is saying completely incorrect things. In fact it is
    very seldom that one comes across so many wrongs put together in a
    single text. We wrote in the Report, and I explained to him in
    length, but it must have been in vain:

    Leave aside the fact that the term "Turk" is alienating for those who
    are not Turks or who do not consider themselves a Turk in this
    country. I'm saying one more time clearly, the term "Turk" in this
    country is used both as the name of the supra-identity and also as
    the name of the dominant ethnic/cultural group.

    You can simply open the 24-volume Meydan Larousse Dictionary and
    Encyclopaedia, which is the largest dictionary ever published in
    Turkey. Volume 19, page 471. Under the term "Türk," the first
    sentence says: " A person of Turkish race." As simple as that.

    But I don't think this is a simple thing. If the term "Turk" is not
    the name of an ethnic group, then the Public Prosecutor's Office must
    answer the following four questions:

    a) What does "Domestic foreigners (Turkish citizens) " mean? This
    term was used in the "Regulation For Protection Against Sabotages"
    dated December 28, 1988, as it listed which categories were most
    likely to carry out sabotages.

    If this did not mean non-Muslim citizens, then what did it mean?
    Didn't the Office of the Prosecutor claim that the term "Turk" was
    used for citizenship only?

    b) What does "of Turkish origin and of Turkish citizenry" mean? This
    term is used to describe the characteristics of the Deputy Principal
    to be assigned by the Education Ministry to a foreign or minority
    private school, as listed in Article 24/2 of the Law Number 625 still
    in force now.

    Once you say "of Turkish citizenry " why do you repeat it by saying
    "of Turkish origin"? Did not the indictment claim that the term
    "Turk" was used for citizenry only?

    c) What does "Turkish citizen with foreign nationality " mean? This
    term was used in the Istanbul Administrative Court Number 2 decision,
    dated April 17, 1996. Whom did the court mean when it used this term?
    It was our Greek Orthodox citizens.

    Didn't the indictment claim that the term "Turk" was used to indicate
    citizenship only? Has anybody in this court room or in entire Turkey
    heard of a more weird "legal" term than this? A person is either a
    foreigner or a citizen.

    d) What does "Foreigners are not permitted to acquire immovable
    property in Turkey " mean? This sentence is from the Court of
    Cassation Grand Chamber dated May 8, 1974. Who did the Court of
    Cassation have in mind while using it? It used it for the
    administrators of the Balikli Greek Orthodox Hospital Foundation
    established by our Greek Orthodox citizens.

    Didn't the indictment claim that the term "Turk" is used to indicate
    citizenship only?

    I'm passing this since there are many more things in the indictment.

    3) Again about the supra-identity, the Public Prosecutor's Office's
    Office gives examples from some countries. It says very interesting
    things.

    It says, "In Spain, the State calls its citizens Spanish [Ispanyol]
    and not 'from Spain' [Ispanayali]"."

    Has an ethnic group called "Spanish" been discovered in Spain that I
    don't know about? If the answer is negative, what is the difference
    between "Spaniard" and "Spanish" or "from Spain"?



    The Office of the Public Prosecutor said, "The State of France calls
    its citizens French and not of/from France."

    Sorry, but what is the difference between the two? Or was an ethnic
    group called "Frank" that I did not know about was discovered in
    France recently?

    In fact the Ottomans used to call the citizens of France " Fransevi"
    and this is the very same word with "Fransiz" (French)

    He claimed, "The State of England calls its citizens English and not
    of/from England ."

    Distinguished Judge, this is really one of the peaks of the
    indictment. It is such a highlight that it dazzles one's eyes since
    the term "English" used by the Prosecutor's Office is not used by the
    people in England. Since Wales united under one parliament with
    England in 1707, the people in England says " I'm British." Since 300
    years.

    I did not call this indictment an Icat-name (invention) for nothing.
    I recommend that anyone travelling abroad and stopping by England
    never ask a citizen of England on the street "Are you English?"
    Because if they do not realize that you are a foreigner who does not
    know the land at all, they can make you suffer dearly. Because unless
    he belongs to the English ethnic group, this person would harshly
    respond: "No, I'm Scottish/Welsh/Irish!" Because for the Irish, Welsh
    and Scottish elements of this country, being called an Englishman is
    a pure insult and may lead to major incidents.

    In this country all sub-identities are united under the British
    supra-identity. "English" is a mistaken term that some in Turkey
    think is the supra-identity of that country. It is used to indicate
    the sub-identity of those who are of English origin only.

    Indeed using the sub-identity is not in the interest of the
    English-origin people because they are afraid to provoke people of
    other sub-identities. Asking a person "Are you English?" in that
    country is the same as asking a man on the street in Turkey "Are you
    a Kurd, an Alevi?" Indeed it is much worse.

    Also in the indictment this country is referred to as England but its
    name is the United Kingdom of Great Britain and Northern Ireland. If
    it had used only Great Britain or only United Kingdom it still would
    be acceptable, but England does not work. Don't listen to those who
    are chanting " England, England" in soccer games. Those are The
    Skinheads.

    Indeed the most comprehensive encyclopaedia published in Turkey was
    AnaBritannica (Encyclopaedia Britannica) and in volume 11, p. 571 it
    says the following in the first sentence of the entry "England": "
    The prominent country of the Great Britain and the United Kingdom of
    the Northern Ireland." The encyclopaedia article continues: " One
    cannot talk about the Constitutional existence of England.... Scotland
    and Wales have their own ministries and Northern Ireland is
    autonomous in its domestic affairs, England does not have its own
    rights or institutions. Official statistics on foreign trade, tax and
    defence are part of the statistics of the United Kingdom. The only
    institution that is English is the Anglican Church ."

    Then how can people, who lack even this encyclopaedic information,
    put forward convictions, introduce examples, introduce rules and then
    demand 5-year imprisonment for us for writing an academic report?

    I'll not continue since there is a lot more to talk about. Let me
    just say the following and thus we will mention something that the
    Office of the Public Prosecutor said right among all these wrongs.

    His last example is correct. In fact the German state calls its
    citizens German ( Alman) and not of/from Germany (Almanyali).

    There are two ways to nation-building:

    1) French Method

    2) German Method

    The first one is also called "territorial method" or "Renan method".
    Indeed the term "Turkiyeli" in our Report is a pure reflection of
    this method. The second one is the German Method. It is also called
    the "Blood Method."

    I don't know whether explaining this much is enough.

    Let me finish this point by saying: The situation in Germany is not
    like before anymore. As the number of people from Turkey only has
    reached 2.5 million, as the number of minorities and foreigners
    increased in Germany, the German State had to dilute the Blood
    Method. For example, now not only those born to German parents but
    those who were born on German soil (territorial method) can get
    citizenship as well.

    Here the important question is:

    What do we call a Turk who assumes German citizenship by applying or
    by being born there? Do we call him a "German Turk?"

    Indeed, there cannot be such thing as a Bulgarian Turk but a Turk of
    Bulgaria, not a Greek Turk but a Turk of Greece. What kind of a
    response would you get if you call, say, a Turk who emigrated from
    Bulgaria to Turkey a "Bulgarian Turk?" Indeed these people strongly
    protested Fikret Bila, the Ankara representative of daily Milliyet
    for using the term "Bulgarian Turk" in his column.

    Here, Distinguished Judge, for all these reasons, one cannot say
    Turkish Armenian but Armenian of Turkey, not Turkish Greek but Greek
    of Turkey, not Turkish Kurd but a Kurd of Turkey.

    But Türkiyeli suits just fine. Just like Iranian, Iraqi, Syrian,
    Laotian, American, Thai, Austrian, Canadian, Chinese etc.

    Yes, Chinese. In China there is no ethnic group called Chinese. The
    name of the ethnic group that constitutes 95% of the people is the
    "Han" group. "Chinese" is the supra-identity of this country that was
    drawn by the territorial method. Just like the term Türkiyeli.

    Leaving everything aside, I wonder whether the Office of the
    Prosecutor has ever thought of the following:

    In case the Greek Parliament said: "If the word Turk is not an ethnic
    term, then in our country, too, everybody is Greek because this is
    not an ethnic term either." What if, God forbid, Greece introduces an
    "Article 66" [of the Turkish Constitution] to its Constitution and
    says: "Everybody who is tied by citizenship to the Greek state is a
    Greek"? What will then happen to the 120,000 Western Thrace Muslim
    Turks? Are they going to become "Greek"?

    More interestingly: When we keep saying: "There is no Kurdish issue
    but a Southeast issue," or, when we tell people who call themselves
    Kurds: "No, you are not Kurds, you are Southeasterners (
    Güneydogulu)" we think we are saving the country from getting
    divided. Then are we dividing the country when we talk on a bigger
    scale and use the term " Türkiyeli"? Is it not very clear that then
    and only then we are actually saving the country? What kind of a
    double standard is this? What are we doing with logic?

    This is all what the Report was about, Distinguished Judge.

    ***

    I earlier said that I would come back to the "intent" issue. I come
    now because the Office of the Public Prosecutor invents an intent on
    every page. As I repeatedly said before, a jurist cannot question
    intent. He has no such authority. In the indictment p. 8, it says:

    "While proposing to use the term 'Turkiyeli' rather than the term
    'Turkish' in the Report, indeed it was not noticed that the name of
    the country, in other words the name Turkey, has an ethnic
    connotation. Was it not noticed or is it too early to make such a
    warning yet?"

    How can a man of law say such a thing? Making such a warning requires
    great courage for two reasons:

    1) While saying " Is it too early to make such a warning yet?" the
    Office of the Public Prosecutor openly tries to mean the following:
    "The report writers actually wanted to name this country Kurdistan
    but since they don't have the courage to do so now, for the time
    being they are satisfied with the term ' Türkiyeli.' When the time
    comes, they will suggest Kurdistan as well."

    Should I here remind of the Zanardelli Report again?

    This is abuse of duty. No one is allowed to do that. At the end of my
    remarks, we will certainly return to this.

    2) The second reason may be more interesting. The indictment claims
    that the term "Turkiyeli" has an ethnic connotation.

    Again we are in the world of symbols, projections, probabilities,
    dangers, dangers, dangers. But the only missing thing is criminal law
    itself.

    Fine, but didn't the Office of the Public Prosecutor repeatedly say
    that the term " Türk" had no ethnic meaning at all? If the term
    "Turk" does not have an ethnic meaning, then "Türkiyeli " won't
    either. How can a person and a man of law be in such a contradiction
    with himself between pages 7 and 8 of the same text?

    ***

    To sum up, we introduced the term "Türkiyeli " for the sake of this
    country. And we did something very good. This is the only concept
    that embraces all citizens of the Republic of Turkey without making
    any discrimination. We are all Turkiyeli here.

    Those who like it will use it, and those who don't won't. But one
    cannot interfere with those who use it.

    Can anybody say something to a person who says "I'm a Turk?" If he
    says he is a Turk, that is it.

    But what if he does not? What if he cannot? What if he is not a Turk
    or considers himself a Turk? What shall we do? Kill him? Or shall we
    force him to say that he is a Turk? Let me ask The Public
    Prosecutor's Office, which one should we do? The first one, the
    second, which one?

    Turk or Turkiyeli. This country will discuss and come to a decision
    over time. How can the indictment attempt to restrict our freedom of
    expression? From which article of which law does it draw this
    authority?

    Is the Public Prosecutor's Office opening a case against us because
    it did not or could not open cases against the bullies who tore our
    scientific and official Report in front of TV cameras?

    ***

    On this issue the indictment also refers to Ataturk. Fine. In fact I,
    too, wanted to come exactly to this. Let me ask the Public
    Prosecutor's Office's now: Does it think that it was us who
    introduced the term " Turkiyeli" for the first time in Turkey?

    Let me inform him: That person was Ataturk. Was the Public
    Prosecutor's Office aware of this? Please listen to the following
    articles:

    "Article 12: Except for exceptional circumstances in Turkey the
    Turkiyelis are free to travel ."

    "Article 13: Education is free. Every Turkiyeli is eligible to take
    public and private education."

    "Article 14: Schools and all such institutions are subject to
    supervision and inspection of the State. The education of the
    Turkiyeli must be in unity and order."

    "Article 15: All Turkiyelis are eligible to establish all types of
    companies to be involved in commerce, industry and agriculture in
    line with laws and regulations. "

    What are these? From where were they taken?

    The date was July 1923. This is the first draft Constitution amending
    some articles of the 1921 Constitution and mentioning, for the first
    time, that the administrative form of the State is a "republic". In
    Mustafa Kemal Pasha's own handwriting. [31]

    If there is separatism in saying "Turkiyeli ", it was first initiated
    by Mustafa Kemal. I'm not making a comment; I'm only presenting this
    to the attention of the Office of the Public Prosecutor.

    Ninth Issue

    Let us come to the section in our Report concerning the
    Constitutional Court.

    I believe the Office of the Public Prosecutor is making injustice to
    us when he claims that we presented the Constitutional Court as an
    obstacle in front of democracy. We did the same with the Court of
    Cassation, the administrative courts and the Council of State as
    well. We stated that some decisions by these institutions were
    discriminatory and thus were hurting democracy in Turkey. How come
    did the Office of the Prosecutor miss these points? Is this not
    neglect of duty?

    Distinguished Judge, I'm an academician. I can say anything I like
    without insulting or inciting to crime or violence. I can make any
    criticism I like. This is why I get a salary from the State.

    I did not commit a crime. But the indictment here commits 3 crimes:

    1) Abuse of duty. Criticizing the Constitutional Court decisions is
    not a crime. The Office of the Public Prosecutor attempted to silence
    criticism only because it did not suit his ideology. This is a crime.
    Also, this is pure dictatorship mentality.
    2) Neglect of duty. If these comments were denigrating the
    Constitutional Court, then why were they published in the Supreme
    Court's 2003 "Constitutional Law" periodical, pages 61-93? The Office
    of the Public Prosecutor should have filed a lawsuit against this
    Court also. This is neglect of duty.

    3) Denigration of the Constitutional Court. My remarks, which were
    interpreted as denigrating the judicial organs of the State, were
    quotes that I took from the paper that I read in the presence of the
    President and members of the Constitutional Court on April 25th,
    2003, at the symposium organized to the honor of the 41 st
    anniversary of the Court.

    Now the Office of the Public Prosecutor seems to say, "You,
    Constitutional Court. This person humiliated you. You are not even
    aware of it. What kind of carelessness is this? I'm immediately
    saving your honor and filing a lawsuit."

    So the Constitutional Court did not get the message but only the
    Public Prosecutor's Office did? So the Constitutional Court was
    unable to make a complaint all these years? Is the Public
    Prosecutor's Office acting as a caretaker of the Court?

    Tenth Issue

    Distinguished Judge, finally let me say why I call this
    pseudo-indictment an Itiraf-name (document of confession).

    1) The Office of the Public Prosecutor says at the end (p.10): "This
    text has great similarities with the provisions on minorities of the
    Sèvres Treaty that put our country under occupation. In the face of
    such a resemblance, one should not find it strange that one falls for
    the Sevres paranoia. "

    The last sentence is the climax of the indictment: " In the face of
    such a resemblance, one should not find it strange that one falls for
    the Sevres paranoia." This is an unbelievable sentence Distinguished
    Judge. This is a sentence that would tremendously ridicule not only
    the Public Prosecutor's Office, but anybody in Turkey. The Office of
    the Public Prosecutor, also reflecting the general atmosphere of the
    entire indictment, finds itself close to the Sevres paranoia!

    Of course this is up to him. I personally would not want to say, not
    even think of, such a thing. The indictment does so.

    2) On the other hand, the indictment accuses our Report of resembling
    the minority provisions of the Sèvres Treaty.

    Let me repeat. Even if for a moment this should be the case, why
    would this be a matter for the indictment? The Sèvres Treaty was made
    in 1920 and was buried in history in 1923. Even if there might be
    resembling sentences with such historical text, why does this bother
    the Office of the Public Prosecutor? Who says this is a crime?

    But this is such a case that I won't drop it here with only this
    much. Here there is an invention again. I'm asking the Public
    Prosecutor's Office: Which sentence of the Report resembles which
    provision of the Sèvres Treaty on minorities? I want him it cite one
    single article. One single article.

    It cannot. If it could, it would have already done so in the
    indictment.

    Then there are only two possibilities:

    1) The Public Prosecutor's Office read the Sèvres Treaty's articles
    on minorities but could not find any resemblances to our Report. That
    was why he did not cite any articles.

    2) The Public Prosecutor's Office was so much affected by the Sèvres
    Paranoia environment that it did not have the courage to read the
    Treaty, but, since the Report was lso very repellent, the Office
    thought it would be similar to the scary Sevres Treaty, therefore the
    Office found it correct to simply claim that one "resembles" the
    other.

    I'm leaving it up to the esteemed court to decide which possibility
    is stronger. But let me draw the attention of the esteemed court to
    the fact that the Office kept repeating such void allegations
    throughout the indictment.

    It claimed that the Report resembled Sevres but the indictment is
    mute when we ask which sentences resembled which articles.

    It claimed that the Report introduces a new minority definition but
    the indictment remains mute when we ask in which sentence this was
    proposed.

    It is claimed that the Report was endangering the unitary structure
    and integrity of the country but the indictment remains mute when we
    ask in which sentence this was implied.

    It is claimed that the Report was committing a crime by introducing
    the term " Turkiyeli" rather than "Türk" as the supra-identity, but
    when we ask which article of which law makes this a crime, the
    indictment remains mute.

    It is claimed that the Report was denigrating the Constitutional
    Court but when we asked in which sentence and with what word have we
    done so, the indictment remains mute.

    It is claimed that the Report was inciting animosity and hatred among
    people but when we ask with which sentence we did that, the
    indictment remains mute.

    We are all tired now. I will not give any more examples.

    Because of all this, this is not an indictment but a
    pseudo-indictment. This style of indictment in our country was left
    behind back in the military coup periods.

    ***

    For all these reasons, Distinguished Judge, this pseudo-indictment
    reminded me of great novelist Yasar Kemal's "Akcasaz'in Agalari"
    series. It reminded me of what Mr. Dervis said in the "Demirciler
    Carsisi Cinayeti" (Murder in the Ironsmith Market) story.

    Dervis Bey had Akkoyunlu Mustafa Bey's brother killed. Mustafa Bey is
    a feudal lord in Cukurova (Cilicia) just like himself. In response,
    Mustafa Bey should have Dervis Bey himself killed because the latter
    has no brother.

    Since Dervis Bey never leaves his house, Mustafa Bey can not get him
    killed. So instead, he gets somebody burn the heap of grain of one of
    Dervis Bey's laborers.

    Upon this incident Dervis Bey says, "You are not going to starve.
    Everybody will be paid for his damages. I'm not complaining about
    this. My complaint is that I did not deserve such a rival. I feel
    sorry for this."

    I do not feel sorry for all the time that I could have devoted to my
    students and to my wife. I feel sorry that such an indictment was
    written against me. I think that I'm qualified to be subject to a
    better indictment. I believe that I deserve better than a document
    which tries to undermine a scientific thesis but which puts itself in
    a worse situation in every step.

    I believe that I deserve a better indictment than this indictment,
    which invents both the action and the law, and later wants me to be
    prosecuted according to those inventions.

    If the criminal theory has lost its fundamental basis so much in this
    country, and if the elements of crime have been hurt so much, then
    I'm afraid there is nobody who can do anything and there is no place
    left to take refuge.

    But I cannot accept that there is none left. There must be some, and
    this counter-indictment should be a proof of that.

    ***

    So that no other indictment attempts to do something similar again, I
    demand that the Office of the Public Prosecutor be punished in a way
    it deserves. I want to list the crimes he committed in this
    indictment and I want to file the following criminal complaint
    against it:

    With this indictment many articles of laws were violated by ignoring
    the rule of law that respects human rights as stipulated in
    Constitutional Article 2 and in line with the principles of a
    democratic state.

    1) Academic freedom and autonomy as described in the Constitution and
    in Art.15/3 of the 1966 UN International Covenant on Economic,
    Social, and Cultural Rights were violated and the interests of the
    State were undermined.

    2) The lawsuit filed violated the freedom of expression which is
    under the guarantee of the Constitution and of the European
    Convention.

    3) The TPC was violated by the indictment because it attempted to
    make analogies and also because it questioned the "intent".

    4) The court was denigrated because of a very carelessly prepared
    file.

    5) Europe, the main objective of the Republic of Turkey has been
    portrayed as an enemy. This indictment and this case will be used as
    a major obstacle to prevent Turkey's entry into the EU. From this
    angle too the basic interests of the State of Turkey were hurt.

    6) The indictment was written with the logic of Millet-i Hakime
    (Dominating Nation). It divides the nation in two and tries to
    revitalize the basic order of the Ottoman Empire that collapsed.

    7) The indictment abused its duty by putting forward alternative
    ideological theses known to be ultra-nationalist.

    8) The indictment neglected its duty by not filing in certain
    lawsuits against us.

    9) The indictment denigrated the Constitutional Court, a judiciary
    organ of the State.

    10) By stating that the term "Turkiyeli" incited people to hatred and
    animosity and that it is a divisive term, the indictment insulted
    M.K. Ataturk who first used it in four separate articles in the first
    draft Constitution in July 1923.

    11) By attacking the freedom of expression the indictment attempted
    to eliminate the democratic State based on that freedom.

    12) The indictment committed the crime of separatism by dividing the
    nation into basic (Muslim) and secondary (non-Muslim) elements.

    [1] "3.Some State parties which claim that they do not discriminate
    on ethnic, linguistic or religious grounds, claim in an unfair manner
    that there are no minorities in their country because of this very
    reason " and "5.2 The existence of an ethnic, religious or linguistic
    minority in a given State party does not depend upon a decision by
    that State party but requires to be established by objective criteria
    ". Office of the High Commissioner for Human Rights, General Comment
    no.23: The Rights of minorities (Art.27), 08/04/94.
    CCPR/C/21/Rev.1/Add.5, General Comment no.23 (
    www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8b b21c12563ed004df111?Opendocument).


    Also see: "2. It appears from the periodic reports submitted to the
    Committee under article 9 of the International Convention on the
    Elimination of All Forms of Racial Discrimination, and from other
    information received by the Committee, that a number of States
    parties recognize the presence on their territory of some national or
    ethnic groups or indigenous peoples, while disregarding others.
    Certain criteria should be uniformly applied to all groups, in
    particular the number of persons concerned, and their being of a
    race, colour, descent or national or ethnic origin different from the
    majority or from other groups within the population ", Office of the
    High Commissioner for Human Rights, General Recommendation no.24:
    reporting of persons belonging to different races, national/ethnic
    groups, or indigenous peoples ( Art.1): 27/08/99. Gen.Rec.No.24.
    (General Comments)
    (www.unhchr.ch/tbs/doc.nsf/(Symbol)/9ce4 cbfde77a452a8025684a0055a2d0?Opendocument)


    I thank my friend Professor Patrick Thornberry for his valuable
    assistance.

    [2] Bilal Eryilmaz, Osmanli Devletinde Millet Sistemi (The Millet
    System In the Ottoman Empire), Istanbul, Agaç Yayincilik, March 1992,
    p.13.

    [3] Indictment dated 23.10.1971, no.1971/160 (1971/130); Merit No:
    1971/144 (1971/33-30), Decree No: 1971/100. See. DDKO Dava Dosyasi-1
    (DDKO Case File-1)-, Ankara, Komal Yayinlari, 1975, p.22.

    [4] ibid, p.24

    [5] See the following three books for this information on the
    Lausanne Treaty: Türk Dis Politikasi Kurtulus Savasindan Bugüne
    Olgular, Belgeler, Yorumlar ((Turkish Foreign Policy - Facts,
    Documents, Comments since the War of Independence), Ed. B.Oran, Vol.
    I, 10 th edition, Istanbul, Iletisim Publications, 2005, pp.225-231;
    B.Oran, Türkiye'de Azinliklar - kavramlar, teori, Lozan, iç mevzuat,
    içtihat, uygulama (Minorities in Turkey - concepts, theory, Lausanne,
    domestic legislation, jurisprudence, implementation) , 3rd edition,
    Istanbul, Iletisim Publications, 2004, pp.61-80; B.Oran, Küresellesme
    ve Azinliklar (Globalization and Minorities), 4th Edition, Ankara,
    Imaj Publications, 2001, pp.152-162.

    [6] Sami Selçuk, Özlenen Hukuk / Yasanan Hukuk (Desirable Law,
    Existing Law), Ankara, Yeni Türkiye Yayinlari, 2002, s.206, dn.15.

    [7] D élégation G énérale à la langue française et aux langues de
    France, Le Corpus juridique des langues de France, Etude r éalisée
    par Violaine Eyss éric, Paris, Avril 2005, s.67.

    [8] Les langues de France: un patrimoine mé connu, une réalit é
    vivante , web site of French Ministry of Culture and Communication :
    www.culture.gouv.fr/culture/dglf/lgfrance/lgfran ce_presentation.htm

    [9] www.languefrancaise.net/dossiers/dossiers.php?id_d ossier=45

    [10] Corpus..., s.18.

    [11] Corpus..., s.68.

    [12] Interview with Assoc. Prof. Samim Akgönül at Max Bloch
    University in Strasbourg, January 10, 2006.

    [13] Corpus..., s.71.

    [14] Corpus..., s.71 ve 79.

    [15] Le Monde , 04.10.2005.

    [16] www.uoc.es/euromosaic/web/document/basc/fr/i3/i3.h tml #3.1

    [17] Corpus..., s.18.

    [18] www.uoc.es/euromosaic/web/document/basc/fr/i3/i3.h tml #3.1

    [19] Les langues de France: un patrimoine mé connu, une ré alité
    vivante, web site of French Ministry of Culture and Communication:
    www.culture.gouv.fr/culture/dglf/lg france/lgfrance_presentation.htm

    [20] Jean-Luc Valens, "Le maintien d'un droit local en
    Alsace-Moselle", Quand la France se nomme diversité , Partie 2,
    Problè mes politiques et sociaux, no.909, Février 2005, s.46-47.

    [21] Interview with S.Akgönül .

    [22] For further information on legal minority privileges in
    Alsace-Moselle see Le Guide du Droit local: le droit applicable en
    Alsace et en Moselle de A à Z, Paris, Publications de l'Institut du
    Droit Local/Ecomica, 2002. For further information on minority rights
    in France see Norbert Rouland, Stephane Pierre-Caps, Jacques
    Poumarede, Droit des minorité s et des peuples autochtones, Paris,
    Presses Universitaires de France, 1966, p.307-345 .

    [23] For references for minority privileges in Corsica see: Le Statut
    particulier de la Corse,
    www.corse.pref.gouv.fr/scripts/display.asp? P=COstatut ; Collectivité
    Territoriale de Corse,
    www.corse.fr/institution/assemblee/?id=1&am p;id2=47 ; Pré sentation du
    statut de la Collectivité Territoriale de Corse,
    www.eurisles.com/Textes/presentation/PresSt atut_CTC_FR.html ; Vie
    Publique.FR - Découverte des institutions, La Corse,

    www.vie-publique.fr/decouverte_instit/approfondi ssements/approf_083.htm
    ; La collectivit é territoriale de Corse,
    www.corse.pref.gouv.fr/scripts/display.asp? P=COloi91legis .

    [24] www.transcript-review.org/section.cfm?id=232&l an=fr

    [25] www.tlfq.ulaval.ca/ax1/europe/corsemotion.htm

    [26] I thank my assistant Elçin Aktoprak for the fundamental
    information she provided concerning Spain ( European Minorities and
    Turkey her Ph.D thesis in writing). Also see:
    www.spainemb.org/information/constitucionin.h tm ;
    http://www.lehendakaritza.ejgv.euskadi.net/r48-23 12/en/contenidos/informacion/concierto_economico/e n_467/concierto_i.html
    ; Pedro Ibarra ve Igor Ahedo, "The Political Systems Of The Basque
    Country: Is A Non-Polarized Scenario Possible In The Future?",
    Nationalism and Ethnic Politics, Vol. 20, 2004, p. 355-386.

    [27]
    www.lehendakaritza.ejgv.euskadi.net/r48-448 /en/contenidos/informacion/estatuto_guernica/en_45 5/adjuntos/estatu_i.pdf


    [28] Estibaliz Amorrortu, "Bilingual Education in the Basque Country:
    Achievements and Challenges after Four Decades of Acquisition
    Planning", www.rci.rutgers.edu/~jcamacho/363/amorrortu.pdf

    [29] Jude Webber ve Miguel Strubell i Trueta, "The Catalan Language:
    Progress Towards Normalisation", The Anglo-Catalan Society Occasional
    Publications, 1991.
    http://www.anglo-catalan.org/publications/ac sop/07The_Catalan_language/pdf/issue07.pdf


    [30] "Generalitat" is a concept representing the administration of
    Catalonia in general. It is used to cover the parliament, the
    president and the whole government. For this structure, see
    www.gencat.net/generalitat/eng/guia/mapainstit .htm

    [31] Türkiye Cumhuriyeti Ilk Anayasa Taslagi (First Constitutional
    Draft of the Republic of Turkey), Istanbul Boyut Yayin Grubu, Ekim
    1998. This draft was discovered by Can Dündar's team as they were
    conducting a research at the Cankaya Palace Library for a documentary
    film; it was conveyed to me by my "accomplice" professor Ibrahim
    Kaboglu.)

    http://www.kurdmedia.com/news.asp?id=11626

    From: Emil Lazarian | Ararat NewsPress
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