Criminal economic structures and the law

Published 13.11.2015 02:20

‘Here, the point of discussion is which caution is fairer and more temperate. Enabling such enterprises to survive by assigning trustees, or, to go bankrupt by freezing them?'

Nowadays Turkey is taking major steps to fight terrorism and the financing of terrorism. The independent judicial system is waging a major struggle against economic structures that finance terrorism and launder money. This is a multifaceted judicial fight that has an international aspect and is similar to the "clean hands" operation that was carried out in Italy in 1992. Certainly, this legal operation will contribute to Turkey's democratization and enable the markets to be cleaner and more transparent. Contrary to what some circles claim, this struggle is not an intervention of the media or private property. I would like to address the legal sanctions imposed on the Gülenist Terror Organization's (FETÖ) structures and its affiliate Koza İpek Group.

The presumption of innocence is the basic legal principle suggesting that one is considered innocent unless proven guilty. It is accepted in all universal legal texts and our domestic legislation. This presumption is assured by Article 38 of the Turkish Constitution.

As part of the presumption of innocence, property rights are also inviolable unless properties are proven to have been acquired as a result of a crime or to be used to commit a crime. Depending on the danger that the crime poses to social security, before a final decision is made over guilt, judicial bodies can take measures to protect the social security that is in danger because of guilt. The advanced judicial systems of all rules of law work within the framework of these basic principles.

Those who are strongly suspected of committing certain crimes can be detained while criminal investigations continue, although a final judgment has not yet been made. While there are strong suspicions about acts that pose a danger to social life and can cause indignation in society, continuing the investigation as if nothing has happened will increase the suspicion about the efficiency of the judicial system and shake the foundation of social order. Theoretically, a crime is considered an attack against a society's standards of judgment. Even the victim of a crime is sometimes an individual; it is social standards of judgment that make that act anomalous. Therefore, punishment is theoretically the indignation that is displayed by a society whose standards of judgment are attacked.

In parallel with the development of state systems, the idea of the rule of law was created by subjecting social indignation to rules and institutionalizing this practice. Moreover, this idea has flourished depending on historic experiences. Therefore, one description of the state suggests that the state is a legitimized monopoly of violence. The rule of law is established by subjecting state-used violence to rules and to the judiciary, which is a non-governmental body. It is heavily illegitimate for the authority to use violence, which contravenes the rules and it is implicitly used by a non-state structure. This is considered to be the work of a parallel state or a terrorist act anywhere in the world. Properties that are acquired as a result of a crime or are used to commit a crime are expropriated in all parts of the world.

Until a final judgment is made on guilt, the judicial body that carries out an investigation must take due precautions to prevent the crime from being committed. Article 128 and Article 133 of the Code of Criminal Procedure includes cautionary judgments to be taken for properties that are strongly suspected of being used in a crime and obtained as a result of a crime during investigation. These articles stipulate the expropriation of those properties and the assignment of trustees to institutions that hold such properties.

The assignment of trustees to the subsidiaries of Koza İpek Holding is a caution that is compatible with the form and objectives of universal legal principles. In this way, companies were not frozen and allowed to go bankrupt, but were allowed to survive under the supervision of the judicial body that carried out the investigation. It is the task of judicial bodies to evaluate whether enough evidence was found to render such a caution necessary. The management of properties that are strongly suspected of being used in a crime and obtained as a result of a crime by judicial bodies enables such enterprises to survive at least until a final decision is made.

The chiefs of the general staff were arrested in Turkey in the past, as part of criminal investigations. In a sense, claiming that it possible to impose cautionary judgment over an individual but not on their assets, is beyond nonsense.

Here, the point of discussion is which caution is fairer and more temperate. Enabling such enterprises to survive by assigning trustees, or, to go bankrupt by freezing them? The presumption of innocence, in the event the cautionary judgments imposed during investigation are acquitted, requires them to be freed from its affects. The judges and prosecutors, who adopted the most accurate option and implemented the trustee caution, must be appreciated, as they remained loyal to basic principles that are protected by the universal law. So, Turkey's fight against terrorism financing and money laundering is a struggle against crime syndicates.

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