Special courts abolished, but trials continue
The reform package still leaves many vestiges of the specially authorised courts intact.
By Menekse Tokyay for SES Türkiye in Istanbul -- 05/07/12
In a controversial legal reform package passed by the Turkish Parliament on Monday (June 2nd), specially authorised courts were abolished and some of their authority was transferred to regional high criminal courts tasked with prosecuting terrorism-related crimes.
However, specially authorised courts will continue to deal with all existing coup and terror cases --including Ergenekon, Sledgehammer, the Internet Memorandum, September 12th Coup, and KCK trials -- until a final verdict is determined.
Specially authorised courts have long been under the spotlight for their controversial practices and handling of the high-profile coup investigations into Ergenekon and Sledgehammer that were filed against hundreds of people. The trials have sparked criticism that the cases have spiraled out of control while detaining many defendants for years without a verdict.
Specially authorised courts currently deal with over 20,000 cases. They were created in 2005 to replace the State Security Courts set up by the military in 1984. The State Security Courts replaced the Martial Law Courts of the 1980 junta, bringing accusations that they are authoritarian remnants of Turkey's last military coup.
According to legal experts and political analysts, the government moved to pass a reform package after specially authorised prosecutors in February called on Hakan Fidan, the head of the National Intelligence Organisation, to testify about secret talks with the PKK. This prompted the government to restrict the authority of the special courts because Fidan enjoys the support of Prime Minister Recep Tayyip Erdogan.
Under the new legal arrangements, the right to rule on cases or issue a warrant will no longer belong to the judge hearing the case, but rather to another one -- dubbed "judge of freedoms" -- to be assigned by the Supreme Board of Judges and Prosecutors.
Professor Hakan Hakeri, the dean of Istanbul Medeniyet University Law Faculty, told SES Türkiye that under the new procedure the prejudices of the judges hearing a case will not have an impact on the final verdicts, and will open the way for impartial judgments.
Another controversial amendment now requires prosecutors to seek permission from relevant superior authorities like the prime minister or president in order to investigate officials from top state institutions, including the General Staff, National Intelligence Organisation, National Security Council and the police. Such authorisation will not be valid in investigating crimes related to terrorism or crimes committed against the constitutional order or government.
But requiring permission to investigate top officials could be a major setback to the independence of the judiciary and the rule of law.
"This would undermine the effective handling of judicial cases because if a public servant has friendly relations with its superior, the latter will not give permission to the prosecutor to investigate any crime that he/she might have committed," Hakeri explained, adding that to some extent it gives immunity to public servants as long as they are favoured by their superiors.
Hakeri said that there could even be possible violations of relevant clauses in the European Convention of Human Rights, to which Turkey is a party.
"For instance, in torture cases committed by police forces, prosecutors cannot investigate the guiltiness of the public servants until the relevant authority gives permission. So it would undermine the effectiveness and the speed of handling such serious dossiers," Hakeri said.
Gareth Jenkins, an Istanbul-based analyst who has written on the Ergenekon indictments, views the new legal change from another angle. Jenkins believes that the authorisation requirement takes its roots from a power struggle between Erdogan and the Gulen Movement, whose sympathisers had come to dominate the specially authorised court system.
"Initially, Erdogan was prepared to tolerate this as long as the courts were being used to imprison or intimidate into silence people with whom he disagreed. But he began to move against the Gulenists in the police and judiciary when they started targeting his own people, such as attempting to summons intelligence chief Hakan Fidan on suspicion of collaborating with the PKK," Jenkins told SES Türkiye.
The main opposition party CHP rejected the limited nature of the reform packaged and signalled on Monday (July 2nd) that it could take the reform package to the Constitutional Court, arguing that the new arrangements violated the principle of equality mentioned in Article 10 of the constitution.
Talking to SES Türkiye, main opposition CHP deputy Umut Oran said that the new legal arrangements have not abolished the specially authorised courts. Instead, he said, by creating regional high criminal courts, the specialty courts have just been given a new name and increased their number from eight to 30 under the guise of fighting terrorism.
"So, people who are being tried in the specially authorised courts and have been waiting for the reason of the accusation for four years will continue to witness this extrajudicial situation because legal changes will not affect them directly," he said, referring to the coup suspects of Ergenekon and Balyoz trials who will not be affected by the reforms. Two CHP parliamentarians, Mustafa Balbay and Mehmet Haberal, are defendents in the trials.
Jenkins agreed with Oran. He pointed out that Erdogan has been reluctant to remove politically-charged cases such as Ergenekon and Sledgehammer from the specially authorised courts for fear of being accused of supporting coup plotters -- even though the "coups" in question are patent fabrications. "Of course, rationally, you cannot both abolish a system and retain it," he said.
Uluc Gurkan, a former parliament member from the Democratic Left Party who was tried under the State Security Courts as a journalist, told SES Türkiye the new legal arrangements did not bring great changes to the current status of the courts.
He cautioned that as long as the authority of the special courts is transferred to the regional criminal courts, this will not lead to democratisation of the legal system in Turkey.
"I think that in a democratic form of state, the judiciary cannot be endowed with any kind of exceptional authority. The reason for today's serious challenges to democracy and freedoms derives from these special arrangements," he said.