Efforts by judicial authorities and political figures are under way to agree on a method that would allow the retrial of members of the Turkish Armed Forces (TSK) who were convicted of planning a coup, but each option suggested thus far is likely to result in a legal problem, reports Today’s Zaman.
The issue is, nobody knows exactly how.
Result: cacophony of highest order.
Among the options available is the abolition of a provisionary article that allowed specially authorized courts to continue hearing ongoing cases when those courts were abolished in 2012. Parliament decided in July 2012 to abolish and replace specially authorized courts with “regional high criminal courts” but also said that specially authorized courts would continue to deal with all ongoing coup and terrorism cases until a final verdict is reached.
According to the president of the Turkish Bar Association (TBB), Metin Feyzioğlu, who has been holding a round of talks with government authorities to find a solution for the retrial of coup convicts, the government should abolish that provisionary article.
Speaking to the media over the weekend, Feyzioğlu said: “Parliament abolished specially authorized courts on July 5, 2012, saying those courts have no place in democracies and that they violate universal standards of one’s right to a fair trial. However, it adopted at the same time a provisionary second article that allowed those courts to continue dealing with their ongoing cases until they are finalized. All the problems we are encountering today stem from this article. We [the TBB] propose that this provisionary second article be abolished.”
If the article is abolished, according to Feyzioğlu, specially authorized courts will be rendered “inactive” and the Supreme Court of Appeals may overturn the verdicts handed down by those courts. In such a scenario, the cases heard by those courts will be forwarded to high criminal courts for revision. However, for this to happen, judicial authorities say Parliament should pass a “special law” to allow the Supreme Court of Appeals to declare a lack of jurisdiction for specially authorized courts and to overturn the verdicts of those courts.
In addition, Parliament will need to adopt a new law to order the country’s courts to retry suspects in coup-related cases, such as the Balyoz (Sledgehammer) case, in which verdicts against the suspects were already upheld by the appeals court.
The head of the parliamentary Human Rights Investigation Commission, Ayhan Sefer Üstün, speaking to Today’s Zaman, said Feyzioğlu’s proposal is unacceptable as it would result in the suspects in the coup cases evading punishment.
Stressing that he is not against the idea of retrying arrested officers, Üstün said the prime minister and the TBB differ on the retrial issue. According to Üstün, the removal of the provisionary second article would mean hearing the coup cases from scratch, a move that the government would not like as it would require courts to spend at least four or five years to hear the cases from the very beginning.
In such a case, Üstün said, the suspects in the coup cases would appeal to the Constitutional Court to release them pending trial, arguing that they have already spent lengthy periods under detention. Upon the appeals, the top court will have no option other than ruling to release the suspects given the decisions it recently made that a long detention period is a violation of a prisoner’s rights, according to Üstün.
“The TBB proposal indeed includes a proposal to release coup suspects and even a proposal to issue an amnesty for the suspects. This also includes a proposal to help a coup crime, which threatens human rights and democracy, to go unpunished,” he added.
The retrial issue became a hot topic of debate over the weekend after Prime Minister Recep Tayyip Erdoğan told a group of journalists with whom he had breakfast at his office in Dolmabahçe Palace on Jan. 4 that he had ordered the Ministry of Justice to seek possible ways of holding a retrial of the military officers convicted of planning coups.
Scores of TSK members — both retired and on active duty — were detained as part of the Sledgehammer and Ergenekon coup cases. These cases were concluded in 2012 and 2013, respectively. The Supreme Court of Appeals upheld the court’s decision in the Sledgehammer case recently, while the appeals court has yet to announce its decision on the Ergenekon case.
One other option on the table that would allow for the retrial of the arrested military officers was voiced by Sabih Kanadoğlu, the former chief prosecutor of the Supreme Court of Appeals, on Monday.
Speaking to a Cumhuriyet daily, Kanadoğlu said Article 310 of the Code on Criminal Procedures (CMK) should be put into practice as a way of enabling the retrial of the coup convicts. According to the article, the Supreme Court of Appeals chief prosecutor has the right to appeal against an arrest ruling in cases where the public good might be at stake.
If the prosecutor makes such an appeal, the General Council of the Supreme Court of Appeals will convene to discuss the appeal. The council is made up of 30 members. However, it remains unknown as to whether the chief prosecutor of the Supreme Court of Appeals will appeal against the Ergenekon and Sledgehammer court rulings.
Ömer Diken, the presiding judge of the İstanbul 10th High Criminal Court, which heard the Sledgehammer case, spoke to the Milliyet daily on Monday and implied that it is unlikely for arrested officers to be saved from prison even if they are retried.
Noting that he has worked at the Supreme Court of Appeals as an investigative judge for a long time, Diken said many suspects in coup-related cases had been retried in the past but the courts rehearing their cases did not overturn the decisions made by the initial courts.
Republican People’s Party (CHP) Deputy Chairman Faruk Loğoğlu said all the suspects in the Ergenekon and Sledgehammer cases should immediately be released from prison if the government is sincere in its attempts to retry them.
“If the law really works, then these people [convicts in the coup cases] request to be released from prison. Why don’t judges accept those requests? Why aren’t those people allowed to be released from prison pending trial?” he asked.
Speaking on the government’s support for retrials, Loğoğlu said he is not convinced by the government’s rhetoric of ensuring that justice is served. “Rather, I perceive this [support for retrials] as a maneuver to change the agenda so that the allegations of corruption and bribery will be forgotten,” said Loğoğlu.
CHP parliamentary group deputy chairman Engin Altay called a press conference in Parliament on Monday, saying his party is ready to contribute to any legal arrangement that would allow for the retrial of arrested officers. He said making such an arrangement is very simple for Parliament if the Justice and Development Party (AK Party) and the prime minister are sincere about a “solution.”
He also said the main opposition party will submit a package to Parliament later this week that includes some approaches that would pave the way for the retrial of coup convicts.
Altay said that they are preparing a legislative proposal for the abolishment of specially authorized courts and using digital data during the retrial of the Ergenekon and Sledgehammer cases.
An opposing voice on the retrials was raised by AK Party deputy Şamil Tayyar. Tayyar stated on his Twitter account that the aim of the retrials is double elimination. “Those who led Cemaat [the Gülen movement] and the AK Party to fight each other also want Ergenekon to rule again,” Tayyar said.
On Monday, TBB President Feyzioğlu paid a visit to former Chief of General Staff retired Gen. İlker Başbuğ in prison.
The retired top general is currently serving in Silivri Prison in İstanbul. He was sentenced to life imprisonment in the historic Ergenekon trial on charges of plotting to topple the civilian government.
The visit came as part of efforts to find a formula to retry TSK members who were convicted of planning a coup. Feyzioğlu held separate meetings with President Abdullah Gül and Prime Minister Erdoğan last week to discuss the situation of the arrested officers.
His association outlined a seven-point proposal to address the situation, including moves to abolish specially authorized courts, send the cases heard by these courts to general courts to overturn the rulings made by specially authorized courts, order a retrial of cases heard at these courts, abolish counterterrorism courts and pay compensation for unjustified arrests and sentences.
According to news reports, Feyzioğlu briefed Başbuğ about efforts for the retrial of convicted TSK staff in the Ergenekon and Sledgehammer cases. After his meeting with Başbuğ, the TBB president met with journalist Tuncay Özkan, who is also under arrest as part of the Ergenekon case.
Speaking to reporters after the meetings, Feyzioğlu said the TBB was working to protect the supremacy of the law in the country. He said the government should abolish the provisionary second article if it wishes to allow the retrial of arrested officers. If the article is abolished, the verdicts handed out by those courts will be revised.
Feyzioğlu defined the article as a “source of law tragedy.” “Our proposal is one that seeks to clear the black spots on the honor of the Turkish judiciary,” he stated.
On Tuesday, the TBB president will pay a visit to Justice Minister Bekir Bozdağ to discuss possible methods to enable the retrial of coup convicts. And on Wednesday, Feyzioğlu will meet with Parliament Speaker Cemil Çiçek to discuss the retrial issue.
Also on Monday, an İstanbul court rejected a demand for the release of Başbuğ. Last month, Başbuğ applied to the İstanbul 13th High Criminal Court, demanding his release on the grounds that his “constitutional right to freedom” had been violated.
Başbuğ cited the Constitutional Court decision to release opposition lawmaker Mustafa Balbay in light of what it deemed a lengthy prison sentence, and demanded that he also be set free.
Earlier in the day, Başbuğ, who completed his two years in prison, complained in Twitter messages that two years of his life had been stolen from him due to the coup case. “I do not know how long this stealing [of my life] will continue,” he said.
Başbuğ, who served between 2008 and 2010, became the highest-ranking officer to be arrested in the Ergenekon case. He was arrested by an İstanbul court in 2012 as part of an investigation into an alleged Internet campaign to discredit Prime Minister Erdoğan’s AK Party.
The investigation was later merged with Ergenekon. He faced charges of gang leadership and seeking to unseat the government by force.
In the meantime, the General Staff released a statement on Monday in which it said the goal of last week’s complaint over coup trials was to restore “trust in justice” and preserve the rights and honor of the Turkish military.
“The goal of the complaint is to investigate claims, illuminate the situation, address concerns in the public’s conscience, restore trust in justice and preserve the rights, dignity and honor of the Turkish Armed Forces and its members,” read the statement.
The General Staff filed a complaint with the Ankara Public Prosecutor’s Office last week against law enforcement units, judges and prosecutors who served in the Ergenekon and Balyoz coup plot trials for allegedly not taking the arguments of the defense into account and manipulating the evidence used in the trials.
In its complaint, the General Staff stated:
“In trials in which active-duty and retired personnel of the TSK were tried, criminal evidence was produced to target the TSK and law enforcement units, judges and prosecutors serving during the trials did not take the defense of the lawyers into account and criminal evidence was manipulated by those persons serving in the trials.”
The army said it avoided remarks that would damage the judicial process and only shared its views and opinions with the authorities and made suggestions.
In a related development, which suggests deepenin internal warfare within the state, Turkey’s top judicial body has decided to launch an investigation into prosecutors and İstanbul police chief Selami Altınok for blocking the second wave of police operations in another graft probe, involving the son of the Prime Minister and a large number of businessmen known as close to the government.
Reports say, The Supreme Board of Judges and Prosecutors (HSYK) met on Tuesday to discuss allegations into prosecutors and police officials involved in a recent graft operation.
The members of the HSYK particularly focused on Prosecutor Zekeriya Öz, Muammer Akkaş and İstanbul Chief Public Prosecutor Turan Çolakkadı.
Öz and Akkaş, who ordered the second wave of the corruption operation, are accused of misconduct while carrying out operations. Akkaş, who was also removed from one phase of the ongoing corruption investigation last month over allegations that he had violated the confidentiality of the probe, has said the ones who actually violated the confidentiality of the probe are those who refused to comply with a court decision requiring the detention of 41 new suspects in the case.
Following his press statement, Çolakkadı also held a press conference, criticizing Akkaş for the way he handled the investigation. Çolakkadı also hinted that Prosecutor Akkaş might have leaked some information to media about the investigation.
The HSYK also discussed an exchange of words between Çolakkadı and Akkaş. Çolakkadı and Deputy Public Chief Prosecutor Oktay Erdoğan were blamed for blocking the investigation during the meeting.
The board also discussed the allegations that the order by Akkaş was not carried out by police officials. The board decided to launch an investigation into prosecutors and İstanbul Police Chief Altınok.