I was surprised to see that the first legislative proposal the main opposition Republican People’s Party (CHP) submitted to Parliament was to abolish the special heavy penal courts, also known as specially authorized regional serious felony courts.
It was the CHP that applauded establishing these courts in 2004 when the ruling Justice and Development Party (AK Party) eliminated the notorious State Security Court (DGM) and instead set up these special courts to align the Turkish judicial system with that of the EU and implement the European Court of Human Rights (ECtHR) judgments.
The CHP at the time voted for establishing the special heavy penal courts both in the parliamentary commission and the general floor and its representatives made speeches in favor of these changes. The EU commission hailed this improvement in its 2004 Progress Report, saying: “Important improvements have been made to the Turkish judicial system. New specialized courts have been set up in order to improve the efficiency of the judicial system.” In fact, Parliament Speaker Cemil Çiçek, then justice minister, defended changes on the floor because he said they met the requirements of the ECtHR, the EU and the demands of Turkish society.
Even five years later, US President Barack Obama lauded this step in his speech delivered to the Turkish Parliament. “In the last several years, you have abolished state security courts and expanded the right to counsel. You have reformed the penal code, and strengthened laws that govern the freedom of the press and assembly,” he said.
What has changed now to push the CHP from lauding these courts to heavily criticizing them to the extent that the party wants them to be wiped off the face of the earth without a trace? It was precisely because these special courts had, for the first time, started to dismantle the old guardians of the regime and its illegitimate offspring of gangs, terrorist networks and other illicit groups who conspired to maintain their undemocratic power-sharing agreement with impunity. The CHP felt the rug was being pulling from underneath itself because it realized the party can no longer rely on the establishment to maintain its immensurate power. The playing field for the political parties was leveled and the CHP, known as “the state party,” realized it has to convince voters, not the guardians of the status quo in the judiciary, the military and the bureaucracy in order to maintain its strength.
There is nothing peculiar about having special courts in the justice system. Just as we have special courts dealing with commerce, juveniles, families and labor, Turkey needs the special heavy felony courts to tackle terrorist threats, organized crime, drug trafficking and widespread gang-related corruption. Though the rules and procedures are pretty much the same as in other felony courts, these courts have proved to be much more efficient and effective thanks to their strengthened position in terms of further independence and wider jurisdiction bestowed by the law. Specially authorized prosecutors were appointed by Turkey’s judicial council to investigate and prosecute high-profile cases where the ordinary criminal justice machinery cannot be trusted to produce fair results.
The reasons for this effectiveness of special courts are more than obvious. Specially authorized prosecutors may go wherever the evidence leads without confining themselves to jurisdictional limitations. As such they are much more effective in collecting evidence and running deep and long investigation without being slowed down by much red tape. The law also states that crimes falling under the jurisdiction of special heavy felony courts must be dealt with expeditiously. The law even allows for having trials during the judicial holiday recess, speeding up the whole process. Prosecutors may even request probes from the military judiciary as part of their ongoing investigation.
No doubt cases handled by these courts are quite extensive and require specialization. If you look at the Ergenekon and Sledgehammer cases, in which the armed Ergenekon terrorist group attempted to oust the government from power, you will be confronted by indictments spanning thousands of pages and tons of thick evidentiary folders. These cases also require people to stay on the job as to avoid a high turnover in personnel. That is why the law states that the judge or prosecutors appointed to these courts by the judicial council cannot be dismissed or appointed elsewhere unless their three-year term is completed or when requested to do so by the judge or prosecutor in question. The judicial council may disregard the three-year term if disciplinary proceedings are launched against the judges or prosecutors in these courts.
The propaganda apparatus, apparently fueled by Ergenekon and defended by the CHP, aims to discredit these courts by falsely comparing them to the notorious DGMs. Because the ECtHR has in numerous decisions criticized the DGMs, the critics had hoped to create an impression that special heavy felony courts are not fair and that their decisions should be dismissed as well. This is an utterly baseless claim and should be disregarded flat out. First of all, the DGMs were criticized by the ECtHR because of the presence of a military judge on the bench. As such, the DGMs were considered to be a violation of the fair trial principles set out in Article 6 of the European Convention on Human Rights (ECHR). Out of 112 cases rendered against Turkey in 2004, the court ruled against Turkey in 74 cases because of this problem.
Second, the problems with the rest of the cases, the ECtHR complained, were not unique to the DGMs, but were caused by overall structural deficiencies challenging the Turkish judicial system, such as the excessive length of trials. The way these court function, conduct trials, investigations and arrests, as well as their composition, are quite different from the DGMs. What’s more, heavy penal courts already existed in the Turkish judicial system. These new specialized heavy penal courts merged and integrated into existing ones with a different outlook and dealing with distinct crimes.
Comparable examples can be found in other European countries as well. France and Spain were both challenged by separatist terrorist groups and Germany, too, has special courts to deal with specific crimes. Even the US Congress felt the need to create what is now the Independent Counsel to investigate individuals holding high positions in the federal government following the Watergate scandal. We still remember Independent Counselor Kenneth Starr, whose report led to the impeachment proceedings against President Bill Clinton.
In fact, the specially authorized heavy felony courts as well as specially authorized prosecutors have additional benefits for the suspects. Since these courts have experience in dealing with organized crimes, they are better equipped to handle the cases at a much higher pace. Burhan Kuzu, the chairman of the Constitutional Commission, argues that the suspects will have more safeguards in having their cases heard in courts before judges and prosecutors specialized in organized crime and terrorist groups.
The deputy chairman of the Justice Commission, Hakkı Köylü, dismisses accusations that the way these courts function is not in line with universal norms. Interestingly enough Köylü was the person who actually authored a change in the legislation a few years back, calling for heavy penalties for match-fixing. “We have all known for many years that there have been rigged matches in the football. Only after we made the change that specially authorized prosecutors and courts should look into these allegations did we start to see some action with regard to this field of organized crime,” he told Today’s Zaman. The match-fixing allegations by top clubs in football-mad Turkey have resulted in more than 100 arrests so far. We need these special courts in Turkey for transparency, accountability and the respect for the rule law. Once we solve some of the systemic and structural problems confronting the Turkish judicial system, we will also address some of the criticism leveled against these special courts.