A case for special courts

Speaking to the Taraf daily yesterday, she remarked: “I am happy about the second indictment. I have actually never lost hope. We have always known that Emre Günaydın and his accomplices, who conducted this murder, were used. Our constant demand has been that the names of the instigators be exposed. With this indictment it was done. We do not want the young ones to be used like this any more. Our only wish and aim is justice.”

The horrendous Malatya slaying followed the assassination of our colleague, journalist Hrant Dink. Erdal Doğan, who was the lawyer in both cases, was later to focus predominantly on the Malatya incident, because, as he recently explained to me in detail, “The answers to all the subversive deep state network activities, be it Ergenekon or Sledgehammer or others, lie there.”

The Taraf daily quoted the words of Doğan yesterday: “Hrant Dink was murdered as part of a plan that included the victims of the Zirve Publishing House. But in the Dink case we witnessed how the indictment was limited to only two killers, with a lot of effort spent to do so. Now it is giving us hope that the instigators and organizers will be added. Furthermore, the new indictment shows that there is a link between the Zirve slayings and the murders of Dink and Father Santoro [in Trabzon].”

What is new in the second indictment is that retired General Hurşit Tolon, active as 1st Army Commander in Istanbul when the crimes took place, stands now accused as a primary suspect in the Malatya case. Of course, the hope of Geske and other victims’ families are that there will be substantial evidence added to the case.

Doğan makes a very strong point in his claim about the pivotal role of the case in shedding light on deep state-led crimes between 2006 and 2007. The achievement of persuading the special court to dig deeper was not only the result of the persistence of the victims’ lawyers, such as Doğan, but also the efforts of special prosecutors such as Zekeriya Öz. It demanded bravery, in a time where all the important cases showed “systematic retreat” or “watering down” due to procedural errors and massive propaganda, assisted by some media figures.

The Malatya case is certainly a powerful argument for those who warn the government that if the wings of the special courts and their special prosecutors are clipped the process of transitional justice risks being thrown into the waste basket, and may even lead to a severe backlash to democratization.

Indeed, the escalating tension around the expected changes to the Code on Criminal Procedure (CMK) requires attention and care. What will those changes be, and how far will the government go to curtail the powers of these courts?

It is true that opponents of the special courts’ extensive powers have gained some ground after prosecutors in the so-called National Intelligence Organization (MIT) case behaved like elephants in a glasshouse; rather than acting in secrecy to interrogate MIT chief Hakan Fidan and other figures, they chose to challenge the prime minister on vital political decisions (such as secret talks with the Kurdistan Workers’ Party [PKK]) thus exceeding (and abusing) its jurisdiction.

Furthermore, there are lucid arguments that the special courts have created chaos through the cases of Ahmet Şık and Nedim Şener. The way the Kurdistan Communities Union (KCK) operations, which are linked with the MIT row, have been led also raises very serious questions as to why special courts do not focus only on the top of the KCK pyramid, rather than casting the net into deep waters where a Kurd not showing some sympathy for the PKK is very hard to find.

But procedural wrongdoing should not be used as a general argument for the abolishment of the special courts. Such a reflexive act could (and seems to) lead to a return to the old system where the judiciary was not authorized to inquire into criminal acts in the bureaucracy. It may lead back to the culture of impunity, the gangrene of the republic.

As was correctly pointed out by Abdullah Bozkurt in an analysis published in this paper yesterday, “There is simply no demand from the European Court of Human Rights (ECtHR) on lifting or restricting the powers of these special courts.” Nor is there a demand from the EU Commission.

So, what is to be done? First, common sense must prevail. Prime Minister Recep Tayyip Erdoğan, who acts like a one-man government, as the recent examples of the abortion debate and CMK demonstrate, must delegate powers more to his ministries instead of imposing a personal agenda triggered by emotion.

True, he was right to be angry over the MİT case, but special courts must be handled with care, because they operate as a Turkish form of transitional justice and are much needed. Indeed, they demand reform, but only with the aim of speeding up trials and doing away with the practice of detaining people in jail as suspects for far too long.