As Parliament prepares for a lengthy summer recess, the issue has come to the fore again, because Prime Minister Recep Tayyip Erdoğan has shown interest in passing the much-awaited judicial reform packages, commonly known as #3 and #4. The speculation is that the fate of the courts also be part of them. The plan is to move the packages to the General Assembly for a swift vote at the last minute, and then disperse for the summer.
Will it be a proposal to abolish the courts altogether or curtail their powers to a significant degree? The question is yet to be answered. What we know is what Erdoğan knows: A team led by Bekir Bozdağ, a Justice and Development Party (AKP) deputy who is an expert in law, has been through the work, which was conducted at the prime minister’s offices, bypassing the Ministry of Justice.
The news has been met with opposing sentiments: Many politicians and pundits said they were happy, and the abolishment was long overdue, while others expressed grave concern should the courts as such be declared null and void.
The SACs were established in 2004 in line with the EU reform process and credited with dismantling gangs and organized crime in Turkey. They were at the forefront of public attention for two reasons: critical trials that deal with “organized crime disguised in subversive politics” -- such as Ergenekon, Malatya Zirve massacres, Sledgehammer and KCK Networks; and the much-debated match-rigging case focusing on Fenerbahçe.
It was about how those trials were prepared and conducted much more than the powers given to prosecutors and the status of the courts. Critique from democratic circles and reformists with common sense focused on procedural flaws and jurisdictional trespasses, while the other camp -- known for its staunch defense against the transformation of Turkey -- did all it could to have them declared as “courts of torment” in order to have the international community exert pressure on Turkey. But, not surprisingly, neither the European Court of Human Rights (ECtHR) nor the EU demanded that they be abolished. Instead, the European institutions, joining the rational critique of domestic reform circles, focused on unacceptable practices of keeping suspects in detention for far too long; the weak base of evidence in some key cases; and the arbitrariness of the special judiciary in general.
The tipping point is well known: When prosecutors decided to add the head of the National Intelligence Organization (MIT) and its other leading figures to the Kurdistan Communities Union (KCK) suspects, they knowingly or unknowingly challenged the political side of peace talks with the Kurdistan Workers’ Party (PKK), and brought the judiciary to a head-on crash with the executive power. The practice chosen was wrong and proved to be a destructive exercise in interfering with Erdoğan’s domain of political decisions.
Erdoğan’s perspective, this time justified, was to take it personally. But what is now expected with the amendments reveals an even more dangerous side. These courts are fulfilling an important function to act as some sort of transitional justice; up till late 2007 they have been very efficient in blocking waves of urban violence that could have caused havoc in Turkey. They act as deterrents for those who may resort to unconstitutional, clandestine activity in the “state within.” However, for a more proper transitional justice, they should have been fortified with truth and reconciliation commissions to uncover all the crimes linked to the state, but maintained as special courts with revised powers, clearer instructions and surveillance by the High Commission of Judges and Prosecutors (HSYK). Turkey’s transformation is an unfinished business; a radical change may awaken the old mechanisms of the state to break down the ongoing processes. The Turkish people put a very high priority on justice; they want the impunity of criminals linked to state sent to the trashcan.
It remains to be seen what exactly the AKP will do with the courts. But it is clear what is expected of them: They must be monitored so that all the ongoing big trials must be brought to a swift conclusion. People must not be kept in jail for too long. Prosecutors must be handed out carrot-and-stick policies for their levels of success in collecting evidence and focusing on the top of the pyramids in organized crime of all sorts, doing just the opposite of what they foolishly did with the KCK case.
The worst outcome would be if what is rumored is true: that those courts be replaced by “Special Courts for Terror Crimes.” This implies that the only target will be the crimes linked to PKK and alike, and Turkey’ collective memory is far too strong not to fall into this deadly trap.