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HÜSEYİN GÜLERCE

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HÜSEYİN GÜLERCE
July 03, 2012, Tuesday

What really happened with specially authorized courts?

The third package of judicial reforms was passed by Parliament after heated debate and a scuffle at the general assembly. The bill that abolished the specially authorized courts and replaced them with regional high criminal courts has eliminated frequently voiced concerns.

Either the ruling Justice and Development Party (AK Party) deliberately leaked false information about the bill in order to see the potential reaction from the general public. Or it paid heed to the reaction and decided to maintain its original position concerning democratization and combat against the gangs nested within the state. Except for one matter, the ruling party could have concluded this move without a hitch. It was as if the aggressive behavior the members of the main opposition Republican People’s Party (CHP) and the pro-Kurdish Peace and Democracy Party (BDP) exhibited during the parliamentary negotiations of the bill were reflecting the rage of being deceived...

When I said, “concerns were eliminated,” I meant the following:

The cases against Ergenekon --a clandestine organization nested within the state trying to overthrow or manipulate the democratically elected government -- and the Balyoz (Sledgehammer) coup plan and the Kurdish Communities Union (KCK) will continue to be dealt with by specially authorized courts -- these cases may last for 10 years. The courts that deal with these cases will not be able to issue a decision of non-jurisdiction or incompetence.

The maximum duration of arrest for terror and coup cases remains 10 years. Thus, the government avoided the grave errors of allowing mass discharges in these cases, which would have undermined their essence and given psychological advantage to pro-Ergenekon groups. Let me repeat it. I don’t advocate lengthy detention periods. To avert potential unfairness by taking measures to speed up the trials is one thing; to add fuel to the fire by paving the way for the propaganda that the government has made concessions with this legal amendment, is another.

Except for the members of the National Intelligence Organization (MİT), the suspects for terror and coup crimes will continue to be investigated directly irrespective of their capacity or position. Thus, the debate concerning former Chief of General Staff Gen. İlker Başbuğ has been effectively terminated. There will be no change to the current practices.

There are also favorable changes in the third judicial package. First, the long adjudication process will be abbreviated. The composition and functioning of the Council of State’s plenary session of the chambers for administrative cases will be changed temporarily so that 6,000 pending cases can be expediently dealt with. A person who is not a member of a terrorist organization will not be penalized “as if s/he were a member.” The right to defense has been expanded. Arrest decisions will be based on concrete facts. If an objection to an arrest decision is raised, this objection will be heard by another judge from another court. (This judge should be specialized as well). When police officers who are involved in counter-terrorism are supposed to testify or are summoned to court, their names, addresses or identity information will not be disclosed. The third judicial package has felicitously increased the penalties for reporting on voice recordings posted on the Internet. I personally do not perceive it as a blow to the freedom of the press. Paving the way for illegality is detrimental to everyone.

As for the above-mentioned exception, prosecutors will have to obtain approval from the executive power before proceeding to investigate public officials or high ranking bureaucrats who have suspected involvement in corruption and fraud cases. Thus, public officials who are members of military espionage, drug, organized crime or mafia networks can be prosecuted only after approval from the executive. This is a matter that is not understandable; it must be explained by Justice Minister Nihat Ergin.

Returning to the question in the titled, “What really happened with specially authorized courts?” let me answer it. The Supreme Board of Judges and Prosecutors (HSYK) will soon name the judges and prosecutors who will be appointed to the newly established regional high criminal courts. I think the judges and prosecutors who distressed the prime minister and caused themselves to be perceived as insolent power seekers will be sidelined. And this is not something that should be exaggerated. Justice is not built upon individuals. What matters is to maintain the political and social willpower behind democratization efforts without causing a disagreement within.

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