Speaking at a panel discussion at the Boğaziçi Lawyers Association one month ago, Professor Bahri Öztürk, who drafted the Code on Criminal Procedure (cmk), made a significant speech about the specially authorized courts that were established in line with the CMK.
“article 250 of the CMK -- it is the real revolution. Those who demand the annulment of CMK Article 250 want to impede investigations such as Ergenekon [a shadowy crime network that has alleged links within the state and is suspected of plotting to topple the government]. I have full confidence in our prosecutors. We prepared the CMK placing prosecutors at the center. If prosecutors do not work, the CMK does not function,” he said.
At the point reached today, when opposition parties are demanding annulment of Article 250 of the CMK following an attempt by the government to amend a law on intelligence agencies, Öztürk’s statements take on more importance because there is a campaign to change the essence of the CMK.
The special authority given by Article 250 of the CMK to prosecutors allows them to investigate terrorist groups and crimes organized against the constitutional order.
The article also vests civilian prosecutors with the power to investigate military personnel accused of crimes threatening national security, constitutional violations and attempts to topple the government in peacetime.
If Article 250 of the CMK is annulled, there is the risk of expanding the living space of crime and terror organizations. If this change, which runs contrary to the principle of separation of powers, takes place, there will be no independence of the judiciary, and politics will be given the authority of a “chief prosecutor.”
Courts and prosecutors who derive their authority from Article 250 of the CMK do not hear or investigate ordinary cases. They deal with terror organizations that have international links, drug networks and finally with the coups and coup attempts of the last 30 years. According to an amendment, Article 145 of the Constitution, which was included in a constitutional reform package approved in a referendum in 2010, when military officers -- no matter their rank -- are involved in crimes against state security and the constitutional order, they are tried in civilian courts. As this amendment suggests, the Constitution leaves it to civilian courts and prosecutors to deal with these crimes because these are complicated crimes that have the potential to affect the entire country. When these crimes are committed, serious consequences emerge such as political assassinations, the overthrow of democratically elected governments and the killing of dozens of people.
Some of the most important cases currently being heard by special courts are the Sledgehammer trial and the Ergenekon trial, where suspects are accused of attempting to overthrow the government, in addition to a case against the Kurdish Communities Union (KCK) in which suspects are accused of involvement in terrorism.
There are two views that are put forward with regard to Article 250 of the CMK nowadays. According to the first view, courts that were established in line with Article 250 of the CMK should all be abolished. According to the second view, before the investigation of high-ranking bureaucrats who will be tried by these courts, permission should be received from the prime minister to launch the investigation. Statements made by Deputy Prime Minister Bekir Bozdağ support the second view. Bozdağ likens such an amendment to the amendment made to Article 301 of the Turkish Penal Code (TCK).
A 2008 amendment to Article 301 of the TCK, which previously criminalized the act of “insulting Turkishness” and which has long been seen as an obstacle to freedom of speech in Turkey, made it obligatory for prosecutors to secure approval from the Justice Ministry before launching cases on 301-related charges.
However, a differentiation must be made between TCK 301 and CMK 250. The crime of insulting Turkishness is committed only by words or in writing. It is a thought crime. There is no crime committed through the use of weapons or bombs as in the crimes investigated in accordance with Article 250 of the CMK. As a result, TCK 301 is not comparable to CMK 250.
Specially authorized courts expose organizational crime networks in which public officials, such as military members, policemen, university rectors and mafia leaders, are involved. Abolishment of these courts would lead to the transfer of cases heard by these courts to regular courts. In this way, major cases would be investigated and heard by young and inexperienced prosecutors and judges. All the progress made in these cases so far will be wasted. An investigation carried out by a prosecutor who worked on a specific case for years cannot be the same as one who has little knowledge of that case. Abolishing these courts would mean undermining efforts to confront terror and crime organizations, activities of the deep state and coup plotters.