Former prosecutor says coup plotters should be tried in civilian courts

“The military is clearly not objective when it comes to allegations of coup attempts. And so, the obvious problems associated with having judicial units linked with an institution which is already not objective in cases such as this is quite clear to everyone,” he said.

“Papers and documents linked with coup plots that took place in 2003 and 2004 were sent to General Staff prosecutor's offices, but nothing was done about them for years,” he said, noting that a case was finally opened against some members of the military in connection with an investigation into Ergenekon, a clandestine terrorist organization nested within state organs and charged with plotting to overthrow the government.

As the country was shaken by yet another alleged military plot to defame the ruling Justice and Development Party (AK Party), this time also with the faith-based Gülen movement, the powerful role of the military in Turkey's civilian affairs has come to light once again.

The General Staff's Military Prosecutor's Office initiated an investigation into the document, but the preliminary results of the investigation started to show hints that the probe would fall short of answering the main questions in people's minds.

For Monday Talk, Gündel elaborated on the topic, speaking about the results of such military investigations and how the civilian authorities also failed to carry out such investigations due to intimidation.

According to the current law, for what crimes are military personnel tried in military courts and for what crimes are they tried in civilian courts?

According to our current legal system, military personnel are tried in military courts of law for crimes that stem from their military duties and which take place within the arena of the military. Crimes specified in Article 54 of the Military Criminal Law are not considered to be of a military nature. Along these lines then, when crimes covered by the Turkish Penal Code (TCK) Articles 302-316 [which deal with crimes committed against the security of the state] are committed even by military members within the parameters of the military, these crimes are still tried in civilian courts. However, there are differences of opinion or practice regarding the matter. Despite the fact that the case publicly known as the "Şemdinli case" should have been tried in a normal civilian court, differences in perception on this case meant that it wound up being sent to a military court for trial as a result of a decision from the Supreme Court of Appeals 9th Chamber. All of this is why there is now a clear need for a legal reworking, even if only of a few sentences, to the law -- thereby clarifying and leaving little doubt as to the fact that legal recourse to the above-mentioned crimes ought to be sought in civilian courts. After all, this is the way these topics are dealt with in developed countries.

Ahmet Gündel, former prosecutor of the Supreme Court of Appeals Ahmet Gündel graduated from İstanbul University's school of law in 1980 and worked as a judge and prosecutor at various levels of the judicial system until 2006. He last served as a prosecutor with the Supreme Court of Appeals and opened a private law practice upon retiring. He has various books on criminal law to his name and has contributed many columns to newspapers and newsweeklies on Turkey's problems related to law.

So what you're saying is that in developed countries, the justice system cannot be two-headed.

The dual-headed nature of our justice system is a problem that comes up frequently and opens up the path to serious problems -- especially when the case involves members of the military who have committed crimes while on active duty. And if the crimes involve coup plotting or similar crimes, this leads to debate over whether the crimes will be tried in military or civilian courts. This debate itself then elicits opposing decisions from the courts. Thus we see that in countries wherein there is a deep-rooted understanding of democracy and the rule of law, these kinds of separations and debates are not experienced.

What was the decision rendered in the Şemdinli case -- the one sent to the military court on the basis of a decision from the Supreme Court of Appeals -- based upon?

The Supreme Court of Appeals 9th Criminal Chamber handed down its decision based on its own interpretation of current law. Maybe it really didn't want to dig deeper. Ferhat Sarıkaya, the prosecutor in the Şemdinli case, was expelled from his profession by the Supreme Board of Prosecutors and Judges (HSYK). Naturally, in these cases where the military is represented by one of the sides, judges and prosecutors approach the case with a certain timidity. We saw judges and prosecutors at the time feel intimidated by the situation. But now, during this period of change, we are noticing that today's judges and prosecutors are putting their legal courage front and center and are able to carry out investigations and try cases such as that of Ergenekon.

Many allegations of coups have been carried by the press before, and though many of them are being dealt with in the course of the ongoing Ergenekon case, the fact is that there is now a stain on the military institution because of these previous coup attempts. If we imagine that of course the Turkish Armed Forces (TSK) are subjective when it comes to these allegations, how dependable are the military courts in Turkey?

The military courts are also institutions that are part of the Turkish Republic. And just as other state organs should be, military courts ought to also be dependable. Every public servant and state institution must be accountable on many fronts. But more than just the question of dependability when it comes to military courts in Turkey, there is the problem of autonomy. When we are talking about Turkey's civil justice system, there is in fact a level of autonomy on par with other democratic countries. And this autonomy is the type which offers protection for the justice system and its members from political influences. The HSYK, despite a variety of deficiencies, is in the situation of guaranteeing this autonomy. But there is no such situation at hand within the military court system. What we see within this system as a result is a certain hierarchy in the chain of command.

Additionally, of course, the military is clearly not objective when it comes to allegations of coup attempts. And so, the obvious problems associated with having justice units linked with an institution that is already not objective in cases such as this is quite clear for everyone to see. To wit, papers and documents linked with the coup plotting that took place in 2003 and 2004 were sent to the General Staff prosecutor's offices, but nothing was done about them for years, until finally the case was opened against some military members in the İstanbul 13th Criminal Court in connection with the Ergenekon investigation.

There was never any investigation opened into the case involving the April 27 "memorandum" in which the military issued quite an open warning to the government…

Conditions in place at the time of the April 27 memorandum and today are quite different. At the time, Ahmet Necdet Sezer was president and the contents of the military memorandum overlapped with Sezer's own beliefs as president. Thus there was an open stance of opposition by certain constitutional institutions against the elected administration. With this in mind, one can clearly see just how the government's hands were bound at the time.

During this time, when plans of coups are the topic of so much debate, can Parliament not enter the scene by forming a commission aimed at uncovering coup plans and the various results from these plans?

According to Article 138, clause three, of the Constitution, the legislative body of the nation may not use its own legal authority to open any investigation, call any meetings or make any declaration about a court case currently under way. Having aid that, Parliament is allowed to order an investigation and form commissions about coup attempts in general. Of course, it's debatable just how necessary this kind of inquiry really is. After all, coup attempts aren't exactly an unknown topic in this country, and the big picture does not solely concern these actual attempts. The important thing is that pressure exerted by the military on the political arena be lifted and that the administration achieves the ability to intervene in the top-level commanders' interventions in arenas outside of their own. This in turn points to the importance of certain constitutional and legal changes taking place, and of all political parties and civil society organizations supporting democracy to the best of their ability. This is why it is also gratifying to see the stances adopted by the leader of the main opposition party and in fact the leaders of other political parties in these most recent events.

Opposition party leaders have expressed verbal declarations against coup attempts. But are there barriers preventing them from actually taking action on this front?

If we recall that in the past opposition parties not only said nothing in the face of illegal activities by the military, they even went so far as to provoke them. Seeing, then, these same opposition parties taking a stance on the side of democracy in the Ergenekon case is quite pleasing. What is happening is that everyone is becoming aware of one fact: For the military, it does not matter what party is in power. If it weren't the AK Party but were instead the Republican People's Party (CHP) or the Nationalist Movement Party (MHP), nothing would be different. We have also seen examples of this in the past.

In connection with the latest round of coup allegations, the General Staff opened up an investigation, then the AK Party pressed criminal charges in order to see the incident followed up in the civil court system and finally the Ergenekon prosecutor called on Col. Dursun Çiçek, who is believed to have drafted a plan to undermine the AK Party and the Gülen movement, to give testimony. Keeping in mind that previous attempts at coups have been ignored or excused in one way or another, do we see a change of stance here?

Well, just as in the past, there are of course some institutions that are ignoring the coup plots. It is interesting to see that the General Staff is doing everything it can to slow the process down. Actually, it would be a bit naive to expect a different approach from the military. There is still a widespread belief within the military that when it is perceived as necessary, it is the duty and right of the military to carry out a coup. There are some significant doubts at hand regarding the statements made by top-level military commanders in support of democracy. And in fact, the events we see play out reveal just how correct these doubts can be. Which is why it is so critical that military coup attempts be tried within the civilian court system, and why it is so important for not only the elected administration but all the representatives of the various political parties to react strongly to these events.

Can we imagine a situation wherein Turkey's civilian and military court systems actually complement one another?

Of course, the military prosecutor should first determine whether or not these documents are in fact genuine -- and if so, who prepared them, whether the preparation of the documents arose from within the chain of command or whether they were prepared as the result of an isolated initiative on someone's part. It is the military prosecutor's role to investigate and illuminate on this front. Since the military prosecutor is a department connected to the military in general, it is much easier for this prosecutor to carry out the necessary research and get sound results than for a civilian prosecutor engaged in the same endeavor. Forthcoming results of course need to be analyzed from the perspective of military crimes. Along with this, evidence obtained by the military prosecutors needs to be shared with the İstanbul prosecutor, who is overseeing the Ergenekon investigation.