Government to widen scope of law on military tribunals

The planned amendments come as a result of an order by President Abdullah Gül that the government should make changes to the legislation to avoid possible problems regarding military service. When Gül approved a bill in early July that included a change to Article 5918 of the TCK, paving the way for military personnel to be tried in civilian courts and preventing the prosecution of civilians in military courts, he told Parliament to make legal changes to seven articles of the TCK to ease problems that could arise regarding military service. A high-level governmental official told Today's Zaman that the government spent the summer months working on the planned amendments. The Justice Ministry prepared a draft of the planned amendments to comply with European Union norms. The Cabinet is expected to deliberate on  the bill after the government consults with the Defense Ministry and other concerned institutions.

The government official said among the TCK articles the president proposed amending were Articles 305, 318, 319, 323, 324, 325 and 332. Though the government reached a consensus to amend five of those articles as part of its judicial reform efforts, it decided to defer deliberations on the remaining two to a further date. Those charged with “making the public detest military service” and “acting against the interests of the country” will no longer be tried in military tribunals according to two amendments planned for a new package to be presented to Parliament.

The law on military tribunals had come as a revolution in civilian-military relations, analysts argued, as such a move limits the power of the military over civilians.

The law allows civilian courts to try members of the armed forces who are accused of crimes including threats to national security, constitutional violations, organizing armed groups and attempts to topple the government. However, military courts are authorized to try members of the armed forces during wartime and periods of martial law.

The main opposition Republican People's Party (CHP) has appealed to the Constitutional Court to nullify the previously passed legislation. It is now uncertain what position the party will take on the planned amendments to the TCK.

To comply with EU standards, the government plans to make further changes as part of its judicial reform efforts. One of the changes foreseen will be to Article 305 of the TCK, which criminalizes “acts against the fundamental national interest.” According to this article, any citizen or foreigner staying in Turkey who gains material interest for himself or others for the purpose of committing acts that are against fundamental national interests shall be sentenced to three to 10 years in prison. The government now plans to try individuals charged with this crime in civilian courts instead of in military tribunals.

Another change is planned for Article 318, which rules against discouraging people from performing their military service. Those who make suggestions or spread propaganda against military service receive two-year prison sentences. If the act is committed through press organs, then the sentence is increased by half. The European Court of Human Rights asked Turkey to amend the article in 2007, which was a driving force behind the government's decision to include the change in its new reform package.

The government also plans to charge civilian courts with trying individuals who are accused of neglecting their duties in times of mobilization, a principle of Article 324 of the TCK.

Article 325 criminalizes the reception of degrees or titles by citizens from “enemy countries.” Those who violate the principle are sentenced to one to three years in prison. This article was frequently the center of harsh criticism, as it was deemed “vague” by jurists and analysts. The government is planning to amend this article.

Another article to be amended is Article 332, which punishes those who enter forbidden military zones without permission with a jail term of up to eight years. Currently there are various cases being heard at military courts related to this article.

The government, however, decided not to recommend any changes to Articles 319 and 323 of the TCK, which criminalize urging disobedience in soldiers and other security forces and disseminating false news during times of war, respectively.

Almost three months have passed since the approval of the law on military tribunals, but there is still much controversy over its application, mostly due to the reluctance of military courts to transfer civilian-related cases to civilian courts.

A recent example was from the General Staff's military court, which is currently hearing a case against a major and two civilians who allegedly engaged in a conspiracy in a tender to construct a military facility at the Special Forces Command. Yesterday the lawyer for the civilian defendants refused to register a defense on behalf of his clients as the military court had refused to transfer the case to a civilian court.