Constitutional Court military trial ruling no setback, say jurists

The Constitutional Court on Thursday overturned a reform package approved by President Abdullah Gül last year that requires civilian courts to try members of the military in peacetime. The Constitutional Court ruled unanimously on the legislation, dubbed by many a "civilian revolution" when it was passed last July.

The law, aimed at meeting EU membership criteria, would for the first time have vested civilian courts with the power to prosecute military personnel accused of crimes against national security, constitutional violations and attempts to topple the government during peacetime. Turkey's main opposition Republican People's Party (CHP), however, challenged the law at the Constitutional Court, which ruled to annul it.

The decision would not, however, affect ongoing trials, according to legal experts. Osman Kaşıkçı, dean of Fatih University's faculty of law said: “The annulment of the law does not mean that we have to return to previous regulations. Soldiers will continue to be tried in civilian courts. Members of the military who are being tried in civilian courts cannot be referred for court-martial. A new law in line with the Constitutional Court ruling would have to go into effect, but there is no such law.”

Reşat Petek, a retired prosecutor, also said the ruling would not impact ongoing trials and investigations. “International covenants are applied in Turkey as domestic law. When we look at the European Convention on Human Rights and its additional protocols, we see that military courts are not accepted as independent and impartial. This is why we have to discuss military courts.”

CHP spokesman Mustafa Özyürek said: “The law [that was annulled] was passed hastily with a single proposal. There was no infrastructure for it, no preliminary work had been carried out. Article 145 of the Constitution is very clear. What we had said is that the law is against that. The government accepts that, too. This does not mean that military officers will not be tried. Retired officers and officers on active duty could have been tried before civilian courts before that law, too.”

Cüneyt Toraman, from the İstanbul Bar Association, also says the annulment will not change what happens in practice. “The Constitutional Court’s ruling is based on the writing style of Article 145 of the Constitution. If this was going to be taken as the basis for everything, crimes that are committed and that have anything to do with the military should have been heard by military courts. However, this has never been applied like that. The Constitutional Court is trying to breathe life into an article that has never been applied. They will not be able to change the existing practice, though. They will only muddy the waters,” Toraman said.

Civilian prosecutors conducting the investigation into Ergenekon, a clandestine gang charged with plotting to overthrow the government, will continue as before, according to former prosecutor Gültekin Avcı. “The decision will not have any effect on the Ergenekon investigation process because coup attempts are always activities that go beyond the boundaries of the command center,” he said.

The military, however, does not agree with this view. In a statement released yesterday the legal undersecretary of the General Staff, Hıfzı Çubuklu, said, “Evaluations regarding officers being probed by prosecutors or who are currently standing trial should be referred to military courts.”

Coup plotting not a military crime

Justice and Development Party’s (AK Party) parliamentary group deputy leader Bekir Bozdağ said the decision was wrong and that the overturned law was not in violation of the Constitution. He said Article 250 of the Code on Criminal Procedure (CMK) had made clear what crimes should be tried by civilian courts. “Crimes against the constitutional order and terrorism, organized crime and narcotics crimes [are listed in Article 250]. Is drug trafficking a military crime? Does trying to bring down the constitutional order have anything to do with military service? No,” he said.

In addition to statements expressing the view that the annulment will not create drastic changes, there were various reactions from jurists. İbrahim Kaboğlu, a professor of constitutional law, said it was a necessity of the rule of law to expand the civilian judiciary’s sphere of influence. “What should be is that all military officers’ crimes committed outside the military sphere should be heard by civilian courts,” he said.

Another angry reaction came from the Democratic Judiciary, a platform of liberal jurists, which slammed the ruling as antidemocratic in a statement released yesterday.

However, the first concrete effect of the revocation was seen yesterday. The İstanbul 12th Higher Criminal Court announced that it would wait to see the reasoning of the Constitutional Court before it accepts an indictment of military officers detained as part of an investigation regarding a weapons cache buried in İstanbul’s Poyrazköy district in April of last year during the Ergenekon investigation. 12th Higher Criminal Court Chief Justice Vedat Yılmazabdurrahmanoğlu said the decision was linked to the indictment they had at hand, noting they had 10 more days to consider it and would decide once they study the court’s reasoning.