Jurists: Coup attempts require a harsh penalty

The Justice and Development Party (AK Party) government is planning to abolish Article 15 of the Constitution, which bans any legal action against coup generals.

Such a move would be the strongest step taken against the remnants of the Sept. 12, 1980 coup period. Sabih Kanadoğlu, the former chief prosecutor of the Supreme Court of Appeals, and some other jurists believe that criticizing the government and searching for “alternatives to the government” do not constitute crimes and thus individuals should not be punished for these reasons.

However, according to Mustafa Kamalak, a constitutional law expert, such a justification is “comical.” “Some jurists cooperate with coup plotters. They returned to the agenda once again with the launch of the Ergenekon trial,” he noted. Ergenekon is a clandestine criminal organization accused of working to overthrow the government. Dozens of its suspected members are currently in jail pending trial on coup charges.

“Turkey has faced more than 10 coup attempts thus far. Which one of them has been the subject of a trial? Turkey could not even try those who staged a coup. Jurists even disagree on what a coup is,” Kamalak complained.

Article 15 of the Constitution was added by the 1980 coup generals and bans any legal action against them. It is believed to be the biggest obstacle to putting coup perpetrators on trial.

“No allegation of criminal, financial or legal responsibility shall be made, nor shall an application be filed with a court for this purpose in respect of any decisions or measures whatsoever taken by the National Security Council [MGK],” the article stipulates.

The removal of the article will, however, most likely only be symbolic, according to most jurists, as the statute of limitations for the generals’ actions will run out in a few months.

The generals were expecting to be protected by a statute of limitations in 2000, 20 years after the military takeover. However, former prosecutor Sacit Kayasu prepared an indictment against former President Kenan Evren, who was the coup leader, which resulted in Kayasu’s disbarment. With the indictment, the statute of limitations for the coup generals was extended for another 10 years.

The statute of limitations for the generals will now expire on Sept. 12, 2010.

AK Party Kastamonu deputy Hakkı Köylü stated that engaging in a coup plan should result in a severe penalty.

“Put aside the issue of attempting to stage a military takeover, making preparations to that end is a crime that should result in a heavy penalty because it would not be possible to punish coup plotters after a coup is staged. Which jurist can try a coup instigator after the coup has happened?” Köylü asked.

The jurist also said planning a coup is no different than attempting to kill a man. “Not a single sane jurist can say that planning a coup does not constitute a crime because the plan was not realized. Such a plan is no different for attempting to kill a man,” he noted.

Turkey tried the suspected instigators of a coup for the first time in its history in 1958 after an army officer informed the prime minister of the time, Adnan Menderes, about preparations for the coup. It was Maj. Samet Kuşçu who raised the alarm about a junta group that was planning to stage a military coup.

Nine high-ranking officers were arrested and tried by a military court. The verdict was, however, disappointing. The nine were cleared of the charge while the informer, Kuşçu, was discharged from the military and sentenced to two years in prison for slander. But in May 1960, when the military staged the coup, the nine officers who had been tried and released were one of the cells in the junta. The junta executed Menderes, Foreign Minister Fatin Rüştü Zorlu and Finance Minister Hasan Polatkan after the coup.

TCK articles outlaw coup attempts

An amendment of the TCK in 2005 listed a number of activities that are regarded as “threats to the constitutional order of the country,” criminalizing undemocratic actions against the government.

The amendment garnered the support of the Supreme Court of Appeals, the Council of State and even the Republican People’s Party (CHP), which is better known for its opposition to almost every action taken by the AK Party government.

According to Article 309 of the code, individuals who are charged with attempting to destroy the constitutional order of the country are to be sentenced to life imprisonment. In addition, Article 311 outlaws attempts to prevent Parliament from functioning, even partially, while Article 312 prohibits similar attempts against the government. Article 313 criminalizes urging the public to stage an armed revolt against the government.

Some jurists, however, still claim that a member of the military must have put a coup plan into operation in order to be charged with such crimes. “Thus, that member should be tried in a military court rather than in a civilian one,” they claim.

In July 2009, Parliament approved a law that for the first time would 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. The CHP, however, challenged the law in the Constitutional Court, which later ruled to annul it.

AK Party Sakarya deputy Ayhan Sefer Üstün, who is a legal expert, said the TCK details crimes that are considered a coup or a coup attempt. “Once a member of the military tries to stage a coup d’état, it would be very hard to prevent it. Once the coup is staged, the names behind it form their own version of the law. They prepare their own constitution and laws. They even include articles in their constitution that will prevent them from standing trial on coup charges,” he noted.