Fate of Sept. 12 military coup perpetrators in hands of victims

If the package passes in the referendum, which will take place on the 30th anniversary of the coup, an article in the Constitution that makes it impossible to take legal action against the perpetrators of the Sept. 12 coup will be removed. The Justice and Development Party (AK Party) government, which drafted the amendment package, has no plans to try the coup perpetrators. The government will stay out of legal debates on this issue but will instead opt to wait for lawsuits to be launched by victims of the coup d'état. The AK Party administration set up a commission made up of the head of the parliamentary Constitutional Commission, Burhan Kuzu; the head of the Justice Commission, Ahmet İyimaya; and the AK Party's parliamentary group head, Bekir Bozdağ, to assess whether it can legally be possible to try the Sept. 12 generals and their allies. However, the general opinion inside the party is for the government to avoid any special effort in this direction.

Legal experts differ in their opinions as to whether a trial can take place three decades after the coup. Former Supreme Court of Appeals chief prosecutor Sabih Kanadoğlu, former Justice Minister Hikmet Sami Türk, former Supreme Court of Appeals President Sami Selçuk, former Constitutional Court President Yekta Güngör Özden, former Supreme Court of Appeals chief prosecutor Vural Savaş and former Judges and Prosecutors Association (YARSAV) President Ömer Faruk Eminağaoğlu say no trial can take place because the statute of limitations for the crime has expired.

Even legal experts known for their anti-Sept. 12 stance do not agree on this. Sami Selçuk, known for his democratic opinions, and constitutional law Professor Ergun Özbudun as well as Burhan Kuzu say it is impossible to try the coup perpetrators.

However, retired military judge Ümit Kardaş, former Adana Chief Prosecutor Sacit Kayasu, who was disbarred for attempting to launch a case against Kenan Evren, the general who led the coup, Professor Ahmet Gökçen and the head of the ‘78ers Federation, Nejat Kangal, also a lawyer, say trying the generals is possible.

Settling accounts

The AK Party, which has no additional plans to push for a trial of the 1980 junta members, sees the removal of temporary Article 15 -- which barred legal action against Sept. 12 perpetrators -- from the Constitution as a symbolic settling of accounts with the past.

Prime Minister Recep Tayyip Erdoğan has used the theme of getting back at the coup perpetrators of 1980 for his campaign to pass the constitutional amendment package in the referendum. Observers see this as a way of reinstituting the prestige of those hanged or killed by the coup. If the package passes, this itself will send an important message to those who are thinking of attempting a military takeover. In this sense, many observers feel the removal of Article 15 by itself is an important gain, although it might not necessarily lead to the trial of the junta members.

Members of the AK Party with a legal background think it is best if the victims of the coup decide whether retired Gen. Evren and his friends will be tried. Justice Minister Sadullah Ergin says the last say on these trials should be given to the judiciary. “It is impossible at this moment to say whether they will be or will not be tried. Those who suffered from the coup might file cases. The courts will decide whether they will be tried or not. We did not set out saying we will try coup generals when we were drafting this amendment. The important aspect in this amendment is that a huge shame is being cleansed. This is an important gain for democracy,” Ergin told Today’s Zaman.

However, observers expect to see hundreds of cases to be launched against Evren and other generals and civilians who backed the coup once the referendum package is passed. The plaintiffs will seek compensation for atrocities they were subjected to.

AK Party Deputy Chairman Hüseyin Çelik told Today’s Zaman that the government could not possibly have a plan to ensure the trial of coup perpetrators because this would mean the executive organ equating itself to the judiciary.

“Our duty is to abolish the giant shield that stands in the way of the trial of coup perpetrators. But trying them ourselves is not our job. The judiciary has the last say on what to do based on petitions from those who suffered.”

Çelik also said that the 1982 Constitution, a creation of the 1980 coup, includes provisions that keep the judiciary from being completely impartial. “In this Constitution, the rulings of the Supreme Board of Judges and Prosecutors [HSYK] and the Supreme Military Council [YAŞ] are not subject to appeal.

Military courts work under the chain of command. They try civilians in military courts, and it is impossible to try military officers in civilian courts. Ninety percent of the Sept. 12 trials took place in military courts. With this constitutional amendment package, we are ensuring the liberation of the judiciary. The government is not going to go out and investigate who staged this coup. Our main purpose is to make sure that those who committed injustices cannot get away with it and to teach a lesson to any others who might be thinking of making a similar move after this point.”

Statute of limitations debate

At the center of whether the junta members can be tried lies the statute of limitations. A majority of jurists who say that they cannot be tried emphasize that the junta and its allies cannot be tried either because the statute of limitations has expired or because various amnesties have been issued by previous governments. The statute of limitations in Turkey is 30 years, Sept. 12, 2010, the day of the referendum. However, some jurists say criminal complaints and cases seeking reimbursement can still be filed.

Temporary Article 15 says no legal, criminal or compensation case can be brought against members of the National Security Council (MGK) who served between Sept. 12, 1980 and Nov. 6, 1983, and members of the Consultation Council who served in the same period as well as the governments that served under the council. The article also offers legal protection to bureaucrats who executed the decisions of these bodies.

The heaviest charge that could be brought against the coup perpetrators could be “an attempt to change the Constitutional Court,” which is punishable by life in prison. According to the Turkish Penal Code (TCK), the statute of limitations on this crime is 30 years. However, this can go up to 45 years if there is a process that “suspends” the statute of limitations.

Some legal experts actually claim that the Supreme Election Board (YSK) chose this date on purpose. The AK Party had initially requested a referendum in July.

Former Prosecutor Kayasu, a victim of the Sept. 12 coup himself, although years after the coup took place, believes an indictment against the coup generals he prepared in 2000 -- a move that got him disbarred -- has reset the statute of limitations, thus extending it another 30 years from that date.

According to Ahmet Gökçen, a professor of law at Marmara University, says the crime in question continued until 1983 and that the statute of limitations cannot, therefore, expire before November 2013.

Ümit Kardaş, a retired military judge, told Today’s Zaman that the statute of limitations does not apply in cases where there are violations of international law and in cases of crimes against humanity. “Because of the systematic torture in the days of the coup, it can be said that there is no statute of limitations on the coup,” he said.

Professor Sami Selçuk, a former Supreme Court of Appeals president, says temporary Article 15 has the power of giving amnesty to the coup perpetrators, and since the 1982 Constitution was enacted with a public vote, no trials can be launched.

Who will be tried?

Three of the five members of the MGK -- Gen. Evren, Gen. Tahsin Şahinkaya and Adm. Nejat Tümer -- are still alive. Generals Nurettin Ersin and Sedat Celasun have passed away. It might be possible to try those who are still alive among the 160 people who served under the Bülent Ulusu government as ministers and on the Consultation Council. Up to 3,000 people who executed the rulings of these bodies can be brought before the court. “I think they should be tried. Of course there are serious legal and practical difficulties here,” parliamentary Constitutional Commission President Kuzu told Today’s Zaman.