The proposal to abolish or significantly curtail the powers of specially authorized courts -- also known as specially authorized regional serious felony courts -- that were established in line with Article 250 and 251 of the Code on Criminal Procedure (CMK) only seven years ago is the latest attempt by the AK Party to rein in independently minded judges and prosecutors. This undoubtedly deals a major blow to the separation of powers in government where the AK Party already exerts controls in both the executive and legislative branches with a majority in Parliament.
It seems Prime Minister Recep Tayyip Erdoğan considers the independent judiciary as the only obstacle in the way of merging powers in Turkey in order to get closer to absolute power. Otherwise, how will the AK Party explain its hesitation concerning the urgently needed reforms waiting on dusty shelves for too long while embarking on hastily arranged changes to bring everything under the strict control of the government? There is simply no demand from the European Court of Human Rights (ECtHR) on lifting or restricting the powers of these special courts, and the Venice Commission of the Council of Europe also advocates special courts in numerous reports and opinions it has issued for the efficacy and efficiency of the judicial system.
Turkey’s own judicial council, the Supreme Board of Judges and Prosecutors (HSYK), has been highly supportive of these courts as well. Bülent Çiçekli, a member of the HSYK, told Sunday’s Zaman that special courts exist in all European countries, saying that the judges and prosecutors in these courts have accumulated great expertise in how to handle major cases concerning organized crime, drug trafficking, coups and terrorist organizations. “When compared to other felony courts in Turkey, I think the specially authorized courts have attained much higher judicial standards,” he said, adding that because these courts deal with very high-profile cases, they face much more scrutiny than ordinary courts.
One of the major cases launched thanks to specially authorized prosecutors is the Ergenekon case, which began in 2007 when police discovered a house in İstanbul’s Ümraniye district being used as an arms depot. The case is seen as a milestone for Turkish democracy, as Turkey has for the first time been able to confront shadowy structures long nested within the state. Another landmark case handled by these courts is the Sledgehammer trial that was launched in 2010, which involves a suspected coup plot to unseat the AK Party government through violent acts, including the killing of non-Muslim minority leaders and bombing mosques. These cases can hardly be dealt with by ordinary courts that lack the necessary expertise and the power to try these cases, pundits argue.
In an interview with Today’s Zaman in March, Işıl Karakaş, a Turkish judge on the ECtHR, confirmed that the court does not expect Turkey to remove its specially authorized courts, which have been instrumental in clearing major obstacles for Turkish democracy, giving the chance for the first time to bring “untouchables” before the judiciary. “Those cases contributed to the idea in society that high-level officials are equal to average citizens in front of the judiciary. No matter if those officials are a chief of General Staff, they can be arrested if they are suspects,” Karakaş said. She added that specially authorized courts do not worry the European court unless they violate the right to a fair trial.
In fact, in the first review of the Ergenekon trial, the Strasbourg-based ECtHR ruled in December 2011 that two applications lodged by Ahmet Tuncay Özkan and Mustafa Levent Göktaş, both defendants in the case, did not even pass the “admissibility” criteria. Although the court did not examine the “merits” of the cases because the applications failed the screening in the admission test, a chamber of seven judges unanimously dismissed both applications as inadmissible on almost all counts of alleged violations of the European Convention on Human Rights while deferring its decision on two complaints pending a response from the Turkish government.
Turkey introduced special courts in 2004 to replace the notorious State Security Courts (DGM) that were staffed by military judges and switched to an all-civilian court system. The change was brought forward by the AK Party and was even supported by the main opposition Republican People’s Party (CHP). The EU Commission welcomed this improvement in its 2004 Progress Report. In fact, Parliament Speaker Cemil Çiçek, then the justice minister, defended changes on the floor because he said they met the requirements of the ECtHR, the EU and the demands of Turkish society.
What happened that changed the attitude of both the ruling AK Party and the opposition CHP with regard to these courts was that the investigations launched by prosecutors have eventually reached politicians or political appointees. A few former and current deputies from the CHP and scores of others from the Peace and Democracy Party (BDP) are being tried by these courts for their alleged links to terror networks or organized crime. Now the CHP wants to abolish the courts it supported only seven years ago.
As for the ruling AK Party, the government is not comfortable with the investigations penetrating deep into state agencies for government employees’ alleged involvement in terrorism and organized crime. Erdoğan took it personally when the prosecutors in İstanbul discovered evidence that rogue agents in the National Intelligence Organization (MİT) were implicated for their involvement in Kurdish terrorist organizations. When Erdoğan’s political appointee Hakan Fidan, the head of MİT, was served with a subpoena in February to appear in the prosecutor’s office for a deposition, the government rushed to have Parliament approve an amendment requiring prosecutors to receive special permission from the prime minister himself when taking legal action against or questioning intelligence officials. Using his majority power in Parliament, Erdoğan succeeded in thwarting legal action against the confidant he handpicked for the top position in the spy agency.
With the proposed changes to the CMK articles, it was reported that the government is seeking blanket protection for all senior military and civil employees by limiting the powers of special courts. If changes are to be approved, prosecutors will have to ask for pre-authorization from the government for judicial proceedings launched against high-ranking military officers and bureaucrats. In other words, the immunity cover for government employees and political appointees will be broadened to the effect that the judicial review of government actions will be very difficult, if not impossible.
The move drew the ire of jurists. Retired Supreme Court of Appeals Public Prosecutor Ahmet Gündel said that if the special courts are abolished and special prosecutors are divested of their authority, the government will have great difficulty explaining this to the public. “People will ask the AK Party why it backpedaled from its earlier stance. They will think the change is aimed at saving some suspects from standing trial. How will the government and Parliament do away with people’s suspicions?” he asked.
Special courts have proved to be much more efficient and effective
Jurists underlined that Turkey needs the special high criminal courts to tackle terrorist threats, organized crime, drug trafficking and widespread gang-related corruption just like it needs special courts dealing with commerce, juveniles, families and labor. Though the rules and procedures are pretty much the same as in other felony courts, these special courts have proved to be much more efficient and effective thanks to their strengthened position in terms of further independence and wider jurisdiction bestowed by the law. For example, specially authorized prosecutors were appointed by Turkey’s judicial council, the HSYK, to investigate and prosecute high-profile cases where the ordinary criminal justice machinery cannot be trusted to produce fair results.
The law allows specially authorized prosecutors to go wherever the evidence leads them without confining themselves to jurisdictional limitations. As such, they are much more effective in collecting evidence and running deep and long investigation without being slowed down by much red tape. The law also states that crimes falling under the jurisdiction of special high criminal courts must be dealt with expeditiously. The law even allows for having trials during the judicial holiday recess, speeding up the whole process. Prosecutors may even request probes from the military judiciary as part of their ongoing investigation.
The law also states that the judge or prosecutors appointed to these courts by the judicial council cannot be dismissed or appointed elsewhere unless their three-year term is completed or when requested to do so by the judge or prosecutor in question. This is important because the complexity of cases requires people to stay on the job in order to avoid a high turnover in personnel.
The criticisms leveled against these courts are not unique but rather were caused by overall structural deficiencies challenging the Turkish judicial system, such as the excessive length of trials. When compared to other felony and civil courts, the proceedings in specially authorized court are actually quite faster. Burhan Kuzu, the chairman of the constitutional commission, argues that the suspects will have more safeguards in having their cases heard in courts before judges and prosecutors specialized in organized crime and terrorist groups. The deputy chairman of the Justice Commission, Hakkı Köylü, dismisses accusations that the way these courts function is not in line with universal norms. “We need these special courts in Turkey for transparency, accountability and the respect for the rule of law,” he told Sunday’s Zaman.
What is more, comparable examples can be found in other European countries as well. France and Spain were both challenged by separatist terrorist groups, and Germany also has special courts to deal with specific crimes. Professor İzzet Özgenç, an instructor at Gazi University’s Faculty of Law, said special courts are not peculiar to Turkey, and they exist in other countries, too. The professor was one of the legal experts who worked on the drafting of CMK Article 250. He has also worked on the Ministry of Justice’s legislation of other laws in the recent past. Özgenç said he never recommended the abolition of special courts when he previously asked for his opinion.
According to the professor, it is wrong to discuss whether Turkey really needs such courts. “Such special courts exist everywhere. Their existence is a necessity in Turkey, too. The structure of these courts may change from one country to another. They may exist as a separate body in a country, and as a chamber of a high criminal court in another country,” he said, and added that what is more important about special courts is to allow them to function properly rather than their structures.
It is also quite unusual for Turkey to have a judicial package containing an amendment to Article 250 handled by the Office of the Prime Minister rather than the Ministry of Justice, which is traditionally the leading body in drafting judicial changes. There are unconfirmed reports that there is a rift between Justice Minister Sadullah Ergin and Erdoğan on the issue. Ergin defended special courts in the past, saying there are many types of special courts, including family courts, labor courts and intellectual property courts. “Instead of objecting to special courts, I am of the opinion that it would be better to revise their procedures and authorities,” he said at a symposium in Ankara in March.