New CMK: Heart surgery in emergency room

The proposed legislation, which poses a threat to journalists who have disseminated voice recordings of senior military officers or bureaucrats critical of the government online, is being drafted simultaneously with the bill to abolish the specially authorized courts, significantly complicating the matter.

Remarks by the government such as “There is no way back from the fight against coups” do not suffice to alleviate public concerns. Both supporters and opponents of these draft bills agree that changes are necessary; they only perceive the results and repercussions differently. Supporters referring to the bills as judicial reform do not address the overall feeling of pessimism. Anybody who can read and write can see that these bills will negatively affect ongoing investigations.

The AK Party came to power in 2002 as a reaction of voters to the economic crisis and as a result of political exhaustion. The reaction was so dramatic that even Cem Uzan was able to garner 7.5 percent of votes. The AK Party would have sought to form a coalition government if the Genç Party had not attracted that support, leaving the True Path Party (DYP), Nationalist Movement Party (MHP) and the Motherland Party (ANAP) below the election threshold.

The 2007 and 2011 elections were important because the will of the people confronted the pro-coup mindset. Voters extended support to the AK Party, which appeared to be the target of the pro-coup figures. People expressed full support for the AK Party thanks to its determinative stance. Now the AK Party undermines this image by its own actions, and we witness inconclusive trials and what could be construed as interference with ongoing investigations.

Aside from discussing political dimensions, I would like to draw a technical picture of the matter. Some amendments are being considered to the procedure of investigations and trials by alterations to the Code on Criminal Procedure (CMK), in particular to article 250. The legislative branch has previously established special courts with specific authorities to carry out an effective struggle against organized crime. This is a standard practice that can be observed in some other countries. The sphere of authority of these courts addresses drug dealing, mafia, organized corruption and coup crimes. Complicated cases requiring lengthy deliberations are referred to experienced judges and prosecutors. These authorities are not super judges or prosecutors, with the exception of a few authorities that could speed up the prosecution and investigation, but the period of arrest and detention could be extended under these authorities. In addition, prosecutors are authorized to initiate investigations without prior permission, with some exceptions specified in the law. The exceptions are matters falling under the jurisdiction of the higher courts, including the Court of Appeals, Constitutional Court and members of MIT.

Leaked information suggests that the sphere of competence of specially authorized courts will be restricted in terms of prosecutable individuals and crimes. Offenses related to drug dealing, organized corruption, mafia and coup crimes will be removed from the scope of these courts. In addition, investigations into some top bureaucrats and officers will require prior permission.

Those who contribute to the making of this law should consider the perception that it undermines the struggle against coups. But allow me to continue with the technical aspects.

Review of these crimes and offenses in a regular high criminal court is no different from heart surgery in an emergency room. Imagine the same court that tries an ordinary case of murder holding a mafia-related trial. Like a general practitioner performing bypass surgery, an inexperienced prosecutor will handle an investigation involving top military commanders. We are supposed to believe that this change is for the sake of the quality of legal prosecution and procedure.

Article 252 of the CMK states that the offenses referred to in that article are considered urgent matters and, for this reason, disputes or cases relevant to these offenses are reviewed even in judicial recess. The Ergenekon trials began in 2008 and have not yet been concluded. There are complaints about this duration. But could you estimate how long these trials would take in a general high criminal court?

The situation is grave when you consider it from the perspective of hypothetically innocent suspects. There are checking mechanisms to catch any errors made by specially authorized prosecutors. It has become evident that Erzincan Chief Prosecutor İlhan Cihaner initiated an illegal wiretapping process involving ministers and even Prime Minister Recep Tayyip Erdoğan. Nobody considered shutting down the office of the chief prosecutor as a result. On the contrary, prosecutors who have called for Cihaner’s actions to be dealt with legitimate are now being treated as traitors.