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Mon, March 05, 2012 | By Gareth H. Jenkins

This article was first published in the Turkey Analyst, vol. 5 no. 5 (www.turkeyanalyst.org), a biweekly publication of the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center. © Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center, 2012.

(Cartoon: Bennett/Christian Science Monitor)

On February 7, 2012, Sadrettin Sarıkaya, a public prosecutor with “special authority”, attempted to question several high-ranking serving and retired officials of Turkey’s National Intelligence Organization (MİT), including intelligence chief Hakan Fidan, on suspicion of aiding and abetting the militant Kurdistan Workers’ Party (PKK). The resultant furor led not only to the ruling Justice and Development Party (AKP) rushing through legislative amendments to protect the country’s intelligence officers from judicial investigation but also to calls for the entire system of “specially authorized” prosecutors and courts to be overhauled. However, there is considerable evidence to suggest that the manner in which “specially authorized” prosecutors and courts operate are merely symptoms of much deeper flaws in the Turkish judicial system as a whole.

Background

Turkey’s system of “specially authorized” courts and prosecutors grew out of what used to be known as the State Security Courts (DGMs). The DGMs were first introduced in 1973 but were abolished by the Turkey Constitutional Court in 1975. They were revived after the 1980 coup and over the years that followed became one of the main instruments for the suppression of anti-regime dissent. In 2004, the DGMs were abolished and replaced with what are known as “Specially Authorized Heavy Penal Courts”, in which cases are brought by “Specially Authorized Public Prosecutors”.

Although they shared many similarities, the new courts were not an exact replica of the DGMs, which had been governed by a separate law. Under Law No 5190 of June 16, 2004, the functions, powers and responsibilities of the Specially Authorized Heavy Penal Courts were included in the Code of Criminal Procedure (CMUK), which governs the entire penal system. Article 250 of CMUK lists the offences that fall within the jurisdiction of the specially authorized courts. They include terrorism, narcotics trafficking and organized crime.

Before the AKP came to power in November 2002, the Turkish military had enjoyed a large measure of judicial autonomy. The AKP pushed through a series of constitutional amendments that provided for the prosecution of military personnel in civilian courts. However, it has done nothing to limit the immunity enjoyed by members of parliament or the large measure of de facto immunity enjoyed by civil servants. Under Turkish law, public prosecutors wishing to prosecute a civil servant must first seek the approval of his/her superior. In practice, this is rarely forthcoming. Article 251 of CMUK enables the specially authorized prosecutors to prosecute civil servants without seeking the approval of their superiors providing that the crimes of which they are accused are amongst the offences listed in Article 250. In addition, specially authorized prosecutors are able to order the detention of suspects, who can then be held for up to four days before they need to be brought before a court and be formally arrested. Under Turkish law, suspects who have been formally arrested can be held on remand for up to ten years pending the completion of their trial.

One of the cases that is currently being handled by specially authorized prosecutors is the investigation into the Union of Communities in Kurdistan (KCK), an umbrella organization set up by the PKK. Since the KCK investigation was launched in April 2009, an estimated 8,000 people have been taken into custody, of whom over 4,000 have been formally arrested. Although some are probably PKK activists or sympathizers, a large proportion of the detainees appear to be guilty of nothing more than supporting equal cultural and political rights for Turkey’s Kurds.

Sadrettin Sarıkaya was working on the KCK investigation at the time that he issued his summons to the officials of MİT. In recent years, sympathizers of the exiled Islamic preacher Fethullah Gülen have gradually extended their control over the Turkish judicial system. Although not all judges and prosecutors are Gülen sympathizers, one may assume that very few are prepared to oppose those who are; with the result that the Gülen Movement’s influence exceeds its numbers. Sarıkaya’s summons was issued at a time of growing tensions between the Gülen Movement and MİT. It was also regarded within the AKP as a direct challenge to the authority of Prime Minister Recep Tayyip Erdoğan; not least because it was Erdoğan who had appointed Fidan, his former security advisor, to head MİT in May 2010.

Under pressure from Erdoğan, Sarıkaya was removed from the KCK investigation and the summonses against Fidan and the other MİT officials were cancelled. On February 17, 2012, the AKP majority in parliament passed a law which exempted MİT members from the provisions of Article 251 of CMUK and made any judicial investigation into members of the intelligence service dependent on the explicit approval of the prime minister.

Gülen (L) and Erdogan (R)

Implications

The alacrity with which Erdoğan had Sarıkaya removed from the KCK investigation and pushed through legislative changes to protect members of MİT stands in marked contrast to the AKP’s refusal to address considerably more egregious examples of the way in which the system of specially authorized courts and prosecutors have been used to pursue political goals.

In addition to the KCK investigation, specially authorized prosecutors are also responsible for the slew of politically charged cases — including the notorious Ergenekon and Sledgehammer trials — that have to date seen nearly 800 perceived opponents of the AKP charged with plotting to overthrow the government by force of arms. Around half are being held on remand. Many have already been in prison for several years.

In the Sledgehammer trial alone, 365 serving and retired military personnel have been charged with plotting a coup in 2003, of whom 249 are currently being held in prison. They include 58 serving generals and admirals, or just over 16 percent of the total of 362 generals and admirals in the Turkish military. Whether or not any of the accused actually considered staging a coup in 2003 is impossible to ascertain. What is undoubted that is that the documents on which the prosecutors have based their accusations are not just forgeries but very poor forgeries. They are riddled with absurdities and anachronisms, ranging from references to events that took place years after the “coup plans” were allegedly written to references to meetings with people who were already long dead.

It is similar case with the other investigations, most of which center on allegations that the accused were members of a vast clandestine organization called Ergenekon. The specially authorized prosecutors in the Ergenekon case claim not only that the organization was seeking to overthrow the AKP but controls every violent militant group active in Turkey over the last 20 years. Since the Ergenekon investigation was first launched in June 2007, nearly 400 people have been accused of belonging to the organization. All have denied the charges. Indeed, the prosecutors have yet to produce any convincing that Ergenekon even exists. But the arrests have continued. On February 15, 2012, the General İlker Başbuğ, the former chief of the Turkish General Staff became the latest — and highest profile — person to be arrested and charged with membership of Ergenekon.

Perhaps more alarming is that it is clear that evidence in the cases brought by the specially authorized prosecutors has sometimes not only been fabricated but planted in the homes and offices of the accused; and, on at least one occasion, planted in someone else’s home after the police accidentally raided the wrong address. There have also been examples of specially authorized prosecutors questioning suspects about evidence several weeks before it was “discovered” in a police raid.

Journalists who publicly question the validity of such investigations by the specially authorized prosecutors are routinely subjected to vicious smear campaigns in the press — particularly by media outlets affiliated with the Gülen Movement. In more than a dozen cases, journalists have themselves been arrested and charged with membership of Ergenekon. Those of their colleagues who have had the temerity to speak up for them have in turn either been prosecuted or dismissed. There is reason to suspect that the dismissal has sometimes been the result of a telephone call to the journalist’s editor from a member of the AKP; however, fear of facing sanctions from the government compels the editors to take such initiatives on their own as well. The result has been the creation of a climate of fear and the paradoxical situation whereby the supporters of cases such as Ergenekon and Sledgehammer claim that they are a major step towards the consolidation of a liberal democracy in Turkey even though most journalists are now too frightened even to refer to the cases for fear that they might lose their jobs or be imprisoned.

As revealing as the cases handled by the specially authorized prosecutors have been those they have simply ignored. Article 250 of the CMUK makes it clear that organized crime falls within the remit of the specially authorized prosecutors and courts. In April and early May 2011, ten members of the opposition Nationalist Action Party (MHP), including nine of the seventeen members of the party’s National Executive, were forced to resign after a series of sex tapes were posted on the Internet. The tapes appeared at the beginning of the campaign for the June 12, 2011 general election, at a time when the AKP was desperate to push the MHP under the 10 percent electoral threshold for representation in parliament. The tapes had been covertly filmed, using considerable technical expertise and were clearly the result of an extensive surveillance operation. Such a demonstration of the capabilities of a criminal organization should have galvanized the police and the specially authorized prosecutors into action to try to identify and punish the perpetrators. They have done nothing.

Conclusions

There is an old Turkish saying: “May the snake that doesn’t touch me live for one thousand years.” In response to increasing international concern about controversial cases such as Ergenekon, Sledgehammer and KCK, the AKP has repeatedly insisted that the judicial system is independent and that there is nothing that it can do. When questioned about issues such as the length of time that suspects are being held on remand, AKP ministers reply that they share the concerns and that the government is contemplating implementing some changes. But nothing has been done. Yet, when it came to a close confidante of Erdoğan’s, not only did the AKP do something — including having Sarıkaya removed from the KCK investigation and pushing legislation through parliament — but it did it very quickly.

Any hopes that the AKP might now turn its attention to reforming the specially authorized courts are likely to be misplaced. Although they are currently locked in a power struggle, both Erdoğan and the Gülen Movement have benefited from the manner in which the courts have been used to neutralize their perceived critics and opponents. Even if some of the powers granted to the specially authorized prosecutors exceed international norms, more disturbing has been the manner in which hundreds of people continue to be held in prison on manifestly fabricated evidence. Ultimately, this points to much deeper flaws in the Turkish judicial system and raises serious questions about prospects for democracy in the country.

Gareth Jenkins, a Nonresident Senior Fellow with the CACI & SRSP Joint Center, is an Istanbul-based writer and specialist of Turkish Affairs.