On abolishing specially authorized courts

As I write this article, Parliament was discussing the matter, but we, as the general public, did not know anything about this critically important change. Specially authorized courts are judicial bodies established in 2004 under Articles 250-252 of the Code on Criminal Procedure (CMK). The introduction of these courts was a turning point for Turkey. As a matter of fact, it was a judicial revolution.

Indeed, there was a law passed in 1913 by the Committee of Union and Progress (CUP) --which was effectively a criminal network in the guise of a political party that caused the Ottoman Empire to enter an imperialist war and brought the country to the brink of destruction. Under this law, public servants could be tried for the offenses they committed only if their superiors endorsed the investigation, and their superiors tended to be accomplices in the offenses in question or showed professional solidarity.

The motive behind the CUP's passing of this law was to prevent the prosecution of the crimes it was planning to commit against pro-Ottoman liberals in such incidents as the Forced Relocation of 1915. Indeed, assassinations and corruption were among their most natural methods of operation. And they passed such a law in order to conceal their crimes and not be held responsible after the fact.

How many years did this law remain in force? About 90 years. In other words, it was abolished in 1999 after seeing two states and numerous governments. In 2004, the CMK's Article 250 was introduced.

This article heralded the transition from the law of rulers to the rule of law. Thanks to this law, law enforcement authorities started to effectively combat criminal networks nested within the state, irrespective of the identities of their members. It should of course be noted that the ruling Justice and Development Party (AK Party) supported this process.

Previously, prosecutors were unable to conduct investigations about members of the military. They were even unable to step into military zones. With the referendum of Sept. 12, 2010, this law acquired a constitutional basis.

Thanks to this law, prosecutors were able to conduct searches and investigations in the military's cosmic rooms. They could launch probes into coups and other offenses committed by members of the military. These probes, as well as the judiciary's capability to penetrate into the military sphere, have played a significant role in thwarting the military tutelage.

The government is now reportedly on the move to abolish these courts completely and to introduce the prerequisite of obtaining authorization from the prime minister, a relevant minister or administrative head before launching any investigation into or trial of public servants, including members of the military. As I said above, the law was about to be passed, and no one knows the content of the law the government is working on. Is it sane to pass such important legislation without discussing it thoroughly and convincing the general public of its necessity?

This is nothing but an attempt to grant immunity to state officials. In the past, Turkey suffered great sorrows under those who committed crimes on behalf of the state. Specially authorized courts are currently dealing with 22,000 cases. Supposing that the prime minister, relevant ministers or administrative heads will act in good faith, is it possible that they can correctly examine and understand these complicated cases and felicitously employ the permission mechanism? This has the potential of creating doubts about the proper usage of this mechanism by the government. Members of the current government may be held responsible for this mechanism by future governments.

It is claimed that some prosecutors and judges misuse their powers and authorities or misconstrue their scope. True, the detention periods are lengthy. There are some cases in which prosecutors and judges have failed to act meticulously in issuing detention decisions. They made grave errors concerning the arrests of journalists Ahmet Şık and Nedim Şener. However, the proper way to deal with these errors is not to abolish a correct and necessary law but to identify these members of the judiciary and make the Supreme Board of Judges and Prosecutors (HSYK) rectify the errors. To focus on specific errors in assessing a correct law -- one that allows the judiciary to investigate and try everyone who commits a crime, be it a member of the military or the bureaucracy -- means unfairness to all prosecutors and judges, doesn't it? In what democratic country around the globe is there a sphere protected from the rule of law?

Moreover, the European Court of Human Rights (ECtHR) found Turkey in violation of the European Convention on Human Rights because of many antidemocratic legal provisions, particularly the Counterterrorism Law (TMK), in a record number of cases, while it could find no illegality in the practices of the specially authorized courts in the applications filed by Tuncay Özkan, a defendant in the case against Ergenekon -- a clandestine organization nested within the state and accused of trying to overthrow or manipulate the democratically elected government -- and by Çetin Doğan, a defendant in the case against the Balyoz (Sledgehammer) coup plan. The ECtHR held that evidence is sufficient and litigation is fair and arrest decisions are felicitous. In other words, neither the ECtHR nor the European Union argues that these courts should be abolished.

In sum, the abolition of specially authorized courts does not overlap with any need or demand. Any effort to rectify the errors is understandable, but stripping these courts of their powers and authority is not.