The crime of an attempted coup

In the indictment prepared for the football fan club çArşı, life sentences are demanded for 35 defendants, for the crime of attempting to stage a coup.

Our chronic mental malady ever since extreme politicization began oppressing justice has been to regard legal cases through political glasses and not from a legal perspective. I reviewed it as a legal person.

In the çArşı indictment, three of the 35 defendants are assumed to be the organizers. These were the tools allegedly used for a crime that were found and mentioned in the indictment: 14 torches, 14 smoke bombs, one gas bomb, one semi-automatic gun, one .765 gun and its bullets, a handgun, a black knuckleduster, and gas masks.

The defendants were supposed to be staging a coup to topple the government with these items. You would ask then: So what about the crowds?

The indictment acknowledges that the mass demonstrators started with good will and that non-violent protests were democratic. However, these innocent mass demonstrators were misled, the indictment said, by “marginal groups” and “marginal organizations,” for example communist organizations such as the Revolutionary People’s Liberation Party-Front (DHKP-C), the Marxist-Leninist Party (MLP) and the Marxist-Leninist Communist Party (MLKP).

The prosecutor does not even assert a claim that the defendants were in an organic relationship with these illegal organizations. For him, justice is only whatever is included as the defendants’ actions in the indictment; the evaluation should only be done within this framework.

Whatever actions and tools for crime are in the indictment, legally, there can only be an evaluation based on these.

Even if we assume the actions cited in the indictment were all proven, these cannot constitute the crime of an “attempted coup.” They would constitute other crimes.

In Professor İzzet Özgenç’s book, “Criminal Organizations,” it is stated that in order for the crime of an “attempted coup” to been proven, the force and tools used and the potential should be “sufficient” to topple a government or make it dysfunctional. Even if the aim is to topple the government, “actions that do not pose a concrete threat for this cause, even if they constitute another crime” cannot constitute the crime of attempted coup.

This is the criteria of the law. The rulings of the Supreme Court of Justice are also like this. If you are commanding a huge military contingent and if you have launched “executive movements” for a coup, then yes, it is a crime of “attempted coup.” If you are conducting the actions of a terrorist organization within a hierarchic mechanism, then, yes, this is an attempt to topple the constitutional order.

In the actions of the football fan club çArşı, and in general within the Gezi protests, depending on the evidence, there could be crimes of violating of the Assembly and Demonstration Law or the Firearms Law, obstructing the work of the police and other crimes related to destruction and damage. However, they could not constitute the crime of an attempted coup, as in Article 312 of the Turkish Penal Code.

I cannot say anything definite now because the court has not issued its ruling yet, but last resortssuch as the Constitutional Court and the European Court of Human Rights will find this “excessive.” They will say that these do not amount to attempted coups. If they do not, then I will write in this very column that I did not go to law school.

As a result, our prosecutors should shut their ears to political arguments and prepare indictments based only on the laws, so that the already battered confidence in justice in Turkey is not lost any further.