Turkish government's new judicial package nixes special courts

ANKARA - Hürriyet Daily News

The bill was passed following marathon discussions that exceeded 14 hours. AA photo

Turkey’s Parliament has approved a “democratization package” that will abolish the notorious specially authorized courts (ÖYM) following a marathon session, but the opposition has nonetheless labeled the exercise as a “cache for hiding the government’s dirty laundry.”

The bill, which will abolish the ÖYMs and other special courts authorized by anti-terror laws, while also reducing the limit of lengthy detentions to five years, has widely been considered as part of the government’s battle against “counter forces” – followers of U.S.-based Islamic preacher Fethullah Gülen, many of whom have been employed in the judicial and security bureaucracy. 

It is similar to the term “parallel state” which is commonly used by critics of the followers of Gülen. The alleged “parallel state” backed by Gülen, who has been in voluntary exile in the United States for more than a decade, is accused by Prime Minister Recep Tayyip Erdoğan of orchestrating a corruption scandal to unseat him. The related investigation became public in mid-December and then triggered reactions by the government, particularly in the judicial field as it aimed to contain damage from the huge graft probe, which involved the sons of three former ministers and businesspersons known to have been close to the ruling Justice and Development Party (AKP).

Some observers suggested that the ÖYM move paving the way for retrials could help Erdoğan gain support from more secular parts of the establishment as he deals with the perceived threat from his former ally Gülen.
 
Cascade effect

The approval of the new democratization package came just a few days after the eventful voting session on the bill restructuring the Supreme Boards of Judges and Prosecutors (HSYK), which increased the government’s control over the judicial body and gave it a key role in appointments.

The ÖYMs were discontinued by Parliament in 2012, but a provisionary article allowed courts to finalize pending coup plot cases such as Ergenekon, “Balyoz” (Sledgehammer), OdaTV and Poyrazköy.

Abolishing the provisionary article and the anti-terror courts was included in a proposal by the head of the Union of Turkish Bar Associations (TBB), Metin Feyzioğlu, to retry coup plot cases. The measure is also expected to “clear the way” for an internal restructuring of the judiciary as well as for hundreds of military officers jailed for plotting coups to be retried. Under the amendments, the eight ÖYMs that convicted soldiers in mass trials in 2012 and 2013 will be abolished and their case files passed to regular criminal courts. 

Both the main opposition Republican People’s Party (CHP), which had long pressed for the abolishment of the courts, and the Peace and Democracy Party (BDP) welcomed the government’s move. 

Nonetheless, despite supporting the abolition of the ÖYMs as well as of Article 10 of the Anti-Terror Law (TMK) that authorizes the ÖYMs, the CHP said other articles were impossible to support because the five-year long detention duration in the Code on Criminal Procedure (CMK) was not being interfered with in the package.

Wiretapping orders 

The package also envisages new arrangements concerning wiretapping orders by the courts. Accordingly, for example, a court of serious crimes in Ankara, to be chosen by the HSYK, will be authorized to rule on preventive wiretapping.

Justice Minister Bekir Bozdağ, meanwhile, argued that the results of preventive wiretapping have not been used as evidence in courts. 

“But, in regards to public order, it is extremely important for preventing significant crimes,” Bozdağ said late Feb. 20 as he responded to questions from lawmakers at a General Assembly meeting during which the package was debated.

The minister also stated no study was underway for abolishing the highly controversial “secret witness” practice.

According to the bill, it will be possible to listen to and record the communication of a suspect or a defendant in an investigation or prosecution launched because of a crime; in the event of the absence of reasonable doubt based on concrete evidence showing that the crime was committed but where there is no opportunity to collect evidence about the crime; upon a decision by a court of serious crimes or in situations where any delay is unfavorable; or upon a decision by a prosecutor.

The prosecutor involved will present his decision about wiretapping to a court for approval at once, while the court is required to make its decision within 24 hours. If the duration expires or the court refuses to grant permission, the wiretapping will not be permitted. A court of serious crimes will be able to make a decision on the measure unanimously.