According to Turkey’s Top Court, Killing Soldiers During Coup Is OK
More than four years after Turkey’s bloody mutiny, the top court gave its blessing for the mob lynching of surrendered soldiers on an Istanbul Bridge. The perpetrators will face no prosecution.
Early in the morning on Saturday, July 16, 20106, more than a group of 50 soldiers on the Istanbul Bosporus bridge that separates the European continent from Asia laid down their arms and indicated that they were ready to surrender. They held up their hands in the air to avoid any misunderstanding about their intention as they began to walk toward the checkpoint set up by the anti-riot police over the bridge. It was only hours after the entire country plunged into an ill-fated coup attempt by a small fraction of troops bent on removing the government. Their bid spectacularly bungled after most of the armed forces and national police stood by the government.
Last, but not least important, the people’s determined resistance proved definitive in thwarting the ill-organized and chaotically-executed attempt. But some episodes forever remained a stain on the collective consciousness. The eruption of violence was alien to the public and the shedding of blood on both sides created deep wounds and abiding fissures.
When the soldiers, arms in the air, were marching toward the police for surrender, the angry crowd, traumatized and bewildered by the opening of fire by some soldiers the night before, began to mob lynch the privates. Uninterrupted by the police and guided by the blind rage, some citizens involved in acts that were only reminiscent of numbing violence trickling out of the Middle East. One soldier’s throat was cut and left bleeding to death, while others came close to be beheaded. Almost all of them were beaten, some to death. And most of the soldiers were hospitalized with lifelong injuries and side-effects. The scenes were too graphic to further visualize or explain here. The violence, played out live on TV in front of the whole nation and in the presence of the police on the bridge, was one of the dark episodes of the July 15 coup. The mob-lynching of soldiers would easily have been prevented by the police. Istanbul Police Chief Mustafa Caliskan and the First Army Commander Umit Dundar were both there on the bridge during the gruesome beating of soldiers. None of them ordered the police to stop the lynching. They just watched the unfolding episode without any hint of remorse or emotion.
For years, the families of the soldiers, both deceased and the injured, sought justice in vain in Turkey’s courts. Their cause was doomed from the start as none of the judges in the subdued judiciary had the courage to go against the court of public opinion shaped by the non-stop and one-sided account of the government in national media. What set back their fight for justice was a government decree passed in December 2017 that granted immunity from prosecution to any person resisted, whether in an official capacity or individually, against coup plotters and involved in some acts that would be deemed problematic before the law. It literally meant that those individuals, who might have killed a soldier or committed another criminal act on July 15, would not be held accountable or responsible for what he did, because they were acting in patriotic duty. Despite this legal shield provided by the government to the perpetrators of criminal and violent acts on the coup day, the families still did not give up. The issue of deliberate killing of soldiers eventually came to the Constitutional Court for a ruling that would be binding and final for all other courts across the country.
Last week, Turkey’s top court, the one which is always closely watched by the members of the Strasbourg-based European Court of Human Rights (ECHR), delivered its verdict. According to the ruling, the killing of the soldiers did not constitute a crime since people were fighting against a coup attempt.
When the government decree mentioned above brought to the Constitutional Court, its members saw no contradiction in granting immunity from prosecution to some individuals. “The rule indicates that civilians who came against the July 15 coup attempt have no [legal] responsibility for their acts does not contradict the Constitutional Law…,” the court decision says on a Twitter post.
It is more than heartbreaking to see that Turkey’s top court, whose two members were swept by the post-coup purge and remanded behind bars despite their status of immunity, endorses mob justice. Murdering of unarmed and surrendered soldiers, according to the court’s rationale, is not a crime.
If this is not a crime, what else is? If the court completely alters the definition of a crime, not based on law, but on the political needs of the government, then the notion of an independent and justice-oriented constitutional court becomes a bygone relic of history. (It was never perfect in the pre-2016 era, but it has never been subjugated shamelessly and openly at this level.)
The top court’s so-called independence from any political influence has repeatedly been questioned by independent legal scholars. The complexion of the court’s membership has dramatically changed since a constitutional amendment (enacted after a popular referendum in 2017) bestowed additional powers at the presidential office. President Erdogan has now more say on the formation of the 15-member court. The independence of the court, given the implacable political imprint on its shape and working, is nothing but a dead letter.
Why this matters? For several reasons. Spooked by the dreadful prospect of inundation of applications from Turkish citizens wronged by the blanket purge the government unleashed in the aftermath of the coup, the ECHR always emphasized the exhaustion of domestic legal remedy and looked at the Constitutional Court as the medium of a solution for the last resort.
Without any semblance of due process, the Erdogan government launched a sweeping purge to cleanse the bureaucracy, the judiciary, police, the military, and all other departments to dismiss workers deemed non-loyalist to its party line. More than 150,000 or so public servants of all social stripes and political creed have found themselves on the receiving end of the government’s Stalinist witch-hunt and purge. As well-documented reports by Amnesty International and Human Rights Watchdog evidently demonstrate, the authorities barely bothered to present evidence to the dismissed for the legal rationale for their sacking.
The broad-brush charges of terrorism and coup-related accusations were deployed indiscriminately and arbitrarily without offering any hint of evidence by the government that would link the sacked officials to the coup attempt. The coup, in the political context of this social hysteria that followed July 2016, was a gift from God to Erdogan to rebuild the entire state apparatus and the military in his own image and ideology. What emerged since then is a matter of public knowledge and an object of ongoing political history.
Against this backdrop, the international community’s blind faith in the proper working of Turkey’s Constitutional Court is an unforgivable folly. The ECHR takes the Constitutional Court’s supposed status of impartiality and influence-free jurisdiction as granted. This is completely wrong. It is no more than a figment of their imagination. The day when Erdogan immediately began to capitalize on the abortive putsch’s whirlwind effect to extend his grip on the layers of power, and the day when more than 3,500 judges and prosecutors were bundled together in filthy cells without any due process (only the day after the enigmatic coup), the Turkish judicial system merely became an extended office of the government. It would be foolish to expect any justice from tens of thousands of trials since then.
The Constitutional Court’s recent decision is only the latest confirmation of a fact long written on the wall: there is no judicial independence in Turkey and the top court is merely an empty shell.