Wednesday, 25 June 2014

The Balyoz Retrial and the Changing Politics of Turkish Justice

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By Gareth Jenkins (vol. 7, no. 12 of the Turkey Analyst)

On June 18, 2014, the Turkish Constitutional Court ordered a retrial in the infamous Balyoz, or “Sledgehammer”, case in which 237 serving and retired military personnel were convicted of plotting to stage a coup to overthrow the government of the Justice and Development Party (AKP). The retrial appears likely to result in the acquittal of the accused. However, the timing of the Constitutional Court’s decision has done little to allay concerns about the politicization of the Turkish judicial system.

BACKGROUND: Balyoz was launched in 2010. It was the second – after the notorious Ergenekon case – in a series of high profile show trials instigated by followers of the exiled Islamic preacher Fethullah Gülen. At the time, what is commonly known as the Gülen Movement had formed an alliance of convenience with Prime Minister Recep Tayyip Erdoğan. In return for its support, Erdogan had allowed the movement to establish a substantial presence in the police and the judiciary, which was then used to target their shared enemies, opponents and rivals – ranging from hardline secularists to military personnel, charity workers, journalists, lawyers, trade union officials, opposition politicians, Turkish nationalists and Kurdish nationalists. Thousands of people were charged and imprisoned and tens of thousands more were intimidated into silence for fear of meeting a similar fate.

The Balyoz indictment claimed that the defendants had discussed staging a coup at a military seminar in Istanbul on March 5-7, 2003. (See March 1, 2010 Turkey Analyst) The prosecutors even produced a CD containing what they maintained was a detailed coup plan. The metadata on the CD appeared to show that the documents containing the coup plot had been last saved on March 5, 2003 and not subsequently amended. However, not only did the documents contain numerous anachronisms, contradictions and absurdities but forensic analysis showed that they had been written using Microsoft Office 2007 – the beta version of which was not available until 2006. (See February 13, 2013 Turkey Analyst)

Nevertheless, on September 21, 2012, a total of 331 serving and retired members of the military were convicted in the Balyoz trial. On October 9, 2013, the Turkish Supreme Court of Appeal, or Yargıtay, upheld the convictions of 237 of the accused.

The Yargıtay’s decision came six weeks after 251 defendants had been convicted on August 5, 2013 of membership of what prosecutors described as the “Ergenekon terrorist organization”, which they claimed was controlling every militant group in Turkey and had been responsible for virtually every act of political violence in Turkey over the previous 20 years. Yet they produced no convincing evidence that any of accused had engaged in criminal activity or even that Ergenekon had ever existed. Indeed, much of the “evidence” they did produce had clearly been fabricated and, in some cases, equally clearly planted to try to incriminate the accused.

In June 2014, a slew of other show trials were still continuing, all of them characterized by the same features as Ergenekon and Balyoz. The defendants range from Kurdish nationalists to military personnel accused of membership of an improbably vast spy ring, opposition journalists and members of secular NGOs providing scholarships to students, particularly young girls. However, the political context in which the trials are taking place is now very different.

In late 2013, long simmering tensions between Erdoğan and the Gülen Movement erupted into a very public power struggle. The two come from rival traditions within the broader Islamist movement. Once their shared enemies and critics had been sufficiently weakened – not least through the show trials – they were always likely to turn on each other. In December 2013, using the same methods and even some of the same personnel, Gülen sympathizers in the judiciary and the police targeted Erdoğan by attempting to arrest nearly 100 close associates of the AKP leadership on charges of corruption. Erdoğan hit back by removing the prosecutors responsible for the corruption probes and instigating a purge of suspected Gülen sympathizers from the police and the judiciary.

Starting in 2007, Erdoğan had implicitly – and sometimes even explicitly -- supported the Gülen Movement’s show trials. But, once he became a target himself, he sought to distance himself from them – not least in the hope that, by demonstrating how Gülen sympathizers had fabricated evidence, he could discredit the considerably more convincing charges of corruption against his own associates. On December 2013, in a clear reference to the Balyoz case, Erdoğan’s chief adviser Yalçın Akdoğan accused the Gülen Movement of using “skullduggery” against the military.

IMPLICATIONS: In January 2014, as the purges of suspected Gülen sympathizers from the apparatus of state intensified, the movement responded by posting a barrage of audio recordings – mostly covert telephone intercepts – on the internet that seemed to show Erdoğan and his close associates fixing state contracts and interfering in judicial processes. The recordings appear to have been designed to try to damage Erdoğan in the run-up to the local elections of March 30, 2014 and prevent him from generating momentum for a bid for the Turkish presidency in August 2014. The attempt failed. On March 30, 2014, the AKP won a comfortable victory, taking 42.9 per cent of the national vote in local councils, rising to 45.5 per cent in metropolitan areas.

On February 15, 2014, the AKP had introduced legislative amendments that increased political control over judicial appointments and thus helped facilitate its purges of suspected Gülen sympathizers. On March 6, 2014, it introduced an amendment to the Turkish Penal Code that reduced the maximum time that a defendant can be held in prison before the completion of legal processes from ten to five years. As the Ergenekon case had yet to go to appeal, virtually all of those convicted in the case were released from custody.

While it was allied with Erdoğan, the influence exercised by the Gülen Movement followers in the police and judicial system was always considerably greater than the number of its sympathizers – and was increased still further by the impunity with which it was able to imprison innocent people on absurd charges and patently fabricated evidence. Those members of the police and judiciary who were not Gülen sympathizers became afraid of antagonizing those who were. Some were blackmailed into acquiescence by the threat of damaging revelations such as extramarital affairs or excessive expenses claims. However, the fate of those dared to oppose the Gülen Movement followers – such as Public Prosecutor İlhan Cihaner and Police Chief Hanefi Avcı, who were themselves imprisoned and charged with membership of Ergenekon – meant that, in most cases, direct threats were unnecessary. Rather than risk their liberty or their careers, the vast majority of police and judicial officials opted to act and make decisions according to what they believed were the wishes of the movement.

The situation changed when the power struggle between Erdoğan and the Gülen Movement became public. It is likely that, in addition to some committed Gülenist activists who had been manipulating judicial processes on the movement’s behalf, the thousands of police and judicial officials who have been purged since December 2013 include a large number who are innocent of any wrongdoing. Nevertheless, there is also little doubt that the purges have severely weakened the Gülen Movement. More important than the reduction in the number of Gülen sympathizers in positions where they were able to exercise power has been the movement’s inability to respond – not least the failure of its campaign to erode Erdoğan’s electoral support through its internet campaign of apparently incriminating audio recordings. Put simply, whether inside or outside the police and the judiciary, people are no longer afraid of the Gülen Movement.

It was in this context that the Constitutional Court issued a ruling calling for a retrial in the Balyoz case. There would have been no need for Erdoğan or anyone else to apply pressure on the members of the Constitutional Court to find that a miscarriage of justice had occurred. All they needed to do was to judge the case on its merits. Any rational person who examines cases such as Ergenekon and Balyoz can see immediately that they are so deeply flawed that they would never even have come to court in a country with a functioning legal system.

It is impossible to say whether the members of the Constitutional Court would have reached the same verdict if they had been hearing the case before December 2013. They did not have the opportunity. But both the initial court and the Yargıtay did.

CONCLUSIONS: Ergenekon and Balyoz were products of their time and political context. Contrary to how they are portrayed by apologists, the cases were not a flawed but necessary part of a process of ending military tutelage in Turkey. They were only launched when – after the failure of Chief of Staff General Yaşar Büyükanıt’s clumsy attempt to prevent the AKP from appointing Abdullah Gül to the presidency in 2007 – Erdoğan and the Gülen Movement were confident that the era of military tutelage was over. But there is also little doubt that the cases have severely damaged the military’s public prestige and caused divisions within its ranks.

General Hilmi Özkök, who was chief of staff at the time of the seminar in March 2003, had infuriated his subordinates by refusing to be more forceful in his dealings with the AKP. There were even discussions in the high command about trying to force Özkök into early retirement and replacing him with someone more assertive. Military observers at the seminar subsequently presented Özkök with reports on the proceedings. If a coup had been discussed, it is inconceivable that Özkök would not have heard about it. Yet Özkök was neither called as a witness in the Balyoz trial nor has he made a concerted effort to defend his former colleagues. Similarly, the current Chief of Staff, General Necdet Özel, was initially reluctant to speak out about Balyoz, waiting until the day after Akdoğan denounced the Gülen Movement for “skullduggery” before he too issued his own condemnation of the case.

In recent months, there has been speculation in the Western media about the Turkish military reasserting itself as a political actor, either in its own right or in alliance with Erdoğan. This is unlikely. Not only is the military subservient to civilian control, even if the high command had political ambitions, such is the resentment at its failure to speak up for the victims of the Balyoz case that it would be unable to count on support from the rest of the officer corps.

Yet, even if the era of Gülen followers’ show trials now also appears coming to an end, accusations of corruption and malpractice against those close to the AKP not only continue to go unpunished but are not even being investigated. As a result, the recent developments in the Ergenekon and Balyoz cases appear to be a product not of a newfound commitment to due process and the rule of law but merely of their time and the new political context. All that has changed is the nature of the politicization of the Turkish judicial system.

(Photo Credit: Constitutional Court of the Republic of Turkey)

Read 6282 times Last modified on Monday, 30 June 2014

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The Turkey Analyst is a publication of the Central Asia-Caucasus Institute & Silk Road Studies Joint Center, designed to bring authoritative analysis and news on the rapidly developing domestic and foreign policy issues in Turkey. It includes topical analysis, as well as a summary of the Turkish media debate.

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