The political agenda has been set by the debates over the Judiciary for quite a long time. The Judiciary-based discussions have remained at the top of the political agenda during the judiciary-military tutelary partnership, the political struggle with the tutelage and the post-military tutelage as the Judiciary is placed in the context of a new tutelary center nowadays. The expectation of justice from the Judiciary is seriously harmed as the Judiciary has remained in the center of discussions in each period.
In consequence, the need for an overall judicial reform is heightened day-by-day. Although the 22-article amendment package in the parliament falls short of fulfilling the need for a structural reform, the package includes radical modifications in the Judiciary-related deliberations that have continued for quite some time.
The Special Authority Courts (ÖYM) and the Special Prosecution Offices (ÖYS) are being abolished; the cases in these courts are being transferred to high criminal courts. Maximum 10-year retention time applied for offenses in the jurisdiction of the ÖYMs is being reduced to five years.
In addition, new measures are being introduced for the oversight of monitoring and wire-tapping provisions; therefore, relevant measures are subject to regulation. From now on:
- The power of arbitration rests with the court, instead of a judge, on the condition of unanimity;
- A copy of data obtained from the personal computers confiscated is handed to the owner; therefore, possible subsequent forgery of documents is prevented;
- Petitions for bugging phones should be accompanied by an authentication document proving the owner of the phone in question; therefore, wire-tapping anonymous users, those who cannot be identified through the IMEI or phone numbers, are being prevented;
- Duration of tapping is reduced from six months to three months and the extension period is limited to three months;
- Duration of technical tapping is cut from eight weeks to four weeks and the period of extension for audio surveillance is limited to four weeks;
- For the protection of private data, penalties for those who keep, or spread, personal records of others without consent are also being increased.
Most of the articles eliminated or amended in this package have been the topic of discussions for a long time. The same articles were providing legitimacy through the objective of cleaning the political system from pro-tutelary elements by enabling the trial of pro-tutelary actors. Many “special authorities” had been handed over to the State Security Courts (DGMs) because of terrorism. Politics, however, endorsed the transfer of special authorities to the ÖYMs in the absence of the DGMs because of another mission – the mission of struggling with tutelage.
In other words, the tug of war with tutelage was considered as an unnamed “extraordinary state” and the judicial mechanism was granted with the permission to have “extraordinary” authorities solely for this particular goal. Political and public legitimacy of the ÖYMs was to tackle with the tutelage. But in time, fight against terrorism was added to the struggle with the tutelage and some files were actually opened for trial such as the Ergenekon, the Sledgehammer and the KCK cases.
Along the process, arbitrary and long duration of detentions; inattentive indictments; violation of personal privacy and privacy of investigations; long periods of trials; questions about evidence and the close-circuitry in the Security-Judiciary-Media triangle disturbed many consciences. However, the problems were postponed by considering the indispensability of the fight against tutelage. The September 12, 2010 referendum politically, and the first verdicts in the Ergenekon and the Sledgehammer cases actually, have brought the “special authority” period to an end.
Special authority autonomous structure
Although the political ground for special authorities disappeared, no attempt had been made for a regulation to normalize the Judiciary; as a result, Turkey faced a bigger crisis in the end. The dates of February 7, 2012 and December 17, 2013 created a general reputation that the Judiciary, already equipped with special authorities for the fight against the tutelage, conducts like an autonomous structure following its own agenda. According to this reputation voiced by the political power and widely accepted by the social perception, this structure that has undertaken a role to struggle with tutelage, exploits its special authorities in order to weaken the political power, take over institutions and design and destabilize politics.
In fact, special authorities granted to the Judiciary due to the special circumstances of the tutelary system--even in the absence of a parallel or an autonomous structure with a special agenda—would be harming the normalization of politics in the post-tutelary period. However, adding an autonomous structure to this objective ground has both caused the democratic system to face the threat of a new type of tutelage and harmed the legitimacy of the judicial processes in the fight against tutelage.
A group within the Judiciary abused these special authorities given to the Judiciary for the sake of democratic sensitivity, and betrayed this sensitivity. Today, these special authorities put on the shoulders of politics the responsibility to clean the past and build the future. On the one hand, politics has to tackle this autonomous structure, which has become a new center of tutelage; and on the other hand, it has to filter out the violations made in the lawsuits that were handled by this structure, without causing any harm to the fight against tutelage.
The initial step could be to normalize the Judiciary by abolishing its privileges derived from the “extraordinary state” of affairs. The amendment to the law that has been proposed in the parliament will both provide a transition to a normal lawful regime and remove the legal privileges that the autonomous structure has nurtured from.
The September 12, 2010 referendum was symbolizing the end of this “extraordinary state” of fight against tutelage while it was also requiring regulation to strip off the “special authorities” granted to the Judiciary.
The new regulation has been accomplished with delay at the cost of the February 7, 2012 (the intelligence) crisis. The regulations made after February 7, 2012 should have included the amendments of today; there was a delay however. The said regulations are being carried into effect nowadays due to a second and more serious crisis following the December 17, 2013 operation (against the government).
In this scope, the regulation proposed to the parliament sets a critical step for the normalization of the Judiciary during the construction process of a democratic political system. It also ends the “extraordinary state” and the judicial regime of this period. The ultimate goal must be to dissuade the Judiciary branch from interfering in politics by pulling it back to the domain of its procedural legal duties and boundaries.