The General Staff, which has come under fire in the past by taking the side of suspected criminals in a number of ongoing investigations against members of the military, has once again committed a crime by apparently working to prevent the arrest of dozens of officers as part of the Sledgehammer coup plot probe, according to jurists.
In what could be seen as defying the law, none save one of the suspects in the Sledgehammer investigation into an alleged coup plot has surrendered to authorities even though seven days have elapsed since a court issued warrants for the arrest of 102 retired and active duty military officers suspected of being part of the Sledgehammer plot, including retired Gen. Çetin Doğan, the former 1st Army commander. Both the appeals of the suspects' lawyers against the warrants and their requests for new judges in the case were rejected by the court on Wednesday on the grounds that there was “strong evidence against the suspects.”
Analysts say the General Staff, which reportedly set a roadmap for the suspects to evade arrest and which refuses to hand them over, is committing a crime by taking the suspected criminals under protection.
“We have a court decision in our hands, and it should be executed. The General Staff is supposed to do that, but it is committing a crime by protecting the individuals in question, as it did in the past. Can you imagine an indictment being accepted and a warrant being issued for the arrest of an ordinary person but then that person not turning himself in? However, when the case concerns military officers, the law is not being enforced,” retired military judge Ümit Kardaş told Today's Zaman.
According to reports that appeared in the Turkish press on Wednesday, Chief of General Staff Gen. İlker Başbuğ called the General Staff's legal undersecretary, Gen. Hıfzı Çubuklu, on Friday to lay out a strategy to deal with the arrest warrants. A decision to appeal the arrest warrants was made at the meeting.
Legal undersecretaries from the Air Forces, Land Forces and the Gendarmerie General Command also joined the meeting. The text of the petition that came out of that meeting was relayed to the suspects’ lawyers for them to make the necessary changes and submit to the court.
Mustafa Şentop, a professor of constitutional law, calls the General Staff’s institutional efforts to defend the suspects “a grave situation.” “It is not the General Staff but the individuals who are standing trial in the Sledgehammer case. The General Staff’s institutional efforts to defend the suspects present a grave situation. This means the individuals in question did not defy the law individually. The General Staff was either informed about or involved in their acts,” he told Today’s Zaman.
There are also claims that the General Staff had chosen three military facilities at which it would provide a “safe haven” to the fugitive suspects, who were reportedly transferred to these places to prevent the arrests of generals who hope to be promoted during the upcoming Supreme Military Council (YAŞ) meeting. YAŞ meets every August to discuss promotions and dismissals within the armed forces. Article 65 of the Law on Turkish Armed Forces (TSK) Personnel prohibits the promotion of a military officer if he is on trial.
According to retired prosecutor Reşat Petek, the General Staff should immediately hand over the suspects since the warrant arrest should be carried out immediately. “An investigation can be launched into authorities who do not fulfill this responsibility citing ‘negligence of a legal duty.’ This court decision [to arrest the suspects] should be immediately executed by the central command [of the General Staff] and the suspects -- whether generals or colonels -- should stand before a court. If they do not, the law requires calling those who fail to execute the court decision to account,” Petek says.
The 10th High Criminal Court on July 23 ordered the arrest of 102 suspects in the investigation into the Sledgehammer action plan, a subversive plot allegedly prepared by a clique inside the military that included plans to crash Turkish jets and bomb large mosques during prayer time to undermine the Justice and Development Party (AK Party) with the hope of eventually toppling the government. Among the officers on the to-be-arrested list were two former force commanders as well as nearly 30 active duty generals.
The suspects have been trying to circumvent the court decision with appeals filed against the warrants and requests for a change of judges in the case, an effort that failed on Wednesday. The İstanbul 11th Criminal Court, which evaluated the requests for new judges for the 10th High Criminal Court, unanimously rejected the appeals, which argued that the judges at the 10th Criminal Court were not impartial. Afterwards, the 10th Criminal Court began evaluating the appeals against the arrest warrants of 85 suspects, which were filed by their lawyers on Monday and Tuesday, and rejected all of the appeals, saying there was nothing wrong in the arrest warrants since there was strong evidence against the suspects. The 85 suspects included Gen. Doğan, retired force commanders Halil İbrahim Fırtına and Özden Örnek, and former Deputy Chief of General Staff Ergin Saygun. The remaining 17 suspects also filed appeals against the warrants yesterday that were yet to be evaluated by the 10th Criminal Court when Today’s Zaman went to print. With the latest appeals, all 102 suspects have appealed the court decision.
Meanwhile, the lawyers for the suspects have announced that they will once again appeal the rejection of their requests for new judges by the 11th Criminal Court at a higher court, the 12th Criminal Court.
Government failure to take action reminiscent of Şemdinli
Experts underline that the individuals involved in the Sledgehammer case, which include more than 25 active duty generals, should immediately end speculation surrounding the future of the probe. Kardaş says in addition to the military taking a side with the suspected coup perpetrators, there is also a failure in the political will, which is undergoing another test that will show to what extent it stands against antidemocratic attempts. He recalls an unexpected meeting of the prime minister with the chief of General Staff in the wake of the court warrant.
Chief of General Staff Gen. İlker Başbuğ paid a surprise visit to Prime Minister Recep Tayyip Erdoğan at the Prime Ministry late Sunday night, a few Turkish dailies reported on Tuesday. The two reportedly discussed the court order, urging many to think that the meeting may cast a shadow over the Sledgehammer probe. “In fact, the defense minister has the right to suspend these officers. But the government, namely the AK Party, has some ups and downs in its stance against such issues,” he says as he recalled the infamous Şemdinli case.
Şemdinli was a turning point for the ruling party when the government failed to prosecute the alleged suspects in the crime, including high-ranking military officers. Two noncommissioned officers and a terrorist Kurdistan Workers’ Party (PKK) informant were caught red-handed bombing a bookstore in Şemdinli in 2005. The suspects were first tried by a civilian court and sentenced to 39 years each. But after a high court decision declared a mistrial, the trial was restarted in a military court, and all three suspects were released at the first hearing. Meanwhile, the civilian prosecutor of the case, Ferhat Sarıkaya, who ordered the suspects’ arrest, was disbarred by the Supreme Board of Judges and Prosecutors (HSYK).
Boğaziçi Lawyers’ Association President Bilal Çalışır also says Article 65 of the Law on TSK Personnel gives the Ministry of Defense the right to remove active duty military officers who are being prosecuted. Stating that the trial of the Sledgehammer suspects would be better conducted if these suspects were suspended, he says this would eliminate the pressure on the 10th Criminal Court, which will begin hearing the case in December.
Adnan Tanrıverdi, a retired general and former head of the Advocates of Justice Association (ASDER), also said the suspects should have been suspended soon after the indictment against the Sledgehammer plan was accepted on July 19. “The active duty officers should have been suspended after the indictment prepared against these individuals on charges of a coup attempt by the Ministry of Defense, even if they are high-ranking officers. The suspension of these suspects is currently inevitable,” Tanrıverdi said.
Retired officers react to Gönül’s promotion remarks
Retired military officers have reacted strongly to Defense Minister Vecdi Gönül, who implied on Wednesday that the Sledgehammer generals can still be promoted despite Article 65. Gönül said an arrest warrant and a capture warrant are “two different things.” Gönül made his comment in response to a question on what he thought of Sledgehammer suspect Gen. Nejat Bek’s participation, alongside Interior Minister Beşir Atalay, in a ceremony in Adana on Monday for four police officers killed by terrorists. The court has also issued a warrant for Bek. “Such controversial names should not be promoted. The post of the individuals cannot be more important than democracy and the future of the country,” said Hasan Tüysüzoğlu, a retired colonel and a lawyer. Retired Col. Mesut Ülker also said what Gönül has to do is to remove these generals from their posts, underlining that they are accused of working to destroy the constitutional order in the country.
According to ASDER Vice President Gürcan Onat, a retired major, YAŞ would lose its legitimacy if the suspected generals are promoted despite Article 65. “Although we cannot call those suspects criminals before their trials are concluded, we cannot accept them as innocent before then, either. If YAŞ takes such a grave decision, it would lose its legitimacy in the eyes of the nation,” he said.
*Osman Arslan, Emrullah Bayrak, Ayşe Tosun and Tanju Özkaya contributed to this report.