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Category 3

The Internal and External Actors in and the Chaos and Risk of Civil War from the July 15, 2016 Coup Attempt.

A Constitutional Perspective On The Implementation Of The Death Penalyt After The July 15 Coup Attempt

Cengiz GÜL

Key words: coup attempt, invasion operation, democracy watches, right to resistance, execution

1- A general perspective on military coups and the July 15 coup attempt

Considering the history of Turkish democracy since 1950, the country has not gotten any foothold to establish uninterrupted democratic life. In the meantime, democracy has been extremely exposed to attacks and impacts and, therefore, the people’s concept of democracy has been injured. It is seriously difficult to keep a tally of the successful and attempted coups that have occurred in Turkey since 1950. On May 27, 1960, the “disorganize coup”, which was performed by a junta, including 38 junior officers, was followed by the March 12, 1971 memorandum that was also performed by soldiers who put pressure on politicians to overthrow the government.1 Following this, the Sept. 12, 1980 coup was performed with the complete military hierarchy system, and it has caused traumatic problems in Turkey for years.2 Still further, on Feb. 28, 1997, the “post-modern coup”, which was particularly referred to as “February 28 will last 1,000 years”, occurred and negatively affected particularly the conservative part of society.3 Again, on April 27, 2007, the electronic memorandum that aimed to prevent Abdullah Gül whose wife wears a headscarf from becoming president was issued.4 The stable Justice and Development Party (AK Party) government, however, ruled out this attempted memorandum. Coup attempts continued in Turkey, and in June 2013 the Gezi Park protests and the Dec. 17-25, 2013 police-judiciary probe5 were carried out by some parts of society who wanted to turn Turkey into a country ruled under military tutelage. Most recently, the Gülenist Terror Group (FETÖ) attempted a coup on July 15, 2016. These terrorist attacks were conducted by a part of the military and became a worse situation than a military coup because these attacks could be possible interpreted as systematic terrorist actions that could drive the country to despair. Nevertheless, the Turkish people, who had remained passive until that time, applied the right to resistance6 and, therefore, did not accept becoming figures in a scenario that was created in a viper’s nests of domestic and foreign powers. Ultimately, the Turkish people defeated this invasion.7

The systematic terrorist attacks on July 15 were not a simple coup attempt. It can be interpreted as collective attacks that would open a way for an extensive invasion operation.8 The Grand National Assembly, which represents the national will, was not bombed in previous coups or when enemies occupied it after the Treaty of Sevres. Those who launched the coups in 1960 and 1980 tortured and committed murder but they did not bomb government agencies and they did not attack civilians with military vehicles.

The mastermind behind FETÖ9 failed invasion operation on July 15, showed itself by declaring “our men succeeded” when this mastermind achieved the 1980 coup. The same mastermind at that time said that they did not have any relation to the coup when the coup failed.10 Therefore, the Turkish people, as a defender of the country, protected the country, its democracy and the president, who is accepted as a real leader by public against enemies by employing inherent incentive. Further, the people stood as a deterrent force against enemies who had plans to split the country by being on duty to protect democracy and the homeland. As is known, after the November 2015 terrorist attacks in Paris, most presidents and prime ministers attended a demonstration march to condemn terrorism in the French city, but those presidents and prime ministers did not even visit Turkey to declare their own condemnations for terrorist attacks. This demonstrates that they are not true and sincere allies of Turkey.11 In 2003, the coup led by Abdel-Fattah el-Sissi in Egypt was not called a coup and was not condemned by Western states, as well. For this reason, it cannot be expected that those states would condemn the failed coup attempt in Turkey. These attitudes from the U.S. and EU show that Turkey has become a completely independent country and has diverted its route from the assigned route by Western states. Turkey rejected becoming a servant of the U.S. and EU. Developments in the field of technology, economy and defense industry in Turkey were alleged as a pretext to maintain control of Turkey. The failed July 15 coup demonstrated the extent of nerve to invade Turkey. Defeating the FETÖ coup attempt and invasion operation12 was used as a tool by someone to show that the old Turkey no longer exists and a new term of for the country has started, and has been announced to the world.

2- The constitutional framework of the implementation of the state of emergency after July 15

After the failure of the July 15 coup attempt, a state of emergency was issued in July 20, which was criticized with unwarranted reasons both nationally and internationally. Whereas after the terrorist attacks in Paris, the French government issued the state of emergency and extended it for six months, and no one nationally or in the international arena reacted this situation.13 On July 15, 249 people were killed and more than 2,200 were injured in the collective attacks, including those on the Presidential Palace, Ankara Police building, Special Forces Command and National Intelligence Organization (MİT) building. More, they attempted to assassinate the president and prime minister. And those attacks were more violent than the attacks that occurred in Paris. Considering those who were killed and wounded, all critics and expostulations for the government’s state of emergency based on Article 120 of the 1982 Constitution are nonessential.14 As stated in Article 122 of the Constitution, the reasons of “the spread of violent and strong rebellious actions against the motherland and the Republic, or widespread acts of violence of internal or external origin threatening the indivisibility of the country and the nation” actually occurred on July 15. For this reason, the government could have decided to declare a state of siege, but the government issued, by applying Article 120 of the Constitution, a state of emergency, which can be argued it is a lighter and easier precaution. Arguing against this decision is not conscientious discourse.    

3- A legal analysis: The public’s requests and expectations to reinstate the death penalty

After the failed July 15 coup attempt, people voiced their expectations to execute those involved in the coup during the democracy watches. To make progress to reinstate the death penalty, it must first be amended to the 1982 Constitution and, subsequently, the death penalty should be added to Turkish Criminal Law as a penal sanctioning. It is a different argument as to whether the death penalty should be applied to the perpetrators of the July 15 coup attempt. People who continue to discuss reinstating the death penalty claim that the principle of non-retroactivity of laws does not allow for the application this amendment to the plotters behind the July 15 coup attempt. In this sense, considering Article 15(2) of the Constitution and the principle of non-retroactivity of crime and punishment, the death sentence cannot be applied to those coup plotters.15 However, there is no common accord in public opinion and this assertion fails to satisfy the people. In fact, it cannot be claimed that this universal principle would be violated by applying the death penalty to the coup plotters what they did it is not a finished and instant crime. On the contrary, it can be argued that it is an ongoing crime. It cannot be claimed that the terrorist attacks and July 15 coup attempt have ended in Turkey. After July 15, other terrorist organizations, by establishing attack coalitions with FETÖ, continue their attacks. Namely, initiated crime attacks have not finished yet and are conducted with different methods.16 At this point, the death penalty should be added to the Constitution as soon as possible and should include a temporarily provision that declares that the death penalty can be applied retroactively for those who plotted the coup attempt. As is known, this kind of amendment would create serious reactions and exclusion from the European Union. Reinstating the death penalty is worth taking this serious risk, and therefore, capitol punishment would have no meaning unless it applies to the coup plotters.

Footnotes:
1. Şükrü Karatepe, Darbeler, Anayasalar ve Modernleşme, İz Yayıncılık, İstanbul, 1993, s. 217 vd., 240 vd.
2. Karatepe, a.g.e, s. 245 vd.
3. Mustafa Erdoğan, 28 Şubat Süreci, Ankara, 2000. Murat Sevinç, Anayasa Yazıları, 2. Baskı, İmaj Yayınları, Ankara, 2011, s. 311 vd.
4. http://www.darbeler.com/2015/05/18/27-nisan-e-muhtirasi/12.03.2017.
5. Hasan Alparslan, Hedefteki Erdogan Cemaatin Emniyet Yargi Cuntasi Eliyle 17-25- Aralik Darbesi, /https://simgedergi.wordpress.com/2016/07/28/hedefteki-erdogan-cemaatin-emniyet-yargi-cuntasi-eliyle-17-25-aralik-darbesi/12.03.2017. Tamer Korkmaz, ABD+FETÖ+Doğan, http://m.yenisafak.com/yazarlar/ tamerkorkmaz/ abdfeto-dogan-2035507?n=1, 12.03.2017.
6. Look at for more information about the right to resistance: Ömer Ömeroğlu, Direnme Hakkı, Meşruluğu ve Pratik Değeri, EÜHFD, C. XIII, S. 1-2, Erzincan, 2009, ss. 103-115.
7. TCCB, 15 Temmuz Darbe Girişimi ve Milletin Zaferi, http://www.tccb.gov.tr/assets/dosya/2016-09-22-15temmuz-tr.pdf.12.03.2017.
8. Ersin Ramoğlu, Türkiyeyi İşgal Planını ABD Hazırladı, http://www.sabah.com.tr/yazarlar/bolgeler/ramoglu/ 2016/07/28/turkiyeyi-isgal-planini-abd-hazirladi. 12.03.2017.
9. E. Emrullah Berkkan, “Üst Akıl ve Fetö” Darbenin Gizli Kodları, Eftalya Yayınları, İstanbul, 2016.
10. Merve Şebnem Oruç, Sizin Çocuklar Bu Kez Başaramadı, http://www.yenisafak.com/yazarlar/mervesebnem oruc/sizin-cocuklar-bu-kez-basaramad%C4%B1-2030898. 12.03.2017.
11. Hacı Mehmet Boyraz, 15 Temmuz Sonrası Türkiye AB İlişkilerinin Gelecegi, https://www.setav.org/15-temmuz-sonrasi-turkiye-ab-iliskilerinin-gelecegi/12.03.2017.
12. Look at for more information: Selim Çoraklı, Darbelerin Efendisi: HOCIA, Eftalya Yayınları, İstanbul, 2016. Sabahattin Önkibar, Mehdinin Darbesi-Eşikteki Kıyamet, 3. Basım, Kırmızıkedi Yay., İstanbul, 2016.
13. https://tr.sputniknews.com/turkiye/201607261024105108-avrupa-konseyi-ohal-turkiye-elestiri/12.03.2017.
14. Cem Duran Uzun, 15 Temmuz Darbe Girişimi Sonrası Olağanüstü Hal İlanı ve Sonuçları, https://setav.org/ assets/uploads/2016/07/138.-perspektif.pdf.12.03.2017.
15. http://www.diken.com.tr/akpli-sentopa-gore-idam-15-temmuz-icin-mumkun-degil-ikincisi-olursa-uygulanir/ 12.03.2017. Selin Girit, Türkiye İdam Cezasını Geri Getirebilir mi?, http://www.bbc.com/turkce/haberler-turkiye-36831898. 12.03.2017.
16. http://www.milliyet.com.tr/idam-icin-devam-eden-suc-formulu-gundem-2283389/12.03.2017.

Category 3

The Internal and External Actors in and the Chaos and Risk of Civil War from the July 15, 2016 Coup Attempt.

1. Cengiz GÜL

A Constitutional Perspective On The Implementation Of The Death Penalyt After The July 15 Coup Attempt

2. Tuğba ERCAN GÜNEYKAYA

"Other" Turkey

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The Turkish Nation's Struggle For Survival