1980 Coup leaders

ISTANBUL - Hürriyet Daily News

This file photo shows coup plotter generals visiting the tomb of Turkish Republic founder Mustafa Kemal Atatürk on the morning of Sept. 12, 1980, in Ankara.

Dozens of criminal complaints have been filed against leaders of the 1980 military coup following the elimination of a constitutional article preventing such claims, but the change in the law has hardly settled the debate.

Experts and commentators continue to disagree about the legal feasibility of trying coup leaders, as well as on whether such a move would be good for the country.

Pointing to ordinary people’s participation in the coup-era atmosphere as strikebreakers or snitches, daily Habertürk columnist Ece Temelkuran wrote recently that everyone in Turkey could be considered guilty in the coup.

Warning of the potential psychological and moral impacts of what she compared to the postwar prosecution of Nazi leaders, Temelkuran said, “If you want a Nuremberg trial, you should be ready for its results.”

Law professor Mithat Sancar, however, dismissed such arguments as a way of “avoiding dealing with the coups.”

“I do not think the argument of whether this will start a witch-hunt is meaningful at this stage,” Sancar told the Hürriyet Daily News & Economic Review on Monday. Even if that were to be the case, he added, why should it not be investigated if actual crimes were committed during that era by great numbers of people?

“Trying everybody may not be possible, but if there is the chance to do so, it is a legitimate right and a necessity to form a democratic, anti-coup awareness,” Sancar said.

Offering the examples of Chile and Argentina, where people responsible for coups have been tried under similar conditions, the professor said arguments against such prosecution efforts – including beliefs that it would be impossible to try so many people, or that too much time has passed – were “meaningless” and not viable.

Before the constitutional referendum earlier this month, temporary Article 15 made it illegal to pursue any kind of court procedure attempting to hold the leaders of the Sept. 12, 1980, coup – or members of any of the governmental bodies set up to administer the country in its wake – criminally, financially or legally responsible for their decisions or actions.

The amendment to eliminate that article was one of the most hotly debated in the pre-referendum period. Since its removal thanks to the public’s approval of the constitutional reforms, criminal complaints regarding the coup have been filed across the country and are likely to be merged by the chief public prosecutor in Ankara.

Arguments that coup leaders were pardoned and relieved of responsibility under Article 15 are “unlawful and antidemocratic,” Ümit Kardaş, an author and former military judge, told the Daily News.

Those who helped implement coup took over the country by brute force and committed “crimes against humanity,” Kardaş said, adding that they could not be allowed to pardon themselves via a constitution they personally drafted.

“This would motivate the [would-be] putschists, as they would say, ‘I can clear myself of any crimes after I am done with the coup,’” Kardaş said. “Do we grant such advantages of committing crimes to normally elected officials?”

According to the former judge, the now-canceled Article 15 solely granted immunity to coup-related parties, comparable to what members of Parliament enjoy during their terms but lose afterwards.

Kardaş also said the statute of limitations was not an issue because it began only after Article 15 was removed from the Constitution by the recent referendum.

Daily Milliyet columnist Güneri Cıvaoğlu has written about the practical difficulties posed by such a trial, noting that the legal net could sweep up thousands of people, including the leading administration of the era, high-ranking civil servants, police chiefs, prison wardens and officers. The list could even include acting Defense Minister Vecdi Gönül, who was a founding member of the Higher Education Board, or YÖK.

“It is a process in which both the [preparing of its] indictment and the trial itself would last for many years; most of the accused would not see the end of it,” Cıvaoğlu wrote.

The advanced ages of the junta members – including coup leader and former President Kenan Evren, who was born in 1917 – may play a role in decisions about potential trials, according to Bertil Emrah Öder, an associate law professor from Koç University.

Expressing her personal opinion as a legal expert, Öder told the Daily News that Article 15 should be evaluated as having prevented trials while it was law. “In order for the constitutional change to serve its purpose, I believe the path to court should be open,” she said.

Öder also disagreed with the argument that staging a coup should be considered a “crime against humanity,” saying this was a “political approach” rather than a legal one that did not match the detailed criteria of such crimes as laid out in the law. She also rejected the idea that trying and sentencing the coup leaders was the most important thing – even if the president pardons them later – calling it “tragicomic.”

Kardaş and Öder also agreed that people from lower positions in the chain of military command at the time would face trial and would not be able to say they were only following orders if they were told to commit crimes.