TURKISH MILITARY JURISDICTION SYSTEM

 

 

 

 

By

 

Maj. Abdullah Kaya

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

 

 

 

 

§ 1.1.  General Overview.

 

§ 1.2.  Military Prosecution System.

 

§ 1.3.   Military Courts.

 

            § 1.3(A).  The Establishment of Military Courts.

            § 1.3(B).  Jurisdiction of Military Courts.

            § 1.3(C).  Military Judges.

            § 1.3(D).  Military Proceedings.

            §1.3(E).  Preparing a Case File.

 

§ 1.4.  Summary Punishment System.

 

            § 1.4(A).  Overview of the System.

            § 1.4(B).  Disciplinary Tribunals.

            § 1.4(C).  Offences under Law #477.

 

§ 1.5.  Final Remarks.

 

Appendix 1: Abbreviations.

 

 

 

 

TURKISH MILITARY JURISDICTION SYSTEM

 

 

§ 1.1.  General Overview.

 

 

            Turkey has a long military history.  The first Turkish military units were organized by Mete Khan of the Gokturk Empire in 209 B.C. on the basis of a tenth part system.  This is also the establishment date of the Turkish Army.  Because of its long history, the Turkish military system also has a complex and detailed military jurisdiction system[1].

            According to the Article 145 of the Turkish Constitution, military jurisdiction consists of both military courts and disciplinary tribunals.[2]  These courts are competent judicial authorities for (1) both military crimes and military-related crimes of military personnel;[3] (2) crimes committed in a military designated area;[4] or, (3) if military personnel commits a crime against another military personnel.[5]

            Military courts are also authorized to investigate the crimes of civilians.[6]  The military courts may investigate if (1) the civilian commits one of the specified military crimes[7]  that are listed in the Military Penal Code (MPC);  (2) if a civilian either resists or assaults legally authorized on-duty military personnel;[8] and, (3) if the civilian commits a crime against a military personnel in a designated military area.[9]

            Parliament has promulgated laws on various military justice issues.  Some examples of these issues include:

¨    the detailed authorisation of military courts;[10]

¨    the establishment procedure of military courts;[11]

¨    the judicial procedure of these courts;[12]

¨    the relationship of military judges and military prosecutors with the commanding authorities;[13]

¨    privileges and immunities of the courts;[14] and,

¨    assurance of the judges.[15]

            Article 145 is the main infrastructure of the military jurisdiction system and the basic laws of the military jurisdiction system are based upon this specific article of the Constitution.  There are four main provisions.  These are (1) Law #1632[16] of the Military Penal Code (MPC);  (2) Law #353 of the Code of Establishment  and Judicial Procedure of Military Courts (CEJPMC); (3) Law #477 of the he Code of Establishment and Judicial Procedure of Disciplinary Courts (CEJPDC); and, (4) Law #357 of the Code of Military Judges (CoMJ).

            In the Turkish system, there are standing military courts and disciplinary tribunals.[17]  In case of martial law, ad hoc court-martial courts will be held.  Turkish Grand National Assembly (TGNA) is the only authority to declare martial law or a state of emergency in a specific region, regions, or for the entire country of Turkey.[18]  The court-martial courts work just like other military courts and their procedures are based the Code of Establishment and Judicial Procedure of Military Courts

(CEJPMC).

            In every military court except disciplinary tribunals, there is an Office of the Military Prosecutor (OMP).  Civilian prosecutors can only work with military prosecutors at ad hoc court-martials.

 

§ 1.2.  Military Prosecution System.

All military courts except disciplinary tribunals have their own offices of military prosecutors. Therefore, Turkey has thirty-two offices of the Military Prosecutor.  According to their organisational charts, at least two prosecutors work in each of these offices.  The Military Prosecutor is the main authority on the events that have reached to the office.  In addition to the Military Prosecutor,  there are other Vice-Prosecutors who work on behalf of the Prosecutor. 

All Prosecutors and Vice-Prosecutors are Military Judge Branch (MJB) officers.  Military Prosecutors work on behalf of the Republic and the Army.  It is their constitutional right to work independently.[19]

Military Prosecutors are the main authorities to investigate cases first hand.  They prepare all indictments and they represent the Turkish Armed Forces (TAF) during the court trials. During their investigations, they can work with all other law enforcement authorities.

In the Turkish system, Offices of Military Prosecutors are established under the organisational charts of the units. Law #357 and the booklet (named as “Jurisdiction Areas of the Military Courts”) published by Ministry of Defence (MoD) clarify in which headquarters (HQ) there will be an OMP.  The case file has to be sent to the commander in a chain of command. The commander, by his/her legal adviser, signs an investigation order and sends the case file to the OMP.  The prosecutor inspects the file and may send it to other vice prosecutors. The prosecutor and vice prosecutor work independently on the file.

In certain cases, military prosecutors may open a case file by their own initiatives without having an investigation order.  For example, the military prosecutor may open a case file if the case has a heavy punishment of imprisonment in Military Penal Code (MPC) or in the Penal Code (PC). In addition, the military prosecutor may open a case file if: (1) there is an urgent situation; (2) some precautions need to be taken to collect evidence; or, (3) a suspect has been caught but law enforcement authorities such as the prosecutor or one of the vice prosecutors witness the crime or there is a homicide or suicide.

            The prosecutors have the authority to decide whether these conditions exist.  These are called clarified situations and, if they exist, the prosecutor does not need an investigation order to begin investigation.  Prosecutors have to notify the headquarters as soon as  they begin their investigations. The commander cannot stop the investigation nor can the commander appeal or object to the investigation in any court.

            All military and civilian units, personnel, and other law enforcement authorities have to assist prosecutors.  They cannot reject or delay the written orders of prosecutors. Prosecutors work primarily with law enforcement authorities, however, the offices have their own annual and independent budgets.

Military prosecutors cannot make a deal with the accused or suspected persons.  They can use every legal instrument to reach a final decision on the case.

Prosecutors are to protect the public order.  During the trial, they also represent the Republic and Turkish Armed Forces against the suspect.  But during both the investigation and the trial period, it is their duty to collect evidence both in favor of and against the suspect.

Under Articles 100 to 115 of the Law #357, military prosecutors can make one of three decisions at the end of their investigations. First, the prosecutor may find that the case lacks grounds for legal action.[20]  Article 105 states that, if the prosecutor is not persuaded with the case file sent by the commander, or he does not find enough evidence to accuse the suspect, then the prosecutor must order that there is a “lack of grounds for legal action.”  Either the suspect, victim, or the commander has the right to object to this decision.  If there is an objection, the nearest military court makes the final decision.

Second, the prosecutor can decide that there is sufficient evidence to prepare an indictment.[21] Article 114 states that, if a military prosecutor finds enough evidence to open a case file or is convinced that there are adequate reasons to accuse the suspect, then  the prosecutor prepares an indictment for the case and sends it to the military court.  No one can object or appeal the indictment until the court has jurisdiction.  When the prosecutor does not prepare an indictment, the Minster of Defence has the legal right to order the prosecutor to continue the investigation.

Third, the prosecutor could decide to temporarily delay the investigation.[22]  For example, there are circumstances where the suspect is missing or has a mental disease.  In addition, the victim has the right to petition for an investigation. For minor offences, the victim’s right to petition is a precondition and the victim has six months to exercise this right.  If the victim does not exercise this right within six months, then the prosecutor cannot investigate the event and must make the decision to “delay the investigation temporarily.”

 

§ 1.3.  Military Courts.

§ 1.3(A).  The Establishment of Military Courts.

 

The Code of Establishment and Judicial Procedure of Military Courts (CEJPMC) Law #353 is the main statutory provision.  It provides where the military courts will be established when the prosecutor does not prepare an indictment and the jurisdiction of the military courts. For example, according to Article 1 of CEJPMC, military courts must be established at the Corps level or higher.  However, the Ministry of Defence (MoD) is the only authority, which can decide whether or not to establish a military court at a specific unit.  Thus, the decisions by military authorities must be sent through the chain of command to the MoD and it will decide whether to establish a new court.

 

 

 

 

The Ministry of Defence publishes a booklet[24], which shows the exact location of military courts in Turkey.  By 2001, there are thirty-two military courts in Turkey.[25]  The Ministry of Defence has the power to either relocate, cancel, or establish new courts.[26]  The Judge Advocate General (JAG) Corps is the main unit in the Ministry of Defence to carry out the CEJPMC.

 

§ 1.3(B).  Jurisdiction of Military Courts.

 

            The Ministry of Defence establishes the jurisdiction of all military courts.  Military High Court of Appeals (MAC) is the highest court in the military jurisdiction system.  All court decisions can be sent to the MAC by the accused, the prosecutor, the attorneys, the victim(s), or the commander.  The MAC has the final word on each case.

            Military courts have the authority to investigate the case if (a) military personnel commits a military crime; (b) military personnel commits a crime against another military personnel; (c) military personnel commits a crime in military zones; (d) there is litigation by a military personnel against another military personnel; or, (e) the committed crime is a result of a military personnel’s mission or duty.[27]

            All military crimes must be written in the Military Penal Code otherwise it is not a military crime. Wartime crimes are also found in the Military Penal Code.  Some war time crimes have more severe punishment such as “Desertion, abandon a service,”[28] “Disobedience of orders,”[29] or “Assault to superiors.”[30]

            According to the Code of Personnel (CoP),[31] the Code of Conduct (CoC),[32] and the Military Penal Code (MPC),[33] military personnel consist of, generals, admirals, officers, non-commissioned officers (NCOs), privates, sergeants, corporals, soldiers and cadets.  Civilian personnel working in branches of the Turkish Armed Forces and Ministry of Defence are also considered military personnel. However, civilian personnel of the Ministry of Defence can only be prosecuted in a military court, if the committed crime is an “attempt to assault a line officer” or “disobedience of an order relevant to the civilian’s specified duty”.  Military prosecutors cannot be prosecute civilians in any other circumstances.  Article 9 of Law #353 does not cover civilians working for the Ministry of Defence.

            All military personnel have the same rights before the court as guaranteed by the law.[34]    There are not any separate categories for separate groups of soldiers.

            In times of war, the categories of persons subjected to military courts do not change.  But during war times, the number of military personnel grow higher than the peace time, and therefore, the number of cases in military courts increase.

            Military courts do not have a role in disciplinary cases.  For example, military courts do not decide appeals of administrative disciplinary punishments.  Military courts do not have any role in the administrative punishment system-i.e. in the summary punishment system. In administrative punishment system, there are disciplinary tribunals and line officers. For detailed information, look at the article 1.3 of the article.

 

            § 1.3(C).  Military Judges.

            There are at least three judges on a military court.  Two of these judges are officers from “Military Judge Branch” (MJB) and are appointed by the President.[35]  The other judge is a senior officer chosen by the commander.  Judges must have a law degree from a Faculty of Law which is a four year civilian education program.  After graduation, the lawyer must pass a JAG Corps examination.  If the exam is passed, the lawyer will be a member of the Military Judge Branch.  After acceptance, the lawyer will receive educational training by the JAG-MOD for one year.  If the lawyer does not have any military background after one year, then there is training in a military unit for three months.  After the educational process, the lawyer is appointed as an intern prosecutor or an intern judge by the President.  The internship program is for three years.  After three years, the lawyer can be a judge or a prosecutor.

            The third judge is a senior military officer who has graduated from a military academy or a university.  The list of officers who can work as a judge in the court is written down by the Legal Adviser on behalf of the Commander, but the senior MJB officer at the court decides who will be the third judge at each case.  In every case, the third judge should be different.  Generally, these judges change weekly.  But, unlike judges, all the prosecutors and vice prosecutors have to be members of the MJB.

            The military judges have permanent service with the court.  Unless working at least four years at the specified appointed court, they can not be sent any other duty.  The President has the authority to appoint the judges.  The third judge has only temporary service for one calendar year.

            All prosecutors, vice prosecutors, and judges are military personnel.  This means that they wear uniforms and have their own rank.  But according to Constitution and other statutory provisions mentioned above,[36] they have their own privileges and immunities.  For example,

 

¨      They are not subject to criminal or summary punishment.[37]  If they breach any law, the Minister of Defence has the authority to send an inspector from the JAG Corps.  The inspector must search and investigate the case, make a report to the court, and the judge may be disciplined or subject to judicial punishment.  The Minister is the only person that can give a disciplinary punishment to MJB officers.[38]

¨      The unit commander has no authority either to give any kind of disciplinary punishments or to sanction MJB officers.[39]

¨      The members of Military Appeals Court (MAC) can only be judged by the Constitutional Court (CC).[40]

¨      The President is the only authority to decide the issue of appointment of MJB officers.[41]

¨      Once they are appointed to a court, they can not receive an appointment for at least four years.[42]

¨      Once they become a senior member of JAG, their salaries are higher than other military personnel of the same rank.[43]

¨      All members of the Military High Court of Appeals (MAC), prosecutors, and senior judges have the right to stay in military public housing till the end of their service.[44]

 

            § 1.3(D).  Military Proceedings.

 

            All proceedings at the military and disciplinary tribunals are public.[45]  The trials can be held in camera according to the court’s decision.  The accused has the right to have legal counselling at the government’s expense if the accused is an enlisted military personnel.  If the accused wants a lawyer, the court has to send the demand in written to the local Bar, and the Bar has to provide a lawyer for the accused.  The government pays the attorney’s fees.  The victim or the victim’s parents, children, or spouse can be a party to the procedure. If the victim is alive and above age of 18 he/she may a party to the procedure. If he/she has been seriously wounded or dead, the relatives of the victim have their own legal rights to sue against the accused.

            As a general rule, an accused has to be present during the trial.[46]  The accused can be tried, however, in absentia if the accused so chooses.[47]  But if it is a serious crime with A long punishment, then the accused must be ready during the defence phase of the trial.[48]

            Once the decision of the Court is final, it is sent to the Office of the Prosecutor to be executed.  One of the responsibilities of the Office of the Prosecutor is to execute the Court’s sentence.  After the sentence is executed, the Prosecutor sends the file back to the Court where it is archived.  Thereafter, access to the case file is from the Court’s archives.

            All decisions by the military courts can be appealed to the Military Court of Appeal (MAC) by the accused, the prosecutor, the commander, or the victim. If none of these individuals appeals the decision within seven days, the decision becomes a “final sentence.” There are not any differences between appeals of decisions given by the court; i.e. all kinds of decisions can be sent to the Military High Court of Appeals.

            After there is a final sentence by the military court, the case can be reopened.[49]  Each calendar year, inspectors[50] from the MOD inspects the Office of Prosecutors.[51]  They have the right to inspect the files if the file was not sent to MAC.  After the files are inspected, the inspectors make a report.  Based on the report, JAG has to inspect the files.  JAG can then send the file to MAC who has the final decision.  In addition, the accused or the victim can request that the final sentence is reopened.  Upon request, the prosecutor has to send the file to MAC who again has the final decision to reopen the case.  Furthermore, if the accused is found guilty and the punishment is more than fifteen years in prison, the court automatically sends the case file to MAC. 

            Military jurisdiction can only be applied to military personnel and in the specific cases discussed above.  If there is a dispute over jurisdiction, the Court of Jurisdictional Disputes (CJD) is the final authority on the issue.  This court consists of members both from MAC and the Appeal Court. CJD is not a military court. It is one of the constitutional and supreme courts in Turkey, and it decides when two of supreme courts dispute over a specific case. In case of a dispute about the jurisdiction authority of two supreme courts, CJD will decide which supreme court has the jurisdiction authority over the case.

 

            § 1.3(E).  Preparing a Case File.

 

            When a company commander learns that one of his/her military personnel has attempted or committed a crime, the commander is responsible to initially prepare crime case file.[52]   The commander must collect all the evidence, take proper measures to clarify the problem, and follow certain procedures: 

¨    If the situation is urgent, the commander must call the prosecutor.  For example, the prosecutor should be called when a homicide or a crime in Military Penal Code (MPC) or in the Penal Code (PC) which has a heavy imprisonment punishment has occurred such as murder or rape.  The prosecutor has a right to take the case without waiting for an investigation order from the commander.

¨    If the situation is not urgent but a crime in MPC or in PC has occurred, the commander must take appropriate measures to clarify the situation and prepare all the documents for the prosecutor. Thereafter, the prosecutor has three days to send the prepared criminal case file to the commander.

¨    The commander’s legal adviser[53] checks the “case”, prepares an investigation order and sends the “case file” to the prosecutor. After the investigation order, the prosecutor investigates the case, collects the evidence, and makes a decision whether or not to prosecute.

 

            As in most countries, the punishments and sanctions in the Turkish legal system are higher during war time than they are in peace time.[54] For example, disobedience to orders is prohibited in MPC Art#87. According to first paragraph of the Art.87, if a soldier does not obey the orders, or she/he rejects to obey orders orally, he/she may be fined from one month to one year in prison.

            The second paragraph of the same article is about the war time disobedience of soldiers. If a soldier disobey orders during emergency times, the fine may be up to five years heavy imprisonment in jail and if a soldier disobeys orders during war times, the limit of the penalty will be ten years heavy imprisonment in jail.

            Second example : Art.91 of MPC. According to this article, if a soldier attacks a superior he/she may be fined from six months to ten years in prison. If a soldier attacks the superior during emergency and war times, the minimum fine will between fifteen to thirty years in prison.

            The Turkish military legal system does not have different rules for units abroad than those at home.  If a unit goes abroad, the court or the discipline tribunal follows the original headquarters (HQ) which it is attached to, according to its own organisational chart.  There are some Turkish disciplinary tribunals in other countries because they follow their attached HQ’s.  For example, there are some disciplinary tribunals in Kosovo and Bosnia.

            Turkey signed the European Human Rights Convention in 1954.  In addition, Turkey accepted the right of appeal to the European Court of Human Rights (ECHR) for her citizens in 1988.  This means that the Convention is part of Turkey’s domestic law.  If a law or a code provision conflicts with the Convention, it has to be changed and judges have to follow the rules of the Convention.  The courts must apply the rights accorded by the Convention.

 

§ 1.4.  Summary Punishment System.

 

            § 1.4(A).  Overview of the System.

            Beginning at the company level, every commanding line officer has a legal right to punish or sanction their subordinates.  The rules and the procedure for the summary punishment system are clearly written in Article 171 of the Military Penal Code (MPC).[55]

            As will be defined below in the summary punishment system, there are also disciplinary tribunals.[56]  These tribunals are established at headquarters bigger than a regimental level.[57]   When commanding officers execute a summary punishment, they work with discipline tribunals.   Jurisdiction for these tribunals is established by the Code of Establishment and Judicial Procedure of Disciplinary Courts (CEJPDC), Law #477.

            An example of a soldier absent without leave will clarify how the system works.  If a soldier leaves the base without permission, it is called “absence without leave”.  If the soldier comes back in twenty-four hours, the company commander is the only authority that can punish the soldier. The case file can not be sent to the disciplinary tribunal.  However, if the soldier is absent for twenty-four hours to seven days, the case file can either be sent to the disciplinary tribunal or the company commander who can punish the soldier.  If the soldier’s desertion period exceeds seven days, the case file must be prepared and sent to the Office of the Military Prosecutor by the commander with an investigation order prepared and signed by the commander’s legal adviser.[58]

            Similar to other military systems, the Turkish Armed Forces has a system of military punishment.  The Military Penal Code (MPC) and Law #477 are the legal basis for punishments. The military authorities who have been authorized to punish their subordinates are outlined in the MPC Article 171.  There are no differences between war and peace time, and therefore, these punishments do not change during war time.

            There is a very clear differentiation between the criminal offences and non-criminal disciplinary offences.  If an offence is punishable under the MPC, it is a criminal offence.  However, if an offence is not written in the MPC, but it is an offence under the Code of Conduct (CoC), then it is a disciplinary offence.

            The Code of Conduct (CoC) addresses non-criminal discipline offences and small breaches of CoC are subjects of the system of summary punishment.  If an offence of the CoC occurs that is not criminal, then the unit commander - line officer - will have a right to punish the subordinate to protect law and order in the military.

 

§ 1.4(B).  Disciplinary Tribunals.

 

Turkey has both military courts and disciplinary tribunals for disciplinary offences.  These offences are non-criminal.  TCGS’ booklet lists in detail each disciplinary tribunals with their locations and their judicial authorities.[59]  According to the newest booklet printed in July 2000, there are 230 disciplinary tribunals in Turkey.[60]

The disciplinary tribunals are constitutional courts.[61]  The tribunal is composed of three judges and a disciplinary officer.  The disciplinary officer should be a Military Judge Branch (MJB) officer, but if it is not possible to appoint a MJB officer, than the commander has the authority to appoint an officer as a disciplinary officer.  The disciplinary officer works like a kind of prosecutor on behalf of the commander.

The commander chooses the judges of disciplinary courts for a term of one calendar year. They are all military personnel.  If an officer is accused, all the judges must be officers.  For all other accused personnel, one of the judges has to be chosen among the non-commissioned officers (NCOs) of the unit.

Company commanders must decide whether to punish a breach themselves or to prepare the case file and send it to the disciplinary tribunal.  The disciplinary officer checks the case file, investigates the situation on behalf of the commander, and then the commander must decide whether to accuse the soldier or not.  Commanders have the  right to punish soldiers on their own instead of writing an indictment for the tribunal.  The commander is responsible for the prosecution and the disciplinary officer helps the commander.

The accused has certain procedural and due process rights at the tribunal.  For example, the accused can have legal counselling, hire a lawyer, and if the accused can not afford a lawyer, the tribunal has to hire an attorney from the local Bar.  There are also time requirements.  Thus, the tribunal must reach a final decision within five months of the date of the offence.  This time period includes the time needed for the appeal procedure.  After five months, the accused can not be punished or accused of the same offence.

In Turkey, there are disciplinary tribunals for disciplinary offences.  These tribunals are established according to Law #477.  The following chart shows the hierarchy of courts.

§ 1.4(C).  Offences under Law #477.

 

            Law #477 defines fifteen disciplinary offences that are punishable by the disciplinary tribunals.[63]  These offences are either judged by the disciplinary tribunals or punished by the summary punishment system.  If a disciplinary offence is written in Law #477, the unit commander has a right to punish the soldier or to send the case file to the disciplinary tribunal.  Law #477 articulates the following offences: 

1.    Becoming disrespectful to line officers or superiors: The service requires that soldiers will be respectful to their superiors.  A soldier who does not respect the line officers or superiors will be punished up to one month arrest in quarters.

2.    Disobedience: A soldier who does not obey orders properly will be punished up to two months arrest in quarters.

3.    Intention to lie: The service requires truthfulness.  A soldier who does not answer the questions of the commander honestly will be punished up to on months arrest in quarters.

4.    Absence without leave (desertion): If a soldier leaves the base without permission for twenty-four hours to seven days, the soldier will be punished from ten days to one-month arrest in quarters.  If a soldier who is on leave does not come back at the end of the leave for twenty-four hours to seven days, the soldier will likewise will be punished up to seven days to one month arrest in quarters.

5.    Misinforming the commander on the desertion attempts: If a soldier has knowledge about a desertion attempt of another soldier/soldiers and does not inform the line officers about the attempt, whenever the desertion happens, that soldier will be punished from seven days to two months arrest in quarters.

6.    Lost or damaged military equipment: Military personnel who intentionally cause military equipment to be lost or damaged. The soldier will be punished up to two months arrest in quarters according to the expense of the military equipment.

7.    Borrowing money or accepting gifts from subordinates: A line officer who gives an order to his/her subordinates not related to the service, or accept gift(s) or borrows (accepts) money from the subordinates will be punished from ten to two months arrest in quarters.

8.    Negligent observation duties of subordinates: A line officer who neglects observation duties of subordinates will be punished up to fifteen days arrest in quarters.

9.    Cursing or harming subordinates: A superior who curses or harms a subordinate will be punished up to two months arrest in quarters.

10.  Disrespect to orders of on-duty guard:  An on-duty guard who deserts his specified area, violates the written rules of the guard service, or breaks the rules of Code of Conduct (CoC) during duty will be punished up to two months arrest in quarters.

11.  Creating displeasure in service:  Persons who creates displeasure among his/her friends will be punished up to one-month arrest in quarters. If a soldier calls another soldier as a liar, or if he/she blames another soldier because of his/her religious beliefs or sexual behaviours he/she will break the law, mentioned in this article.

12.  Drunkenness or prohibited clubs:  Soldiers who go to brothels, casinos, bars, or other restricted, specified clubs and get drunk will be punished from seven days to one month arrest in quarters.  If the drunkenness occurs on duty, the limit of the punishment is between fifteen days to two months arrest in quarters.

13.  Gambling:  Military personnel who gamble will be punished up to one-month arrest in quarters.

14.  Membership in prohibited associations:  Military personnel who join restricted associations will be punished from ten days to two months arrest in quarters. Some of these are as follows:

                        - All kinds of political parties,

                        - All kinds of labour organisations,

                        - All kinds of illegal organisations.

15.  Reading prohibited books:  Military cadets and enlisted personnel who read books and publications prohibited by TCGS will be punished up to fifteen days arrest in quarters. Some examples are as follows:

                        - Hardcore porn books (related to children porn),

                        - Propaganda books of political parties,

                        - Propaganda books of illegal terrorist organisations.

 

            If the crime under Law #477 is committed, the unit commander has two options.  First, the unit commander may punish the soldier.  In this case, the commander writes a memorandum to the soldier, explains the situation, and gives the soldier an opportunity to provide a defence.  The memorandum and defence must be in writing.  After considering the defence, the commander orders an appropriate punishment for the soldier.  The soldier has a right to object to the summary punishment.  In case of an objection, the commanding authority of the unit commander has the final word.

The second option is that the commander may send the case file to the disciplinary officer. The disciplinary officer investigates the situation on behalf of the commander and, if the disciplinary officer believes that the soldier should be tried before the disciplinary court, the disciplinary officer prepares the indictment.  The court has the authority to decide whether or not the soldier is guilty. Even if the unit commander believes that the soldier has broken the law, it is the commander’s choice whether to open a case at the disciplinary court by an indictment or punish the soldier.

 

            The soldier does not have a right to choose between summary punishment and a court trial.  But most soldiers want a summary punishment instead of being accused by the disciplinary officer at the disciplinary tribunal.  The length of punishment is the reason soldiers prefer a summary punishment instead of taking it to the tribunal.  If the tribunal finds the accused guilty, the punishment period will exceed the accused’s service period by the same amount of time the accused will spend in detention or in jail.  But, if the line officer gives a summary punishment, the punishment period will not exceed the accused’s mandatory service period in the Army.

                Summary punishments and sanctions include written warning, cancellation of monthly pay, cancellation of off-duty periods, extra service, restriction to limits, (Restriction to limits mean: A soldier who has been punished by a certain period of time in restriction to limits, can not leave the base after working hours. He/she has to live in a specified room after working hours, i.e. he/she has to stay there. There aren’t any guards, but he/she cannot leave that specified place in the base.) and arrest in quarters.  The applicability of each punishment does not vary for different categories of soldiers.   The limits of the punishments, however, differ for different categories of soldiers.  The following chart gives some examples:

 

The lowest level which the summary punishments can be imposed is the company level.  The sanctions can be imposed both by a tribunal and by the line officers.  If the case file has been sent to the disciplinary tribunal, the final announcement of the tribunal has to be declared. (If a case file as been sent to the disciplinary tribunal, a soldier cannot be sued or punished by a line officer or by another court; the decision of the disciplinary tribunal has to be waited)

Approval of the judge is not necessary when a specific punishment is imposed if the punishment is given by the line officer.

Line officers should consult with the legal advisers or disciplinary officers before giving any kind of administrative punishments or impose sanctions on their subordinates.  Although consultation is recommended, it is not a requirement.  The administrative disciplinary authorities have full discretion to the exercise of their disciplinary powers in summary punishment cases.

It is possible for a superior officer  to annul a summary punishment imposed by a subordinate. Line officers, however, cannot annul their own summary punishment, but their superior can annul the punishment.  The superior can either replace the annulled punishment by a new one, change the original punishment, or send the case file to the tribunal.  The superior officer is bound by the principle of “reformatio in pejus” ( an accused who objects/appeals the final decision can not be fined more than the final decision of the tribunal/court), and therefore, neither the superior officer nor the tribunal can change the punishment to the detriment of the offender.

Superior officers may directly impose a summary punishment instead of the officer who is normally competent to do so.  For example, if the superior officer is the line officer and the disciplinary offence have happened directly against him or if he had witnessed the action, the line officer should not impose the punishment. 

Military personnel have the right to object to a summary punishment.  Every senior superior deals with the objection process.  There is no possibility to bring the objection before a tribunal or a court.  In addition, there is no possibility of appeal.  The objection will of course suspend the execution of the punishment.  The Turkish Army does not have system of automatic review of summary punishment.  The unit commander must declare all summary prosecutions and sanctions to the superior HQ.

High Military Administrative Court of Appeals (HMACA)[65]does not have any role in summary punishment system. A person who has been fined by line officers or by disciplinary tribunals can not appeal or object to the HMACA

 

§ 1.5.  Final Remarks.

            The military jurisdiction system is complex in Turkey because it consists of two categories: the summary punishment system and the military justice system.

            The summary punishment system consists of both disciplinary tribunals and commanding officers’ authorities.  For ordinary soldiers, the summary punishment system is complex and difficult to understand.  For example, if a soldier falls asleep during guard duty, it is a breach of Article 56 of Law #477 and can be punished by the company commander.  The company commander can punish the soldier or send the case file to the disciplinary tribunal.  Instead of giving a punishment to the soldier, most of the commanders prefer to send the case files to the tribunals.

There are basically three reasons why commanders prefer  to send the case file to the tribunal.  First, the length  of punishment is different.  Company commanders can punish soldiers up to seven days arrest in quarters. But if the tribunal finds the soldier guilty, the punishment is up to two months in quarters.  In the tribunal, most punishments range between ten to fifteen days for the breach of Article 56.[66]

            Second, the time computed for military service can be affected.  The punishment period given by unit commanders does not make any difference for the service period of the soldier.  If the tribunal orders punishment, it is not counted as a period of his mandatory service.

            Third, commanders view this as a fairness issue and they want to be fair.  One of the best ways to be fair for summary punishments is to send the case file to the tribunal instead ordering punishment.

            The education and the training of unit commanders on legal issues are very important.  If a crime occurs in military units, the unit commander’s first response is very important to the criminal investigation.  Although the commander is the first authority for that case, he/she must be very careful because the later investigation which will be made under the control of the Prosecutor.

            The training period for ordinary soldiers especially for enlisted personnel is also very important.  During their mandatory eighteen-month service period,  the faster they learn the jurisdiction system, the quicker they adapt themselves to the system.

 

            I have tried to acknowledge the military jurisdiction system of Turkey, briefly. The law and order –i.e. discipline-in TAF has to be preserved and taken care of by each soldier in the system. All army personnel will play their roles when their times come.

 

            Administrative branches and sections in MoD, all along with military courts, are working on this system and try to improve it respecting ECHR’s and MAC’s decisions[67].

 

 

Appendix 1: Abbreviations

Art.                  :      Article.

Capt.               :      Captain.

CC                  :      Constitutional Court

CEJPDC          :      The Code of Establishment and Judicial Procedure of Disciplinary Courts

CEJPMC         :      The Code of Establishment and Judicial Procedure of Military Courts.

CJD                 :      The Court of Jurisdictional Disputes.

CoC                :      Code of Conduct.

CoMJ              :      Code of Military Judges.

CoP                 :      Code of Personnel.

ECHR              :      European Court of Human Rights.

HMACA         :      High Military Administrative Court of Appeals.

HQ                  :      Headquarter.

JAG                 :      Judge Advocate General

Lt.Col.             :      Lieutenant Colonel.

MAC               :      Military High Court of Appeals.

MJ                   :      Military Judge.

MJB                :      Military Judge Branch.

MoD                :      Ministry of Defence.

MPs                 :      Military Police.

MPC               :      Military Penal Code.

MSC               :      Military Service Code.

NCO               :      Non Commissioned Officer.

NSC                :      National Security Court.

PC                   :      Penal Code.

TAF                 :      Turkish Armed Forces.

TCGS              :      Turkish Command of General Staff- (Joint Chief of Staff).

TGNA             :      Turkish Grand National Assembly.

TU                   :      Turkish.

ENDNOTES