This is no time for rejoicing: Erdogan is pulling Turkey towards despotism

There has been much rejoicing in the West that the attempted military coup in Turkey has been defeated by “people power.” People of all political persuasions, it has been said, including many strongly opposed to the governing AK Party, came onto the streets to defend democracy against a military putsch. They did so in answer to a call from President Erdogan in his now famous Facetime broadcast which was then repeated from minarets all over Istanbul and Ankara. There were acts of great bravery as unarmed civilians stood in the way of tanks, as well as scenes of horror, not least when bewildered conscripts appear to have been lynched. 

Meanwhile, pictures have been posted of the alleged coup leaders, now being held in custody. They look haggard and worried, as well they might. 

Turkey Coup leadersMilitary rule would doubtless have been a terrible thing: most coups d’etat involve deaths, torture, arbitrary arrests and many other horrors that can be euphemistically described as “infringements of civil liberties.” Had it succeeded it is unlikely that this one would have been different. When it briefly took control of national television the would-be junta broadcast a statement promising a return to secular and democratic values, but the reality would probably have been very ugly.

On the other hand, this has not been a victory which should encourage unalloyed joy. Democracy may have triumphed – only a few months ago the ruling party won a thumping victory in Parliamentary elections and there is little doubt that the government still has widespread popular support. The evidence suggests, however, that the rule of law, on which freedom depends, is about to be superseded by the rule of revenge and vendetta. Accompanied by effective law democracy is the finest system of government yet devised; without the rule of law it is terrifying.

President Erdogan has promised that those who plotted against him will “pay a heavy price.” This uprising, he said “is a gift from God to us because there will be a reason to cleanse our army.”

Humiliated allegedly pro-coup soldiers stripped of their uniforms
Humiliated allegedly pro-coup soldiers stripped of their uniforms

The Deputy Prime Minister, Mehmet Muezzinoglu (his name means “son of the man who sings the call to prayer from the minaret”) has been more specific about what the “heavy price” and “cleansing” might involve. He said today that some of the conspirators who launched yesterday’s failed coup d’etat may face the death penalty. It is a popular idea. The top trending hashtag on Turkish twitter at the moment is “#Idamistiyorum” which translates as “I want the death penalty.” There is popular pressure – you could almost call it democratic pressure – for the plotters to swing.

Capital punishment has a long and sordid history in Turkey, particularly in the aftermath of coups. Indeed, had things turned out differently last night it is by no means inconceivable that President Erdogan would now be facing a similar fate to that which befell his predecessor, Adnan Menderes, the last but one Turkish leader to be deposed by the army.

Menderes – who for some good reasons is now regarded by many, including President Erdogan himself, as a hero – had what turned out to be the misfortune of surviving a plane crash near Gatwick Airport in 1959. (He was sitting near the back of the plane as it ploughed into Sussex woodland and miraculously was barely injured). After a short convalescence in the London Clinic he returned to Turkey, only to be toppled in a highly efficient military coup the following year. Various attempts to try him for miscellaneous offences including adultery and the murder of a baby having failed (despite a fatwa from the Chief Mufti of Istanbul suggesting that he could be stoned to death), he was eventually sentenced to death on dubious charges of embezzlement and “violating the constitution.” He tried to cheat the hangman by attempting suicide but succeeded only in putting himself into a coma. In a gruesome twist his execution was delayed for 24 hours until doctors could certify that he had become well enough to be hanged.

The last successful Turkish coup in 1980 also led to plenty of executions. As usual, it took place against a background of economic and political chaos. It was led by General Kenan Evren. Evren – something of a Turkish Pinochet, with a similar antipathy towards left-wingers – cemented his position in blood, hanging 50 of his opponents: “Should we feed them in prison for years instead of hanging them?” he demanded in a speech to his supporters. Hundreds more died after torture or ill-treatment in custody. Nevetheless, like Pinochet, and in fact rather more swiftly than the Chilean dictator, he did eventually return the country to civilian rule. (Also rather like Pinochet, his final years were dogged by attempts to prosecute him: he was in fact convicted and sentenced to life imprisonment but never went to gaol, and died last year aged 97 with his family and, for some reason, his lawyer beside his bed in a military hospital).

The unfortunate distinction of being the last person hanged in Turkey goes to Hidir Aslan, a member of the Marxist-Leninist group Devrimci Yol who was hanged for the murder of 3 policemen in 1984.

Though not used since then, the penalty remained available until it was formally abolished, first in 2002 for offences in peace-time and then in any circumstances in 2004. The main pressure to dismantle the gallows arose from Turkey’s application to join the EU, which insisted on abolition as a pre-condition for membership. Additionally, in 2004 Turkey signed, and in 2006 ratified, protocol 13 of the European Convention on Human Rights, which prohibits the death penalty in all cases.

The relevant parts of the protocol are worded in admirably clear language and permit of no exceptions under any circumstances. Unlike most other provisions of the ECHR, states are not allowed to use Article 15 of the ECHR to derogate from the Protocol in time “war or other public emergency threatening the life of the nation.”

ARTICLE 1

Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

ARTICLE 2

Prohibition of derogations

No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

Under Article 90 of the Turkish Constitution the Convention has legal effect in Turkish domestic law.

Turkey’s renunciation of capital punishment since 2004 has thus been total, and based upon both its domestic legislation and its international obligations.

So President Erdogan and his supporters cannot now legally execute the plotters.

Could the Turkish Parliament pass a law making the conspirators retrospectively subject to the death penalty?

Legislation, particularly criminal legislation, which has a retroactive effect is rightly regarded as unjust in any civilised legal system. You cannot fairly increase the maximum sentence available for a crime by “back-dating” the law. Under the Turkish Constitution it is specifically prohibited (see Article 15 “…offences and penalties may not be made retroactive…”). It is also forbidden by Article 7 of the European Convention on Human Rights:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed thanthe one that was applicable at the time the criminal offence wascommitted. [emphasis added]

As with the Convention provisions on the death penalty, Article 7 cannot be temporarily set aside on the grounds of national emergency.

So the conspirators simply cannot lawfully be hanged. To do so with even a veneer of legality Turkey would have to amend its constitution and pass a retroactive law introducing the death penalty for offences that were not punishable by death at the time they were committed. Even then the executions would still be unlawful under international law.

As it happens Mr Erdogan already has plans to amend the constitution; he has reassuringly cited Hitler’s Germany as a possible model to emulate. (Unlike most Nazi parallels this one can be taken a bit further: Hitler, like Erdogan, was a democratically elected leader). He has also persuaded Parliament to lift the immunity of MPs from prosecution, a move transparently aimed at removing pro-Kurdish MPs from political power thereby enabling his supporters to command the two-thirds majority required for constitutional change.

How the Turkish legal system now treats the failed coup prisoners will tell us a bit more about the direction in which Turkey is heading.

It is not just 3,000 soldiers who have been arrested in the last 48 hours. Warrants have also been issued for the arrest of 2,745 judges and prosecutors, all of whom have been dismissed from their posts. Interference with a supposedly independent judiciary is not new, but on this extraordinary scale it suggests a government ruthlessly determined to intimidate any possible legal opposition to its plans to “cleanse” the country of President Erdogan’s opponents. Those judges that remain in place will be in no doubt that they do so at the pleasure of an autocrat. They are independent in name only.

If the prisoners are spared death sentences and treated humanely it may still be just about possible to believe that Turkey is a democracy in which the rule of law still counts for something. But if Mr Erdogan accompanies his extraordinary assault on the judiciary with the illegal hanging of prisoners we will know for certain that he is leading his country deep into a despotism from which it has no obvious means of escape. There is no reason to rejoice at that prospect.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

14 thoughts on “This is no time for rejoicing: Erdogan is pulling Turkey towards despotism”

  1. I find the Turkish situation very confusing. On the one hand it is an important Nato ally and a buffer against the Islamic state chaos elsewhere. It has sought and obtained clearance for closer EU alliance and potential membership – all on the basis of its economic, social and political progression. Yet now we seem to be back to the spectre of ‘Midnight Express’ brutality buffered by a populist Islamism – is this really the case – if so, what game is Erdogan playing in terms of cultivating political and economic alliances?
    I remember when the protests in Istanbul a few years back excited western journos to believe that the country as a whole shared the sentiments of a cosmopolitan liberal elite. They simply hadn’t stepped over the Bosporus or beyond the Aegian tourist hotspots for the most part. But it seems to me that Turks as a whole are not, after a century of secular modernisation, the barbaric Islamist backwoodsmen as sometimes depicted, or feared.
    If we accept that there is a genuine populist desire for some religious re-identification (as with Russia and Christian Orthodoxy), the question is how can this be reconciled, in a democracy, with a significant secular liberal minority? Can Turkey become the Islamic republic of the progressive future, or is it doomed to internal and external strife that has all but destroyed the middle east.
    What I think I am saying is that we need to understand Turkey as a whole, and not stereotyped polarised images. But it’s all very worrying.

    1. One of the things that I think Westerners miss is that Erdogan is an astonishingly good orator. This is very much his Turkey now. There is a personality cult.

        1. This may be idiotic but I’m getting historical ‘flashbacks’ (don’t take literally) here. Byzantium, the Seljuks and the destructions of the Crusades. Matthew, by inferring an analogy between Erdogan and Hitler, are you gilding the lily? If it is the case (that he is like Hitler), of course there should be external intervention. If not, then you may be precipitating that which you fear. But I don’t see it. Rather, the cult of personality by Erdogan is reminiscent of the same re Ataturk – albeit we laud him as a progressive secularist – and he is still venerated by Turks far and wide who are Erdoganists. Surely, given the fact of repressive Turkish history in the name of progress as well as democracy, we need a little more respect for the people, and not just a blanket condemnation?

    1. Judging by the Twitter response seems you’re a cuddly bear Matthew and I’m a prickly pear. But don’t know they have read the blog or are interested in Turkey. We’ll all be forgotten – justice.

  2. People seem to have an infinite capacity for being surprised that democracy doesn’t guarantee liberal democracy. Silly them.

    1. I’ve made the point elsewhere but democracy can be the most tyrannical system imaginable for unpopular minority groups. Where unrepresentative tyrants oppress minority groups, there’s always a chance the majority will rise up in revulsion and overthrow the tyrant. When the majority itself does the oppression, there is no such hope. To use the Nazi comparism again, all evidence suggests that their pre holocaust persecution of the Jews (only around 1% of the German population) was approved by the majority of Germans.

      Hence, if you believe that individuals should have basic fundamental rights, it is necessary sometimes to be anti-democratic.

      1. Matthew agrees there is no sensible comparison. Hitler was a a fanatical anti-smoker as is the uk gov and the media bien pensant. Could use this to advantage. The post coup attempt Turkey should be given breathing space and not pre-emptive condemnation

  3. I encourage readers to visit the economist Dani Rodrik’s blog. His own father in law was a General in the Turkish army who was fitted up, like many others, in a show trial a number of years ago. Erdogan has been totally deranged for a long time. He was best friends with Assad of Syria for many years until he fell out with him; according to the FT, it was because Turkish intelligence discovered Assad’s wife wrote an uncomplentary email to Assad about Erdogan and his wife after they were on holiday together. From this, he has been supporting all manner of jihadi groups against Assad.

    1. Thanks – Erdogan has clearly fulfilled reactive predictions so far. However, in the circs I think this Rodrik’s comment is apt – as far is it goes.

      “The coup’s failure will thus bolster Erdoğan’s authoritarianism and do little good for Turkish democracy. Had the coup succeeded, however, the blow to democratic prospects surely would have been more severe, with longer-term effects. That provides at least some reason to cheer.”

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