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.
Military 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 The evidence suggests, however, that the rule of law, on which freedom depends, is about to be superseded by the rule of revenge and vendetta.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.”
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.”
Abolition of the death penalty
The death penalty shall be abolished. No one shall be condemned to such penalty or executed.
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.