In the field of military justice, Executive Decree 694 Article 203 has abrogated the Law on Military Judges, Law on Military Court of Appeals, Law on Military High Administrative Court. This indeed was a natural result of the Referendum on the Revision of the Constitution dated April 16, 2017 and the abrogation of the Military Court of Appeals, Military High Administrative Court and other military courts. Judges assigned to these courts were transferred to the staff of Ministry of National Defense. Certain limited amendments were made to the Law no. 6413 on Turkish Armed Forces Disciplinary Procedures as a natural result of the subordination of the Gendarmerie General Command and Coast Guard Command to the Ministry of Interior. Together with minor amendments to other laws, the jurisdiction of military justice has been restricted dramatically.
The old text of the Law no. 353 on the Structure and Trial Procedures of Military Courts used to read “military courts which will exercise judiciary power on behalf of the Turkish Nation are established at the levels of corps, army (or their navy and air force equivalents), force commands and General Staff, by the Ministry of National Defense”. The new text reads “military courts which will exercise judiciary power on behalf of the Turkish Nations are established and terminated by the Ministry of National Defense after receiving the opinion of the Force Commands, in due consideration of the structures and geographical locations of military contingents, and the workloads of courts”. As such, courts will no longer be established at the levels of corps, army, force command and General Staff, and instead focus will be on the geographical location of military contingents and the workload of courts. Furthermore the following provision was also abrogated: “Upon the suggestion of Force Commands, and the General Staff’s direct or indirect request, the Ministry of National Defense can establish or remove military courts at the level of other detachments or military institutions” (Executive Decree 668 Article 4).
First, amendments were made by the Executive Decrees 668 Article 4, 669 Articles 12-20, 671 Articles 1-2 and 676 Article 54 to the Law no. 357 on Military Judges. Later, the Law no. 357 on Military Judges was abrogated by the Executive Decree 694, Article 203.
First, minor amendments were made by the Executive Decrees 669 Articles 43-44 and 671 Articles 10-11 to certain articles of the Law no. 1602 on Military High Administrative Court. Subsequently, Executive Decree 694 abrogated the Law on Military High Administrative Court.
Law no. 926 on Turkish Armed Forces Personnel’s previously abrogated Article 46 was rewritten to introduce provisions on the military courts serving at the Military Court of Appeals and Military High Administrative Court, and a new unit dubbed “legal services department or unit” was created under the umbrella of the Ministry of National Defense. It has been stipulated that the legal services of the General Staff and Ministry of National Defense will be delivered by this unit and department, comprising officers from the legal services class (Executive Decree 694 Article 31).
The temporary article 45 was added to the Law no. 926 on Turkish Armed Forces Personnel, in order to reassign the military judges of the Military Court of Appeals and Military High Administrative Court to civil and administrative justice or to the legal services staff of the Ministry of National Defense or General Staff, depending on their preferences and vested rights, and their retirement rights were regulated accordingly (Executive Decree 694 Article 36).
According to the Law no 1632 Military Penal Code, Article 67 designating which crimes amount to an escape to a foreign country, those on leave who went abroad without permission were previously deemed to be escapees after three days and were punished; now, however, this has been attenuated with the provision that one will be deemed an escapee “unless one is on leave” (Executive Decree 691 Article 3).
Article 39 of the Law no 1632 Military Penal Code was abrogated. Titled “Enforcement location of the arrest sentences by military courts, or arrest warrants and sentences for soldiers”, this article used to stipulate that the prison sentences for soldiers indicated in the law text would be carried out in military prisons (Executive Decree 694 Article 203).
Amendments were made to Law no. 6413 on Turkish Armed Forces Disciplinary Procedures. The article allowing disciplinary superiors to double the duration of the 15-day temporary suspension has been changed to read, “if deemed necessary, this period can be doubled by the authorities listed in this paragraph or extended one year by the minister in charge” (Executive Decree 668 Article 4). An amendment was also made to the article defining the disciplinary superior, to replace “superiors in rank or seniority” with “superiors in office, rank or seniority”, so as to include a civilian term in a military expression (Executive Decree 676 Article 72). It has been stipulated that personnel expelled from the Turkish Armed forces cannot utilize the certificates, diplomas etc. that they have obtained on behalf of the Ministry of National Defense and Turkish Armed Forces, and that they cannot engage in vocations associated with these documents. Other changes provide that the discipline officer has to be from the legal services class (before they used to be from the military judge class), and introduce changes concerning the authorities in charge of appointments and assignments. If during her / his investigation, the discipline officer demonstrates that a crime has been committed (before it used to read “a crime that falls in the jurisdiction of judiciary and military courts”), one copy of the relevant folder shall be sent to the public prosecutor’s office in charge (previously it used to read “to the authority in charge”). (Executive Decree 696 Article 114-116).
Furthermore in the Law no. 1325 on the Structure and Organization of the Ministry of National Defense, the rank equivalents have been designated for those appointed to the offices listed in the Article 1. The new text reads “according to the rank equivalents, in terms of disciplinary superiority, a chief of staff or public relations consultant can act like a colonel, and local authorities and branch managers in the provincial offices can act like lieutenant colonels when inflicting the disciplinary punishment listed in the chart in Annex-1” (Executive Decree 676 Article 73). The purpose of this provision is to provide a rank equivalent to the officials who are superiors but do not have an actual military rank, so as to allow them to impose penalties like the other superiors.
In the Law no. 6413 on Turkish Armed Forces Disciplinary Procedures, amendments were made to the Articles 2, 4, 7, 8, 13, 21, 29, 30, 32, 43 and 49, and the wording of the title of section 4 was changed. These concern changes made due to the separation of the Gendarmerie General Command and Coast Guard Command from the Turkish Armed Forces, and the removal from the old text of expressions such as specialist gendarme, gendarme, Gendarmerie General Command, Coast Guard Command etc. (Executive Decree 681 Article 87, 89-96). Likewise, the duty to issue the regulation which will include such applications and procedures was taken away from the joint responsibility of the Ministry of National Defense and Ministry of Interior, and given only to the Ministry of National Defense, since the Gendarmerie General Command and Coast Guard Command have been separated from the Turkish Armed Forces (Executive Decree 681 Article 97). Another amendment gave the Minister of National Defense inspection board the power to initiate an investigation when deemed necessary, thus enhancing the minister’s power over the Turkish Armed Forces (Executive Decree 681 Article 88).
The below phrase was added to the first paragraph of the Article 20 of the law so as to clarify the ambiguous concept of affiliation to terror organizations: “h) Affiliation to terror organizations: Being in a unity of action with terror organizations, assisting these organizations, employing state means and resources to aid these organizations, and engaging in propaganda for these organizations” (Executive Decree 690 Article 13).
An amendment to the Article 21 of the same law has defined what it means to turn lack of discipline into a habit and clarified how the dismissal procedure will follow (Executive Decree 690 Article 14).
Gendarmerie General Command and Coast Guard Command were removed from the article elaborating on the Higher Disciplinary Boards, thus limiting their scope to Force Commands. The membership of these boards was redefined, with the inclusion of the logistics president, the general plan and principles department president, and the legal services president (Executive Decree 694 Article 168).