By Yavuz Yavuz
Istanbul was flooded with government and anti-coup demonstrations over the weekend. Whilst lauded for their efforts in preventing the coup attempt of July 15, which left hundreds dead and further destabilised the country, debates have emerged in the aftermath over how to prosecute those behind the coup.
Capital punishment has come to the fore of Turkey’s agenda in recent weeks. Demonstrations all over the country have voiced strong calls for its reintroduction.
This is not the first time such debates have arisen since Turkey fully abolished the death penalty in 2004 however, with ongoing discussions surrounding the Kurdistan Workers’ Party leader, Abdullah Öcalan, also arising following the brutal murder of Özgecan Aslan.
President Recep Tayyip Erdoğan told supporters that: “In democracies, people’s demands cannot be put aside. This is a right of yours”. The rally, and statements from the President, represent growing unity across vast swathes of Turkish society following the attempted coup. They also indicate an increasingly strong stance against external criticism of the post-coup crackdowns.
“The leaders of political parties are here. They know you demand the death penalty. It is for parliament to decide. I will approve any decision in that regard”. This statement was made during a speech in which crowds chanted “We want the death sentence”.
This view is not unanimous across society however. “I’m against the death penalty under any circumstances” Merve, a law student in Ankara told Independent Turkey. “Even if it’s reinstated, it cannot be applied retroactively”.
Ömer, 20, also voiced concerns on the restoration of capital punishment. “The death penalty is irreversible,” he said. “Once you execute it there is no coming back.”
Turkish history is no stranger to the capital punishment. During the Ottoman Empire, it was widely implemented for crimes “against the laws and regulations of sharia law on public order, threats against the Sultan’s throne and life, attempts to restrict the Sultan’s absolute rule, insulting the Sultan, acts against the laws and regulations on public order and revolting against the state.”
Between 1920 and 1984, a total of 712 people were executed in the country. This is not including the vast number of people executed during the İstiklal Mahkemeleri (Independence Tribunals), established during the War of Independence.
Yet the executions with the most striking and enduring place in public memory are those carried out during the bloody and tumultuous years of military rule. According to Bülent Tanör, a professor on human rights and constitutional law, the rate of execution during civilian rule was two per year, whereas this figure leapt to 13.5 under the rule of successive military juntas.
One of the most memorable of those executed during military rule is the former Prime Minister Adnan Menderes, whose sentence was executed alongside two of his ministers, Fatin Rüştü Zorlu, and Hasan Polatkan, following the 1960 coup.
Three leftist activists Deniz Gezmiş, Yusuf Aslan, and Hüseyin İnan, were also sentenced to death by parliamentary authorization following the coup-by-memorandum of 1971. Their killing also left strong traces in public memory, as this death sentence was arguably one of the greatest traumas of Turkish political history, with enduring ramifications.
Following the coup in 1980, 50 people were sentenced to death. The leader of the military junta that carried out the coup, Kenan Evren, stated that their policy was “hanging one from left, one from right”: a pendulum targeting both sides of the political rift dividing Turkish society in the wake of the coup.
Turkey’s last execution was carried out in 1984 when Hıdır Aslan, a member of Dev-Yol (a leftist armed group), was charged with the killing of three police officers and subsequently hanged.
No executions have taken place in the country since then. One of the most critical cases regarding the abolishment of capital punishment has been that of Abdullah Öcalan, the jailed leader of Kurdish militant group, the PKK. Following a case filed by Abdullah Öcalan, citing multiple articles from the European Convention on Human Rights, the European Court of Human Rights (ECtHR) issued an interim measure halting the application of the death penalty until a final verdict could be released.
The acting government at the time, a coalition of the Democratic Left Party (DSP), Nationalist Movement Party (MHP), and Motherland Party (ANAP), complied with this interim measure and did not execute Öcalan. On August 3, 2002, the coalition government abolished the death sentence during peacetime.
On January 15, 2003, Turkey signed Protocol No. 6 of the European Convention on Human Rights (ECHR), which requires parties to restrict the application of the death penalty to times of war or “imminent threat of war.” Turkey finally ratified Protocol No. 6 in November, 2003 and it entered into force on December 1, 2003.
The 6th Protocol was signed and ratified by all 47 member states of Council of Europe except Russia, which signed but did not ratify the Protocol.
The exception of war and “imminent threat of war” cited in the Protocol was then abolished in Protocol No. 13 to the ECHR, which provides for the complete abolition of the death penalty. Protocol No. 13 was signed by 45 member states of Council of Europe, excluding Russia and Azerbaijan. It was signed but not ratified by Armenia.
Turkey signed the Protocol No. 13 in 2004 and ratified it in 2006. The Protocol entered into force on June 1, 2006 in Turkey.
The President said in an interview with CNN that if parliament votes for the reintroduction of the death penalty, he would approve this measure. European Union Foreign Policy Chief Federica Mogherini has said that the “Introduction of death penalty would mean immediate suspension of accession talks,” however. Jean-Claude Juncker, president of the European Commission also stated that Turkey’s bid to join the European Union will come to an end if death penalty is reinstated.
Meanwhile, Greek Foreign Minister Nikos Kotzias also warned Turkey against restoring the death penalty and in an interview with Realnews newspaper said that “Turkey should show self-restraint and not reinstate the death penalty.”
The proposal also drew criticism from human rights organizations. “It should be acknowledged that the human rights and democracy defenders will oppose the reintroduction of death penalty” said Turkish Human Rights Foundation (TİHV), in a statement citing international law.
The President repeated his promise to back calls for the reintroduction of the death penalty during a cross-party rally on Sunday, in which main opposition Republican People’s Party (CHP) and MHP joined the ruling AKP. “If the nation makes such a decision, I believe political parties will abide by this decision,“ Erdoğan said
The CHP remains reluctant to reintroduce the death penalty however, with Kemal Kılıçdaroğlu, the leader of the party, calling the discussions “a troubled situation”. Kılıçdaroğlu said that ”Erdoğan knows that death penalty cannot be applied, he is just adding fuel to the fire”.
In the meantime, the MHP has said they will back the reintroduction of death penalty for “putschists and terrorists”. The Peoples’ Democratic Party (HDP) completely opposes it however.
Despite bold statements from the President, the reintroduction of the death penalty will not be easy, either legally or politically. A constitutional amendment made in 2004 in the Article 90 provides that in the case of a conflict between international agreements concerning human rights issues and domestic laws, due to differences in provisions on the same matter, the provisions of international agreements shall prevail.
This creates a constitutional paradox for any possible regulation on the reintroduction of capital punishment, as it will be inherently contradictory of ECHR protocols. .
Additionally, there is the problem of retroactivity as multiple legal scholars have pointed out: penal regulations cannot be applied retrospectively. Human rights professor Kerem Altıparmak stated in an interview that even in a state of emergency or a state of war, retroactive punishments cannot be applied according to the 15th article of the Turkish Constitution. This view is shared by some pro-government scholars as well, as constitutional law professor and presidential adviser Burhan Kuzu states, arguing that applying the death penalty retroactively does not seem possible.
The death penalty is currently outlawed in 102 countries around the world, including Turkey. As has been noted by the President, multiple countries including China, the US, and Japan still have capital punishment however.
The death penalty is unlikely to be debated in parliament before autumn, at which point calls for its reintroduction may have dissipated. A further issue remains regarding Greece’s potential extradition of the eight Turkish military officials currently seeking asylum. Under European law, Greece would be unable to extradite them should the death penalty be reintroduced. This may encourage Turkey to delay, or else not reintroduce capital punishment.
As it stands, around 18,000 people have been detained or arrested for links to the attempted coup. Given the restrictive legal issues surrounding capital punishment, it appears unlikely that detainees can be subject to retroactive punishment. Regardless, human rights groups and observers have declared this would be a major step backward, especially for a country once on track for EU accession.