Hukuk Güvenliği İlkesi Bağlamında Askeri Yargı

While the judiciary is regulated in the third chapter of the Constitution, Articles 138–160, military justice was (at the time the article was written) regulated in Article 145, which provided that it would be exercised by military courts and disciplinary courts; Article 156 regulated the Military Court of Cassation and Article 157 the High Military Administrative Court. At that time both the scope of the military courts' jurisdiction and the very question whether they should exist were matters of debate, and it was these debates that prompted the article. A further reason for choosing military justice as the subject was the view that, although Article 2 of the Constitution declares the Republic of Türkiye a state governed by the rule of law, the Military Criminal Code and the Law on the Establishment and Trial Procedure of Military Courts contained matters irreconcilable with the rule of law and the principle of legal certainty.

The assessments are made in respect of military criminal justice, not military administrative justice. Owing to the breadth of the subject, the article was published in two parts.

Military criminal justice was assessed as one of the most contradictory branches of the Turkish legal system: a person placed in uniform was asked to be at once soldier and judge — to carry both the sense of command hierarchy and the sense of justice. The military judge was obliged, by virtue of the uniform, to perform certain military duties without question (saluting, outside the courtroom, a superior whom he was trying), while as judge he could not perform certain duties (investigation or prosecution, for instance) without questioning. This contradiction is discussed in the article.

As to the existence of military criminal justice, examination of the case-law of the European Court of Human Rights establishes that the Court is not, as a rule, opposed to the existence of military justice, but requires observance of fair-trial principles in the proceedings — and is categorically opposed to the trial of civilians by such courts.

The article opens with a brief assessment of the concepts underlying the study — the rule of law and legal certainty. It then examines the position of the Military Criminal Code vis-à-vis the general criminal code and the matters in it considered problematic from the standpoint of the fair-trial principle. The types of military offence and of sanction are explained; the military courts are assessed from the standpoint of the unity of the judiciary; and the article closes with a discussion of the fundamental defects of the procedural law directly bearing on substantive criminal law.

The assessments touch on all the problems of legal certainty then existing in military criminal justice, discussing the judicial decisions and doctrinal views on them. The conclusion: the Military Criminal Code of 1930 and the procedure law of 1963 no longer met the needs, harboured numerous provisions contrary to fundamental human rights and the requirements of the rule of law, and failed to secure even the appearance of justice — their complete revision was therefore imperative. In that revision, the armed forces' need for discipline and the independence and guarantees of the judge would have to be spelt out anew in detail. It is explained that offences other than military offences have no place in the Military Criminal Code; that in criminal procedure there is no need for a separate military procedure law; that the procedure whereby the commander gives the order to investigate should be abolished; and that the word "military" before the title "judge" should be removed.

The closing word: legal arrangements must be made without delay to balance discipline — vital to the armed forces — with justice, vital to fundamental rights and freedoms; to end the victimisation of military personnel; and to reshape military justice from the ground up.