The Parliamentary Inquiry Commission has made its expected decision by not sending the four former ministers who resigned due to the Dec. 17 and Dec. 25 anti-corruption operations to the Constitutional Court to be retried. The Supreme Court is the name the Constitutional Court adopts while trying politicians and high-ranking bureaucrats as a penal court.
According to Article no. 148 of the Constitution: "The President of the Republic; members of the Council of Ministers; presidents and members of the Constitutional Court, the High Court of Appeals, the Council of State, the Military High Court of Appeals, the High Military Administrative Court of Appeals; their Chief Public Prosecutors, Deputy Public Prosecutors of the Republic and the presidents and members of the Supreme Council of Judges and Public Prosecutors and of the Audit Court shall be tried for offences relating to their functions by the Constitutional Court in its capacity as the Supreme Court. The Chief of General Staff, the Commanders of Land, Naval and Air Forces and the Commander of the Gendarmerie Forces shall be tried for offences relating to their functions by the Supreme Court."
The ministers can only be tried by the Supreme Court for offences relating to their duties. It is not the prosecutor's office, but Parliament that conducts the investigation that is required to try them at the Supreme Court. Therefore, in the proceedings which the prosecution initiated upon the criminal act data filed to it, the prosecution immediately ends the investigation at the moment it realizes that the act is alleged to be an offence by a minister and related to ministerial duties. It directly submits all the data and documents it has to the Parliamentary Speaker's Office, since Parliament is the only competent authority to conduct the investigation in those circumstances.
The Parliament speaker informs the General Assembly on the data it receives. With the motion submitted by at least 55 Parliament members, the launch of an investigation of the relevant minister can be demanded. A commission is founded after the General Assembly accepts this motion. This commission is required to conduct an impartial investigation just like a prosecutor. Therefore, a commission is formed from the deputies that have not given an opinion on the relevant act and it is determined by lot in proportion with the number of seats political parties have in Parliament. This commission functions for four months and, if necessary, its operation period can be extended by an additional two months.
Subsequently, a decision is made on sending the relevant minister to the Supreme Court. This is not a final decision, but a proposal for the General Assembly. Eventually, the General Assembly decides to send or not to send the minister to the Supreme Court with a secret ballot. If the decision is to send to trial, the decision itself replaces an indictment by a prosecutor.
As the decision of sending a government figure to the Supreme Court is submitted to the Constitutional Court, the Constitutional Court operates in the capacity of the Supreme Court and conducts and finalizes the case according to the verdicts of criminal procedure.
Even if the commission decided that there was not enough evidence to send the four ministers to the Supreme Court, the General Assembly of Parliament can send the ministers to the Supreme Court with an opposite decision. However, in this case, it seems to be a very slight possibility.
A decision not to prosecute was made as a result of the prosecutor's investigation into the individuals with the same charges. This means if those people who were not ministers were not prosecuted, a decision not to prosecute would have been given for the ministers as well and no legal proceeding would have been made regarding it. Therefore, the decision of the Parliament's Inquiry Commission functions to confirm the decision of prosecution. Furthermore, since the Dec. 17 and Dec. 25 operations were illegal and organized by militant prosecutors and police officers affiliated with the Gülen Movement, the operations are highly dubious.
Additionally, even if there were no doubts regarding the operations, a parliamentary decision against the ministers is not very probable when the actions of the Gülen Movement are regarded as part of an attempt to overthrow the government rather than a quest for justice.
About the author
Osman Can is a Law Professor and Reporting Judge at the Turkish Constitutional Court. He holds a PhD from the University of Cologne, Germany.