Turkish military high court rejects YAŞ victims' appeals

Hundreds of officers known to be practicing Muslims were dismissed in the late 1990s by YAŞ.

Turkish military high court rejects YAŞ victims' appeals

World Bulletin / News Desk

The Military High Administrative Court (AYİM) recently rejected appeals filed by ex-officers who were dismissed from the military following Supreme Military Council (YAŞ) decisions despite a recent constitutional amendment that opened YAŞ rulings to further judicial review, which was not possible previously.

Hundreds of officers known to be practicing Muslims were dismissed in the late 1990s by YAŞ during its twice yearly meetings to decide on dismissals and promotions following the Feb. 28, 1997 unarmed military intervention that overthrew a coalition government led by an Islamist party.

Most officers were dismissed on the grounds of ambiguous accusations such as “lack of discipline.” At the time none of the officers could file appeals against YAŞ decisions as it was considered the final verdict in legal terms. On Sept. 12 of last year a national referendum resulted in the adoption of a constitutional amendment package that included opening YAŞ rulings to judicial appeal. If appeals by dismissed officers are found to be valid by the military court, they may have their health care and retirement entitlements reinstated.

Recently, former Col. Yümrü Dike and former navy NCO Ahmet Türkan appealed their dismissals. However, the 1st Chamber of AYİM overturned their appeals, saying the two men had been expelled from the military “before the constitutional amendments were adopted.”

However, an appeal filed by an NCO dismissed in 1997 by the Ankara 2nd Regional Administrative Court -- a civilian court -- was accepted. The court demanded testimony from the Ministry of Defense elaborating on the rationale behind the dismissal. The court ruled for the reinstatement of social security and retirement benefits, emphasizing in its decision that the legal basis for the process that had been applied in the case of the litigating NCO no longer existed after the constitutional amendment. The decision was sent to the Defense Ministry on Dec. 28, 2010.

Col. Celal Işıklar, an AYİM 1st Chamber judge, ruled to reject the appeals by Dike and Türkan. In its statement about the ruling, the court cited a very interesting reason. As the new law states that the officers had to apply within the first 60 days of their dismissal -- which was not possible at the time -- the applicants had failed to meet the time limit, therefore their appeals could not be accepted. However, the same court also rejected other applicants who filed timely appeals, basing its reasoning on the non-existence of legislation complying with the constitutional amendments. With this ruling, AYİM has closed the doors to all YAŞ victims. These individuals who have been waiting for the restoration of their reputations as well as social welfare benefits now have to wait for the government to pass laws that will harmonize the current legislation with the newly adopted changes.

A former AYİM member, retired judge Col. Veysi Savaş, commented that this was an extremely erroneous decision. “While it is obvious that the day of filing an appeal starts with the end of the no-appeal situation for YAŞ decisions, this is a shameful decision in the name of law. This is only proof of AYİM making its rulings on the basis of orders from military superiors.”

Retired Col. Durmuş Türemen, a lawyer, said: “AYİM obviously attempted to make its decision here appear as if it was in line with the law, exploiting the legal gap that has occurred as a result of the failure to pass the necessary laws to harmonize with the constitutional amendments. The only thing that can solve these is the harmonization laws that will be passed in this field.”

The officers dismissed during the Feb. 28 process were expelled from the military for praying five times a day and other behavior that confirmed their piousness, including wearing silver wedding bands as the wearing of gold is forbidden for men in Islam. They were suspected of “religious fundamentalism” because of their religious inclinations. Their dismissals not only meant losing their jobs, but also their social security entitlements.

Retired judge Maj. Yusuf Çağlayan said AYİM should have waited for the new laws harmonizing the current legislation with the constitutional changes.

In fact, some of the applicants later petitioned the court asking for a suspension of the decision on their case until after the new laws were passed, but the court ignored these petitions and punished the YAŞ victims once again.

Çağlayan said: “This ruling is in contrast with earlier rulings from the same court in the past rejecting appeals on the grounds that YAŞ decisions were closed to further judicial review. The court has placed itself at odds with itself with this new decision.”

Last Mod: 26 Ocak 2011, 17:20
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