MILITARY CRIMINAL LAW, HIERARCHICAL PRESSURE, AND THE JUDICIAL REVIEW OF DISCIPLINARY SANCTIONS
The Conflict Between Absolute Obedience and Legal Safeguards The military system, by its very nature, is built upon absolute obedience, strict hierarchy, and uncompromising discipline. In this closed ecosystem, an “order” holds the force of law and is closed to debate. However, during moments of crisis where an order conflicts with the universal rules of law, or in the sudden reflexes of personnel under severe physical/psychological pressure, the cold structure of the military hierarchy can leave the individual facing colossal accusations. Although the transfer of military jurisdiction to civilian courts creates the illusion that trials have been civilianized, the structure of the Military Penal Code (MPC) No. 1632—which has fallen behind the times, is closed to interpretation, and contains extremely severe sanctions—maintains its existence. In these disputes, the duty of the law is not to undermine the discipline of the army, but to prevent the concept of “obedience” from turning into a form of slavery that destroys human dignity and fundamental rights through judicial review.
Specific Offenses: Allegations of Disobedience to Orders, Insulting a Superior, and Desertion The most critical aspect of military criminal files is that actions which have no equivalent in civilian life, or are merely considered simple indiscipline, transform into severe crimes (purely military offenses) in the military profession that directly require imprisonment and dismissal from the profession. Accusations such as persistent disobedience to orders, physical assault on a superior/commander, resistance, desertion, or overstaying leave are often drafted into indictments using purely formal logic, ignoring vital details such as psychological burnout (mobbing) at the time of the incident, unjust provocation, or the unlawfulness of the order. Judging a subordinate solely on their momentary reaction, without investigating the systematic degrading treatment (abuse of subordinate-superior relations) they were subjected to by a superior, is contrary to criminal justice.
Strict Administrative/Criminal Practice in Defending Rank and Professional Future Defending commissioned officers, non-commissioned officers, or specialized sergeants caught in the grip of the Turkish Armed Forces Disciplinary Law and the Military Penal Code requires a much more specific mastery of military legislation than a civilian criminal case. Within the scope of a rational legal process conducted, the following steps are taken:
- Inspecting whether the “order” subject to the crime is related to the service within the framework of military customs and legislation (Internal Service Law) to identify unlawful orders (orders constituting a crime).
- Refuting the discrepancy between the material reality and the official reports (often prepared in a biased manner under the pressure of superiors) kept regarding incidents in military premises, utilizing witness statements and guard/duty rosters.
- Taking the procedures of “Separation from the Armed Forces” (dismissal) and rank revocation, which are applied as a result of trials or high disciplinary board decisions, to Administrative Courts for annulment actions on the grounds of violating the principle of proportionality, thereby ensuring the restoration of the personnel’s personal rights and professional dignity. The spirit of defense in military cases is the legal protection of the individual defending the country against the systemic arbitrariness within the system itself.
LAW ENFORCEMENT (POLICE/GENDARMERIE) PROCEEDINGS AND DISCIPLINARY LAW
The Use of Force in Ensuring Public Security and Legal Isolation Police and gendarmerie personnel are the most critical law enforcement forces that actively execute the state’s duty to maintain public order and combat crime in the field, risking their own lives. However, while performing this duty, the vital decisions that must be made within seconds in a dark street, in the middle of an armed conflict, or during a chaotic social incident are subsequently scrutinized and judged in slow motion (frame by frame) in the sterile and risk-free environment of courtrooms. When the incident falls into the public eye or there is media pressure, the initial reflex of the administration (General Directorate of Security / Gendarmerie General Command) is generally not to protect its own officer, but to immediately suspend them from duty to appease the public outcry. These moments, when the individual representing the state in uniform is abandoned by the state itself, necessitate the most rigorous and technical legal intervention.
Allegations of Disproportionate Force, the Law on Police Duties and Powers (PVSK), and the Role of Forensic Sciences At the center of law enforcement trials generally lie the accusations of “exceeding the limits of the authority to use force”, “intentional/negligent homicide and injury”, and “abuse of office”. The Law on Police Duties and Powers (PVSK Art. 16) grants law enforcement a gradual authority to use force (physical force, material force, and firearms). The severity of the attack the officer was subjected to at the time of the incident, whether the perpetrator was armed, and the psychological adrenaline at that moment cannot be understood solely through witness testimonies. Whether a bullet hit by ricocheting or directly, whether the weapon was aimed for a warning shot or at the target, can only be proven to the court panel through three-dimensional crime scene reconstructions, forensic ballistic expertise, and frame-by-frame analysis of camera footage.
Judicial Protection Against Dismissals and Severe Disciplinary Sanctions Law enforcement personnel face not only trials in criminal courts but simultaneously an extremely ruthless administrative investigation under Law No. 7068 on General Law Enforcement Disciplinary Provisions. The legal process at this point must be managed like a double-edged sword:
- Ensuring the officer’s acquittal by technically proving the legal institutions of “legitimate defense” (self-defense) or “execution of a provision of law” in the criminal trial.
- Having the “Dismissal from the Profession” (expulsion) decisions—which are preemptively established by the Police/Gendarmerie disciplinary boards before a verdict is even reached in the criminal file—annulled in Administrative Courts on the grounds of “violation of the presumption of innocence” and “lack of evidence”.
- In unjust disciplinary investigations initiated due to unfounded reports (CİMER, etc.) or personal hostilities of superiors (mobbing), rapidly operating the annulment mechanisms in the administrative jurisdiction to prevent the corruption of the personnel’s record. In law enforcement disputes, the law is the sole armor that prevents the officer confronting the dangers of the street from being unjustly sacrificed before the cold face of the bureaucracy and the judiciary.
INTELLIGENCE LAW, THE CONCEPT OF STATE SECRETS, AND ASYMMETRICAL PROCEEDINGS
The Historical Collision Between the Survival of the State and the Principles of the Rule of Law Intelligence activities carried out for the establishment of national security rely, by nature, on secrecy, operational reflexes that push boundaries, and the shield of “state secrets”. However, in a modern state governed by the rule of law, it is unacceptable for the concept of “reason of state” (the supreme interests of the state) to override universal rules of law and create a zone of absolute immunity and lack of accountability (impunity). Suddenly declaring an intelligence officer a “criminal” due to shifting political conjunctures or bureaucratic conflicts, following a highly risky operation conducted on behalf of the state, means the state is grinding up its own apparatus. On the other hand, allegations that citizens’ fundamental rights have been violated as a result of intelligence wiretaps or physical surveillance constitute the most asymmetrical, “darkest” areas of judicial review, where access to information is most difficult.
The Legal Limits of the “State Secret” Shield and the Right to a Fair Trial Pursuant to the National Intelligence Organization Law (Law No. 2937) and relevant legislation, crimes allegedly committed by intelligence members while performing their duties are directly subject to the investigation permission of the Presidency or the relevant highest authority. The biggest legal dilemma encountered in these trials is that the fundamental evidence (operation orders, intelligence reports) that would prove the defense of the defendant (or the victim) cannot be brought into the court files on the grounds that they hold the quality of a “state secret”. In these disputes, where the principle of equality of arms and the right to a fair trial practically collapse, it is essential that the balance between the individual’s liberty and the state’s secrecy is not left merely to bureaucratic correspondence but is pressured via universal legal jurisprudence (decisions of the Constitutional Court and the ECtHR).
Rational Defense Strategy in Closed-Door Trials In these specific disputes where national security and state secrets are involved, and where even the hearings are held entirely closed (in secret), a highly technical and sensitive legal practice is conducted:
- Denying individual criminal intent by rationally grounding the actions of the intelligence personnel within the hierarchy of “executing a provision of law” and “fulfilling a superior’s order”.
- Ensuring that exculpatory evidence, which is hidden from the court on the grounds of state secrets but is of vital importance for the material truth to emerge, is examined before the panel (or, if necessary, by the panel alone) by invoking the exceptional provisions of the Criminal Procedure Code (CMK).
- Subjecting the damages caused by unlawful intelligence wiretaps or surveillance (violation of the privacy of private life) to administrative judicial review within the scope of the administration’s liability and service fault. The spirit of defense in intelligence trials is to save the individual from being crushed between the cogs of the state while simultaneously protecting the state’s security from populist judicial reflexes.
WORKPLACE BULLYING (MOBBING), HIERARCHICAL DOMINATION, AND PSYCHOLOGICAL DEVASTATION IN UNIFORMED PROFESSIONS
Psychological Violence and Systemic Isolation Under the Guise of Discipline In institutions with strict subordinate-superior relationships such as the Turkish Armed Forces, Gendarmerie, and the Police Department, discipline is the backbone of operations. However, when this hierarchical structure is used as a tool for “mobbing” (psychological harassment) as a result of the personal whims, ideological hostilities, or psychological inadequacies of individuals in superior positions, the concept of discipline turns into a method of torture. Persistent unfounded official reports, disproportionate assignment of guard/duty shifts, belittling the personnel in front of their colleagues, and using the weapon of transfer (reassignment) as a threat are forms of systematic violence aimed not merely at the individual’s professional career, but at their joy of living and psychological integrity. Mobbing in uniformed professions is a severe human rights violation that leads to irreversible consequences, representing the highest risk of suicide due to the victim being armed personnel.
The Difficulty of the Burden of Proof and the Fallacy of “Superior’s Discretion” Proving mobbing within an armed bureaucracy is much more difficult compared to civilian institutions. This is because the unjust actions carried out by the superior (change of duty station, lowering performance scores, demanding a defense) are generally disguised under the “discretionary power” granted by legislation, making them appear completely lawful on paper. In this isolation process, where brothers-in-arms (witnesses) avoid testifying out of fear of the superior, formal reviews conducted by administrative courts solely by looking at paperwork often fall short in resolving grievances. The duty of the law at this point is to bring to light the “bad faith” and “systematic intent” behind that flawless bureaucratic operation on paper through anomalies against the ordinary course of life.
Aggressive Administrative and Criminal Intervention Against Hierarchical Domination To prevent the personnel from being turned into a psychological wreck, all mechanisms of administrative law and the criminal justice system must be operated simultaneously:
- Legally registering the “chain of intent” by having all administrative acts (assignments, performance evaluations, exile-like transfers) that demonstrate the superior using their discretionary power out of personal hostility annulled in Administrative Courts.
- Filing criminal complaints with the Chief Public Prosecutor’s Offices against superiors who perpetrate mobbing with charges of “Abuse of Office”, “Insult”, and “Torment” (Eziyet), thereby escalating the process to a criminal trial.
- Directing claims for severe non-pecuniary damages (full remedy actions) against the administration and the individual perpetrating the mobbing, substantiating the resulting psychological devastation, burnout syndrome, and loss of reputation with psychiatric reports. In these disputes, the law is the art of protecting the personnel, who wears a uniform to protect the state, from the domination of superiors that destroys the “human dignity” inside that uniform.
OPERATIONAL LAW, RULES OF ENGAGEMENT, AND COUNTER-TERRORISM TRIALS
The Use of Armed Force in Conflict Zones and Legal Grey Areas
The activities of security forces participating in counter-terrorism operations, cross-border missions, or urban warfare take place under conditions of irregular warfare where peacetime rules are rendered completely dysfunctional. Operational decisions compressed into a reaction time of a few seconds being judged years later in courtroom halls using static penal codes pushes military and law enforcement personnel into a massive legal vacuum (grey area). The inadequacy of domestic legal equivalents for “Rules of Engagement” and international armed conflict law norms leaves personnel facing the tragic predicament of being accused of “intentional murder” in the courts of the state they defend against terrorism, especially during crisis moments involving civilian harm or debates over the principle of proportionality.
The Limits of Legitimate Self-Defense and the Reality of the “Fog of War”
Events occurring in operational fields dominated by fear, uncertainty, split-second decisions, and chaos—referred to in military literature as the “fog of war”—cannot be evaluated with absolute boundaries as if in a laboratory setting. While errors made during the assessment of whether a target constitutes a threat (e.g., suspicion of a suicide bomber) or allegations of civilian casualties resulting from the use of heavy weapons are examined through criminal law parameters such as “negligence” or “eventual intent” (dolus eventualis), the psychological and physical realities of the operational theater are frequently overlooked. The core argument of operational law is to ground the reaction shown by personnel, based on the intelligence and threat perception available at that specific moment, onto a rational foundation within the boundaries of universal “legitimate defense” (self-defense) and “state of necessity.”
Establishing the Legal Security of Personnel in Cross-Border Operations
The defense of personnel serving in high-intensity conflict zones against administrative and criminal prosecutions requires a flawless analysis intersecting military strategy and criminal law. In this context:
- Proving that the incident occurred within the operational limits of the authority to use force (rules of engagement directives) stipulated in the Counter-Terrorism Law and the Turkish Armed Forces (TSK) Internal Service Law, through operational orders and radio logs (war diaries / ceride);
- Refuting one-sided human rights (NGO) reports regarding conflict zones—where formal crime scene investigations could not be conducted or evidence was obscured—through ballistic science and tactical field realities;
- Ensuring that investigations opened against personnel due to unfounded denunciations or political/social pressures are concluded as swiftly as possible with decisions of non-prosecution or acquittal within the framework of the presumption of innocence and the principle of legal security, thereby preventing a collapse of operational morale.
The defense in operational disputes is the art of ensuring that the individual responsible for the survival of the state at the barrel’s tip is not abandoned by that very state in courthouse corridors upon return.
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