This article was published in June 2009.
1. Special Court and Interference of Government
It is unquestionable that special courts are against the fundamental norms such as neutral judge, independent judiciary; essential human rights principals and key provisions of constitution. Other dimensions of the case are as threatening.
The government is a party to this case. The Prime Minister announced that he is the public prosecutor of the case. It is publicly known that members of the government being in the first place Minister of Justice, has suppressed and guided the courts with different mechanisms.
The Prime Minister and The Minister of Interial Affairs stated that they established special court in Silivri which they conducted special investigations. Special court and special investigation confessions are repeated in the formal booklet of ruling party by specifically referring to the Ergenekon Case.
Despite the fact that the case is on trial, members of the government states by neglecting the presumption of innocence, making statements as if they reached the final judge; and also broadcasting news in state television in this direction have become an ordinary incident.
Despite there are no objective necessity such as security, trials take place behind wire fences, under high security prison conditions in Silivri Prison Compound which is 100 km away from the city. These conditions abolish the publicity of trials. The location of the compound poses problems in terms of time and cost; for citizens who want to follow the trails, for the defendants who are not under arrest and above all for the defenders to fulfil their duties.
The act of detention which should be precautionary and exceptional has become fundamental in this case.
The status of detention of defendants is prolonged with abstract statements such as “current evidence status”; however, for detention evidences should be gathered, evidence obfuscation should be possible or there should be suspicion for desertion. Furthermore in this case defendant’s social status is disregarded. Hence, detention turned into extra judicial execution with detention time exceeding three years. There are also different and discriminative implementations for defendants in terms of detention rulings. For instance, the suspect who is accused of being head of organization is tried without detention; on the other hand, another suspect who is accused of aiding the organization is tried with detention. The majority of defendants who are in the same position and being tried in a court because of the same clauses are tried without detention; however equals are tried under detention for years. Moreover the reason for some defendant’s tried without detention is explained with their social status; however the ones in the same social status are still under detention. Doğu Perinçek is an example to three of those situations who is still under detention.
4. Unlawful Detention
Besides unjust detention, there are also unlawful detentions. The most striking example is those respondents Nusret Senem and Hikmet Çiçek, who are still detained since the first court hearing. Senem and Çiçek were taken under custody on 25 March 2008 and subsequently were detained.
The proceedings that have been served against Senem and Çiçek do not emanate from Turkish Penal Code.
Senem and Çiçek’s incarcerations are not based on allegations that have been made against them.
The indictment was passed on 25 July 2008 and they have been in prison unlawfully ever since.
The head of court’s proposed and voted for their release. However this decision was challenged by other members resulted in imprisonment. The legal terminology of this is not ‘incarceration’, but a ‘restriction of the right to live in freedom’.
5. Limitless Authority of the Prosecutors
As if other special competent prosecutors and courts does not exist and they are competent nationwide; the special competent prosecution offices and courts in Beşiktaş are holding litigation. Litigations in these special courts and prosecution services are totally irrelevant to Turkish Penal Code. From the courts and prosecution services in Beşiktaş many orders such as arrest, capture, search and interrogation are dispersed to all parts of Turkey. In this point, other district courts face with excessing of authority. This situation has been identified as unlawful by The Supreme Court of Appeals and The Supreme Council of Judges and Prosecutors.
6. Unlawful Search
Almost all search warrants that have been served in homes and offices were unlawful. Ankara Chief Public Prosetor’s Office concluded that the search in the Workers’ Party Headquarter was unlawful. Prosecutor’s Office and fellow members of Ankara Law Faculty, Criminal Law Department have presented a report which explains the unlawfulness of the search warrants and they have filled a criminal case against the police officers who carried out the searches.
The indictment reflects that documents were unlawfully seized. The Public Prosecutor’s Office reminded documents which were unlawfully seized are ‘unlawful pieces of evidence’ and these shall not be examined and will not be considered in relation to the judgment.
Matters held in the Indictment:
– It Is Illegal to Seizure the Computers
The search and confiscation warrant issued by the 11th High Criminal court of Istanbul did not indicate for computers, computer software and computer files to be searched or seized. However police officers carrying out these searches has searched through computers and seized their hard disks. In addition to this in written reports there was no information about computers or their files being password protected. In accordance with the Code of Criminal Procedure, “Computers should be investigated at the crime scene unless they were password protected. Computers without password protection shall not be seized however hard disks of these computers could be copied in due process of law.”
Chief Public Prosecutor Office of Ankara has determined that the practices carried out are against the search warrant as well the Code of Criminal Procedure.
– Searches Carried Out during Night Time Is Contrary to the Search Warrant
Although, permission to carry out searches during night was given, there were no clear grounds for this to be necessary, therefore the search and confiscation of goods at night was not lawful.
– It Is Illegal to Prevent Entry of Party Officials to the Building during Searches
It was illegal to prevent entry of party officials to the building which was under search.
One hundred police officers participated in searching of the 7 floor building consisting of 57 rooms. In the indictment, the Chief Public Prosecuting Office of Ankara determined that it was contrary to Code of Criminal Procedure to prevent party officials and lawyers entering the party building while there were 100 police officers searching the entire building.
– It Is Illegal to Move Doğu Perinçek away from the Party Building during the Searches
“…in addition, it is contrary to the article 120 of the Code of Criminal Procedure that Doğu Perinçek, the Chair of the Workers’ Party, who is directly related to the venue under search and being a suspect has not been allowed to stay in the building, and he was arrested and immediately taken to the Police Station shortly after the search started.
– It Is Illegal not to Provide Documents to Party Officials to Sign Out for Goods Being Confiscated
There are articles in Code of Criminal Procedure which regulates that the owner or those who were assigned are responsible to sign the goods which are confiscated in the investigation. The aim of this regulation is to prevent any conflict that could arise from designation of the owner of the confiscated goods. However, Workers’ Party officials were not provided with any documents to sing off for goods that were confiscated during the search of Workers’ Party’s Headquarters. This situation, which is contrary to the Code of Criminal Procedure, takes place in the indictment of the Chief Public Prosecutor’s Office of Ankara.
– It Is Illegal for an Istanbul Court to Issue a Search Warrant
The search warrant for the search of Workers’ Party’s Headquarters in Ankara was issued by the Istanbul 11th High Criminal Court. In accordance with article 161/1 of the Code of Criminal Procedure, search decision which will take place in Ankara given by the prosecutor from Istanbul should be taken from Ankara Courts through the Prosecution Office of Ankara. The search and confiscation warrant issued by Istanbul Court against Workers’ Party Ankara Headquarters at 20.03.2008 is contrary to Code of Criminal Procedure.
7. Open Ended Investigation
Both investigation and prosecution is carried out at the same time. While the court trials are carried on, the prosecution office and police carries out investigations on the same matter even on the same accused individuals. While this is contrary to procedural law it also makes it impossible to carry out a fair trial.
In accordance with article 160 of the Code of Criminal Procedure, once having an impression that there is a criminal activity the public prosecutor immediately starts to investigate in order to find out if there are grounds to initiate a public prosecution. Therefore in order to investigate the material truth the public prosecutor will start to gather evidence in favour and against the suspect via the law enforcement agencies in order to protect the rights of the suspect and ensure that a fair court trial could be carried out. This is called the investigation stage.
An indictment is prepared; if evidence gathered by the end of the investigation stage forms adequate suspicion that a crime has been committed.
According to the article 170, points not only disadvantageous to the suspect, but also points in favour of him are alleged in the conclusion part of the indictment.
The indictment prepared without having been gathered concrete evidences, should be returned. In this case, after the deficiencies have been corrected, if it is necessary a new indictment is prepared. (Article 174)
With accepting the indictment, the case begins. The “investigation” ends and the “prosecution” begins. (Article 175)
Even though, according to the article 207 of the Code of Criminal Procedure, the request of presenting of new evidences cannot be declined because it is stated late, the replacement of the present evidences and gathering new evidences after the “prosecution” has begun is the duty of the chief judge and judges. (Article 192)
The “extension of inquiry” institutions are created because of this.
After the “investigation” stage ends and the “prosecution” stage begins, the public prosecutor cannot directly gather new evidences about the relevant incident, he has to request it from the court. According to the article 217 of the Code of Criminal Procedure, the judge can base his judgement only on those evidences stated in the indictment or on evidences provided later by the extension of the investigation under his supervision and discussed in his presence. The opposite, described by the public as an “open ended investigation”, means that the “prosecution” and the “investigation” is continued simultaneously which is a state where the “judgment” is actually carried out by the security forces via the public prosecutor.
8. Illegal So-called evidences
On the basis of the claim, almost every document and information alleged as evidence of guilt are illegal. So-called evidences, which are acquired by illegal searches, unlawful wire-tappings, etc. have to be ignored and it is indisputable that it cannot be the basis of a sentence of the court. Considering that almost every search was unlawful, there are few “evidences” that can be taken as a basis for a sentence.
The most important and striking example for an illegal evidence is the “Tuncay Güney Interview”. The statements of Tuncay Güney are the most important, the base and moreover the single evidence of the “Ergenekon” claim. Beside that the Tuncay Güney statements are taught lies and slander, in the Code of Criminal Procedure there is no statement taking style called interview. There is also no evidence with this name. It is uncertain by whom the T. Güney interview was made. There is no interviewer name and signature under it. It does not appear in official registers. And yet the public prosecutors took the Tuncay Güney Interview as the “base evidence” in their indictment.
On the other hand, it was confirmed by the court himself that the Tuncay Güney Interview was acquired on illegal ways. The Istanbul 13th High Criminal Court presented a criminal report against the police officers who made the “interview”.
9. Assertions which Are Not Linked to a Legal Conclusion in the Indictment
The indictments include claims which are contrary to facts according to the ruling of the court and official documents. After these points had come to light once more during the prosecution, the public prosecutors explained with the excuse that these claims, which they had propounded in the indictment, were “not linked to a legal conclusion in the indictment”. Bu if it is looked to their places in the indictment one by one, it is seen that all these claims are propounded as evidence of guilt.
It is unlawful to use claims “not linked to a legal conclusion” in the indictment. Indictments are not slander texts with assertions “not linked to a legal conclusion”.
It is an example for this, that 10 claims about Doğu Perinçek put into the indictment in the same way were withdrawn by the public prosecutors with the reason of “mistake”.
10. So-called Evidences Hidden from the Defence
During the investigation and prosecution some “evidences” and especially those in favour of the accused, in this sense gaining status as an evidence of the defence, were hidden from the accused by the public prosecutor and judge.
A typical example is the MIT’s (National Intelligence Organization) “Ergenekon Scheme”. Prepared by the MIT basing on the Tuncay Güney Interview and including 69 names, the “Ergenekon Scheme” was not given to the defence by the court. The reason for not giving the scheme was “secrecy” and “to protect the prestige of the persons mentioned in the scheme”. But this scheme has become an evidence of the defence. When this scheme ravels out, the conclusory of the case will come up certainly and clearly. On the other hand, according to the article 182/2 of the Code of Criminal Procedure, there isn’t a legal basis to hide documents in public trials from the defence that aren’t hidden even in non-public trials. Those documents, being in the possession of the prosecution who makes them a base for the claims and which will affect the case essentially, cannot be hidden from the defence on the pretext of “secrecy” and “protecting prestige”. The opposite is against the principle of the “equality of armaments” and means the restriction of the defence.
According to the article 217 of the Code of Criminal Procedure; “The judge can base his judgment only to those evidences brought to the court and discussed in his presence.”
In the article 209/1 of the Code of Criminal Procedures it is said; “… documents and other texts which are going to be used as evidences… are read in the trial.”
As understood from the provision of the Code of Criminal Procedures; “under the condition of not harming the defence rights, the procedure during the investigation stage is kept secret”; it is restricted with the “investigation stage” and the “procedure” only. Also according to the article 10 of the Law number 3713, the regulations regarding secrecy are pertaining to the investigation stage; they cannot apply to the prosecution stage.
There isn’t any provision in the Code of Criminal Procedures about prosecution which can be carried out in secrecy. Moreover, in the article 125/1 of this law it is said that “documents containing information about a crime phenomenon cannot be concealed from the court, even it is a state secret”, and in the 2nd paragraph of the mentioned article it is set forth that even “documents containing state secrets” has to be analysed by the judge and information in the documents has to be recorded in the protocol. Besides, the mentioned document is not a “state secret”. The MIT has stated in the prologue of the above named scheme that this scheme was prepared according “to the analyse of an unnamed letter and 6 CD’s sent to them” and from “the statement of Tuncay Güney İpek and the investigation of the claims on the web site ‘gercekergenekon.com’”. It is not possible to accept those as “state secrets”.
It is an inevitable necessity that the evidences, documents and information are not hidden from the defence. The defence cannot have any excuse for not knowing the evidence which public prosecutor knows.
On the request of the public prosecutors the judge decided to wire-tap the home telephones of Doğu Perinçek and Ferid İlsever for 3 months from the beginning of February 1st , 2008. Perinçek and İlsever were arrested on the 24th of April, 2008. The decision of wire-tapping was extended after their arrestment on April 30th, 2008 for 3 months.
During this period the investigation was finished, the case was opened on the 10th of July, 2008; the indictment was accepted by the Istanbul 13th High Criminal Court committee, where Judge Hasan Hüseyin Özese is a member; the day of trial was set and it was decided on the 24th of July, 2008 that the imprisonment should continue.
While the prosecution has begun, Hasan Hüseyin Özese, who is a member of the 13th High Criminal Court which is hearing the case, extended the wire-tapping of the home telephones of Perinçek and İlsever, who were imprisoned at this date, a second time on 29.07.2008 by the request of the Intelligence Department Directorate of the Istanbul Police Directorate. In the sentence mentioned, it was alleged that Perinçek and İlsever’s “terror organizations were active on legal or illegal area”, and it was decided to wire-tap their home telephones to “determine and to prevent their planned actions”, although they were in prison on this date. It is impossible to explain on juridical way or with intelligence the wire-tapping of the home phones of people who are imprisoned.
Considering that Perinçek and İlsever were in prison on this date, wire-tapping the home telephones, means that the phone talks of the family members who were living there, were wire-tapped illegally for many months.
On the other hand, while it is stated in our legislation that the judge who takes place in the investigation stage cannot be appointed in the prosecution; it is impossible that a judge appointed in the prosecution can decide to wire-tap the home telephones of the accused by the request of the police. It is the authority of the court to gather evidence during the prosecution stage. With this sentence, the authority will be turned over to the police.
12. So-called Evidences That Were Altered
Many claims in the indictment are not based on the evidence itself, but on the fictitious claims which are derived from the evidence. The Tuncay Güney Interview is the most striking example for this. The Interview Summary, which is mentioned as “16 pages long police work” by the public prosecutors, has altered Tuncay Güney’s Interview in many parts, moreover it includes some fictitious claims.
13. Obfuscation of the Evidences In Favour of the Defence
The evidence, which came out during the “prosecution”, were hidden and obfuscated in the investigations, which are parallel to the prosecution, and in new indictments.
For example, although many matters of accusation in the first indictment proved in the sentence of the first case and in official documents that they are not plausible, the same claims were found in the following indictments.
Likewise, subjects proved decisively in the first case, became a current issue in the second case, where the same judges were on duty, and other accused were questioned as it wasn’t discussed and solved in the first case.
While the “possibility of the obfuscation of the evidences” is a reason for imprisoning the accused; the public prosecutors are obfuscating the evidences.
14. Judges Should Not Insinuate Their Opinions
The judge should not show his opinion before or during the case. If the decision is given contrary to this principle, it is regarded as an unlawful decision.
The judges’ hostile behaviour against the accused and their insinuation of their opinions has been determined. Although their withdrawal has been demanded they insisted on judging the case.
In the above mentioned sentence of wire-tapping the home telephones of Perinçek and İlsever, Judge Özese stated that the purpose of the wire-tapping was “to determine their planned actions” within the context of Perinçek and İlsever’s “terror activities”. This is insinuation of their opinion. A judge stating that these prominent personalities, who are publicly known and are imprisoned, “are planning actions within the area of activity of the terror organization” and who decide to wire-tap the home telephones of them cannot lead a fair trial.
While a judge, who receives the request of wire-tapping, should say “I am hearing the case; I cannot do an investigation proceeding, I cannot decide on this; otherwise I will have insinuated my opinion unlawful”, it is impossible to associate this with the profession of judgeship and with the reliableness of the judiciary.
Another example is this;
On the 13th of April 2009, within the investigation of the case known as Ergenekon, tens of intellectuals and youngsters, including university rectors, were detained. The homes and offices of the detained and the official buildings of the universities were searched. On the search and the decision of detain it was stated;
“…According to the gathered evidences, two different public cases were opened and in these investigations it has been understood that the following actions has been committed:
– bombing the newspaper Cumhuriyet on 05.05.2006, 10.05.2006, 11.05.2006,
– armed attack against the State Council on 17.05.2006, where Justiciar Mustafa Yücel Özbilgin was killed and two justiciars were injured,
– secret documents were found on the suspects; assassination plans against the members of the judicial council were captured; outrageous assassinations against many journalists and the Prime Minister were planned,
– it is confirmed that the Ergenekon terror organization had practised the mentioned actions; with the comment of the Security General Directorate, Ergenekon organization is described as a terror organization,
– assassination plans against Armenian and Alawite community leaders were found,
– the anti-aircraft ammunition was captured which was planned to be used against the Prime Minister R. Tayyip Erdoğan’s plane while it was landing,
– it is clearly understood that the organization tried a coup,
– it has used NGO’s and academics under his effect to realize the coup…”
The enacting judge knows that the cases against the actions which he said “has been understood to be committed” are continuing. It didn’t proceed yet into the stage of gathering evidences and analyzing them. The enacting judge, sentenced for “searching and detaining” in a case on trial as if the decision was made, the punishment was set and formally charged. Moreover, as a member of the Istanbul 13th High Criminal Court, which prosecuting the case; with ignoring the case on trial, disregarding the basic rules of law he behaved like the court and made the imprisonment sentence, as if the accusations were proved and the sentence made…
15. Judgement of Political Parties
Political parties conduct activity under the assurance of the constitution. This assurance is arranged as the assurance of democratic process in the constitution and the Law of Political Parties (LPP) in form of peremptory rules.
In our legislations, acts of the political parties could be pursued and supervised by the Republican Prosecution of Supreme Court. And Constitutional Court is designated as judgment post in a condition of parties’ violation of prohibitions counted in Constitution and LPP.
While a political party violates prohibition, Republican Prosecution of Supreme Court has to investigate and if it is convinced that sanction is needed, it has to bring an action against the party at the Constitutional Court and if the claim is recognized, some sanctions including closure could be imposed.
Criminal Courts could act only after this point. Criminal investigation against the party that sanction is imposed on the directors whose acts caused sanction could be held. That is to say, act would be determined by the Constitutional Court and criminal investigation and penal prosecution could only be doable after that.
But in the Ergenekon investigation, procedure progresses reversely. Public prosecutors replace themselves with Chief Public prosecutor of Supreme Court, and Court masquerade as Constitutional Court.
Legal acts of Workers’ Party (Turkey) are tried to be judged in Ergenekon trials.
Chairman and secretary-general are being judged due to acts of party. Fundamental documents and decisions and public declarations of central bodies of party are taken as allegation matters.