WE WOULD LIKE TO INFORM YOU ABOUT THE UNLAWFUL PRACTICES WE ENCOUNTER IN THE 2007/339 NUMBERED CASE TRIED IN
ISTANBUL 2ND and 3RD CRIMINAL COURTS OF 2ND INSTANCE
Important Reminder:
I ask you to study the statements in this notice thoroughly. This is a very significant matter, please do not say that ‘this does not concern me, I am not interested’. As the enforcement of law is truly important. This is an experience of law, you too might need. You might face a similar situation someday. I hope you approach the matter with this point of view and give it the attention it deserves.
Regards,
Last hearing of the 2007/339 numbered case was held by Istanbul 2nd Criminal Court of 2nd Instance on 01.04.2008. The prosecutor declared his legal opinion about the merits as: Demanded on behalf of public; due to not proven allegations of forming a crime ring, regarding defendant Adnan Oktar and being the administrator of this ring, engaging in activities on behalf of this crime ring regarding other defendants, ACQUITTAL OF ALL DEFENDANTS INDIVIDUALLY from the alleged charges in accordance with TCCP (Turkish Code of Criminal Procedure) 22/2nd.
The case proceeds based on legally invalid statements signed under duress at the police security headquarters. Despite the legal opinion of the Public Prosecutor demanding acquittal, all the concrete evidence in favor of defendants in the case file, legal expert reports and witness testimonies, this case has not been still concluded with acquittal.
The violations of law observed in our case ongoing for nearly 8 years have recently increased. The unlawful practices we encounter today may befall others tomorrow. We feel the urge to inform you about these unlawful practices since we do not want them to remain secret.
The indictment of BAV (Science Research Foundation) is based solely on statements taken under torture in the police security headquarters without the presence of attorney. Considering the invalidity of these statements and the non-existence of a single evidence that would confirm the allegations, State Security Court Number 3 and State Security Court Number 4 previously concluded that the case in question does not have elements that could be evaluated in the content of the Code 4422. 9 seperate courts, including the courts in question, verified this verdict. The 5th Chamber of the Supreme Court of Appeals, on the other hand, confirmed the verdict. In the light of this verdict, İstanbul 2nd Criminal Court of 2nd Instance issued the verdict of statute of limitations in the year 2005 for all defendants. Despite being legally obvious and definite, the 8th Chamber of the Supreme Court of Appeals reversed this verdict. In order to reverse the statute of limitations, it decided the case to be tried within the context of the Code 4422.
The only basis for the 8th Chamber of Supreme Court of Appeals to reverse this verdict are the fake statements signed by defendants under duress at the police security headquarters WITHOUT THE PRESENCE OF ATTORNEYS. During the hearing held on 29.02.2008, the Chairman of the Istanbul 2nd Criminal Court of 2nd Instance accepted the invalidity of the statements with the words, “The statements taken through forbidden methods can not be considered as evidence according to Code of Criminal Procedure 148.” Howeverjust one hearing later, it decided to adhere to the reversal decree taken by the 8th Chamber of Supreme Court of Appeals based solely on invalid documents.
Despite the fact that Istanbul 2nd Criminal Court of 2nd Instance tried the case for more than a year based on the Turkish Criminal Code 313 and concluded the case with statute of limitations, during the recent hearings the decision changed abruptly. Setting aside all the evidence examined, all the witnesses heard, the expert reports, documents and claims, the verdict of acquittal and all convictions regarding the issue, the court suddenly adhered to the verdict—despite its acknowledgement of the fact that it is unlawful—of the 8th Chamber of the Supreme Court of Appeals.
The reversal decree of statute of limitations given by the 8th Chamber of the Supreme Court of Appeals given on 17 May 2007 was leaked to the media 5 days before it was sentenced and the publishings targeting the BAV (Science Research Foundation) circle appeared in newspapers and televisions. During the time these news appeared in the media, the 8th Chamber of the Supreme Court of Appeals told the defendant attorneys that such a decree did not exist. 5 days after this information, the decision was declared officially. No doubt what has been experienced during this process are major violations of law.
After the reversal decree of the 8th Chamber of Supreme Court of Appeals, Istanbul 2nd Criminal Court of 2nd Instance reached the verdict of lack of jurisdiction. However, 5th Chamber of Supreme Court of Appeals, which was evaluating the case, revoked this verdict. According to the verdict of the lack of jurisdiction of State Security Court Number 3, which was used as the legal ground of this verdict of 5th Chamber of Supreme Court of Appeals’, the case should be tried according to the TCC article 313. Through this verdict, it is very obvious is that the case is abated. Yet, 2nd Criminal Court of 2nd Instance turned a blind eye to the decree which is the final verdict.
That the statements including groundless accusations about BAV (Science Research Foundation) members taken under torture was certified by 7 seperate forensic medicine reports received from Istanbul University Forensic Medicine Department. The officers who organized these fake statements were pleaded at the bar for “torture” demanding 216 years of imprisonment and this case is still continuing. However the Court Commissionrefused the demand of the defense attorneys to make the ongoing torture case a prejudicial issue.
Istanbul 2nd Criminal Court of 2nd Instance found the claims of the two alleged complainants (Fatih Altaylı and Ebru Şimşek) of the BAV case incorrect and ACQUITTED all the defendants including Mr. Adnan Oktarwithin the file number 2006/26, which is the continuation of the main case. Again in the same court, considering all the evidence and all accusations addressed against him and all other defendants, a defendant tried with the claim of being the administer of the alleged ring was ACQUITTED. Despite this however, the status of Ebru Şimşek as the intervenor in the ongoing main case continued.
Regarding one of the 10 different criminal cases brought against Ebru Simsek on account of defamating BAV members, Kadikoy 2nd Criminal Court of First Instance drew up a writ, addressed to 2nd Criminal Court of 2nd Instance, asking if Ebru Simsek is a complainant in this case. The Commission Chairman answered this question stating that “Ebru Simsek is not among the complainants in our case.” Thus situated, a suspicion arose for what charges the defendants are being tried, by whom the defamations against the defendants about blackmailing have been made, and whose attorney he has accepted to the court and he has consulted with.
The Commission Chairman is infrmed neither master of the file nor of the course of the case. He does not know the date of the statute of limitations. When one of the defendants reminded this during the hearing held on 01.04.2008, the Court, that until then put 3-4 months inbetween each hearings, postponed the next hearing in a hurry to the day after the next working day and asked for the defenses of the defendants. It is obvious that the time, which is less than 24 hours granted to the defendants, is inadequate for defense. No doubt such a short time is not enough for an individual to submit his defense.
The Public Prosecutor expressed his legal opinion about seperating the cases of individuals whose cases are about to face statute of limitations and those who have still 2 years for it and submitted his legal opinion about granting time for defenses. However, the Court Commission did not accept it.
Because in compliance with TCCP Article 326/2, the Supreme Court of Appeal’s reversal decree for the statue of limitations is against the defendants, the opinions of all defendants should be asked about this issue. However, before granting this right to the 4 defendants who are in the country or abroad, the court has come to the process of giving verdict.
In the last hearing, the defense attorneys requested the court to determine in the extent of which article the defense of the defendants is to be taken. It is a most natural right to know for which article one is prosecuted. The Court Commission, however, ruled that “there is no place for a decision regarding the request.”
Thereupon, we informed the Court that we wanted to answer the allegations referred to in the ruling of the 8th Criminal Chamber of the Supreme Court of Appeals and prove our innocence. However, this request of ours was also denied.
In the case in question, a person named Timur Ayan was prosecuted for being an administrator of the so-called criminal organization. Since the decree of the 8th Criminal Chamber of the Supreme Court of Appeals overruling the statute of limitations, his name has never been mentioned in any of the minutes of the proceedings. That this defendant was being prosecuted was totally forgotten by the Court Commission and, even worse, the Presiding Judge did not realize such a grave mistake and had no corrections made.
Presiding Judge Mr. Salih Ozturk stated in his private speeches that he would pronounce punishment for five of those being prosecuted. We have no idea who these five people are, and surely it is at the discretion of the court. However, by declaring around openly that he would give this judgment, his Honor has formed a insinuation of vote. His Honor himself is well aware of such speeches he makes around.
Presiding Judge Mr. Salih Ozturk is far remote from the attention, care and meticulousness required by the office he holds. His Honor is uninformed about the case file. He forgets and confuses the defendants; acts as if objections were raised where in fact they have not been; and expects the defendants themselves to make the calculation for the statute of limitations. He confuses the places, names, events and dates. For example, he rejected the motion to recuse the judges on April 1, 2008 and allowed time for objection. However, even before the defendants have raised an objection, Mr. Ozturk referred the file to a higher court for OBJECTION STUDY. His lack of attention and carelessness is to such an extent that it may shake one’s confidence in Justice.
From then on, Istanbul 3rd Criminal Court of 2nd Instance has also taken part in the ongoing unlawful acts. Whereas, the Istanbul 3rd Criminal Court of 2nd Instance should have sent the file back since there is no petition in opposition to be analyzed, A NON-EXISTING OBJECTION WAS ANALYSED (!) AND, EVEN, REFUTED. This is a grave neglect of duty or misconduct in office.
2nd Criminal Court of 2nd Instance rejected the defendants’ rightful and lawful petitions about the recusation of the judges on the grounds that it “aimed to prolong the trial,” which, in fact, is by no means true. 3rd Criminal Court of 2nd also ruled that the defendants’ motion aimed to prolong the trial. In fact, our trial should proceed in accordance with TCC (Turkish Criminal Code)article 313 . Even considering that the trial is being held in accordance with TCC article 220, there is still a period of 2 years until the end of the trial. These two years make about 24 hearings, if a hearing is held every month. In the final stage, if the hearings are held more frequently this would make 30 sessions, and even 48 hearings if a hearing is held every two weeks. Obviously, that much time and that many hearings are sufficient for the case to be concluded. However, one very important point should be noted here: IT IS QUITE SUSPICIOUS HOW SUCH AN IMAGINARY CLAIM IS JOINTLY PUT FORWARD BY BOTH COURTS. This joint allegation verifies our uneasiness with regard to a fair trial and reveals the situation’s gravity.
2nd Criminal Court of 2nd Instance refused the defendants’ rightful and lawful reasons for refusal on the grounds that it is oriented to “extend the case.” This justification is by no means accurate. 3rd Criminal Court of 2nd Instance also stated in its verdict that the refusal grounds of the defendants is aimed to extend the case. Indeed, our case has to proceed in accordance with TCC Article 313. However, even if it is thought for a moment that it proceeds in accordance with TCC Article 220, there exists 2 years for the termination of our case. If each hearing is held every month, then it adds up to a total of 24 sessions in 2 years. If the hearings are held more frequently at the phase of the last verdict, then the number of hearings may rise up to 30 hearings, and even to 48 hearings if they are held every 15 days. It is obvious that such long time and hearings are more than enough to conclude the case. However one needs to pay attention to one important point: IT IS QUITE DUBIOUS THAT BOTH OF THE COURTS TOGETHER DEFEND SUCH AN IMAGINARY CLAIM. This common claim confirms our concerns related to a fair trial and reveals the gravity of the situation.
In its allied judgment #2008/506, 3rd Criminal Court of 2nd Instance stated that “Some of the defendants in the BAV case rejected the 2nd Criminal Court of 2nd Instance commission because of lack of impartiality.” In fact, defendants stated that the presiding judge Salih Ozturk and the commission member Nuran Yalinbas lost their impartiality, not the entire Court Commission, only these judges were recused. This decision of the 3rd Criminal Court of 2nd Instance is an indication of being incorrect and partial.
This same decision by Istanbul 3rd Criminal Court of 2nd Instance reads “from the point of view that any unlawful proceeding, if any, will be evaluated by the appeal body …” Thus, before all else, 3rd High Criminal Court has revealed a perfect consonance of opinions with Salih Ozturk—the Presiding Judge of the 2nd Criminal Court of 2nd Instance—who openly stated that he wanted to close the case by imposing a penalty on the defendants and that the Supreme Court of Appeals would correct this judgment if necessary, thereby presenting an impression that the purpose is not to prosecute the defendants on a fair ground of the law, but to close the case in a haste. The parallelism of ideas here implies that the judges of the 2nd and 3rd Criminal Courts of 2nd Instance treat the BAV case in a prearranged and partial manner.
Judges of Istanbul 2nd Criminal Court of 2nd Instance have also stated in the same way that “if there’s any unlawfulness in their judgment, the Supreme Court of Appeals would correct it.” If what is implied here is the 8th Criminal Chamber of Supreme Court of Appeals, which already overruled the former ruling with regard to the statute of limitations for the BAV case, then at this point the defendants prosecuted in this case cannot trust in the appeal. The 8th Chamber’s ruling was based on the accounts given by the defendants at the security headquarters under torture and without the presence of their attorneys—which are deemed invalid by law. Despite all warnings, the Chamber ignored this mistake and refused to correct it. Therefore, the defendants in this case cannot accept the option that any unlawful act will be corrected by the appeal body. The unlawful actions, referred to in the words “if there’s any unlawfulness...,” should be corrected by the prosecuting court itself.
As the unlawful acts accrued especially in the last hearings, we demanded to record the hearing on 1st April 2008 by technical device in accordance with TCCP 219th in order to determine and analyse the course of the case. But this demand of ours was refused
Istanbul 2nd Criminal Court of Second Instance, set a foreign travel ban for Mr. Adnan Oktar upon the demands of intervener attoreys as “there is a hearsay”. Inasmuch as the court is seeking for factual evidence, why would they set such a prohibition without questing for factual evidence about this issue? There arose no desire to investigate the source, validity or documents of such hearsay. However, there exists no legal ground for such a decision. Although several applications were made to the court in order to annul this prohibition, these demands were all refused.
Istanbul 2nd Criminal Court of Second Instance refused our recusations that we stated along with our clear legal grounds. However, they subsequently abstained from the case by suggesting that condition of distrust has come into being on the defendants’ side. Under usual terms, although it was very easy and legally necessary for the court in question to accept our demands of recusation, 2nd Criminal Court of 2nd Instance refused our demand and decided to abstain from the case, which is a matter of concern.
The so-called renunciation was sent to Istanbul 3rd Criminal Cour of 2nd Instance. Yet, this demand was rejected with the opinions of only two members without any legal ground. This rejection verdict makes one think that the two members of Istanbul 3rd Criminal Court of 2nd Instance are the guardian of Istanbul 2nd Court of 2nd Instance and are practically in a sense tat “we can think for yourselves better than you do, we are the ones who will decide for you”. However, the judges of Istanbul 2nd Criminal Court of 2nd Instance have stated clearly that they are sure of the defendants’ doubts against themselves. This showed that there is a preset union and collaboration between the two courts and a common judgment.
In the public record written by the Court Commission of Istanbul 3rd Criminal Court of 2nd Instance which rejected the renunciation demand, the pen was unexpected and inappropriate for the ethical fashion of the judge— extremely hostile, deliberate style against the BAV defendants.
The errors made by the Court Commission of 3rd Criminal Court of 2nd Instance so far are as follows:
They rejected an objection which was not given by the defendants yet and formed an insinuation of vote and made a significant legal error.
The Court Commission of the Istanbul 3rd Criminal Court of 2nd Instance examined the renunciation verdict of 2nd Criminal Court of 2nd Instance before reaching a verdict of their own recusation due to the error they made.
Finally, he rejected the defendants’ recusation demand for themselves and sent the file to a superior court without giving any answer to the objections made to this rejection.
For the reasons above, the verdicts reached by the Commission of Istanbul 3rd Criminal Court of 2nd Instance are invalid proceedings.
It is a legal obligation for the judges in the courts to take opinion from the prosecution. Despite this clear obligation, neither Istanbul 2nd Criminal Courtof 2nd Instance nor Istanbul 3rd Criminal Court of 2nd Instance took any opinion from the prosecuion due to recusation demands in our file.
On April 15, 2008, the defense attorney stated to Chairman Zihni Şahin that he wanted to present one copy of the petition of his client addressed to the Secretary of Justice to Istanbul 3rd Criminal Court of 2nd Instance. The content of the petition is about the recusation of the so-called judges. The judges’ decline to take this document is important in showing the extent of the unlawful acts exercised during the course of our case.
On April 15, 2008, Attny. Ceyhun Gökdoğan wanted to present the recusation petition of his client to Istanbul 3rd Criminal Court of 2nd Instance. But the member judges declined to take the petition. So, the attorney stated that the addressee of subject in the first degree is themselves, the clause of the regulation related to this subject is evident and that he demands them to take the petition. The members of the Court Commission raised many difficulties in order not to sign the petition by putting forth a number of unnecessary legal procedures. The attorney in question stated that they should put the legal ground on the petition if they decline to take it. The member Ferda Ünal Akpınar signed the so-called petition since the subject was too much elongated by saying “do not bring me any petition no more.”
The left wing of the organization known in the public as “Ergenekon” puts pressure on the court to close the case against the BAV circle. In the face of all these unlawful acts, what the court had to do was to accept that the file was null according to crime evidence and to acquit the defendants. However, the court obeyed the unlawful act of the Supreme Court of Appeals.
However it would be incorrect for the Supreme Court of Appeals to act in accordance with the rationale, “This is the verdict of the Supreme Court of Appealsand it would be inappropriate for meto object it, though it is flawed.” No doubt the judges of the Supreme Court of Appeals can also err in their verdicts. Local Courts have the authority to correct these erroneous verdicts. The members of the Supreme Court of Appeals who work on at least 2500 cases a day reached a conclusion about this verdict in only 10-15 minutes. Considering that our case record includes 80 files, the members did not have the opportunity to examine so much files in such a limited time. Besides, members of the Supreme Court of Appeals might have thought that the statements signed by the defendants under duress in the police station headquarters might have been given in the presence of attorneys. They may be unaware that we explained the invalidity of these statements and proved this in the public prosecutor’s office or before the presence of the court. For this reason, there exists a verdict that is legally incorrect. However, so far local courts have corrected thousands of erroneous verdicts given by the Supreme Court of Appeals. The correction of this error in our case is also very important.
However we have heard some hearsays from several different resources stating that the Court Chairman says that he will impose a penalty to the defendants. Surely the decision rests with the court. We respect every decision that will be given. However the court should be brave in preserving the rule of law. Anything other than that will cause the corruption of the system of justice and such a corrupted system will most definitely effect the lives of that person, his own children, his family life negatively sooner or later in the end.
