An Assessment of the Ergenekon Case

An Assessment of the Ergenekon Case

Introduction

A new term began for the AKP government with the corruption and bribery operations which started on December 17, 2013 against businessmen, sons of three ministers from the AKP government and several people were taken under custody.[1] Since that day, many more claims of corruption and bribery have been raised. Those corruption and bribery operations have been claimed to reach to first the Prime Minister Erdogan’s son, Bilal Erdoğan and then the Prime Minister himself. It has even been claimed that the list of arrest of multiple business men and Bilal Erdogan was blocked by Prime Minister Erdoğan.[2] The Prime Minister Erdogan and the AKP government has tried to stop these operations by  continuously changing police officer and police commissioner’s places of duty and enacting laws which brings the judiciary completely under control of the government. With the tape recordings that have been published on the internet, claims that PM Erdoğan and AKP government involved in illegal acts; Prime Minister himself and his descendances’ corrupt relations with businessmen and their (PM and the government) constant pressure on the judiciary have found louder voices.[3] Well, are these interventions in jurisdiction only limited to government’s efforts to cover up its corruption. Is AKP’s dark face only limited to those historical claims of corruption and bribe? One of the most sensational cases of AKP’s ruling term was the Ergenekon case of which the Prime Minister claimed that he was the prosecutor himself. Ergenekon case was adjudicated after 6 years-long trial on 5th of August 2013. As it was off the agenda, along with confessions and arguments of Prime Minister, a chief consultant of him: Yalcin Akdogan and other government authorities coming one after another, the Ergenekon case began to be debated again. Prime Minister Erdogan and his ministers began to claim that Ergenekon case and its operations were unjust and plot of Gülen movement just like December 17 operations. The most authorized voices asserted that a sort of a “paralel structure”, a “paralel state” were created in the state itself and many people in Turkey including Turkish army officers were trapped[4] with Ergenekon and alike plotted operations.[5] These claims cannot be easily disregarded.*

In this brief article, I will try to analyze and explain the Ergenekon case as a lawyer. What is Ergenekon case? Was that a just plot as government officials claimed? What happened during the trial? What was the real reality, the truth behind which AKP was trying to hide until it became to get hurt. This article will try to refresh our memory and lighten the reality.

Ergenekon case started on the claim to unveil the “deep state” within the Turkish Republic. Nevertheless, as was evidenced later on, the real motivation was not to eradicate the deep state but to silence all opposing voices against the ruling party. The Ergenekon case, which has been trialed at the Istanbul 13. High Criminal Court, will be gone through appellate review  by the Supreme Court. Well, what we have experienced for this 6 years of period?

How did Ergenekon Case Begin?

Well known “Ergenekon investigations”, began with early morning operations realized by the police forces. A number of intellectuals, journalists, patriots, proffesors were taken into custody after late midnight operations. These people who were taken out from their houses, were the ones who could just go to the police station to testify if they were to be invited. After growing of operations series several people began to be arrested while the fear was instilled among the society. People who were arrested waited for the investigation process to be finalized for months without knowing what they are charged with.  Public on the other hand, was astonishedly witnessing these news that were leaked to the national press everyday. Eventually, Ergenekon case started and many other cases were added into the main case. When we came to the end of the case, 21 Indictments (Appendix 1) were consolidated with Ergenekon case. In addition to those 21 court files, 51 other files that related to social and political actions which impacted Turkey’s recent history began to be investigated by the Ergenekon court. In short, Ergenekon court which was given special authority took the mission of re-writing Turkish Republic’s 90 year-long history.

The fear and panic that were spreaded to the public were too high that people preferred monitoring incidents from a distance. Another reason for people’s stance was the strong interest of the media to the case. The insecure and unjust environment that was created by those courts with special authority, set the stage for special journalists as well. Lawyers that could not reach information about their clients due to the confidentiality order, followed news from newspapers, TV’s to receive the information. Even the information of whom was going to be arrested was declared on the TV monitor before the court decision.[6]

Hundreds of people who could never come together due to their social, cultural backgrounds under normal conditions, were suspected and the society was tried to believed that those people were members of illegal organisation. During 6 years of trial, the court has questioned many official institutions and organisations if they knew anything about the presense of a terror affiliated group.  However, none of National Intelligence Service, Turkish General Staff, General Directorate and Security Affairs, Gendarmarie General Command and many other official institutions of Turkish Republic had such information about that terrorist organisation.

Judicial Mistakes and Biased Implementations During the Ergenekon Case

Being a young lawyer, coming across the Ergenekon Case was unfortunate and disappointing experience for me. Ergenekon Case symbolized a class of “How to violate Criminal Courts Laws?” for a lawyer who recently completed his law education and believed in the fact that all cases are prosecuted within the laws. During the trial, inspite of defence lawyers’ warnings, numerous mispleadings took place. Neither books nor pages are enough to mention all mispleads but it would be useful to underline some striking mispleads here:

  • Every kind of information/documents exchange between the defendant and the lawyer was prohibited during the trial. This prohibition was a clear violation against the Criminal Court Law.
  • Eventhough the main rule is the verbal self defense during the criminal procedure, the court prohibited every right to deliver verbal demands about the method and principles of the case and limited to all demands to be submitted as worded forms.
  •  Questions that were posed by the defendant and the lawyer were blocked under the pretexts ot time, content and number limitations; and after admonitions their microphone’s were shut down.
  • The pressure and threats over the defendants negatively influenced defendants’ defence and their immunity of defence was completely destroyed. There are defendants who were sentenced more than 34 years of prison only because they used their right of defence. Objections of defendants were challenged by courts with long-term enjoins (sometimes from the entire trial) and these defendants were denunciated to Silivri Republican Public Prosecution Office.
  • Microphones that were slouched from the ceiling in the hearing room were recording all dialogues between the defendants and their attorneys and they were used against them.
  • Numerous politician’s interventions on the case and negative claims and comments over defendants manipulated the public opinion as if those defendants were criminal and sentenced while the trial was going on and hindered it to be fair and independent. Presumption of innocence was ignored. Prime Minister Erdogan assigned his official car to the Prosecutor Zekeri Öz who initiated and prosecuted the case. During the trial, Erdogan called himself as the “Prosecutor of Ergenekon”.[7]
  • One of the most significant mispleadings during the case was the implementation of anonymous witness. This role of anonymous witness was seen as the last resort by those men who were sentenced long term prison or life imprisonment due to heaviest crimes like murdering their sisters or rape and whose mental health was suspicious. The trial was simply terrorized by anonymous witnesses. The court stood as a mere spectator, if not being encourager, towards anonymous witnesses’ attacks on personal rights. Aforementioned implementation of anonymous witness became the subject of several boks that were written by defendants and journalists. For instance; Gizli Tanıdık[8] by İlhan Taşçı who is a journalist, or another journalist who was also a defendant, Hikmet Çiçek’s Ergenekon Tertibinde Gizli Tanıklar[9] revealed the reality of anonymous witness implementation. CHP Izmir deputy Mustafa Balbay, who was jailed for 5 years pending trial, was released from prison on 9th December 2013 claimed on the issue of anonymous witness:”Lying is easy for those witnesses who feel themselves protected well. They do not have to be consistent with their arguments, stories, nor do they prove evidences. Some of them even continued their testify by arguments which they made up at that second: “Let me include one thing that has just come to my mind.”[10]

An Example of Faulty Evidences: Computer Notes of Mustafa Balbay

Balbay who was taken into custody on 1st July 2008 and released 4 days later, was once more detained within the scope of Ergenekon investigation on 5th March 2009. The evidence that sentenced him on 6th March 2009 was the notes from his PC. Balbay claimed that those notes did not belong him and he kept them as part’s of his job, being a journalist. According to the expert report from Bogazici University, All notes on Balbay’s computer from 1998 to 2006 were created at the same time, in 3.5 minutes total time. This report illustrated that those notes were not original. According to law, in order PC data to be used as evidences, their image should be extracted as soon as the PC is retained.[11] Balbay’s computer was retained 1st July 2008 but the image was extracted on 7th July 2008. Nevertheless, Balbay was raised questions starting with “According the notes from your PC” on 5 July 2008. This means that, his PC was retained, opened but the image was extracted later.  In other words, in spite of the fact that the backup procedure of PC which was retained on 1st July 2008 should have been made on the same day, was made a week after, on 7th July 2006 and during that week the PC was kept under the property and evidence unit. Changing, in other words manipulating the data is of possibility during that week. As as I mentioned above, 8 years of notes were created in three and a half minute illustrates that those notes were installed into the computer by someone during that week between 1-7 July 2008. This situation according to laws is the infringement of evidences. In addition to that report, according to another report that was presented to the court by TUBİTAK[12] (Scientific and Technological Research Council of Turkey) after investigation of notes from Balbay’s personal PC claims that “Given the period between 01.07.2008 – 07.07.3008, it cannot be technically stated that there was no change or manipulation on those notes.”

When Balbay submitted this abovementioned report as an evidence that those notes were installed on his PC by another person during that week to the court and asked to be freed, but his demand was rejected on the course that this report was going to be investigated by the court during the final decision process.

The Council of State Murder Conundrum

The main base of the Ergenekon case is the Council of State murder. The case with regard to the Council of State murder, held and ruled upon in Ankara, has been returned to the local court, following a decision of reversal by the Court of Cassation, suggesting that the local court should inquire “whether the case is linked with the Ergenekon case”. The local court, without fulfilling its duty to conduct the inquiry, directly presumed the presence of such a link and demanded that the Council of State murder case should be joined with the Ergenekon case. Upon the acceptance on the part of Ergenekon court to follow the demand, the cases have been joined. The joining of Council of State case with the Ergenekon case has been an important turning point for the Ergenekon case. This is because the fact that the “Ergenekon terrorist organization” which is claimed to have been existing, has not been affiliated with any armed action. Except for the Council of State murder! As the case has been joined with the Council of State murder case, Ergenekon will have become an “armed terrorist organization”.

The inconsistent testimonies by the defendants of the Council of State murder case has been treated as credible by the prosecutor and an opinion that the aforementioned murder had been committed by the defendants tried in the Ergenekon case has been reached. However, neither a precise evidence nor a link between the defendants in this direction was present. Although the contacts of Alparslan Arslan[13], the perpetrator, before and after the murder has been settled with all kinds of evidence, the court did not conduct an inquiry about these persons. On the contrary, although there was not any single Ergenekon defendant within this chain, the murder has been presumed as an act of the purported Ergenekon terrorist organization.

If the main objective of criminal procedure is to reveal the material fact(s), as it is taught in law schools, how could one expect the material facts to be revealed through this kind of a procedure? A lot of books and articles have been written upon the Council of State case and its joining with the Ergenekon case. Among these books, Danıştay’dan Ergenekon’a Bir Suikastın İçyüzü[14] (From Council of State to Ergenekon The Inside Story of an Assassination) by Oktay Yıldırım who is among the defendants detained for the Ergenekon case, documents the assault chronologically, describes and elicits the assault in detail through sketches and phone records.

The Problem With Regard to Courts With Special Powers

If we evaluate the problem from a wider perspective, it will be possible to see that there is a dichotomous criminal procedure system within the judiciary.  Within the framework of criminal process, there are the criminal procedure rules binding for the criminal courts and some special criminal procedure rules binding for the assize courts with special powers. This dichotomous procedure within the judiciary has paved the way for many unjust and arbitrary rulings. The State Security Courts (DGM), established in 1973, was abolished in 2004, with the Courts With Special Powers (ÖGM) taking its place in 2005. Turkey has not drawn lessons upon the abolishment of the DGMs and has taken a progressive (!) step with the establishment of ÖGMs. However, experience since 2005 has demonstrated that the ÖGMs has become a system that creates its own legal order, systematically violating a lot of principles such as equality, security of the person, trust in law, rule of law. Hence, the Turkish Grand National Assembly (TBMM) voted for a bill which abolishes the ÖGMs on July 1st,  2012. However, through a clause added to the aforementioned amendment, it has been accepted that the ÖGMs will continue their duty until they rule on the cases currently pending before them. As Prof. Dr. Metin Feyzioğlu, president of The Union of Turkish Bar Associations’ states[15]; imagine a medicine causing the death of people. From now on, the state is forbidding the sales of this medicine but allowing the sales to resume until the stocks of the pharmacies are finished. The abolishment of ÖGMs is exactly similar to this example.

The Extent of the Case With Figures

After the local Court’s decision, Ergenekon Case will be heading to the Supreme Court for the appeal process. Yet, the question mark arises on this issue: How will the Supreme Court handle this appeal process? If I write down some information about the extent of the case, importance of my question can be better understood.

Considering information Technologies, Ergenekon Case is one of the biggest trials in the world. Approximately 300 people are trialed on this case. There are hundreds of case files and each of them consist of approximately 200 pages. With 21 more consolidated cases files and supplemented evidences files, the case became more and more entangled. According to minimum figures that defendents’ lawyers shared, the case file is approximately 5 Terabytes. That is equal to 120 millions Word pages. In other words, this figure is equal to 400.000 books of 300 pages. It would be very hard to expect lawful outcome from this much large scale case file.

On the other hand, it would also be hard to expect every evidence in this huge case file to be legal. If all of those so-called evidences that were created or demolished by others on the digital media, illeagal tape recordings and ill-fated documents are taken out, there will be nothing to be evidence for this case. Yet, manipulation of perceptions here play a role. The perception of “The bigger case file is presented, the more difficult to resolve the case” is trying to be built. This resulted in people, including lawyers, to be indifference to the case particularly during the first few years of the trials.

Which Witness Is More Credible?

After all, it became clear that this case was not approved by the sense of public. Implications of the court free from law strengthened the belief of public that the Ergenekon case is ill-fated from its onset. Two examples might be given accordingly:

First, the fact that Semdin Sakık[16] was listened on the court as an anonymous witness. On 6-7 November 2012, Semdin Sakık testified under the name of “Anonymous Witness Deniz”. However, during his testify, he renounced to be anonymous witness and revealed his own identity. He explained the reason why he did that: “According to me, thanks to these three cases, namely Ergenekon, KCK and Balyoz, there is no reason to fear. The environment is more relieved than it was in the past. Therefore, I did not feel urged to hide my idendity.”  Şemdin Sakık who worked for the PKK terrorist organisation for many years, testified with the tele-conference method from Diyarbakir Prison. This situation was rightfully considered as “The second Habur scandal” by Prof. Dr. Metin Feyzioğlu.[17] As a response to court’s manner, previous Chief of Staff İlker Başbuğ, approximately 3 moths later on 18th February 2013, had demanded from court to listen Işık Koşaner as a witness since he was present at the trial. Yet, this demand was rejected. Although, the court had to listen the witness who is present at the trial according to the Criminal Court Law’s provision, ignored that provision and did not listen to Işık Koşaner who went to Silivri Court for the trial. After this inconsistent situation it is possible to reach the outcome: According to Ergenekon Court, PKK officer Semdin Sakik is a credible witness but Işık Koşaner who is Chief of Staff in Turkish Army is not !

Second example on the other hand, are statements of Osman Yıldırım who was sentenced life imprisonment by the local court in Ankara as the instigator of Council of State murder. Inconsistent statements of Osman Yıldırım who called Mustafa Kemal Atatürk as “English bastard” formed the basis of consolidation of cases. In addition, on 14th November 2012, Osman Yıldırım gave an anonymous witness testify with his voice is on and his image and identity are visible. Although it was clearly known that “Anonymous Witness 9” was Osman Yıldırım, the Court prohibited it to be declared since the Court did not want any other “Şemdin Sakık case.” In the end, during one trial a person became a defendant, a witness and an anonymous witness. Ergenekon trial was not limited to them. Once we came to an end, the Court gave time to prosecutors to provide the legal opinion. Acording to the legal opinion that prosecutors provided, Osman Yıldırım’s statements were approved by Anonymous Witness 9. Yet, these two were the same person. Besides, the prosecutor in Silivri demanded Osman Yıldırım, who was given life sentence by the local Court in Ankara on the case of Council of State murder, to be released in his legal opinion.

In my opinion, these two abovementioned examples illustate clear failures of this case in the eyes of public that has never approved.

Conclusion

Ergenekon Court declared its decision on 5th August 2013. 17 defendants were sentenced life imprisonment. 46 defendants were sentenced more than 10 years of imprisonment. 4 people were released. Renowned names like İlker Başbuğ, Hurşit Tolon, Tuncay Özkan, Doğu Perinçek were sentenced life imprisonment. Mustafa Balbay was sentenced 34 years and 8 months of, Hasan Atilla Uğur was sentenced 29 years and 3 months of, Oktay Yıldırım was sentenced 34 years of, Mehmet Ali Çelebi was sentenced 16 years and 6 months of, Fatih Hilmioğlu was sentenced 23 years of, Mehmet Haberal was sentenced 12 years and 6 months of, Deniz Yıldırım was sentenced 16 years and 10 months of imprisonment.

Thousands of people who gathered in Silivri on 13th December 2012 and 8th April 2013 used their democratic rights to say no to unfair implications, arbitrary imprisonments and violations of law. People’s demand for democracy and freedom that were shouted loudly during Gezi Park movement that began in June 2013 in Istanbul and expanded to all over the country illustrate that how eager society is for these values and norms. Recent events and discussions over the jurisdiction have demonstrated that independent and unbiased jurisdiction is vital for people as water and bread. Independent and unbiased jurisdiction is necessary for everyone.

Gülşah Akbaş, Lawyer, İstanbul Bar Association

Please cite this publication as follows:

Akbaş, Gülşah  (March, 2014), “An Assessment of the Ergenekon Case”, Vol. III, Issue 3, pp.6-17, Centre for Policy and Research on Turkey (ResearchTurkey), London, Research Turkey. (http://researchturkey.org/?p=4945)

REFERENCES AND FOOTNOTES

*This article was written and accepted for publication before the rulings on 10th March 2014. For related news, you may refer to:  http://www.reuters.com/article/2014/03/10/turkey-ergenekon-idUSL6N0M73DY20140310

[8] Taşçı, İlhan: Gizli Tanıdık, Cumhuriyet Kitapları, 2013, İstanbul.

[9] Çiçek, Hikmet: Ergenekon Tertibinde Gizli Tanıklar, 2013, İstanbul.

[11] To investigate the PC of a suspected person, according to law, first, every data of the PC have to be backed up. This backup procedure is also called as the extraction of image. After backup procedure, the PC is kept in property and evidence unit and suspected person is not responsible for any changes made during that period.

[12] Scientific and Technological Research Council of Turkey

[13] Alparslan Arslan, born 1977, is a lawyer. He is the perpatrator of the Council of State assault, dated May 17th, 2006, killing Judge Mustafa Yücel Özbilgin, wounding three judges.

[14] Yıldırım, Oktay: Danıştay’dan Ergenekon’a Bir Suikastın İçyüzü, Kaynak Yayınları, 2013, İstanbul

[16] Şemdin Sakık, who was born in1959, was the PKK executive with the code name of “Parmaksız (Fingerless) Zeki”. He gave an order of the assault in which 33 Turkish soldiers were murdered in Bingöl in 1993. He was sentenced an execution by the Diyarbakir The State Security Court on the crime actions “Undertaking seperatist actions on the territories which state controls”. His sentence turned out to be life imprisonment. He is still in Diyarbakir Prison.

APPENDIX 1: THE CASES CONSOLIDATED WITH ERGENEKON

Istanbul 13. High Criminal Court 2008/209: 1. Indictment – Umraniye Bombs

Consolidated:

  • Ankara 11. High Criminal Court, 2009/5 (Murder of Presidency of Council of State)
  • Istanbul 13. High Criminal Court, 2008/246 (Serhan Bolluk – Murder)
  • Ankara 11. High Criminal Court, 2008/324 (Ahmet Cinali, Taner Unal)
  • Istanbul 12. High Criminal Court, 2009/31 (Molotov Attack to Cumhuriyet Newspaper)
  • Uskudar 5. Criminal Court of First Instance, 2010/419 (Violation of Law numbered 6136- Aykut Metin Sukre)
  • Istanbul 14. High Criminal Court, 2010/118 (Ozkan Kurt – Threat to Zekeriya Oz)
  • İstanbul 9. High Criminal Court, 2010/145 (Ismet Recber– Assassination Attempt to Ecumenical Patriarchate of Constantinople)

Istanbul 13. High Criminal Court 2009/191: 3. Indictment

Consolidated:

  • Istanbul 13. High Criminal Court, 2009/85 (2. indictment)
  • Sarikamis Criminal Court of First Instance, 2008/279 (Violation of Law numbered 6136 – Huseyin Keskin)
  • Istanbul 13. High Criminal Court, 2009/179 (Assassination Attempt to Minas Durmazguler)
  • Istanbul 13. High Criminal Court, 2010/228 (Yusuf Erikel Case)
  • Istanbul 13. High Criminal Court, 2011/105 (Assassination Attempt to Minas Durmazguler)
  • Istanbul 12. High Criminal Court, 2011/53 (Sile Digging)
  • Istanbul 13. High Criminal Court, 2010/106 (4. indictment – Wet Signature)
  • Istanbul 13. High Criminal Court, 2011/150 (Internet Memorandum Case)
  • Istanbul 13. High Criminal Court, 2012/4 (Ilker Basbug – Internet Memorandum)
  • Istanbul 13. High Criminal Court, 2012/43 (Mehmet Perincek)
  • Businessman Vahit Ozkaya Case
  • Arms dealer, porter Mahmut Guzel Case

APPENDIX 2: ANALYSED CASES IN ERGENEKON

1. Murder of Presidency of Council of State18. Abdullah Öcalan Case35. Sivas Case (2 July 1993)
2. Uğur Mumcu Assassination19. Ahmet Taner Kışlalı Case36. Revolutionist Military Officers Case, 1971
3. Susurluk Case20. Necip Hablemitoğlu Case37. Madanoğlu Case
4. Bahriye Üçok Case21. 1 May 1977 Events38. Treatment Case of Bülent Ecevit
5. Muammer Aksoy Case22. Hrant Dink Case39. Unsolved Murders Report of Grand National Assembly of Turkey
6. Turan Dursun Case23. Malatya Zirve Press Slaughter Case40. Unsolved Murders Cases in Southeast
7. Kahramanmaraş Events, 197824. Priest Santoro Case41. Gaffar Okkan Case
8. Çorum Events, 198025. Gazi District Events42. Diyarbakır Gendarmerie Intelligence and Anti-terror Unit (GIAU) Cases
9. 16 March Bombings, 197826. Trabzon McDonald’s Bombings43. Murdered Kurdish Businessmen Cases in 1990
10. Malatya Events, 197527. Kısmetim – 1 Drugs Case44. Doğan Öz Case and Counter Guerilla Report prepared by him and submitted to Bülent Ecevit
11. Özdemir Sabancı Assassination Case28. Atabeyler Case45. Jak Kamhi Case
12. Üzeyir Garih Murder29. Sauna Gang Case46. Closure Case of Justice and Development Party
13. Rıdvan Özden Case30. Tuncay Güney Automotive Fraud Case47. Poyrazköy Case
14. Bahtiyar Aydın Case31. Akın Birdal Case48. Ahmet Zeki Üçok Case, Kayseri
15. Kemal Kayacan Case32. Cem Ersever Case49. Hezbollah Case
16. Hulusi Sayın Case33. Alaattin Çakıcı–Sedat Peker–Kürşat Yılmaz–Hadi Özcan Cases50. Bankrupt Banks–Banking Regulation and Supervision Agency (BRSA) Case
17. Sabahattin Ali Case34.  Cases of  numbers of PKK approvers in Diyarbakır51.  Mahmut Yıldırım (code name Yeşil) Case

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