Below you can find highlights from the defense made by defense attorneys in July, 2020:
- An extensive investigation and police operation was held against Mr. Adnan Oktar and his friends in 1999 with the same allegations and the accused were acquitted from all of the charges. Nevertheless, a new case was filed with same accusations and a re-trial is being held at the moment.
- In a complete violation of universal legal principles, same legal procedures are not applied to people who are in the same legal position. Instead, they are being treated differently.
- Perfectly normal daily activities are portrayed as criminal acts.
- The presumption of innocence is completely ignored (the defendants are portrayed and called by the media as criminals while the trials are still ongoing).
- The principle of equality is completely disregarded.
- Since a proper criminal investigation was not carried out, people were bullied into being ‘complainants’ with the implication that if they did not complain, they would be listed as suspects.
- Many, including some police officers, were involved in this coercion. 4 years passed since the start of the investigation as to the so-called criminal organization, but the so-called purpose of the criminal organization is yet to be disclosed.
- Evidence in favor of the defendants is blatantly ignored, and is persistently not collected despite requests to do so.
- The bank accounts and companies of the defendants were frozen and seized despite the lack of any links to any criminal activities.
- Evidence that was illegally obtained (search minutes, digital records, technical surveillance details, wiretap evidence, photo identification procedures, HTS analysis reports, etc.), are used as illegal justification to continue the detention of the defendants since July 11, 2018.
- The period for legally allowed detention has already finished, but the detention continues.
- While each of these points can be an individual violation of the ECHR, they are collectively found in our single lawsuit.
The defense statements made by attorneys:
- 12 Judicial Authorities have given acquittal, non-prosecution and discontinuance verdicts for Adnan Oktar and his group of friends in the past for the exact same allegations filed in court recently. It is regulated by international norms that one cannot be tried twice for the same act, therefore the current trial should not be prosecuted. It is against the ECHR; according to Article 4 of Protocol No. 7 to the Convention, called “Right not to be tried or punished twice.” This is also against international norms. It is claimed in the current trial that the group has been organized since 1979-1980, however in the lawsuits and investigations carried out against the defendants since 1979, this allegation of being a criminal organization was concluded by the judicial authorities in acquittal, non-prosecution or dismissal decisions.
- Those suspects/defendants who want to benefit from the provisions of the effective remorse law (a kind of plea agreement) can only benefit from them in terms of the particular crimes stipulated by the law as there is not a regulation of effective remorse for every crime in the Turkish Penal Code. Within the scope of this lawsuit, those who want to benefit from the effective remorse law can benefit as a penalty reduction only for the charges of “being a founder/administrator/member of a criminal organization”. However, during the investigation and prosecution stages of this trial, suspects accused of crimes for which effective remorse provisions are not applicable were either not arrested at all, or were released from prison as soon as they stated that they wanted to benefit from the effective remorse law. Even those shown in the organization chart prepared by the police as the administrators of the alleged criminal organization were surprisingly not accused of that charge by the prosecutor after they were allowed to benefit from the effective remorse law. It could be considered acceptable if those released were accused merely of being a member of the alleged criminal organization, but it cannot be legally explained how defendants seeking release and using the benefit from the effective remorse provisions have been released from all charges including sexual crimes, even though there are no regulations in the law concerning effective remorse in terms of sexual crimes. Even though they are being tried for the same charges (and some with even greater charges than some detainees) and share the same legal status with the other defendants, they are free while all other defendants are under arrest. The laws have not been applied uniformly or consistently. In the manner of application of the law it is understood that the only way out of prison is by benefiting from the effective remorse law. Its particular practice in this case is also against the principle of equality regulated in Article 10 of the Turkish Constitution, and Article 3 of the Turkish Penal Code.
- Someone doing shortened military service through payment (allowed by the law), the way they dress, their haircut, how they spend their money, with whom they live, whether they drink alcohol or not, their interpretation of Islam, their marriages, or why they do or do not have children are not criminal acts and are an irrelevant subject for the court, yet the defendants have been asked about such things as though these are criminal elements. The indictment includes statements such as “degenerating the Turkish family structure, luxurious life, non-moral behavior”, etc. There was an attempt to demonstrate non-confidential public interviews in live broadcasts on TV with representatives from Israel as a crime. Even though such meetings were held with representatives from many countries and views, the ones with Israel are particularly emphasized in the indictment. Unless there is a crime, their trial is against the Constitution. Even the fact that the defendants were suing people who insulted them is considered as a crime. Criminal actions must be tried, but here the intent is to manufacture a criminal organization out of non-criminal issues. A deductive method is followed, rather than an inductive reasoning, by putting forward the term “criminal organization” first. It is against the “principle of legality” which is the most basic principle of criminal law. No one may be prosecuted for an act that is not declared a crime by the law. In the indictment, the target is not the actions and acts but the defendants themselves. Between 1959 and 2018, ECtHR has issued 777 judgments in which it found a violation of freedom of expression, 41% of which involved Turkey. Turkey ranks first in this respect.
- The hostile complainants are a few people who have left this group of friends. The ECtHR intervenes when there are conflicts between two communities; If there is a conflict between two ideas, two communities or NGOs, the state should not give any advantage to either of them. In this file, there is an intellectual disagreement between the group and those who left the group. In addition, there may be animosities due to the opinions of a group; the state again has positive and negative obligations on this matter. The state should protect these individuals against attacks, and should not allow any such attacks. The file consists of statements of hostile people. Besides, defamatory campaigns against the defendants have been carried out before, during, and after the police operation in visual and print media as well as on social media.
- The investigation started in 2016, but the hostile complainants left this group of friends only in 2017 or 2018. Therefore, they too should have been accused, if there was really a criminal organization. Moreover, although some of these complainants have admitted that they had committed crimes such as fraud and sexual assault, they are allowed to become the complainants without any investigation being opened about them, while an indictment was drawn up against the current defendants for instigating the crimes that these people have admitted to having committed.
- The complainants are not victims; most of them are either people who have left this group of friends or close relatives of the defendants. Criminal organizations do not commit crimes against their own members; their victims are supposed to be people from different groups. This shows that this is not a criminal organization.
- In 2018, over the course of 5 consecutive weeks, complainants appeared suddenly. At a time when they couldn’t have known about a confidential police investigation, dozens of people, especially with complaints about sexual crimes, went to the Istanbul Police Department’s Branch of Combating Financial Crimes. The timing clearly shows that they were directed and their statements cannot be given credit. While other units of the police department are dealing with sexual crimes, it cannot be legally explained how these people went to a unit dealing with financial crimes to file complaints.
- People were forced by a group of hostile individuals to artificially become complainants: They attacked and slandered the reputation of many young women on social media, who were then forced to choose their side. It was observed that one particular police officer was involved in many contrived cases. A complainant named Gizem Tar, whose testimony was taken at the court recently, told the court that she had been called by the police and been informed that her statement would be taken as a “suspect.” However, when she went to the police department, the police officer told her that she was a “victim,” rather than a suspect, and that’s why she had to give a statement as a victim. She stated that she could not withdraw her complaint because she was told by the same police officer that she was a victim and it would not be appropriate to give up her complaint. This same officer took the testimonies of almost all of the complainants and those suspects who wanted to benefit from the effective remorse law (he took a 1-page testimony over the course of 7 hours for instance, and there are very similar, and even identical parts in the testimonies). The defendants and their lawyers requested that the camera recordings of these testimonies be examined at the court, but all motions of the defense were denied. Even a defense attorney that was hired during the investigation was threatened by the police and accused of being the lawyer of the alleged criminal organization and was forced to testify. Considering that an attorney was exposed to such pressure tactics, we can understandably assume that the young women could not resist the extent of the pressure and intimidation used against them.
- It’s a knife-edge decision to name a community an NGO or a criminal organization. The right to freedom of association, guaranteed by the Turkish Constitution, ECHR (Article 11), the Universal Declaration of Human Rights (Articles 20 and 23), International Covenant on Civil and Political Rights (Article 22), should not be violated. Turkey comes first in the ECtHR judgments of violations of freedom of assembly and association (36% of the ECtHR judgments issued between 1959 and 2018 involved Turkey).
- The primary goal (primary offense) of the alleged criminal organization is not defined in the indictment. According to Turkish Penal Code article 220, for an organization to be considered a criminal organization, it must have been established to commit offenses proscribed by law. Even those suspects who benefited from the effective remorse law did not say that they had joined this group to commit any crimes; on the contrary, they said, “I joined them in good faith, to socialize; they were good people.” In this indictment, it has not been set out for which crime the alleged criminal organization was established, what its benefits are, or what its intended goal is. That is because this is not a criminal organization. The prosecutors made such a conclusion based on their own opinion and their subjective evaluation of what they did not find appropriate.
- Instead of setting out the primary goal (primary offense), concepts such as “isolated life” are included in the indictment about the lifestyle of the group. Critical comments of the prosecutors can have no penalty-related effect. Within the scope of the principle of legality, it should be examined whether it corresponds to a crime in the legislation.
- Trials did not start properly in terms of procedures from day one; the defendants were started to be interrogated without making proper identification.
- Although they did not have the right to intervene in the lawsuit, some complainants sought to intervene. The court accepted their motions and permitted them. This is against the Turkish Code of Criminal Procedure (CMK), Constitution and legislation. Those who can intervene in a lawsuit are defined in CMK article 237: “The victim, real persons and legal entities, who have been damaged by the crime, as well as the individuals liable for pecuniary compensation, are entitled to intervene in the public prosecution…” Even those who should not be entitled to intervene according to the Supreme Court ruling gained this title and the rights thereby, including the right to pose direct questions to the defendants. Moreover, some of the complainants, who have just begun to be heard before the court, withdrew their complaints and stated that they did not want to intervene. However, during the earlier phases of the proceedings, the court had decided that “all the complainants’ requests to intervene in the prosecution be accepted”.
- There is not a consistent chart of hierarchy unanimously agreed on by complainants, defendants who benefited from the effective remorse law, the police or the prosecutors. They are all different. Many of the complainants and defendants who benefited from the effective remorse law are people from this group, who have been together for many years. It would not be possible for them to not know who the administrators are, if there were any in reality.
- Guns: None of the guns have been involved in a crime. There is no statement of those defendants who benefited from the effective remorse law, complainants, or victims to the effect that a crime has ever been committed with a gun. There is no single person who claims to have been threatened with a gun. All the guns are registered, which is contrary to armed criminal organizations that do not use their own registered guns when committing crimes.
- The statements made by Adnan Oktar about FETÖ (Fethullah Terror Organization) years ago are distorted. Both Adnan Oktar and FETÖ members themselves state that these words are not praises. Moreover, the statements included in the indictment were made in 2012, when FETÖ was not known to anyone as a terror organization (At this point, we would like to underline that, it was in 2014 that the National Security Council first used the phrase “parallel structure”, and it was in 2016 that the first court judgment was issued naming FETÖ an “armed terror organization”). At the time of the speech in question, the group, now called FETÖ, was praised by everyone, especially by the state officials. But even at that time, it was a group criticized by Adnan Oktar, and his critical comments, which were much more in number, were not included in the indictment. On the other hand, even if we assume for a moment that there was a praise, the crime of “aiding an armed terror organization” as put in the indictment, still does not occur. A person who aids a terror organization should be fully aware that the organization is a terror organization.
- This is a group of friends for 40 years, and none of the defendants have had a single criminal record.
- Sexual accusations: The complainants have not provided any tangible evidence to support their claims: there is no underwear or any other piece of evidence. There is no correspondence between them pointing to such an incident. Forensic Medicine Institute’s reports reveal that they are quite normal. Complainants have not filed any complaints for years, and have not even asked anyone for help. The allegations are full of contradictions, and inconsistencies, and are not in line with the ordinary course of life (for example, some of the defendants are abroad and some are receiving cancer treatment at the time of the alleged sexual assaults, etc. These are concrete evidence in favor of the defendants, but despite these and despite the lack of any evidence against them other than the statements of the complainants, the court decides to keep them detained on the grounds that there is a “strong criminal suspicion”.)
- The women who claim to have been sexually abused are well-educated and capable of expressing themselves very well; among them are a doctor of medicine, even a lawyer. None of them are people who would remain silent in the face of harassment that continues for years. They are not people who can be made to comply with such a thing with various suggestions either, because they are of high socio-cultural levels, have university degrees, they are not ignorant. There is no question of corrupting their will through various explanations.
- Sexual accusations are allegations made in order to create an outrage in the public. Almost in all instances, time, place, and event are not specified by the so-called victims. This makes it very difficult, if not impossible, for the defendants to defend themselves. Their right of defense is largely restricted because if the claims were materialized, they could make a defense by proving that they were not there at that time. The only evidence in the file are the abstract claims, without any concrete evidence. It is impossible to establish the truth of it. Many complainants just gave names between commas, giving a list of names of “the people that I remember who raped me.” Some added new people to that list, later on, saying, for example, “I forgot to name these 25 people earlier”. Some have contradictions between their first statements and what they stated during the later photo lineup. During the latest phase of the proceedings in which the complainants are heard by the court, it has been seen that the complainants “read” the names of the people whom they claimed in their police testimonies to have sexually assaulted them, from a document.
- The complainants continued to have years-long contact, friendship with their so-called abusers/assaulters. As they stated in their testimonies, they were in love with them and dreamed of marrying them. After the alleged sexual crimes, the complainants continued to see the defendants. There is one particular complainant, who even after she filed a complaint against her alleged abuser, wrote numerous loving letters to the defendant while he was in prison. She even went to visit him 2 times in prison and took photos with him holding his hand.
- Since the complainants had not filed complaints in time (within the 6-month time frame set by the law), the concept called “vitiated consent” was put forward regarding some allegations of sexual crimes to extend the time, and complaints that should not be legally valid were thus included in the investigation and then the indictment.
- Search Warrant: A report by the law enforcement stating the reasons for reasonable suspicion is required for a judicial search to be made (Regulation for Judicial and Prevention Searches, article 7/1), but there is no such report in the appendix of the search warrant (numbered 2018/3798 D.iş, issued by Istanbul 4th Criminal Peace Judgeship). The conduct that constitutes the ground for the search and the material that is to be searched should be clearly specified in the search warrant (Code of Criminal Procedure, article 119/2; Regulation for Judicial and Prevention Searches, article 7). However, these were not specified in the search warrant, it was like “take whatever you find, we’ll find something to blame them”. Such a search warrant is against the law according to the decisions of the Supreme Court and the Assembly of Criminal Chambers. Therefore, no search can be carried out based on this warrant, and no judgment can be made based on any evidence obtained through such a search.
- Searches were carried out at addresses in Kandilli (allegedly the “headquarters” of the alleged criminal organization) for which no search warrant was issued: There is a written search warrant issued by the court (but only as explained above) for Yamaçlı Street No:36. But in the address registration system of the same location, it is stated that the location is at the intersection of Yamaçlı Street and Eşref Bitlis Street, and therefore also bears the numbers 13-15-17-19 on Eşref Bitlis Street. There is no written search warrant for the latter. Despite that, based on a verbal instruction of the Public Prosecutor to continue with the searches at these addresses as well, searches were made at these addresses too. According to both Code of Criminal Procedure and Decree-Law No. 668, searches can be conducted upon the written order of the public prosecutor, under certain conditions, but the law does not refer to the verbal instruction. This search conducted with the verbal instruction of the public prosecutor is, therefore, arbitrary and unlawful.
- Police officers carried out searches at Kandilli by giving imaginary numbers to the buildings and outbuildings in the search area, and thus it became impossible to determine which of the allegedly obtained items was found at which address (whether at the address for which there is a written search warrant or other places without a written order). It should be noted that even if the search warrant was issued for the right address and in the proper way, there was no order in that warrant for the search of the outbuildings, additions, individuals’ bodies, and their vehicles. Therefore, the search is illegal. For this reason, everything that is obtained at Kandilli is unlawful and should not be a part of the case.
- The search warrant was only for searching the dwellings, but additions, outbuildings, vehicles, and suspects’ bodies were also searched. Anything that is alleged to be obtained as a result of this search is to be rejected since it is unlawfully obtained and a legal judgment cannot be made based on it (Code of Criminal Procedure, articles 206 and 217).
- According to the amended law applicable in the State of Emergency period, which applied when the police operation was conducted, 1 attendant (search witness) should be present during the search. However, the search records prepared at Kandilli show that the same attendants have been present at different locations during overlapping hours. Since a person cannot be present in two different places at the same time, some searches were evidently carried out without the presence of a search witness, in violation of the Decree-Law No. 668. They should be rejected and a judgment cannot be made based on them, according to the Code of Criminal Procedure, articles 206 and 217. In addition, some of the search and seizure records written in handwriting do not refer to any search witnesses. Records related to different numbered search areas were then combined into a single record, and was signed by all the police officers, all suspects and all three attendants, regardless of whether they were actually present during the searches. This way, a record was produced which would create the impression of being lawful, while in fact, it didn’t represent the reality of the situation and it is unlawful. In some places, the suspects themselves (Kartal İş, Halil Hilmi Müftüoğlu) were shown as the attendants; a suspect cannot act as an “attendant” (search witness) during a search. And it is also a violation of the principle that no one shall be compelled to testify against themselves or their relatives (Constitution, 38/5). Since the searches were carried out with unlawful means and methods, everything obtained as a result of the searches in question was obtained unlawfully. Therefore, no judgment can be made based on them.
- In October 2018, 3 months after the police operation, it was alleged that some more evidence was collected at Kandilli. In the 3-month time since the operation, however, too many people have entered the premises, including press members and even some complainants, who have touched things in the premises. Therefore, the alleged evidence obtained is unlawful and has been tampered with, but nevertheless has been included in the case file, and the defendants were asked questions during the trials based on them.
- In some places, the doors were broken and the police entered the houses, but the official record stated that there was no damage. Some of the things that were obtained were put in the record differently from what they actually were (for example, drugs used for the treatment of cysts or menstrual irregularities were stated in the records as contraceptives; a cat toy as an erotic whip, etc.) and these were served to the press.
- Seizure of computers and mobile phones: According to Code of Criminal Procedure, Article 134, during the seizure of computers and mobile phones, the data included in the system should be copied and a copy of this copied data should be given to the suspect or his/her representative at the scene. If it cannot be done at the scene, it should be recorded why it cannot be done. If these cannot be done, they should be put in sealed bags to be opened before a judge. But none of these were done. They were not taken properly, the reports were not recorded properly, they were not listed, they were not bagged properly. However, unlawful evidence is still used in the indictment, and they are used as an interrogation tool. Immediate action should be taken for a fair trial and these should be removed from the file immediately.
- The evidences are disputable: It was determined that 1 day after a defendant was detained and her mobile phone was seized by the police, a game application was downloaded on her phone. It is not possible to consider the digital materials in the case file as reliable.
- When the investigation was still confidential, and when even the suspects and their lawyers did not know what they were accused of, all documents were constantly leaked to the press, and the presumption of innocence was violated.
- The statements of many of the suspects at the police headquarters were not taken with their own lawyers, but in the presence of lawyers appointed from the bar association and whom they did not know at all. Likewise, during reviews of the detention, even though defendants had their own defense counsels, the court called a different lawyer each time from the bar association and, without giving the defendants the right to speak, decided to continue their detention.
- Some defendants’ statements to the police were recorded by camera and some defendants’ weren’t. The statements of those defendants who wanted to benefit from the effective remorse law were taken without camera recordings. One such defendant, who was subjected to psychological pressure and verbal abuse by the police officers while she was giving her statement, and was thus coerced into applying to benefit from the effective remorse law, later withdrew her previous statement and told the court about the ill-treatment she had been subjected to. After she withdrew her previous statement (in which she had said the accusations were true in order to benefit from the effective remorse law), the court issued an arrest warrant for her, and no investigation was initiated into the police officers about whom she complained.
- In the case of some defendants, there are significant differences between the camera recordings and the statements written down in the records. These differences are of a nature that fundamentally affects the defense. The entire statement of the person concerned is not fully written in her written statement. (Although the defense attorneys requested all video recordings, they are not provided to them.)
- Evidence, whose lawfulness has not been evaluated, is included in the file. Before making an evaluation of evidence by the court, some evidence, that the defendants had not seen and had not been informed about previously, were brought before them through the questions they were asked during their interrogation. Besides, these findings of evidence are allegedly obtained from digital resources that were seized unlawfully. This violates the presumption of innocence. A fair trial is possible only when the evidence is collected according to the law. But in this case, the presentation and evaluation of the evidence is erroneous. Unlawful evidence must be excluded. The court has not done it yet and postponed it to the later stages of the proceedings. The defendants were interrogated based on the unlawful evidence that the defendants had not yet examined. This is a violation of the Constitution and the Code of Criminal Procedure (CMK).
- The indictment is composed of the statements of the complainants exactly as they claimed when there was no proof confirming their allegations. So much so that the prosecution did not even feel the need to check the accuracy of their statements. For example, one complainant stated that there was a meeting in Turkey in 2013 or 2014 between the defendants and Mark Dubowitz, an expert in a lawsuit opened in the USA against Turkey. This allegation exists in the indictment even though it was determined with the passport records that Dubowitz’s last visit to Turkey was in 2009. This is just one of the many examples. The prosecutor’s office did not collect any evidence in favor of the suspects; prepared an indictment by copying the statements of the complainants as they are.
- Any existing favorable evidence was simply ignored by the prosecutor’s office, and are still not collected. For example, the allegation of military espionage is based on a single correspondence. Although the Turkish Ministry of Foreign Affairs stated in writing, regarding the content of this correspondence, that it is not a state secret, this accusation still remains in the indictment. An allegation of aiding a terror organization is based on the allegation that the installation files of a mobile application making FETÖ propaganda were found on a defendant’s computer. However, there is a report by the Department of Combating Cyber Crimes in which it was determined that the defendant is neither the person who developed the application nor the person who uploaded it to the Apple Store. Although the defendant stated that these files were sent to him as a reference demo, as part of the resume, by a software developer who applied for a job (who is also determined by the Cyber Crimes Department to be the developer), and despite the relevant report, he is still accused of being the main perpetrator of the crime of aiding the FETÖ terror organization.
- Again, as part of the effort to establish a so-called relationship with FETÖ based on these application files, instead of the email address that appears in the developer’s installation files, another email address with a one-letter difference from the real one, was inquired about and it was determined that it belonged to a person with the same name as the real developer, but who was affiliated with FETÖ. It was, thus, attempted to give the impression that the defendants are affiliated with FETÖ. This is one of the important indicators of the conspiracy and the effort to incriminate the defendants by distorting the data.
- Regarding financial matters, MASAK (the Office of Investigation of Financial Crimes) did not report any findings about money laundering. Upon this, the prosecutor’s office sent the file to experts. However, in the expert reports, we see some mysterious money transactions that do not appear in other reports. While a large amount of money transfer is seen in the report related to one of the two companies who have commercial relations with one another, it does not appear in the report related to the other company on the other side of the same transaction. It is highly dubious that such non-existing transactions are included in these reports. Moreover, the indictment contains some incriminating alleged statements as if they are factual, yet they are not included in the MASAK report.
- Interim measure of seizure of properties and companies: On the same day when the Prosecutor’s Office sent Istanbul Criminal Peace Judgeship No.8 the request for a measure to be imposed on the properties, the judge ordered an interim measure of seizure without even reading the MASAK report (the letter of the prosecutor’s office expressed some matters not mentioned in the attached MASAK report as if they did), and the order was sent to MASAK. When MASAK objected because it could only seize the properties of armed terror organizations, the prosecutor made a request again by adding that particular phrase and thus made sure that the properties of the suspects were seized. The Prosecutor’s Office had an order issued to seize all assets of 86 legal entities and 217 real persons, but the names of 49 legal entities and 158 real persons did not even exist in the MASAK report. Even real estates purchased by their parents when the suspects were kids and inherited after their parents’ death were included in this scope. All shares of the companies, even those in which the suspects owned little shares, were seized. The order is unlawful. Besides, it has been yet another unlawful practice that some of these properties have already been sold by the trustees while the trial is still ongoing, as they may have to be returned to their owners at the end of the trials. Even the payments of the suspects such as orphan’s pensions and retirement pensions were blocked, and this continues.
- Photo lineup was not done properly. Merely different photographs of a person cannot be used in the identification of a suspect, or an identification cannot be made through a single photograph: The victim/witness should be shown a set photographs of different people who look alike and asked if they recognize any of the persons in the photographs as the perpetrator. Otherwise, it would be against the law. In this investigation, however, only the photographs of the suspects were presented one by one to the alleged victims. Also, some of the defendants were surprisingly recognized (!) from their photographs of 20 years ago, through which it was highly unlikely, if not impossible, to identify them. Unlawful evidence has been produced through this procedure.
- HTS (Historical Traffic Search) for mobile phone lines: HTS recordings are used as evidence unilaterally and without any other concrete evidence. For example, although a mobile phone base station provides coverage to a large area, the indictment interprets signals from a particular station as performing the duty of guard in the so-called headquarters of the criminal organization. Recordings have been evaluated subjectively; it has no meaning in judging.
- Complainants and those defendants who wanted to benefit from the effective remorse law have been heard before the court in closed sessions, without the defendants being in the courtroom; this is against the defendants’ right to have direct contact with the evidence and allegations. This practice violates their right to ask questions and prevents the right of defense, and eliminates the right to a fair trial. (For more details, see https://adnanoktarlawsuit.com/2020/07/02/excluding-defendants-from-the-courtroomviolates-the-defendants-right-to-a-fair-trial/)
- There are lawyers among the defendants. While an investigation permit should be taken from the Ministry of Justice to investigate, take into custody, or arrest a lawyer, in this investigation it was carried out unlawfully, without a permit from the Ministry. These lawyers are being prosecuted for being a member of a criminal organization due to their professional duties, despite their professional immunity. Recently, in July 2020, the prosecutor’s office launched an investigation and a public case was filed against a defense attorney on charges of being a member of the alleged criminal organization and threatening, again mostly because of his professional duties. This lawyer is now banned from the case and prevented from defending his clients. (For more details about the unlawful practices against the lawyers, see https://adnanoktarlawsuit.com/2020/07/02/the-ill-treatment-to-lawyers/)
- This is not a duly-filed public lawsuit. The Supreme Court of Appeals rules that a document created by repeating some incidents that took place during the investigation and writing the statements of the complainants without establishing their connection with the evidence will not qualify as an indictment. However, the indictment of this lawsuit is exactly as such. According to CMK (Code of Criminal Procedure, 170/3-h), the indictment should contain the crimes charged and the related articles of applicable Criminal Code, but this indictment does not contain applicable articles of the law. The requested applicable penalties to be applied by the articles were completely ambiguous, incomprehensible, and purposely portrayed as complicated. Under CMK 174/1-a, the court should have decided to return it.
- According to CMK 12/1, “The court in whose district the offense was committed has venue.” Accordingly, the prosecutor and the court of venue based on the allegations made in this trial should be Istanbul Anatolian Chief Public Prosecutor’s office and Istanbul Anatolian High Criminal Court respectively. However, despite this, the investigation was carried out by Istanbul (Çağlayan) Chief Public Prosecutor’s Office, and the trials began to be heard without jurisdiction in the Istanbul High Criminal Courts.
- In violation of the “prohibition of discrimination” and the “natural judge” principle, a panel of judges was appointed specially for this trial. After the court to which the file would be dispatched was determined, a special panel of judges was appointed to the court. All of their other pending cases were removed and their sole focus was to hear this case only.
- While the burden of proof should always be on the person who brings a claim, in this case, the defendants were made to prove their innocence. There should be some other evidences in addition to the words of the complainants and those who want to benefit from the penalty reduction.
- The indictment contains copy-paste texts.
- Defendants’ right of defense is considerably restricted because neither they nor their attorneys can access 33 pieces of evidence (hard disk, flash memory, CD, etc.) that are said to be contained in the case file.
- The principle of equality of arms is violated and the defendants’ right of defense is restricted by the court’s regular rejection of the demands of the defendants and their lawyers for the court to collect certain evidence (such as city surveillance camera footages, mobile phone base station records, asking Apple regarding an application available on the Apple Store) and to hear certain witnesses and experts.
- The allegation of attempted intentional murder was added to the list of allegations months after the police operation due to an individual incident. We understand that based on this single incident, the alleged organization was called “armed” and heavier penalties were targeted. This incident is as follows: The defendant, Mert Sucu, had fallen asleep shortly before the police operation. He was in a heavy state of sleep as he had not slept the day before. When he heard voices from outside his place, he thought that they were under attack and reflexively fired his licensed gun at his bedside. Without getting up from his bed, he fired disorderly, without targeting anyone or anything. The police were outside the cottage-like small house he was in; the police and Sucu were not in the same place and did not see each other. As soon as he realized that the people outside were the police, he put down his gun and went out to surrender. It was alleged that during this firing, he had fired at the police and that his bullets had hit a police officer. However, there is no police statement that a policeman was shot; the police officer’s statement was taken 7 days after the incident; despite the request of the defense, the police officer did not get a medical report (or even if he did, it was not delivered to the defense); items at the scene were displaced; the bullets the defendant had kept under his bed wrapped in a bag were unwrapped (the defense requested a study of the fingerprints on the bag, but this request has not been accepted until now); there is a bloodstain in the interior of the cottage, but the blood does not belong to the defendant himself and it has not been investigated whose blood it was; the police officer’s bulletproof vest has no bullets and no ballistic examination has been carried out. It is claimed that bullets hit both the vest and the magazine holster. The defendant fired from the same spot inside the enclosed space he was in, but the examination of the two alleged shots showed that one was from a long range and the other from a close range. It is determined that the bullet hit the vest from a close range (from a maximum distance of 30 cm) but the police and the defendant never came face to face during the firing and the distance between the bed and the outside of the room was 3.5 meters. The footages were not delivered to the defense although it was requested; no survey was made at the scene because the location was hastily destroyed due to the Municipality’s decision shortly after the police operation; no fingerprints were found on the gun, which the defendant admits to having fired; although it is alleged that he fired until all bullets were gone, the gun was found neatly inserted into a shoe with its hammer in the “de-cocked” position; there is gunpowder in the left hand of the right-handed defendant. However, gunshot residue was found on both the inner and outer surfaces of both hands of the police officer who was at the scene and allegedly shot. There are such suspicious details that show that this incident of the alleged shooting of a police officer is set up to frame the defendant.
- It is alleged that this firing incident was due to a security protocol of the alleged criminal organization by Adnan Oktar’s instructions to shoot the police to protect him and save time for him in a police operation. However, Adnan Oktar was not even on the premises at the time of the incident, so it is clear that there was no such intention of protecting him and/or saving time for him. This so-called instruction was not mentioned at all by any of the complainants before the police operation. It seems that the alleged criminal organization was intended to be called “armed” on the pretext of the individual incident, and two defendants who wanted to benefit from the effective remorse law were compelled to say that they had heard of Oktar’s instructions and the existence of such a protocol. It is obvious that there is actually no such security protocol because there is no mention of it in any other statements, especially in none of the statements given before this incident, and no other suspects took such an attempt or even resisted the police.
- According to Turkish law, locating, listening, and recording of the telecommunication can only be carried out with a decision given by a judge, and is only applicable for certain crimes listed in CMK, Article 135. However, the orders issued during this investigation included listening to the correspondence of those suspects who would not be prosecuted for these listed crimes. Therefore, these orders are invalid. Besides, people who are tried with the allegation of being the administrators of the alleged criminal organization can be listened to for a maximum of 2 months. This duration can be extended for a maximum of 1 more month. It can be extended to 6 months only with data and a request regarding another crime. However, after the 2+1 months of wiretapping, the measure continued without citing another crime (other than being the administrators of the organization) for the decision to extend it for another 3 months. Therefore, wiretapping orders are unlawful.
- Professor Ümit Kocasakal, who served as the President of the Istanbul Bar Association for 3 terms said:
- We are lawyers, not tabloid journalists. Our job is about indictments; not gossips, not conjectures. Allegations cannot be abstract. There should be sufficient suspicion in the light of concrete evidence. We cannot correlate the existing evidences. There must be criminal acts.
- There can be no criminal organization without a criminal purpose; its members should have gathered for a common purpose.
- Not even shocking groups can be called criminal organizations unless there is a criminal purpose; there are freedoms provided by the Constitution and these freedoms should be respected.
- According to a recent decision of the Turkish Supreme Court dated 2019, not only the hierarchy but also the chain of command must be proven to show the existence of a criminal organization. It is said in the decision that a group should not be called a criminal organization unless it is shown with certain and convincing evidence that the organization has a hierarchical structure. The organization should be established in an organic, hierarchical relationship. There must be a power involving domination and submission. In this case file, however, some defendants are charged with being the administrators of the alleged criminal organization based on the number of times they were called on the phone.
- The defendants have been asked about things that are not defined as a crime in the Turkish Penal Code (such as their marriages, doing shortened military service by payment (which is an opportunity provided by the state), their licensed guns, whether they have voted in the elections or not, etc.).
- The criminal suspicion should be stronger than before in order to continue the detention of the defendants. There must be strong evidence showing a strong criminal suspicion, but I do not see a single concrete evidence in the file. It should be explained why measures of supervised release, as alternatives to detention, are considered insufficient. The continuation of detention under these conditions is contrary to the Constitution, the decisions of the ECtHR, and everything in a humanitarian and conscientious sense.
- The legal principle in dubio pro reo (“in cases of doubt, then for the accused”) is transformed in this case into “in cases of doubt, then for the prosecution”.
Due to the principles of in dubio pro reo and the presumption of innocence, and due to the expiration of the 2-year detention limit set by the law, the release of the defendants was requested, but except for a single defendant, the court decided to continue the detention of all defendants. This recent decision, like the previous interim decisions, was not individualized and did not specify any concrete matter. Detention continues even for the defendants who do not have one more day to stay in prison even if they were sentenced to imprisonment. Detention has turned into a punishment rather than a measure and, also considering the COVID-19 pandemic, causes loss of rights. Decisions to continue detention of the defendants are against the principle of proportionality and are arbitrary.
Even though tangible evidences are provided in response to the allegations (for example, a defendant’s passport records showing that he, accused of an alleged sexual assault, was not in Turkey at the time of the alleged incident) and despite the lack of evidence except for the allegations the accuracy of which is not confirmed by anything other than the statements of some complainants/witnesses, detention is continued on the grounds of “strong criminal suspicion.” This decision, which is a typical example of stereotype reasoning, is “unjustified” or, in other words, “devoid of any reasonable and concrete justification”. None of the detention warrants issued so far demonstrated that there was a “real public interest” with a legally meaningful justification, and this is contrary to the ECtHR rulings.
The Decision to Extend Detention Was Not Rendered Duly
The duration of detention
CMK (Code of Criminal Procedure) Article 102 –
(1) For those crimes not within the jurisdiction of the high criminal courts, the maximum period of detention shall be one year. However, if necessary, this period may be extended, for six more months, by explaining the reasons.
(2) For those crimes under the jurisdiction of the high criminal courts, the maximum period of detention is two years. This period may be extended by explaining the reasons in necessary cases, but the extension shall not exceed 3 years.
(3) The decisions of extension, which in accordance with this article, shall be rendered only after the opinions of the public prosecutor, the suspect or accused and their defense counsel have been obtained.
Two key terms here are “in necessary cases” and “extended by explaining the reasons”. As a basic principle enshrined in Article 5 of the ECHR, the length of the detention has to be reasonable.
The above-cited CMK articles make a distinction between crimes within and not within the jurisdiction of the high criminal courts. For this reason, it would be incompatible with the reason for the article and the purpose of its regulation to think that the accused should be detained separately for each of the alleged crimes. The execution of a single detention period is a requirement of the rule of law. It is the State’s duty to determine the legal status of the accused by making a trial for all the alleged charges within a reasonable time and within the specified duration of detention. Any other opinion makes the CMK 102 regulation meaningless and is incompatible with the rule of law. In other words, the idea that the accused should be detained separately for each crime he/she is being tried is incompatible with contemporary legal regulations that aim to limit detention as well as ECtHR decisions.
In its latest decision to continue detention, the court failed to comply with the procedure prescribed by CMK 102. According to 102/2, “the maximum duration of detention is two years”. For the defendants of this case, who have been detained for more than 2 years, it was decided to continue the detention, without issuing a proper decision to extend the detention as specified in 102/3.
In December 2019, 95 defendants were released after 17 months of detention and they have been under house arrest for 8 months since then. Defense attorneys stated that even if these defendants were sentenced to the highest punishment ordained by the law, they would have been free now. Underlining that house arrest is a harsh measure similar to detention, they requested for that order to be repealed or to be replaced by a less severe measure of judicial control. This motion was also rejected, and these people whose all assets and bank accounts have already been seized still cannot work and earn their living.