THE IRREGULARITIES AND UNLAWFUL PROCEEDINGS ATTORNEY EŞREF NURI YAKISAN HAS ENCOUNTERED IN HIS ACTING AS A LAWYER IN THE CASE FILE NUMBERED 2019/313 OF ADNAN OKTAR AND HIS FRIENDS
The following case regarding Attorney Esref Nuri Yakisan, who has been acting as a defense counsel in the case file numbered 2019/313 is another example of how the lawyers in the related trial has been subjected to unlawful practices, irregularities by the panel of judges and violation of principles of local and international law since the beginning of the prosecution.
He has been convicted by the same court where he was acting as a lawyer representing defendants in the case file. The public prosecutor of the same case file merged his file, with the case file that he was acting as a defense counsel. The same court convicted him with the charge of allegedly being a member of a so-called criminal organization. In doing this the court carried out a series of unlawfulness by distorting the facts, an investigation was started about him unlawfully.
Attorney Esref Nuri Yakisan’s right to defense was prevented as he was not provided with a natural judge, or an impartial court. He was not allowed to take assistance from his lawyer, he had no opportunity to hear the allegations against him at court and could not defend himself by asking direct questions to the complainant.
The details of the case on Attorney Esref Nuri Yakisan, one of those lawyers threatened, restrained, intimidated, trapped and finally convicted in the mentioned case file 2019/313 present the extent of unlawfulness, illegality and unfairness implemented since the beginning of the prosecution against a group of friends who have not committed a single crime in their lives.
The mentioned case file and the involved decent and innocent citizens, highly educated and modern women and men of Turkey seek justice and their acquittal through law and a right to a fair trial.
CONVICTED BY THE SAME COURT WHERE HE WAS ACTING AS LAWYER REPRESENTING 9 DEFENDANTS IN THE CASE FILE 2019/313
- While I was acting as a lawyer representing 9 defendants in the case file numbered 2019/313 of the Istanbul 30th High Criminal Court where I was convicted,
- The local court that I am tried in, notified the Silivri Chief Public Prosecutor’s Office about an allegation brought about me by the attorney of a complainant in the same case file, saying that a crime has been committed by me and cited the Code of Criminal Procedures art.158 and article 205 as justification.
- After the decision of non-jurisdiction was given by Silivri Chief Public Prosecutor’s Office, the investigation file about me was sent to the Istanbul Chief Public Prosecutor’s Office.
PUBLIC PROSECUTOR OF THE SAME CASE FILE 2019/313, MERGED THE LAWYER’S FILE WITH THE SAME CASE FILE
- And after this stage, public prosecutor Mr. Serdar AKAN, who was the trial prosecutor of the file no 2019/313 conducted the investigation and the Local Court, which actually gave notice about me in the first place accepted the indictment prepared by Public Prosecutor Mr. Serdar Akan and merged my file with the file numbered 2019/313.
- On 11.08.2020, citing Code of Criminal Procedures Art.151 / 3 and other clauses the court decided that I’d be restricted from performing my duty of attorney for 1 year and I was tried as a defendant by the same panel of judges and was convicted on 11/01/2021 by the same panel of judges and a decision for my arrest was given together with the verdict.
THE SAME COURT CONVICTED THE LAWYER OF ALLEGEDLY BEING A MEMBER OF A SO-CALLED CRIMINAL ORGANIZATION
- With Istanbul 30th High Criminal Court’s verdict numbered 2021/6 dated 11/01/2021 on the case numbered 2019/313, I have been convicted of allegedly being a member of the organization established for the purpose of committing a crime (article 220 / 2-3) and making threats using the names of criminal organizations (Turkish Criminal Code Article 106/2-d).
THIS VERDICT OF THE LOCAL COURT SHOULD BE OVERTURNED SINCE IT IS IN VIOLATION OF PROCEDURES AND THE LAW
- First of all, the notification made by the Istanbul 30th High Criminal Court, which actually is the court that ruled for my conviction regarding the threat crime I am charged with and arrested me – to the Silivri Chief Public Prosecutor’s Office, is clearly against the Procedure and the Law.
- Namely; first and foremost, although the interlocutory ruling made by the Court regarding the notification dated 01.10.2019 made by the complainant Eser ÇÖMLEKÇİOĞLU to the Local Court was made in accordance with Article 205 of the Code of Criminal Procedure titled ‘action on the crime committed during the hearing‘, the incident described in the statement made by the complainant did not take place during the hearing nor was it a situation determined by the court.
- Therefore, although a report was taken at the hearing pursuant to article 205 and the Court added the SEGBİS report containing the statement of the complainant on 07.10.2019 and requested the evaluation of articles 158 and 205 while it was sent to Silivri Chief Public Prosecutor’s Office; it was this procedural action of the court which is in violation to the provisions of the law mentioned, that started the investigation carried out about me.
THE NOTIFICATION BY THE COURT TO THE PROSECUTOR’S OFFICE INCLUDED FALSE DETERMINATIONS THAT DISTORT THE FACTS
- Moreover, in the letter written by the Court on 07/10/2019 for the notification to the Prosecutor’s Office, false determinations were included. This is important in understanding the attitude of the Court regarding the incident.
- Although the complainant said that the incident related to the alleged threatening act carried out by me took place in the outer parking lot of the Court Halls in Silivri Penitentiary Institutions Campus, it was recorded by the Court as ‘at the entrance of the hearing hall’s door” as a place for the report.
- Likewise, although the complainant said that the incident took place before the hearing began in the morning, the court put it in record as if the complainant took the floor and notified the court before the session started. This clearly shows the court is trying to portrait the incident as if it happened during hearing inside the hall.
- Whilst it is not legally possible to make a notification about this incident which did not take place during the hearing, using Article 205 as reference; regrettably there is no explanation for the COURT’S SUCH ACTION IN THE LEGAL GROUND.
THE PUBLIC PROSECUTOR ACTED UNLAWFULLY AND DID NOT ASK FOR PERMISSION FROM MINISTRY OF JUSTICE TO START AN INVESTIGATION THUS VIOLATED ARTICLE 58/1 OF LEGAL PRACTITIONER’S ACT
- Even if -for a moment- we accept that the action taken by the Local Court was in fact the right action; it would come to mean that the notification made in reference to Code of Criminal Procedure Article 205 was about me committing a crime while I was performing my duty as a Lawyer. In which case, the public Prosecutor’s office should have taken permission from the Ministry of Justice before starting an investigation about me, as per Article 58 of Legal Practitioner’s Act which dictates that : “Investigations on attorneys induced by crimes arising in connection with their practice of attorneyship, or their duties with the organs of the Union of Bar Associations of Turkey or bar associations, or the crimes they commit during the performance of their duties will be conducted by the public prosecutor in the jurisdictional area where the crime is committed, upon the permission of the Ministry of Justice.”
- Not only this procedure was completely ignored, even though I have notified the court before the start of my interrogation carried out by the court that this permission had not been taken and have requested that a decision on the stay of the proceedings regarding myself should be rendered in accordance with Code of Criminal Procedure Article 223/8, my request had been denied by the court without any justification and the trial continued.
- As a matter of fact, the Supreme Court of Appeals 4th Criminal Circuit, in its verdict dated 25/04/2006 and numbered 2006/3597 E., 2006/11304 K., found it illegal to initiate a criminal investigation without obtaining permission to investigate a lawyer as per Article 58/1 of Legal Practitioner’s Act, although the decision of non-prosecution was given as a result of said investigation. Likewise, the Supreme Court of Appeals 4th Criminal Circuit, in its verdicts dated 10/04/2014 and numbered 2013/25032E., dated 05/06/2014 and numbered 2015/25138E., and numbered 2014/20479, stated that the permit procedure foreseen is obligatory and regarded the fact that the court did not make up for this deficiency occurred during the investigation state, in the prosecution process by deciding on the stay of the proceedings according to Article 223/8 of Code of Criminal Procedure, as a cause for overturning the decision made by the court.
- Concisely; Since the obligation to obtain permission before an investigation is carried out regarding the crimes charged to me -taking into account the fact that the crimes charged to me are not among the crimes that can be directly investigated without the permission in Article 161/8 of the Code of Criminal Procedure– has not been fulfilled.
- The fact that an investigation has been carried out against me according to general provisions and that I have been convicted of the said crime as a result of that investigation is against the law.
UNIVERSAL PRINCIPLES OF CRIMINAL LAW, ARTICLE 6 OF THE ECHR AND ARTICLE 9 OF THE CONSTITUTION ARE BREACHED IN VIOLATION OF PRINCIPLE OF NATURAL JUDGE AND IMPARTIAL COURT
- This investigation that started illegally went on with another irregularity. Namely, the fact that Istanbul 30th High Criminal Court which actually made the notification about the incident upon the complainant informed the court, heard the case brought about me, is another unlawful irregularity.
- According to the UNIVERSAL PRINCIPLES OF CRIMINAL LAW, ARTICLE 6 OF THE ECHR AND ARTICLE 9 OF THE CONSTITUTION, the individual has the right to be tried in an impartial court and the courts are obliged to be impartial in accordance with these articles.
- In the present incident, the authority that made the notification was the Istanbul 30th High Criminal Court and the investigation carried out against me was sent from the Silivri Chief Public Prosecutor’s Office to the Istanbul Chief Public Prosecutor’s Office. Afterwards, the indictment was submitted directly to the Istanbul 30th High Criminal Court, in violation of the principle of natural judge, and the indictment was accepted.
- Following the acceptance of the indictment, the case file that has been opened has been merged with the case file numbered 2019/313 about which the notification about me has been made.
- All these, in every aspect is against procedure and law. This situation that I tried to do the explanation as a lawyer, is alone:
A MANIFESTATION OF THE FACT THAT THE INVESTIGATION THAT STARTED ABOUT ME, THE TRIAL CONDUCTED AND THE VERDICT GIVEN AS A RESULT OF THAT TRIAL ALL SERVE THE INTENT TO REMOVE ME FROM THE CASE FILE AND TO PREVENT ME FROM PERFORMING MY PROFESSION INSTEAD OF SERVING THE ESTABLISHMENT OF JUSTICE.
THE PRINCIPLE OF IMPARTIAL AND OBJECTIVE JUDGMENT HAS BEEN IGNORED
- In accordance with the principle “nemo judex in propria causa” meaning “no one can be the judge of one’s own case”, the principle of impartial and objective judgment which has been around since the existence of humanity, has been ignored during the trial process carried out against me.
- The fact that the authority which notified the related authority about the act that I am accused of, stating that it may constitute a crime in reference to the Turkish Criminal Law, meaning the party that has a suspicion about me committing a crime, the party that determined the possibility of me having committed that crime, is also the authority that conducted the trial about
me and gave the verdict about my conviction, is not only against good conscience but also incompatible with honesty and justice.
THE PURPOSE OF THIS PROCESS IS TO CONVICT A DEFENSE LAWYER BASED ON AN UNTRUE ACT THROUGH IRREGULARITIES OF JURISDICTION
- The situation I have described here is the most important issue that should be considered during the evaluation of my appeal application; the purpose of this process which resulted in my being convicted and the untrue act
that I have been accused of committing, has never been to reveal the material truth in accordance with the law.
- This is a fact undoubtedly proved with all the irregularities I have explained above. These unlawful practices are completely fictionalized and the sole purpose of this situation that I would describe as a “trap” in the lightest expression, is to destroy the effectiveness of my person as a defense counsel.
- Having started for this purpose, it subsequently RESULTED IN ME BECOMING A DEFENDANT IN A CASE FILE I STARTED AS A DEFENSE ATTORNEY AND BEING TRIED BY THE SAME PANEL OF JUDGES AND THEN BEING CONVICTED BY THEM.
- This not only damaged the reputation of the lawyer profession but also became an insult to the position of the defense authority in this trial. I respectfully present this strangeness a court ruling on behalf of the Turkish nation, to the discretion of your board.
RIGHT TO DIRECT QUESTIONS WHICH IS REGULATED BY ARTICLE 201 OF THE CODE OF CRIMINAL PROCEDURE HAS BEEN PREVENTED DUE TO THIS UNLAWFUL SITUATION CAUSED BY THE COURT
- Again, against the procedures, the Local Court decided to take the defendants out of the courtroom while the complainants were being heard, citing the Code of Criminal Procedures Article 200 as a justification. Eser ÇÖMLEKÇİOĞLU, who is the complainant of the threat allegation brought against me and is, at the same time, the attorney participating in the same file, was heard IN MY ABSENCE at the hearing held on 22/09/2020 during 8th Session before the Court that started on 05/08/2020.
- Therewith, as of 05.08.2020, the complainants of the case file were started to be heard. The complainants of the file were heard for about 2 months until the last week of September, but the court did not notify the defendants and the defense counsels of the defendants’ the order in which they will be heard by the Court. Therefore, it was not possible for my lawyer Attn. Elif Esra KIRIMLI to be present at the session in which the complainant Eser ÇÖMLEKÇİOĞLU was heard either.
- That is how MY RIGHT TO DIRECT QUESTIONS WHICH IS REGULATED BY Article 201 of the Code of Criminal Procedure HAS BEEN
PREVENTED DUE TO THIS UNLAWFUL SITUATION CAUSED BY THE COURT.
- In order to reveal the material truth, it was extremely important that I attended the hearing and asked direct questions to the complainant Eser Çömlekçioğlu, who caused the trial and the conviction against me, yet this right of mine has not been exercised by the Local Court.
ARTICLE 201 OF THE CODE OF CRIMINAL PROCEDURE WAS VIOLATED SINCE THE COMPLAINANT WAS ALLOWED TO ASK DIRECT QUESTIONS TO THE DEFENDANT AND THE TRIAL WAS CONDUCTED UNLAWFULLY
- However, my interrogation was held on 01/10/2020 during the 8th Session that started on 05.08.2020 and as it would also be seen in the SEGBIS transcriptions of the hearing, the Presiding Judge has permitted the complainant Eser ÇÖMLEKÇİOĞLU to direct questions to me, although the complainants do not have a right to direct questions in the hearing.
- According to Article 201 of the Code of Criminal Procedure, the complainant/ participant is not counted among the persons who can
directly direct questions. According to this article, although it is stated that “the defendant and the PARTICIPANT can also ask questions through the PRESIDENT OF THE COURT OR THE JUDGE”, the complainant Eser ÇÖMLEKÇİOĞLU was allowed to ask questions directly to me at the hearing.
- As can be seen from the SEGBIS records, although the fact that SHE ALSO HOLDS THE TITLE OF BEING A COMPLAINANT IN ADDITION TO BEING
THE ATTORNEY OF A PARTICIPANT, AND THAT A COMPLAINANT CANNOT ADDRESS A QUESTION TO ME WAS VOICED AND THE NECESSARY OBJECTIONS HAVE BEEN RAISED BOTH BY MYSELF AND BY THE DEFENSE ATTORNEYS, this wrongful procedure has been continued by the Presiding Judge and the trial has been conducted in an illegal fashion.
THE ONLY EVIDENCE WHICH IS THE STATEMENT OF THE COMPLAINANT WAS NOT DISCLOSED AND THE RIGHT TO DEFENSE WAS VIOLATED
- As a result, another point that needs to be stated in this regard is, according to Article 200 of the Code of Criminal Procedure titled “The defendant can be taken out of the courtroom during the interrogation“, the 2nd paragraph reads “When the defendant is brought again, the minutes are read and the contents are explained when necessary.”
- However, although the complainant Eser ÇÖMLEKÇİOĞLU had been heard in my absence and my interrogation was made in the next sitting after her, the SEGBIS report containing the statement of the complainant and the minutes of the hearing were not notified to me. I was not asked whether I have anything to say against the statements of the complainant or not. Although THE STATEMENT OF THE COMPLAINANT WAS THE ONLY EVIDENCE, IT WAS NOT DISCLOSED TO ME AND THE OPPORTUNITY TO DISCUSS IT IN THE PRESENCE OF THE PANEL OF JUDGES WAS NOT GIVEN.
THE LAWYER WAS ARRESTED WITHOUT ANY JUSTIFICATION ALONG WITH THE CONVICTION GIVEN AND HIS RIGHT TO DEFENSE WAS PREVENTED
- Again, in another situation where my right to defense was violated, I was convicted by the Local Court as a result of the trial process in which I was tried without pre-trial detention, AND WAS ARRESTED WITHOUT ANY JUSTIFICATION ALONG WITH THE CONVICTION GIVEN.
- In Silivri No1 Closed Penal Institution where I was taken with my arrest, I was notified with a CD about the short verdict, namely the verdict hearing (hearing dated 11/01/2021) given by the Court. However, I was not given the opportunity to examine the CD that contains the decision by the administration of the penal institution.
- Therefore, I was prevented from exercising my right of defense effectively, and my attorneyship process which started as a defendant’s attorney suddenly ended when I found myself on the defendant stand, and finally in prison with my hands tied both literally and figuratively, waiting for justice to be served.
MY EXPLANATIONS ABOUT THE LOCAL COURT’S RULING ABOUT MY CONVICTION WHICH CLAIMS THAT “I HAVE ABUSED THE RIGHT TO DEFENSE DEFINING THE ACTIVITES OF A LAWYER THAT I CARRIED OUT AS AN ORGANIZATIONAL ACTIVITY, THAT I CONSTANTLY TRIED TO ARGUE WITH THE PANEL OF JUDGES AND THAT I HAVE BEEN CONSTANTLY WARNED AND THAT I HAVE BEEN A LAWYER BROUGHT UP BY THE ORGANIZATION AND THAT I HAVE SET A TRAP FOR THE TRIAL IN AN ORGANIZATIONAL ACT TO CREATE GROUNDS TO RECUSE THE JUDGES”;
- First of all, the Local Court forgot the fact that they are a court and behaved almost like a bar organ that conducts a disciplinary investigation about me.
- In grounds of my conviction, referring to the 2nd, 11th, 134th Articles of Legal Practitioner’s Act, the court claimed that I have been dealing with business that do not comply with the honor and traditions of the profession, that I have used my knowledge and professional experience to serve goals other than establishing justice and that I have acted and behaved in a manner that does not conform with the honor and traditions of the profession and therefore I have tried the patience of the panel of judges and that I tried to pull the committee into the trial trap and that I am a member of a crime organization because of all these reasons. ALL THESE CLAIMS ARE UNACCEPTABLE by me. Both in this file and in all my other files in which I acted as a lawyer, I never took any action or discourse against the attorneyship rules and the Legal Practitioner’s Law.
IT IS NOT AT ALL POSSIBLE TO ACCEPT THE CLAIM THAT I AM A LAWYER BROUGHT UP BY A CRIME ORGANIZATION EITHER
- After finishing my first, middle and high school education in Amasya, I have entered Erzincan University Faculty of Law and studied law in this city. After I have been graduated I returned to Amasya to my family and served my internship in Amasya. During my university education, between 2012-2016, I stayed in state dormitories under the Credit and Hostels Institution. I did not reside any other place with anyone else. I did not receive any financial support from anywhere other than my family and my own earnings I learned the profession of Attorneyship through my internship and attorneyship with Lawyer Osman Faik SALMAN of Amasya Bar Association during my official internship in Amasya Bar Association.
- While I have the knowledge and experience I have learnt from my professional senior in whose office I did my internship and worked as a lawyer, and I have experience in the works I have taken on my behalf and on my account, I fail to understand on which basis the Local Court dares to qualify me as a lawyer trained/brought up by the organization.
- Taking my education and my Professional life into consideration, I would also indicate that THIS IS A SENTENCE THAT FAILS TO GO BEYOND MERE CONJECTURE AND PRESUMPTION.
Note: The above facts and details are a part of the petition of Attorney Esref Nuri Yakisan who has made an application to the Court of Appeals and is right now in prison waiting for the manifestation of justice.