Wednesday, 10 April 2013

From Fear to Absurdity: Turkey's Continuing Politicized Court Cases

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by Gareth H. jenkins (vol. 6, no. 7 of the Turkey Analyst)

On April 4, 2013, Turkey’s notorious Ergenekon trial took another twist when prosecutors accused one of suspects of murdering former President Turgut Özal in 1993, just four months after a judicial review had failed to find any evidence of foul play in Özal’s death.  On April 9, 2013, prosecutors launched a judicial investigation against members of the opposition Republican People’s Party (CHP) for “inciting the public to participate in illegal meetings and demonstrations” after they helped organize protests outside the courthouse in Silivri, west of Istanbul, where the Ergenekon hearings are being held. Such developments have reinforced already grave concerns not just about the cases themselves but about prospects for the rule of law in Turkey.

 

BACKGROUND: Since the Ergenekon investigation was first launched in 2007, it has become the most controversial court case in modern Turkish history and spawned a plethora of other, highly politicized judicial trials. Some have subsequently been merged into the main Ergenekon case. Others have been heard separately. In total, nearly 2,000 people have been taken into custody and over 1,000 have been charged. Initially, the investigations primarily targeted secular Turkish nationalists. Apparently emboldened by the muted reaction, prosecutors then turned their attention to serving and retired members of the Turkish military, which had long regarded itself as the primary guardian of secularism in the country. In recent years, they have begun to pursue a disparate array of leftists and liberals whose only common denominator appears to be opposition to the Turkish Islamist movement, particularly the followers of the exiled preacher Fethullah Gülen.

The charges against the military personnel accuse them of running an improbably large spy rings and/or plotting to stage coups. Many have also been charged with membership of Ergenekon, which the prosecutors claim is a vast clandestine organization which has been responsible for every act of political or racist violence in Turkey over the last 25 years and which also controls every terrorist group active in the country – whether leftist, Islamist or Kurdish nationalist. Suspects who are not members of the military have been charged with belonging to Ergenekon and attempting to destabilize the country in preparation for a military takeover. Extraordinarily for such a huge number of suspects, there have been no confessions. Indeed, none of the accused has admitted even to being aware of a coup plot or the existence of an organization called Ergenekon.

All of the cases have followed a similar pattern. They have started with an anonymous “tipoff” –by telephone, letter or email – detailing the location of allegedly incriminating evidence against a number of named individuals, such as arms caches and documents stored on digital media. The police have then raided the locations and recovered the material described by the informant. The raids have been followed by vigorous press campaigns by media outlets owned by Gülen’s supporters, detailing not only what was found but the suspects’ allegedly dastardly intentions. Many of these reports have later been shown to be inaccurate or invented. But, particularly at first, they served to condition public perceptions of the investigations. The Gülen Movement’s media outlets have also played the leading role in defamation campaigns against those who have questioned the conduct of the cases.

Suspects have been charged in prodigiously long indictments, often running to thousands of pages full of contradictions and absurdities. In August 2010, Police Chief Hanefi Avci, a rightist and former Gülen sympathizer, wrote a book detailing how cases such as Ergenekon were being run by a cabal of Gülen’s supporters in the police and judicial system. In September 2010, Avci was arrested. He is currently in prison accused of belonging to Ergenekon.

The main Turkish institution responsible for domestic and foreign intelligence gathering is the National Intelligence Organization (MİT). MİT has requested court permits for thousands of telephone intercepts against suspected members of the militant groups which prosecutors claim are controlled by Ergenekon. But MİT has yet to request any permits for suspected members of “Ergenekon” itself, which suggests that it is well aware that the organization does not exist.

IMPLICATIONS: It would be a mistake to dismiss cases such as Ergenekon as merely the product of paranoia. There is considerable evidence that something much more sinister is happening – and that the prosecutors are being inadvertently assisted by the indifference and naivety of Turkey’s allies, international human rights organizations and bodies such as the European Court of Human Rights (ECHR).

The cases include numerous instances in which digital evidence has clearly been being fabricated and planted, sometimes even in the wrong location. For example, on August 4, 2012, after an apparent mix-up over addresses, a police team raided the apartment of a naval officer called Emrah Küçükakça and “discovered” a mass of incriminating digital evidence on computer disks, CDs and DVDs. But the “evidence” all incriminated someone called Emrah Karaca. Nevertheless, Küçükakça was held in prison for eleven months before being released. No disciplinary action has been taken against the police officers involved.

Turkey is a signatory to the European Convention on Human Rights. However, applications to the European Court of Human Rights (ECHR) on the substance of a case can only be made when the domestic judicial process, including any appeals, has been exhausted. For ongoing cases, the ECHR’s remit is restricted to procedural issues.

In September 2008, Tuncay Özkan, the owner of the secularist KanalTürk television channel, was charged with membership of Ergenekon. He has been in prison pending the completion of his trial ever since. Özkan applied to the ECHR, arguing that that his pre-verdict detention was excessive. In December 2011, the ECHR rejected his application, citing a statement by prosecutors that hand grenades had been found in his possession. This was not true. At the time of Özkan’s arrest, the police had raided KanalTürk and found three empty grenade casings -- such as are sold on the internet as ornamental oil lamps – on the desk of another member of staff. The police forensic report presented to the court in Istanbul clearly states that they had found only three empty casings without explosives or detonators.

More egregious is what has become known as the Balyoz, or “Sledgehammer” investigation, which is the only one of the cases in which verdicts have been delivered. On September 21, 2012, a total of 331 serving and retired members of the military were sentenced to lengthy prison terms after being found guilty of planning to stage a coup in 2003. The Balyoz indictment alleges that the plot was discussed a military seminar in Istanbul on March 5-7, 2003. All of the evidence comes from a purported coup plan on a CD which prosecutors claim was burned on March 5, 2003 and not subsequently amended. However, in addition to containing dozens of anachronisms, forensic reports on the CD’s metadata have demonstrated that the 2003 coup plan was written using Microsoft Office 2007. In January 2013, the court published a 1,435 page explanation of its verdict, in which it claimed that, whenever a Microsoft Office file is opened with a version older than the one in which it was originally written, it is automatically updated to the new format. This is not only patently untrue but contradicts the prosecutors’ claim that the CD had not been amended since March 2003.

Commodore Cem Aziz Çakmak, one of the naval officers convicted in the Balyoz case, appealed to the ECHR. In a ruling published on February 19, 2013, the ECHR rejected Çakmak’s application because his case had yet to complete the domestic appeal process. Extraordinarily, even though the ECHR’s remit did not include evaluating the evidence, the ruling stated that Çakmak’s case file contained “information which would satisfy an objective observer that the applicant could have committed the offense for which he was prosecuted.”

Under such circumstances, it is not surprising that those driving the cases feel little reason to exercise restraint. In a country where little happens that cannot be attributed to a conspiracy theory, there has long been speculation about President Özal’s death in 1993 at the age of 65. In fact, Özal was very overweight and had a history of severe heart problems. On the morning of April 17, 1993, a day after returning from an exhausting five-country, twelve-day tour of Central Asia, he suffered a massive heart attack following a session on his exercise bicycle. In 2012, amid persistent claims that he had been poisoned, Özal’s body was exhumed and sent for examination. A detailed forensic report was published on December 13, 2012. It stated that it had found no evidence of foul play or any abnormal levels of toxins. Nevertheless, on March 31, 2013, General Hürşit Tolon, one of the suspects in the Ergenekon case, was questioned on suspicion of assassinating Özal. On April 4, 2013, prosecutors completed an indictment against Brigadier General Levent Ersöz, another of the Ergenekon accused, on charges of poisoning Özal.

CONCLUSIONS: The impact of the slew of politicized investigations such as Ergenekon and Balyoz extends well beyond those who have been directly targeted. The cases have played a major role in the creation of the environment of fear, censorship and self-censorship that has recently begun to attract international censure. They have also reinforced already serious concerns about the rule of law in Turkey and whether either the guilty or the innocent can expect justice.

Frustratingly, much of the damage could have been prevented if people inside and outside Turkey had been prepared from the outset to stand up for the rights of those with whom they disagreed. Over the last two years, as leftists and liberals have been targeted, it has become commonplace for people to argue that cases such as Ergenekon started well but subsequently went off track. This is not true. As any detailed examination of the cases will show, the range of victims may have changed but the methods, absurdities, fabrications and abuses of law and due process have remained the same.

Ironically, the cases probably now also pose a challenge to the Gulen Movement itself. Even if it continues to try to distance itself from the cabal of officials driving the cases, the Movement’s relentless defense of the investigations has meant that it has become increasingly associated with them in the eyes of both Turkish and international observers. As international awareness of the realities of the cases continues to grow, the Gülen Movement’s reputation is likely to suffer.

Gareth H. Jenkins is a Nonresident Senior Fellow with the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center.

© Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center, 2012. This article may be reprinted provided that the following sentence be included: "This article was first published in the Turkey Analyst (www.turkeyanalyst.org), a biweekly publication of the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center".

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The Turkey Analyst is a publication of the Central Asia-Caucasus Institute & Silk Road Studies Joint Center, designed to bring authoritative analysis and news on the rapidly developing domestic and foreign policy issues in Turkey. It includes topical analysis, as well as a summary of the Turkish media debate.

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