Wednesday, 12 March 2014

The Ergenekon Releases and Prospects for the Rule of Law in Turkey

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By Gareth Jenkins (vol. 7, no. 5 of the Turkey Analyst)

Recent amendments to the Turkish Criminal Code have resulted in the provisional release of more than 30 of the defendants in the notorious Ergenekon court case. In the new political climate created by the power struggle between Prime Minister Recep Tayyip Erdoğan and the followers of the exiled Islamic preacher Fethullah Gülen, those released appear unlikely to have to return to prison. Nevertheless, even if they eventually all collapse, the repercussions of Ergenekon and the other politically motivated cases spawned by the Gülen Movement are likely to haunt Turkey for years to come.

 

 BACKGROUND: What later became known as the Ergenekon case was first launched in June 2007 following the discovery of a case of grenades in a house in Istanbul. But the investigation did not begin to gather pace until fall 2007. Contrary to how it is often described, Ergenekon was the product – not the cause – of a shift in the balance of power in Turkey.

In April 2007, Turkish Chief of Staff General Yaşar Büyükanıt had implicitly threatened to stage a coup if the ruling Justice and Development Party (AKP) pushed ahead with its plans to appoint Abdullah Gül to the presidency. The AKP defied the military, called an early election for July 2007, which it won by a landslide, and appointed Gül to the presidency in August 2007. Powerless to defy the election results, the General Staff did nothing. It was only then that Erdoğan and the Gülen Movement – former rivals who had formed an alliance of convenience against their secular opponents – realized what most of the military had privately known for years; namely that the era of military tutelage was over.

Starting in October 2007, the Ergenekon prosecutors abruptly broadened the scope of their investigation. They claimed to have to have uncovered a vast clandestine organization that had been responsible for every act of political violence in Turkey over the previous 30 years, including the death squads that terrorized the predominantly Kurdish southeast of the country in the late 1980s and early 1990s. In January 2008, they even arrested a handful of members of the Turkish underworld and former military security personnel who were known to have been involved in the killings. In recent years, as the Ergenekon case has become increasingly discredited, it has become commonplace to describe the investigation as subsequently deviating from its original course. This is not true. It is clear from the evidence later presented in court that the prosecutors made no attempt to investigate real crimes and human rights abuses. Indeed, in retrospect, the arrests of January 2008 look more like camouflage for what was to come next.

Through the rest of 2008 and 2009 – backed by an aggressive media campaign by pro-Gülen newspapers, television channels and internet websites – prosecutors arrested an improbably diverse range of suspects on charges of belonging to Ergenekon. Yet there was still no evidence that the organization even existed. The only characteristic shared by the suspects was that they were all critics, opponents or perceived rivals of the Gülen Movement.

The investigation was actively supported not only by Erdoğan, who in July 2008 declared that he too was an “Ergenekon prosecutor”, but by international organizations such as Human Rights Watch and Amnesty International. Despite its increasingly flagrant abuses of due process, neither expressed any reservations about the Ergenekon case until prosecutors widened their targets to include left-wing journalists critical of the Gülen Movement.

Under such circumstances, it is not surprising that the pro-Gülen prosecutors were emboldened. Dozens of other cases followed, of which nineteen were subsequently combined with the main Ergenekon investigation. Each case followed a pattern that has become almost as distinctive as fingerprints, including: the same cabal of prosecutors acting on a supposedly anonymous tipoff, dawn raids, a vigorous campaign in Gülen Movement’s media outlets, lengthy indictments based on the alleged discovery of incriminating digital evidence and the creative interpretation of otherwise innocuous or ambivalent wiretapped telephone conversations. Disturbingly, there is now incontrovertible proof of the widespread fabrication of digital evidence and numerous instances in which it has clearly been planted in premises associated with the accused. There are even examples of fabricated evidence against one of the accused being planted in premises associated with another.

To date, over 1,200 people have been charged in the various politically-motivated cases brought by pro-Gülen prosecutors. There have been no confessions. More than 500 defendants have already been convicted, including over 350 serving and retired military personnel. Other cases are continuing. On August 5, 2013, the judges in the main Ergenekon case convicted 251 of the defendants. Most received lengthy jail terms.

IMPLICATIONS: As with the expansion of the Ergenekon investigation in fall 2007, the recent release of some of those convicted in the case is more of an indication of a shift in the balance of political power in Turkey than a movement towards judicial accountability and the rule of law.

Although they initially shared common enemies, the alliance between Erdoğan and the Gülen Movement was always strained. Since late 2013, Erdoğan and the Gülen Movement have been locked in a bitter power struggle, which both sides increasingly regard as a fight for survival. On December 17, 2013, members of the same cabal of pro-Gülen prosecutors that had initiated the court cases against the movement’s critics and opponents launched a corruption investigation against 42 businesspeople with close links to the AKP leadership. Erdoğan responded by instigating a purge of suspected Gülen sympathizers from the apparatus of state, including reassigning over 6,000 members of the police and more than 200 members of the judiciary. Since the beginning of 2014, the AKP has also introduced new laws to increase political control over the judiciary and that transferred primary responsibility for the regulation of the Internet from the courts to the politically appointed Communications Board (TİB). On March 12, 2014, President Gül approved a law abolishing the dershane crammer school system – which is dominated by the Gülen Movement and has traditionally been its main recruiting tool – from the end of the 2014-15 academic year.

The Gülen Movement has hit back with a barrage of wiretapped telephone conversations allegedly showing Erdoğan and his close associates engaged in corruption and malpractice. Although a few contain anomalies in sound and content which are suggestive of manipulation, the vast majority seem authentic. All date to before Erdoğan’s purges. They appear to have been recorded by Gülen’s sympathizers in the police and judiciary and then been smuggled out of the country, from where they are being posted on file-sharing websites such as YouTube. On March 6, 2014, TİB released figures showing that in 2012-2013 – when the relevant departments of the judiciary and police were still dominated by Gülen sympathizers – a total of 509,516 people living in Turkey had their telephones tapped. The figure is not only far in excess of the normal requirements of law enforcement but suggests that more recordings are likely to be posted on the internet over the weeks ahead.

Erdoğan has dismissed the most damaging recordings – including those which appear authentic – as fabrications; and thus has a vested interested in demonstrating that the Gülen Movement has fabricated evidence in the past. It is in this context that the releases of the Ergenekon defendants have occurred.

Under Turkish law, judges are required to issue written “reasonings” justifying their verdicts. It is only when these have been released that the case can go to appeal. The judges who issued the verdicts in the Ergenkon case in August 2013 have yet to issue the reasonings for their decisions. On March 7, 2014, a court in Istanbul ordered the release of former Chief of Staff General İlker Başbuğ, who had received a life sentence as an alleged leader of Ergenekon, on the grounds that the failure to issue the reasoning violated his constitutional rights by preventing him from appealing against his conviction.

On March 6, 2014, an amendment to the Turkish Penal Code was published in the Official Gazette that reduced the maximum time that a defendant can be held in prison before the completion of the legal process from ten to five years. As they have still been unable to take their case to appeal, those Ergenekon defendants who have already spent more than five years in jail have been released. However, they will have to return to prison to serve out their sentences if their case goes to appeal and their convictions are upheld. Similarly, defendants who have already exhausted the appeal process are ineligible for any reprieve. These include the 237 serving and retired military personnel who were found guilty of plotting to stage a coup – allegedly codenamed Balyoz or “Sledgehammer” – in 2003. Their convictions rest solely on digital documents on a single CD, which forensic analysis has shown was written using Microsoft Office 2007, which was not developed until 2006.

Since its power struggle with the Gülen Movement became public, the AKP has several times raised the possibility of a retrial for those charged in the politicized cases brought by pro-Gülen prosecutors. As early as December 24, 2013, Yalçın Akdoğan, who serves as Erdoğan’s chief political advisor, publicly accused the Gülen Movement of “dirty tricks” against the Turkish military. But there is still no indication as to when any retrials of the cases will take place. Disturbingly, even if the AKP government does address the crimes committed by pro-Gülen prosecutors, its primary motivation appears likely to be a desire for political advantage rather than for justice.

CONCLUSIONS: Although there are undoubtedly members of both the Turkish judiciary and the police who are sincerely committed to the principles of justice and due process, the impunity with which cases such as Ergenekon were manufactured by supporters of the Gülen Movement has reinforced already serious concerns about the Turkish justice system as a whole. The cases have demonstrated that the fate of those brought before the courts is ultimately not determined by the principles of due process or the rule of law but by political power. All that appears likely to change following Erdoğan’s purges is the identity of who wields this power.

In addition to the individual victims – several of whom have already died in prison – Turkey as a whole risks paying a very high price for the Ergenekon case; not only in terms of the rule of law but also for its most intractable challenge, the Kurdish issue. A sincere attempt in 2007-8 to investigate the numerous human rights abuses in the southeast during the 1980s and 1990s would not only have offered the victims and their families a chance of justice but would also have sent a powerful message of reconciliation and inclusion to the Kurdish community as a whole. Kurdish nationalists have become increasingly distrustful of Erdoğan and the AKP. Unless the government acts quickly, the demands for autonomy – even full independence – threaten to gain an irreversible momentum. In this sense, the Ergenekon represents not just a miscarriage of justice but a wasted opportunity. It is an opportunity that may not come again.

Gareth H. Jenkins is a Nonresident Senior Fellow with 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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