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Turkey’s Ergenekon investigation - violations and inconsistencies

A pattern of human rights violations and other irregularities suggests that this long battle in Turkish courts against those accused of involvement in plans for public chaos and a military coup is not solely committed to strengthening Turkey’s democracy
Burhan Gurdogan
13 August 2010

Turkey is entering a new period with the Ergenekon investigations, which officially began in June 2007. According to the prosecutors, Ergenekon is an underground terrorist organization which was established to control the country, a ‘deep state’ that has infiltrated nearly all levels of government, especially the military. Its aim is to incite public chaos and a military coup with the ultimate goal of overthrowing the incumbent Justice and Development Party (AKP).

Some Turks hope that these investigations constitute a modernizing and democratising process, while others view it as revenge wreaked in response to the fall of the Welfare Party (RP) in February 1997. But either way, in the nearly two years of trials devoted to this investigation so far, prosecutors have failed to procure a single conviction. Moreover, the arrest of Mehmet Haberal – a world-renowned surgeon and founder of Baskent University – and the house raid on Turkan Saylan – a 73-year-old professor undergoing chemotherapy and a founding member of the CYDD, a charitable organization that initiated funding of educational scholarships for poor girls in eastern Turkey – have prompted the outside world to view the investigation with a little more suspicion.

What they have yet to take fully into their reckoning is the human rights violations and many inconsistencies that have surrounded the investigation.

A blind eye?

One of the most important human rights is the “right to liberty”. In Turkey, this right can be limited only under specific conditions as explained in the ECHR Article 5, and the Turkish Constitution, Article 19. Arrest verdicts constitute an important part of the Ergenekon case. This is because some of the people charged with being a member of the Ergenekon organization have been remanded in prison without charges for nearly a year.

Take the Mehmet Haberal section of the 3rd Ergenekon indictment.  According to many legal experts, no evidence connects Mr. Haberal to any terrorist act or any violent organization. Yet he is accused of being in contact with some of the Ergenekon defendants. All of those defendants, however, held important positions. Haberal is accused of contacting one Doğu Perinçek, who has a doctorate degree in law and is also the leader of a political party. But these contacts predate the period in which the crimes for which Perinçek is charged took place. Mehmet Haberal owns nearly 50 medical clinics and hospitals around Turkey, he was rector and founder of Baskent University, and owns many companies.  He was bound to be in touch with many of the government officials who have since been indicted in these investigations. That in itself doesn’t prove his guilt. It is guilt by association.

After his verdict was handed down by the court, he suffered from heart failure and is not about to make a dramatic escape in this condition. Nevertheless, on April 5-6, 2010 he was questioned for the first time by the court and judges, who asked him 80 questions, all of which were unrelated to the crimes that he has been charged with. They decided that he should stay in detention in case he absconded.  After that his lawyers filed a complaint about the judges and applied to the appeals court –Yargitay. Yargitay gave a verdict against the judges and fined nine of them 1,500 Turkish Lira ($ 1000) each on the grounds of detaining a person with a deteriorating health condition for more than a year.

Fatih Hilmioglu also suffers, this time from a life-threatening cirrhosis disease. On December 24, 2009, the president of the 14th Istanbul High Criminal Court stated that “Fatih Hilmioglu should be released because under Turkey’s regulations, he has the risk of liver cancer, and staying in prison means his life could be in danger. Furthermore, there is no risk of his flight or the destruction of evidence”. Unfortunately, another two members of the court voted against Fatih Hilmioglu and he remains in hospitalised imprisonment.

Arrests

When we look at the arrest verdicts, nearly all of them have the same paragraph: “It has been understood that the suspects have attempted to abolish the government of Turkey or attempted to obstruct its working. Because of the facts that show a high possibility of those crimes, it has been decided that the arrests of the suspects should continue”. According to the ECHR, a suspect should also constitute a risk of fleeing or committing another crime. The Turkish constitution also has an article that is similar to ECHR 5/1-c: according to the Turkish Constitution Article 19: “Individuals against whom there is strong evidence of having committed an offence can be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence as well as in similar other circumstances which necessitate detention and are prescribed by law”.

But sentencing hitherto has singularly failed to take into account the often low risk of escape or destruction of evidence. Criminal Law Professor, Zeki Hafizogullari, wrote an article regarding the reason for the arrests of people who do not possess an escape risk or a destruction of evidence risk. It is very simple: in the Turkish Criminal Code of Procedures (CMK) 100/3, it lists 11 sections of crimes and if someone is suspected of those crimes, the article automatically takes it as a fact that there is the possibility that the suspect will escape or destroy evidence. Nearly all of the arrest verdicts were given in accordance with this article, which is contrary to both ECHR and the Turkish Constitution.

The presumption of innocence is one of the most important principles in criminal law. According to ECHR Article 6/2, “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law”. However, in Turkey, this rule works exactly in the opposite way. First, every suspect is crucified by the newspapers and media before they go to trial. By the time they are released, their reputation is already ruined. Thus on the web pages of some well known news channels, you can find an article relating to Mehmet Haberal which alleges that in the 3rd indictment it was stated that he has given logistical support to secret meetings and also organized secret meetings. But those allegations are not in the indictment. On the web pages of various newspapers, meanwhile, the question has been posed - why is Mehmet Haberal having a good time in the hospital when he should be in prison? We can find many examples similar to these.

Evidence should be protected by the court, yet nearly all of the evidence related to the investigation can be accessed with a simple Google search. Defendants have been crucified by the media prior to their trial. It is obvious that the defendants’ rights to a fair trial have been violated.

One of the biggest problems of the Ergenekon case is the interminable length of the trial and investigation process. According to Aykut Cengiz Engin, the chief prosecutor of İstanbul, the Ergenekon investigation began in June 2007. At the start of the investigations, there have been many arrests, but the first indictment was sent to the court on July 14, 2008. This means that many people have remained in prison for nearly a year without even knowing of what they are accused.

According to ECoHR Article 6; “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Staying in prison for one year without any trial is a violation of this article. The large number of defendants in the wide scope of the investigation should not be made an excuse for that. Muammer Aydın, the president of the Istanbul Bar Association, stated that the reasonable time of the arrest process has definitely been exceeded.

Further inconsistencies

Documents that have been collected as evidence reveal some interesting inconsistencies. In the Sledgehammer (Balyoz) Plan, some of the organizations mentioned were not even established at the time the plan was prepared. Moreover, columnists mentioned in the Balyoz plan were writing food recipes and not political articles at that time. And then there are the allegations of forged documents…

These documents were used, it is alleged to gain US and EU support. According to Dani Rodrik, Professor of International Political Economy at Harvard University, people who are close to the AKP government gave Eric Adelman, former U.S. ambassador in Turkey, documents that imply the military was planning a coup. When Adelman sent those documents for examination, they were proven to be forged, at least this is what Adelman told a Turkish newspaper.

This incident raises the possibility that there are still those trying to convince the United States that the Turkish military is planning a coup by producing fake documents and serving them to US officials. If true, this rather undermines any confidence that the Ergenekon investigation is democratic and legal in its goals.

Many Turkish citizens and many outside observers have begun to wonder about investigations, which by any logic, have been handled terribly by the Turkish judiciary. Media support has begun to flounder, thanks to the information pollution of forged documents among the evidence. The Ergenekon investigation started three years ago, yet the allegations remain substantially unproven.

One thing is certain: The Turkish military has lost its power and influence on politics. However, we are still not sure if the developments in Turkey are a movement toward democratization or simply tactics by rising groups to secure more power for themselves while curbing those of the military.

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