ORHAN KAYA/BOLD MEDIA
British criminal lawyer Kevin Dent, academician Dr. Emre Turkut, and lawyer Ali Yıldız, registered with the Brussels Bar Association, have contributed to a report that examines the indictments produced by the law system in Turkey, which went off track after the attempted coup on July 15. In the report titled “Dangers of Unlimited Prosecutorial Discretion: Prosecution of Terrorism Crimes in Turkey After the Coup” to be published tomorrow by the Italy Human Rights Federation, 118 indictments in cases opened against members of the Gülen Movement in 81 provinces were examined. According to the data in the report, the legally controversial ByLock was mentioned in 78 out of 118 cases, Bank Asya accounts were mentioned in 64 cases, and allegations such as participating in conversations were shown as crimes in 28 indictments. 50 indictments include testimonies of unidentified secret witnesses.
Dr. Emre Turkut works as a post-doctoral researcher at the Center for Fundamental Rights at the Hertie School in Berlin and is known for his work in the field of human rights law. We talked to Turkut about the report and ongoing trials in Turkey.
Why did you examine the indictments used especially in the Gülen Movement cases in Turkey?
“Before the 2016 coup attempt, the state had already taken measures against the Gülen Movement…After the coup attempt, certain criteria emerged regarding the legal measures to be taken against the Gülen Movement. For example, criteria such as using ByLock, having an account in Bank Asya, subscribing to Zaman newspaper, or working in institutions affiliated with the Gülen Movement were introduced. We tried to determine how these criteria emerged in practice and examined 118 indictments from 81 provinces.”
COURTS ARE RENDERING UNLAWFUL DECISIONS IN A CLIMATE OF FEAR What did you see in the indictments you examined? Were they lawful?
There are 18 basic criteria used by the judicial authorities in Turkey to try members of the Gülen Movement. ByLock, Bank Asya accounts, Zaman newspaper subscription, etc. The majority of the report is a general analysis of these criteria. In law, the prosecutor’s indictment is not a final decision, but ultimately, since the prosecutor represents the power of the state, the courts are rendering decisions far from the law in this climate of fear.
The report has main findings. The indictments do not comply with the trial procedures in Turkey. We observed that they do not even comply with the very simple criteria in the Code of Criminal Procedure. For example, it should be stated in the indictment where and when the crime was committed according to Article 170. In the 118 indictments we saw that even in cases of people being tried for the same crime, there are differences in where and when the crime was committed. In some indictments, it is claimed that the crime was committed on December 17-25, in some indictments, it is claimed that the crime was committed on July 15, 2016, or at different dates thereafter. The police arrest you and then the prosecutor, in some indictments, claims that the crime was committed in Izmir, and in some indictments, claims that the crime was committed in Muş. There is inconsistency in basic standards.
DOES THE COURT DECIDE BASED ON EVIDENCE?
So, do the courts decide based on evidence?
Secondly, when a prosecutor examines whether a crime has been committed according to the indictment, they should establish the connection between the evidence they take into account and the perpetrator of the crime. However, there is a lack of causality in the indictments. For example, the judicial authorities are not familiar with the full content of ByLock. We saw that decisions in the indictments were made based on intelligence reports. When there is no evidence, they conclude that ByLock was used. Normally, the prosecutor conducts investigations with the police and gendarmerie. But when there is no evidence regarding ByLock, they make decisions based on the information sent by the National Intelligence Agency (MİT). MİT decides based on what they send. In essence, there is a problem: There is a weak connection between the alleged crime and the evidence showing the crime. This is a very important finding. This finding alone shows that the indictments are empty. In an average country where the rule of law, democracy, and respect for human rights exist, such indictments should be rejected by the courts.
Another finding is that a prosecutor should gather evidence both in favor of and against the defendant during the investigation. In almost all of the 118 indictments we examined, we can say that there are only pieces of evidence against the defendants. There are significant problems regarding the impartiality and objectivity of the indictments.
INDICTMENTS ARE TEXTS EMBELLISHED WITH CONSPIRACY THEORIES
In addition to these, we have noticed that the indictments are embellished with conspiracy theories and use heavy legal language. This indicates that there is insufficient evidence. This is not specific to the Gülen Movement trials; we can perceive this as a common prosecution strategy in Turkey. The Ergenekon and Balyoz trials, Tahşiye trials, Selam Tevhid trials, and the Osman Kavala case after July 15 are examples of this. They imply that there is an international network making decisions about Turkey and trying to accomplish certain tasks… For example, in the Kavala case, the allegations regarding the Gezi events are an example of this.
PROSECUTORS ARE WRITING A STORY OF PARALLEL REALITY For instance, a dollar story. According to the conspiracy theory presented by the pro-government media in Turkey, 1-dollar banknotes are found in the houses of Gülen Movement members, and the numbers on the bills indicate the person’s position within the organization… What evidence do you present for this? Is there really something discussed within the Gülen Movement? Examples such as forcing people named Fethullah to change their names, turning FG license plates into part of the conspiracy theory, clearly demonstrate this situation. These are issues that are disconnected from reality and should not be included in the indictments at all. We couldn’t focus much on this in the report. They seem ridiculous when you explain them to people with average intelligence. We observed a high number of conspiracy theories in the indictments, such as collaboration between Opus Dei, the Moon sect, and Gülen. Prosecutors try to show the big picture. Prosecutors have the duty to establish justice, but when justice cannot be achieved, they create a story of parallel reality by resorting to heavy legal language and conspiracy theories. All these findings stem from the insufficiency of evidence.
THERE IS A FAMOUS SECRET WITNESS NAMED “GARSON KOD”
After 2016, many cases have secret witnesses. There is a famous secret witness named “Garson Kod” (Waiter Code). It is frequently mentioned that he is close to the Gülen Movement. In the indictments, various code names such as Garson, Venüs are used for secret witness methods. The defendant does not know who the secret witness is, so how can we determine whether the secret witness is telling the truth? This violates the right to a fair trial. We see that not only in the Gülen Movement trials but also in major political cases that started after 2016, secret witnesses are used. For example, in the case of Selahattin Demirtaş, there is a secret witness named Venüs. He has testified in 118 different cases. He is quite skilled. Then he retracts his statement.
What specific legal violations are there in the indictments?
In 78 out of 118 indictments, there is an allegation that the defendants used ByLock. The way ByLock was obtained is highly controversial. The information was obtained through intelligence processes without following the legal procedures, which is against the law. The National Intelligence Agency (MİT) either downloaded or intercepted it. They shared this data with the courts. What the court should examine is whether something was added to this evidence later or not. People have been sentenced to 6 years, 3 months, or 8 years, 1 month because of ByLock. These issues were discussed in the Yalçınkaya case at the European Court of Human Rights (ECHR). A decision will be made soon. In an average rule of law country, ByLock has almost no probative value.
BYLOCK HAS NO PROBATIVE VALUE
There are two applications called SKYECC and Encrochat. Let me make an analogy. Let’s say that the Gülen Movement used ByLock. The Gülen Movement is a legal and legitimate structure. Encrochat, on the other hand, was used by people involved in drug smuggling. European police hacked into Encrochat. Italian and French high courts have made decisions regarding how this hacking was done, whether it was done solely through intelligence processes or with the permission of the prosecutor’s office. Many courts have ruled that this evidence is illegal. If something was added later, the entire evidence becomes garbage. From this perspective, ByLock has almost no probative value in an average European country. Bank Asya is a bank established with the special permission of the state. International human rights organizations, such as the European Court of Human Rights and relevant bodies of the United Nations, have issued numerous violation decisions regarding the use of such evidence. The ECHR has issued violation decisions regarding ByLock and Bank Asya. They have also made a violation decision in the case of Taner Kılıç. Accusations such as subscribing to Zaman newspaper, sending one’s child to school are present. None of these are crimes.
It shows that the foundation of these 18 criteria is missing, and there is no concrete evidence. It turns out that you punish Gülen Movement members simply because they are members of the Gülen Movement. The same applies to members of the Kurdish movement. Out of the 118 cases we examined, ByLock was mentioned in 78 cases and Bank Asya accounts were mentioned in 64 cases. 50 indictments include secret witness testimonies. Technically, the use of secret witnesses violates the right to a fair trial. These are not cases that should exist in countries where the rule of law exists. This shows an insufficiency of evidence. Secondly, if you criminalize people based on insufficiency of evidence, you commit a crime against humanity. This issue indicates that there is a political war against the Gülen Movement in addition to a legal process. In 28 indictments, participating in conversations is shown as a crime. However, there is no information about what was discussed in these conversations in the indictments. For example, was a coup discussed? There is no such evidence. The indictments state that the conversations were about recruiting people for the Gülen Movement. Unless people openly support crime and violence, they can gather in any environment and in any way they want. This is a fundamental human right. Criminalizing a group goes against this right. There are trials that violate the basic laws and international standards.
The addressee of the report is international organizations such as the European Court of Human Rights (ECHR) and the United Nations (UN) that should find solutions to the lawlessness in Turkey. We believe that the international community will take this report into account. We have examined thousands of pages of indictments and prepared a report that can be used in legal remedies.
In Turkey, 130,000 people were dismissed through Emergency Decree Laws (KHKs). 2 million people have been investigated.
There is a state of emergency regime in Turkey after 2016. During such periods, legal standards are suspended. For example, in Turkey, the detention period is normally 24 hours for individual crimes and 4 days for organized crimes. However, it was extended to 30 days during the state of emergency. After 2016, Turkey has become an authoritarian state like never before in its history. It has eliminated opposition voices to an unprecedented extent. There has never been a period in Turkey’s history with so many forced disappearances. There were sporadic cases in the 1990s. After 2016, there have been over 100 cases of forced abductions from abroad. There are people like Yusuf Bilge Tunç who were abducted within Turkey. I do not recall any other period in Turkey where lawlessness was at such a high level.
The issue is so big; it is not just about ordinary dismissals. There is a comprehensive struggle against the Gülen Movement; it is undoubtedly a political plan. If this is the case, there is a high possibility that all these lawlessness constitutes a crime against humanity. It is possible to say that this happened as a result of a state policy in a place where unjustified detentions of so many people took place.
KHKs were also used as a tool in the fight against terrorism in the 1980s and 1990s. During the state of emergency declared after July 15, 32 KHKs were issued. The state of emergency system was integrated into the normal regime with changes made to laws such as the Law on the Fight against Terrorism. It has become a structural and systematic problem. There is a massive use of state power. As international institutions have determined, it can constitute a crime against humanity. We need to prevent this. The discussions about amnesty are also discussions about how to restore social peace. It is about how we can provide a solution for all these big legal and systematic crises. The lifting of the state of emergency does not mean that the KHKs were technically abolished. The KHKs are still being implemented through decisions of the President. KHKs are still present in our lives. As the use of state power reached its peak during the state of emergency, each KHK created its own practices. For example, the practice of dismissals. The issue of security investigations, for instance. During the state of emergency, you dismissed people based on the concepts of “contact” and “affiliation.” Now, after the state of emergency has been lifted, you are not employing the person you dismissed due to a security investigation. The post-2016 KHK regime is distinguished from others by this. State power has reached its peak and has become an integral part of legal processes. In general, the issue is the authoritarianization of the AKP regime and Turkey.
Amnesty is a discussion of how to restore social peace. The issue of dismissing mayors who are under investigation for alleged links to terrorism and the appointment of trustees by the Ministry of Interior. It started with the state of emergency but is still being applied during normal periods. The state of emergency resembles a monster that assimilates all ordinary circumstances. How will we solve this? It is not a problem that can be solved in three or five days. The whole issue is Turkey’s democratization, the emergence of a new government. It is a matter of social peace. We need to think about it in all its aspects. When we say “amnesty,” it means how to restore social peace. It is like the father of the state forgiving the victims. “You committed a crime against me, but I am the father of the state, kiss my hand, and I forgive you.” In fact, this means that we, as a state, have gone beyond the legal standards. We have left a great wreckage. We have made significant mistakes, and we need to find a way to correct them. The general amnesty represents this meaning as well. The majority of detainees in Turkish prisons are political prisoners. There are still hundreds of children growing up in Turkish prisons. Many sick children have parents in prison. During the periods when Turkey’s legal system is in ruins, there are discussions about a general amnesty. If the law were applied, there would be no need for such discussions.”
This interview first appeared at Bold Media on July 11, 2023 and translated from Turkish to English by Politurco.