At the beginning of the Ergenekon investigation, a positive and optimistic perception and mood were prevalent in many circles. Initially, it was hoped that the investigation would cause the dissolution of illegal structures within the Turkish State, yet formed with the state’s knowledge, supervision and control; that it would illuminate many past dark events and that responsible individuals would be punished, and a genuine and satisfactory confrontation would occur. As such, many people agreed that the Ergenekon investigation and proceedings offered an opportunity for building an open, just, liberal, pluralist and democratic society under the rule of law.
However, the police methods, judicial/legal practice pursued in the ongoing process, and investigations and trials eroded the initial positive air. Exclusion of certain individuals and events, which should have been included in the investigation and trial processes as well as inclusion of certain individuals or events, which are hard to consider as falling within the scope of Ergenekon, and the debate whether means and methods employed during investigations and trials conformed to national and international law, create a dilemma as to whether the Ergenekon Case is an opportunity or a handicap.
Although it is impossible to discuss this process in all aspects within the limited space of a journal article, it is necessary to deal with some aspects of the Ergenekon proceedings and discuss conformity of the legal mechanism to national and international laws.
Where does the name of Ergenekon come from?
Essentially, Ergenekon is the title of a Turkish national epic. The existence of an organisation under that name was first mentioned in the documentary prepared by Can Dündar and Celal Kazdağlı, which was broadcast on Show TV in 1997.
In 2001, the police took Tuncay Güney, a former journalist, in custody in connection with an investigation into illicit trafficking of automobiles. During the police search carried out at his house and office, the police found six sacks of documents allegedly belonging to the Ergenekon Organisation. According to documents and information submitted to the Ergenekon case file by the Turkish National Intelligence Organisation (MIT), MIT learned of the existence of an organisation named Ergenekon, organised within the army, through information provided by an informant. The informant described him/herself as a police officer and attached six CDs to the informant report. However, although there was all this information and documents, no legal investigation was initiated and for a very long time, MIT did not share the information in its possession with the government.
Investigation process and handicaps
The investigation into the organisation named “Ergenekon” was initiated upon the discovery of 27 hand grenades found on the roof of a slum house in Ümraniye, Istanbul, in June 2007. Following the trail of the hand grenades, the police informed the relevant unit of the Office of the Chief Public Prosecutor of Istanbul, designated to investigate organised crime. Thereafter, also using Güney’s statements and documents obtained from him, the Office of the Public Prosecutor issued numerous search warrants, apprehension and custody orders. During subsequent investigations, many individuals were taken into custody and arrested; guns, bombs and ammunition buried underground were found.
At the initial stage of the investigation, a wide belief and hope arose in the Turkish public that there would be a catharsis, a confrontation, the illegal structure within the state would be dispersed, perpetrators of various incidents not identified or who were unable to be identified would be caught, and a step would be taken towards being a constitutional state. The general perception was that the organisation named “Ergenekon” was a branch of the anti-communist illegal structure known to be constituted by NATO in every country party to this pact, this structure would be dissolved entirely, all activities of this organisation would be revealed, and this would lead to public catharsis and democratisation. However, it can be seen that, as time passed, the positive expectations concerning this investigation were shaken due to the investigation procedure pursued and its scope.
First of all, in spite of sufficient suspicion that the organisation established by NATO in each member state –many of which were dissolved and responsible individuals were tried by those states– was formed within the Mobilisation Survey Commission, which then took the name “Special Forces Command” (ÖKK) under the Turkish Armed Forces, the commission, or ÖKK, is not included in the investigation. The activities of this command remain secret. Although it is presumed that the foundation of this organisation dates back to the 1950’s and since then, many incidents in Turkey such as 6-7 September, Maraş Massacre, and 1st May 1977 were perpetrated within the framework of this organisation, the investigation is being limited to 2001 onwards. Past events and their perpetrators are not subject to this investigation.
Despite the fact that it is known that this organisation was the planner and implementer of numerous “dark” incidents since the 1950’s, and many crimes, including the ones in the 2000’s were perpetrated under this framework, those crimes and individual perpetrators are not included in the investigation. Limited to the period after the Justice and Development Party (AKP) took office, the investigation has actually been revolving around activities aimed at overthrowing, discrediting or damaging the current AKP government. Aside from a few post-2000 incidents and crimes, the principal charge against the suspects is: “forming a terrorist organisation and subverting or discrediting the Government of the Republic of Turkey through this organisation”.
Likewise, although there is a strong belief that the Ergenekon organisation was an active party in the violent resolution of the Kurdish problem, and committed numerous unsolved murders, burnt villages in the Eastern and Southeastern regions of the country, and was responsible for disappearances under custody, no investigation is being conducted into these matters. All criminal acts relating to Kurds and the Kurdish problem are being excluded from the scope of the investigation.
Even if it is accepted that their ideas partially coincide with the Ergenekon organisation, many individuals, whose writings or statements would be considered within the scope of freedom of speech and/or press, are being turned into suspects or accused without sufficient evidence. Furthermore, individuals such as Türkan Saylan, Ahmet ﬁık, Nedim ﬁener, who are publicly known to be against the Ergenekon organisation are being included in the investigation and arrested. Such a style of investigation not only damages its own credibility and reliability, but also supports the argument that “this investigation is a move to intimidate AKP opponents”.
Also, despite confidentiality of investigations and the fact that even suspect’s attorneys cannot obtain information and documents, information and documents concerning the individuals included in the investigation are being served to the press. Many mandatory procedural rules under the Turkish Code of Criminal Procedure are being violated by investigation authorities themselves. These problems, only some of which are stated here, constitute the handicaps of this investigation and have an adverse affect on the process.
Trial process and handicaps
Among investigations commenced upon the discovery of the 27 hand grenades, the first one was completed on 25 July 2008, and the Specially Authorised Chief Public Prosecutor of Istanbul initiated the “First Ergenekon Case”, concerning 86 suspects, before the 13th Specially Authorised High Criminal Court of Istanbul. The first hearing of the first case, consisting of an indictment of around 2,500 pages and 440 binders of evidence, was held on 20 October 2008.
Other pending Ergenekon cases under various indictments were joined with various other cases considered to have a connection to this organisation and, consequently, numerous separate cases were joined with the First Ergenekon Case. The number of accused exceeded hundreds and, presumably, the case file consists of several million pages of documents, hundreds of electronic files, physical evidence and numerous other evidences kept in judicial custody.
Some of the cases joined with the First Ergenekon Case are:
• First Ergenekon Case with 86 accused initiated on 25 July 2008,
• Second Ergenekon Case with 58 accused admitted for adjudication on 25 March 2009,
• Third Ergenekon Case with 52 accused admitted for adjudication in August 2009,
• Council of State attack case before the 11th High Criminal Court of Ankara with 9 accused,
• The case before the 5th Criminal Court of First Instance of Üsküdar with 4 accused concerning the sale of the Glock brand gun used in the Council of State attack to perpetrator Alpaslan Aslan,
• Patriotic Legion Union of Forces Movement case seen before the 11th High Criminal Court of Ankara with 2 accused,
• The case concerning the threatening of Zekeriya Öz, the public prosecutor who once ran the Ergenekon investigations,
• The case initiated before the 12th High Criminal Court of Istanbul with 7 accused concerning the bombing of the Cumhuriyet Newspaper,
• The case in which the person accused of preparing to assassinate Ecumenical Patriarch I. Bartholomew is tried,
• The case with 4 accused before the 12th High Criminal Court of Istanbul concerning the ammunition discovered in ﬁile,
• The case against Attorney Yusuf Erikel and his friends, with 8 accused,
• The case with 2 accused initiated due to allegations of an assassination plot against Minas Durmazgüler,
• The case initiated under a supplementary indictment accusing 2 people prepared in June 2011 concerning the plan to assassinate Minas Durmazgüler,
• The case initiated concerning the Action Plan Against Reactionary Forces with 30 accused,
• Internet Memorandum case dated July 2011,
• The case initiated against the Former Chief of General Staff Ilker Başbuğ under a supplementary indictment.
When one considers joined cases as well as numerous ongoing investigations and cases that may be joined to the Ergenekon case; examination of all files, raising defenses and a just decision seem almost impossible. Combining this many events and accused in one case so easily, albeit an existence of links, makes resolution of the matter legally impossible and weakens the belief for a just decision.
The fact that the hearing room and prison are in close quarters, the hearing room’s distance from residential areas, difficulty of transport, tight security controls for attendees, violate the principle of a public hearing. Followed with profound interest and attention by the press and public in its first days, the interest in the case decreased.
A common problem of the investigation and court proceedings is that given the many crimes said to have been committed or planned to be committed by the organization, most of the victims of those crimes have not been informed about them. Despite the fact that according to the Code of Criminal Procedure in effect, victims of a crime or those who are aggrieved as a result of that crime should be included in the indictment as victims or complainants, this rule was not complied with in respect to the investigations and court proceedings. Likewise, despite the fact that many of the case files contained information regarding crimes committed against some individuals, adequate investigations into those crimes have not been conducted: The fact that victims of crimes committed against individuals were not informed of those crimes, that the majority of the intervention requests were denied, that adequate investigation into those crimes were not conducted, and that accusations were limited to efforts to overthrow or discredit AKP and the AKP government, caused the case to be perceived as a conflict between power groups within the state and a shift of power.
Also, the fact that despite the allegations that the police officers, judges and prosecutors involved in the investigation and court proceedings were supporters of the religious community founded by Fethullah Gülen, and that they have been managing this process for the interests of their own organization, these have not been satisfactorily addressed and lack of any investigation into these allegations affect the credibility of the court proceedings and investigations.
Forensic expert Prof. Dr. ﬁebnem Korur, who is one of the few individuals whose intervention request in the proceedings have been accepted and whom we are the attorney for, has not been called and heard by the court. Again, when we requested to conduct a witness examination with the intent to reveal the existence of the organization, the court decided not to allow us to examine witnesses other than two accused who illegally recorded Fincancı’s personal data, and prevented our active participation in the case.
There is a direct relation between the extinguishing of the initial hope created by this process and the numerous unlawful acts committed during the investigation and proceedings. In fact, it is a main problem of this case, that those who are engaged in investigating various illegal organizations and their acts disregard procedural and material rules during investigations and court proceedings.
The violation of numerous procedural rules during the investigation and trial stages brings the proceedings and the justness of its outcome into question. Principal legal problems experienced during the investigation and trial stages are:
• Insufficient investigation and prosecution of crimes committed against individuals, group of individuals or institutions,
• Failure to name the individuals who claim to have been a victim of a criminal act in the indictments as aggrieved, and failure to inform such individuals,
• Rejection of the majority of requests to intervene in the case and, with respect to those whose requests are accepted, depriving them of the rights conferred upon interveners under the Code of Criminal Procedure, thus obstructing active participation of the intervener in the case,
• The proceedings are conducted in Specially Authorized Courts without any constitutional justification,
• The scope of jurisdiction of the Specially Authorized Courts is explicitly susceptible to expansion as intended, and this scope is being expanded to cover all areas of democratic opposition,
• Article 250-252 of the Code of Criminal Procedure, which form the basis of the Anti-Terror Law and Specially Authorized Courts, contain unacceptable restrictions on a fair trial and personal safety, these restrictions are employed broadly and arbitrarily, exceeding the law,
• Apprehension, custody, search, confiscation, arrest, continuation of arrest orders are not proportionate,
• At the investigation stage, confidentiality orders were entered against the suspects and their attorneys at every instance, whereas information and documents concerning them were leaked to the press to manipulate public opinion,
• Many things which should be considered as falling within the scope of freedom of speech have been considered as criminal acts,
• Many events and investigations have been joined under one case file which have made consideration of evidence, explanation and defense impossible,
• No satisfactory answer has been given to allegations that public officers serving in this investigation are members of a religious community and have been acting with this motivation,
• As the hearings are conducted inside the prison, and due to difficulties of transport, publicity of judicial proceedings has not been achieved,
• Defenses raised by the accused and their attorneys are easily turned against them as new accusations; they are sanctioned and temporarily or permanently banned from attending the hearings,
• Length of the judicial proceedings.
Due to such numerous first-hand reasons, court and investigation processes continuingly lose value. Nevertheless this case and investigation should continue and be monitored for fixing the flaws with the belief that this is an on-going process and certain mistakes can be remedied.