The 16th Criminal Chamber of the Supreme Court of Appeals first gave its decision on the “terrorist organization” about the Gülen Community in the file numbered 2015/3, where judges Metin Özçelik and Mustafa Başer were tried. Subsequently, this decision was taken as a reference by both the Chamber and the courts of first instance, and the members of the Gülen Movement were convicted of “membership of an armed terrorist organization”. However, the Chamber’s decision in question is legally wrong and must be counted as invalid.
With this decision on 25.4.2017, as a court of first instance, the Chamber proved that it was not impartial by entering and establishing judgments. In this case, they are judicial decisions where the defendants have taken action, and they have been subjected to the crime of “misuse of the duty” that touched Article 257 of the TCK. As stated in the decision, there is no “force and violence” in these actions. These actions are numbered 3713 TMK. It is not among the terrorist crimes listed in 3-4.
Since there was no final judicial decision about the Gülen Movement as a terrorist organization as of the date of the decision and if the courts had any action (including terrorism and violence) in the case before them, then the court could decide whether there was an “Armed Terrorist Organization” or not. Otherwise, they should wait for the result of the case in which this matter is the subject of trial.
In the lawsuit filed with the 16th Criminal Division about the judges mentioned, there are no terrorist and violent acts that embody the existence of a terrorist organization. Therefore, it is not possible for the 16th Chamber of Criminal Court to make a “terrorist organization” decision about the structure in question based on the action taken against the two judges. The Chamber, which convicted the two judges with an unauthorized and non-duty decision, made itself an unauthorized and non-duty decision. Since there is no open lawsuit at the 16th Chamber of Criminal Court about the July 15 coup attempt which allegedly qualifies Gulen Movement an armed terrorist organization, the Court’s decision on this file is an indication of extortion of duty and authority and violation of impartiality.
Professor Izzet Ozgenc, the architect of Turkish Criminal Law drew attention to the same issues in his criticisms of the decision; The fact that the scientific and legal basis of the assessment of the “terrorist organization” of by the Criminal Court was not shown in the text of the decision, and that there was no judicial determination activity in the name of “FETÖ / PDY” in the context of the trial, and the wrong method followed in this regard . It is stated that, in the decision of the 16th Criminal Chamber of the Supreme Court of Appeals, an attempt was made to attribute the “terrorist organization” qualification to the organizational structure in question, based on the attempted coup that took place long before the trial subject. (İzzet Özgenç, Criminal Organizations, 10th Edition, p.109 -113).
One of the clearest evidences that make the decision legally wrong which shows that it has not been decided impartially is to make a “terrorist organization” decision based on the evidence that is not discussed in the trial and has no evidence value. The Chamber of Criminal Court gave this decision; taking into account “cases pending or decided by (courts), the statements of confessors heard in these cases, secret-open witness statements, written and verbal statements of organization leaders and executives in open sources, the report of the Police Department. None of these evidences have been the subject of this concrete case, they have not been discussed during the trial, and confessors or withnesses have not been heard in this court. The uncompleted court decisions, case files and ongoing investigations that have not been finalized (and that will come before the appeal) are considered as “definitive evidence” and have been taken as a basis by the Chamber. The information called “open source information” is known to consist of news and comments provided on the internet and this information alone has no worth of evidence.
Let’s open a separate parenthesis about “confessors statements”: The British Foreign Relations Commission is skeptical of the reliability of confessors statements because of the possibility of confessions obtained by torture (1) However, the 16th Chamber of Criminal Court recognizing the statements which were not subject to this concrete case and not discussed during the trial as hard evidence. These statements were added to this file by reproducing them from other files. Unlike the British Foreign Relations Commission, the Turkish 16th Chamber of Criminal Court had no doubts about the statements received under torture. The Chamber recognized these confessors statements as absolute facts -even there was no concrete evaluation and decision made in the courts where they are tried- and decided that the perpetrators of July 15 coup attempth were the Gulen Movement, and therefore the Movement was the “terrorist organization”. Professor Dr. Izzet Gonenc, in his criticism on this issue, states that the assumption that the recognition of the aforementioned organization as a terrorist organization and have no legal basis.
This attitude of the Chamber of Criminal Court’s decision on the principle of CMK’s (Criminal Procedure Law) 217/1, which is known as “The judge can only base his decision on the evidence brought to the hearing and discussed before him.” is a clear violation of this provision and thus iIt is impossible to say that the decision is legal in this respect.
This attitude of the Chamber, which is the “High Court” and has the duty to appeal to such cases, is not a legal mistake; it is a purely deliberate and biased decision. The Chamber showed that it was not impartial to the 15 July incident and to the Gülen Movement. On the other hand, it should be noted that while the proceedings of trials regarding “confessors” continue, these statements are accepted as definitive evidence by the Chamber and their decision is based on this judgment that should be considered as ‘comments reflecting bias.’ The Chamber expressed its opinion before these cases came to the Court for appealing.
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1- http://washingtonhatti.com/2017/03/26/ingiliz-parlamentosu-da-gulencilerin-darbenin-arkasinda-oldugundan-emin-degil
