ARSHACK, HAJEK & LEHRMAN, PLLC
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July 9, 2007

Kerim Kalkan, Avukat
Darülaceze Caddesi
Bilaş İş Merkezi
A Blok, D:5, Okmeydanı Şişli
İstanbul, Turkey

Re: The Bilim Arastirma Vakfi (BAV) Case

Dear Mr. Kalkan,

You have asked that I provide a legal and scientific opinion concerning whether the facts of the Bilim Arastirma Vakfi (BAV) case can legitimately be  found to be within the scope of TCK Article 220 which prohibits “setting up an organization with the intent to commit a crime.” ¹ For the reasons set forth below, it is perfectly clear that TCK Article 220 was never designed nor implemented to cover the behaviors charged in this matter. While the prosecution may contend that individual members of the BAV community committed certain crimes, there is simply no credible version of the facts which supports the notion that the BAV community was or has ever been an organization “set up to with the intent to commit crimes.” Moreover, because every single member of the BAV  community who has actually been through a trial on the same charges has been acquitted of having committed any crimes, and the accumulated evidence having been already released back to those members, the established legal principal of “res judicata” and “collateral estoppel” should foreclose any further prosecution of this community on this common set of aging allegations.     

Initially, permit me to set forth my qualifications for rendering an opinion and judgment on this matter. I have practiced Criminal Law for the past 25 years. My work has taken me throughout the world to address issues of law. In the past three years alone I addressed issues of law in Paris, France; Beirut, Lebanon; The Hague, Netherlands; Montreal, Canada; Kampala, Uganda; Nairobi, Kenya; Tokyo, Japan; Victoria, British Columbia. I teach throughout the world on issues relating to criminal law and I am on the faculty the Benjamin Cardozo School of Law in New York City. I am the elected President of the New York Criminal Defense Lawyers Association and I am Chairman of the International Affairs Committee of the National Association of Criminal Defense Lawyers, the largest criminal defense organization in the world. I have been elected to the governing council of the International Criminal Bar and I am on the Board of Directors of the International Criminal Defense Lawyers Association.

In preparation for rendering the opinion set forth below I have reviewed the decisions and verdicts rendered by a remarkable variety of Turkish courts which have already considered this matter.  The variety of courts which have already considered this matter and have found that there is no jurisdiction for this case is staggering.  The record I relied upon to render my opinion shows that:

When this case was first filed in the Istanbul 1st State Security Court it became apparent that the chairman of that court was affiliated with one of the complainant attorneys. Therefore, he was recused and the 1st State Security Court withdrew from the case in 2002. The Istanbul 2nd State Security Court that had originally inspected and approved the recusal request then transferred the court case.

The Istanbul 3rd  State Security Court in Decision No, 2003-258  then declared on September 3, 2003  that “there is no finding that could be interpreted as a violation of Law No. 4422 in the court case" and gave a verdict of lack of jurisdiction. The Istanbul 4th State Security Court thereafter reviewed Decision No, 2003-258 and the decision was accepted and ratified by the higher court.  Verdicts of lack of jurisdiction were also issued by the Istanbul 7th High Criminal Court, Bakirkoy 5th  High Criminal Court and Uskudar 2nd  High Criminal Court, the jurisdictional issue remained unresolved and the case file was sent to the Supreme Court for finding a solution to these discussions.²

At this point, the 5th  Criminal Chamber of the Supreme Court ruled that the case should be heard in the Istanbul 7th  High Criminal Court. However, since the Istanbul 7th High Criminal Court had issued statements that constituted "ihsas-i rey" (declaration of one's view and vote in advance) in its verdict of lack of jurisdiction the defendants requested the court to recuse itself. As a result the Istanbul 7th High Criminal did recuse itself and its decision to do so was inspected and then ratified by the Istanbul 8th High Criminal Court. After this second recusal, the case file was finally sent to the Istanbul 2nd High Criminal Court.

On November 24, 2005 the Istanbul 2nd High Criminal Court considered this case in Principal Cause No. 2004/337 E and dismissed the case against thirty five (35) of the defendants because of the passage of the five year statute of limitations. Charges against six (6) defendants were permitted to go forward. It is important to note that the November 24, 2005 decision also resulted in a variety of  guns and rifles and assorted ammunition and peripherals, which had been seized when the defendants were arrested, being returned to the rightful licensed owners of those items.

The trial of the remaining six (6) defendants continued. The Istanbul 2nd  High Criminal Court reviewed all of the interrogations, the expert examinations and all of the Prosecutor’s evidence and on January 22, 2007 all six (6) were completely acquitted. This verdict of acquittal became definitive.³

Dismissal of the charges against the thirty-five (35) defendants on statute of limitations grounds was taken to the Supreme Court of Appeals for examination. The Public Prosecutor of the Supreme Court examined the file and sent a request with Certificate No. 2006/600637 for the ratification of the decree dismissing the case due to the passage of the statute of limitations. The case file was consequently sent on April 5. 2006 to the 8th Criminal Chamber of the Supreme Court of Appeals for evaluation.

After delaying a decision for more than a year, on May 22, 2007 the 8th Criminal Chamber of the Supreme Court of Appeals reached a remarkable decision in Verdict No, 2007/3877.  The 8th Criminal Chamber disregarded the verdicts of seven (7) courts that had  investigated the case file as well as all of pieces of concrete evidence that were produced during the seven (7) years of  the prosecution and, for the first time,  claimed that there were elements which had to be evaluated within the scope of Law No. 4422. This reversal coming as it did on the heels of the January 22, 2007 Istanbul 2nd  High Criminal Court acquittal of  the only six (6) defendants who actually had their case determined by a trial level court is simply unfathomable. The 8th  Criminal Chamber decision is puzzling in that it makes evaluations not based on any evidence in the final court decision by claiming that the prior “allegations were proved”, and in this way it apparently tries to suggest what the final verdict “should be” to the Istanbul 2nd  High Criminal Court  which has received the case for trial.

While, the 8th Criminal Chamber of the Supreme Court indicated that there may be a violation of the old TCK No. 4422 its evaluation also makes it clear that since TCK No. 4422 was abrogated as of June 1, 2005, any further prosecution can only proceed within the scope of the new TCK Article 220 which is now the only article in the Turkish Criminal Law in regard to acts of organized crime.

It is our understanding that as a result of the decision by the 8th Criminal Chamber of the Supreme Court, the court case was sent to Istanbul 2nd  High Criminal Court to be prosecuted in regard to TCK Article 220. The next hearing is scheduled to take place on July 13, 2007.

 

TCK Article 220 was intended to apply to organzatIons formed for the purpose of commiting crimes

A brief history of the Turkish Penal Code: The first TCK was introduced in 1926 and has gone through considerable changes in the 80 years since, but despite the changes it has remained a much-criticized legal document for its failings in terms of human rights. It was based on the Italian  “Zanardelli Code” from 1889 and reflected the democratic and liberal climate of its day. Yet, as a result of 60 or 70 amendments, and particularly those introduced in the 1930s, the TCK lost the liberal and democratic character of its source and ultimately fell far short of contemporary human rights standards. The “legal reform” process of recent years, which accelerated with Turkey’s aspiration of entering the European Union, also created some problems. A law commission set up in the early 1980s to reform the code continued its work into the new millennium. The commission, in which almost all criminal law academics participated to some extent, concluded its work in 2001 and presented a draft code to the public. Yet the bill finalized in 2002 was pushed aside by the new government, and a new bill was prepared. The second bill was presented to the public in late 2003. The bill was opened to discussion throughout 2004, but no detailed analysis of the bill was produced during that year. Finally, Parliament enacted the code on Sept. 26, 2004. The new TCK was supposed to be introduced on April 1, 2005, but in response to criticism it was postponed. It finally came into force on June 1, 2005.

Article 220 of the TCK which replaced the old article 4422 was designed specifically to address “organized crime”. On February 13, 2006, İsmail ZARARSIZ, Judge Rapporteur for the Ministry of Justice of Turkey reported to the EuroMed Justice Programme that:

Turkey has a series of laws against terrorism and organised crimes at national level; the new Turkish Penal Code (No 5237), the new Criminal Procedural Code (No 5271), the Law on Fighting Against Terrorism (No 3713) and the Law on the Prevention of Money Laundering (No 4208).

The newTurkish Penal Codenumbered 5237 which came into force on 1st June 2005, does not contain full definition of organised crimes. According to this Code (Article 220) establishing an organization for committing crimes, if it has ability of committing crimes in respect of enough persons, suitable tools and equipment shall be punished from 2 years up to 6 years imprisonment. In order to establish an organization for committing crimes there should be at least 3 persons. But only gathering of 3 or more persons itself shall not mean organised crime. Besides, there should be hierarchy, continuity and ability for committing crimes for being organised crime.

With regard to combating against organised crime, although Turkey like many countries has preferred to enact a special Code besides special provisions of its Penal Code and Criminal Procedural Code however, there is not any named special law on combating organised crimes, since the Law on Combating Profit Oriented Criminal Organisations (No 4422) was abolished on 31st March 2005.

The definition of ‘‘organized crime” although not yet fully defined in Turkey since the recent enactment of Article 220, can be derived though various sources. The United Nations defines “organized crime” as:

The large-scale and complex criminal activity carried on by groups of persons, however loosely or tightly organized, for the enrichment of those participating and at the expense of the community and its members. It is frequently accomplished through ruthless disregard of any law, including offences against the person, and frequently in connexion with political corruption. (United Nations United Nations, Changes in Forms and Dimensions of Criminality - Transnational and National. Working paper prepared by the Secretariat for the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Toronto, Canada, 1-12 September 1975)

The Council of Europe defines “organized crime” as:

The illegal activities carried out by structured groups of three or more persons existing for a prolonged period of time and having the aim of committing serious crimes through concerted action by using intimidation, violence, corruption or other means in order to obtain, directly or indirectly, a financial or other material benefit. (Council of Europe (2002), Crime Analysis: Organised crime - Best practice survey no. 4, Strasbourg, France.)

In 1996, the Institute for National Strategic studies defined organized crime in Turkey as being:

Dominated by a dozen Kurdish clans commonly known as "The Turks." These gangs began as bands of smugglers that operated across the Caucasus and the Ottoman-Persian borders centuries ago. "The Turks" are closely connected to the Kurdish struggle for independence in Turkey, Iran and Iraq. Part of their heroin profits from Central Asia, Afghanistan and Pakistan are paid in transit fees to the Kurdish rebels. In addition to heroin, these gangsters deal in pirated electronic and video products, and counterfeit passports and identity papers. They also run prostitution and slavery rings, illegal gambling dens, and a wide assortment of extortion, fraud and embezzlement operations. "The Turks" also have roots in the Kurdish communities in Germany, Sweden and other European countries.

There are no facts presented in this case which suggest that the BAV falls into any definition of an organization which was established “for the purpose of committing crimes.” Since the BAV is not the sort of organization which Article 220 is designed to address, the is court does not have jurisdiction over this matter.   

The commission of a crime by a member of an organization does not “per se” establish
 a violation of TCK Article 220

The eight (8) provisions of TCK Article 220 seek to penalize those who are guilty of  “establishing organizations for the purpose of committing crimes”. From the beginning it must be recognized that the purpose of this Article is to address the crime of “establishing” a criminal organization. By its own terms, Article 220 does not relate to crimes that may be committed by members of organizations which were established for legitimate purposes. So, for instance members of a legitimate football club who become violent during a football match would not be liable for prosecution under this section. While they may be liable under some other violent crime section, they would not be prosecuted under Article 220. This is so because the establishment of the football club did not occur for a criminal purpose.  Likewise, in this matter there is absolutely no evidence that BAV was established for a criminal purpose. Indeed, its reason for existence is scientific and charitable.      

To suggest that the BAV community was established as an organized criminal enterprise is the same as suggesting that the Turkish Bar Association is a criminal organization because a Turkish lawyer named Alparslan Arslan, on May 17th, 2006, entered the Second Bureau of the Turkish Council of State with a hand gun and opened fire on five judges who were then in session. The mere fact, if it is a fact, that one member of an organization violates the law, does not mean that the entire organization was established to violate the law.

Article 220 by its own terms prohibits the conduct of those whose organizations are established and designed for the purpose of committing crimes.   A simple review of the core statements of the BAV (Also known as the Science Research Foundation or SRF) show that the organization was established to promote peace and understanding… not crime and profit. The website for the Science Research Foundation is clear when it states:

The founding objective of the SRF is to be an instrument in the establishment of a worldwide living environment that is dominated by peace, tranquility and love. For this reason an intensive work is being conducted to bring social and political ills to an urgent solution not only regarding national problems of Turkey but also problems of the whole world. Special emphasis is given to Middle Eastern and Central Asian problems and projects concentrating on their solutions.

This statement is simply not anywhere close to what might be described as an organization established for the purpose of committing crimes. Indeed, amongst the “Statements of Beliefs” explained by the SRF is the following explanation:

In brief, the SRF is an intellectual society made up of people who truly believe in certain truths and values, and who assume the responsibility of explaining these to the society. More than 1500 public conferences, dozens of scientific public exhibitions and tens of thousands of books and booklets distributed by the SRF explicitly reveal the idealist and self-sacrificing nature of the foundation.

Since there is no evidence in this case that supports the proposition that the BAV was “established to commit crimes”, any person who “becomes a member” pursuant to Article 220 (2) can not have committed a crime. This is so because, according to Article 220 (2), only “Those that become members of organizations established to commit crimes” can be convicted of a crime.

 Pursuant to Article 220 (3) “If the organization is armed the sentences stated above will be increased from one fourth to one half.” This section is inapplicable to this case for two reasons. The mere fact of the presence of a firearm, under this article does not constitute a crime. The “organization” must be armed. In this matter, we know, as a matter of law (See, Istanbul 2nd High Criminal Court verdict number 2005/230) that the fire arms were licensed to individuals who were permitted to take back their licensed arms when the cases against them were dismissed.

Article 220 (4) makes it perfectly clear that it is possible to prosecute a separately committed crime, within an organization as a separate crime apart and separate from a prosecution under Article 220.  Article 220 (4) explains that “If a crime is committed within the framework of the organization’s activities, these crimes will be punished separately.” This provision permits the prosecution, for instance, of a member of a football club for an act of violence. It recognizes that members of organizations may commit crimes for which they may be independently liable.  In this case, however, the only prosecution which is permitted by virtue of the May 22, 2007 decision of 8th Criminal Chamber of the Supreme Court is one that is  premised on charges of violating Article 220. The fact that one or more of them may have arguably committed a crime other than a violation of Article 220 is outside of the jurisdiction of this court.

 

THE CONCEPT OF RES JUDICATA PREVENTS
 THE FURTHER PROSECUTION OF THE INDIVIDUALS CHARGED IN THIS MATTER

On January 22, 2007 the Istanbul 2nd High Criminal Court reviewed all the evidence in this case and determined that none of the crimes alleged by the prosecution and the intervenors had in fact taken place. All of the defendants whose cases were not dismissed on statue of limitations grounds were acquitted. The rule of law must be respected. The finding of the Istanbul 2nd High Criminal Court on January 22, 2007 can not be turned on its head by a contrary finding by this court currently considering the exact same charges on the exact same evidence.

The concept of res judicata is a specific doctrine that precludes re-litigation of claims and issues arising from the same claims by  the same parties on the same facts after a final judgment on the merits by a competent tribunal or after some other final determination having the same effect has been made. Res judicata permits a final judgment in a case to, in fact, be a final judgment. In this matter, re-opening the factual analysis which was fully conducted by the Istanbul 2nd High Criminal Court on January 22, 2007 is contrary to well established international legal precedent.

Finally, the only complainants in this matter, Ebru Şimşek and Fatih Altaylı have both been discredited and found to be unworthy of belief by a the 2nd High Criminal Court. That their accusations are baseless has been established as a fact and became definite in 2007/3877. Those findings of fact are binding upon this court. Without a credible complainant, this court is divested of jurisdiction to proceed with this matter and the charges must be dismissed. 

CONCLUSION

For the forgoing reasons, it is my considered and firm opinion that there is no basis on the facts of this case and consistent with the relevant law to proceed with a prosecution under the TCK Article 220 in this matter. For this reason, it is clear that the court considering this case should dismiss the matter.

 

Respectfully Submitted:

Daniel N. Arshack