Istanbul 3rd supreme court of appeals gave verdict as lack of jurisdication by the determination: “absence of consideration regarding violaion of legislative code 4422 in SRF case ”

T.R.
ISTANBUL
THE PRESIDENCY OF THE
3rd STATE SECURITY COURT

LACK OF JURISDICTION
THE REASONED DECISION
BASE NO.                          :2002-359
DECISION NO.                 :2003-258
PROSECUTION BASE NO. :2000-17
MODERATOR                     : AHMET DUYMAZ
MEMBER                              : ŞEREF AKÇAY
MEMBER                              : İDRİS KARAÇUNA
PUBLIC PROSECUTOR   : ABDÜLAZİZ ÖZATLAN
SECRETARY                         : JALE ELEMAN
COMPLAINANT                   : Public Law.
CRIME DATE                        : 12.11.1999
DECISION DATE              : 12.09.2003

The file which is now sent to be seen at our court, upon the demand of recusation about the defendants whose open identities and crimes are stated above, was read during the trial of the criminal case.

HELD:
The criminal case was brought to the 1st SSC of Istanbul with the requisition of chastisement of the defendants in accordance with the 1-1 article of the legislation numbered 4422 for the defendants that are stated in the first 32n line of the decision title and the plaintiff indictment, the TCC 192 –for the first 4 times,the 313-1 of the TCC for Bekir Murak Sarıaslan , 192-the first (2 times) the 314th article of the TCC for the defendants Esragül and Hüseyin Avci Can
The case was brought to our court upon the acknowledgement of the demand of recusation of the judge on that court.
Before all else, the plea as to jurisdiction which was suggested on the exercised trial was regarded worthy of argumentation.
The legislation number 4422 has come into effect on the date of 1.8.1999, the dissension is convened on whether the action was performed before or after this legislation date or if the actions are continued after the legislation date.
It is mentioned on the plaintiff indictment that the organization was started at the years of 1979-1980, though it is not on a chronogical time line, it is unsuspected that the foundation of the accusation and activities regarding Fatih Altaylı 1996, Ebru Şimşek 1997, Mehmet Ağar 1997 were before the legislation acknowledgement date.
Two treatments are expressed to be corresponding to the sequel of the legislation acknowledgement date. The first one is regarding the page 8-25-10-99 phone call records, that is related with the raising of the money and the spending on the criminal charge , appears to be related to the still active foundation whose demand of cancellation is rejected. The contradiction to law is not attested.
The other is 10.99 the conversation of Mehmet and Bahadır Güven, composed of a plain, simple evaluation which is not characterized and allowed to be characterized as an action on the criminal charge page 21.
After the acknowledgement date on 1.8.99 of the legislation number 4422, no actions of the defendants has been suggested as individual or on behalf of the organization, also no criminal action of the organization has been confirmed.

This court is based on the action expressed in the indictment. This characterization has not been adopted by our court.

On the 11386-12664 numbered and 08.11.2002 dated decision of the Court of Appeals for the 6th Penalty Circuit, the supreme court mentioned that “in view of the fact that the criminal code numbered 4422 had been put into force on 1.8.99 and that the allegations charged to the defendants are dated 1989, the execution of the criminal code numbered 4422 in respect of the defendants is not possible and should not be considered, and that it is imperative to evaluate whether or not there exists a legal base to execute TCC article 313 for all of the defendants and that the jurisdiction of the other alleged crimes should be carried on by a High Criminal Court.” .

Therefore the plea as to the jurisdition shall be stated as lawful and well advised, and the decision of the lack of jurisdiction shall be given.

JUDGEMENT: According to the legal ground stated above and the growing opinion;
The LACK OF JURISDICTION OF OUR COURT in accordance with the 9th article of the law numbered 2845 and 263rd article of CMUK;
The ISTANBUL HIGH CRIMINAL COURT IS DEEMED COMISSIONAL AND AUTHORIZED in consideration of the crime scene to decide on the trial and the penalty of those in accordance with,
313-1-4,192-first (4 times),31,33,36,40 articles of the TCC for the defendant Adnan Oktar, 313-192-first(4 times),40,36 articles of the TCC for the defendants whose names are written on the 2-32 (from 2 to32) lines of the plaintiff indictment
313-1,192-first(2 times) articles of the TCC for the defendant Bekir Murat sarıaslan
314th article of the TCC for the defendants Esragül Efeoğlu and Hüseyin Avni Cem Yücel,

It has been decided that the evaluation of the legislation argumentation of the 4616 number and the other extention investigation requisitions of the defense lawyers should be carried on by the commissioned and authorized court.
 
The prospect of the penalty of the apprehension consultation in absentia issued for the defendants Mustafa Kemal Gül and Uğur Örmen and the continuation of the apprehended in absentia states of the defendants,

The file to be given to ISTANBUL SSC PUBLIC PROSECUTOR OFFICE to be sent to the comissioned and authorized ISTANBUL HIGH CRIMINAL COURT,

The judgement that is taken unanimously and is subject to appeal was read and duly defined in the presence of the defendants Timur Ayan, Emre Çalıkoğlu, Mehmet Murat Atmaca, and the lawyers of the defendants, lawyer Cevdet Güneş, lawyer Çetin Akalın, lawyer Ulvi Çağıran, lawyer Günay Yavaş, lawyer Süheyl Donay, Sefa Albayrak and lawyer Fatih Doğan and the intervening party’s lawyers Rezzan Aydınoğlu, lawyer Abdullah Gündüz, lawyer Neşet Açıkgöz, lawyer Aziz Genç, lawyer Cemil Aydın Yeni and lawyer Mehmet Necati Serin ,in the absence of the other defendants, contradictory to the requisition and in the presence of the Public Prosecutor Abdulaziz Özaltan.12.9.2003

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