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LEGAL OPINION OF ACQUITTAL DATED 1 APRIL 2008 BY THE PUBLIC PROSECUTOR ON THE BAV (SCIENCE RESEARCH FOUNDATION) CASE NO. 2007/339 HEARD AT ISTANBUL, 2ND CRIMINAL COURT OF 2ND INSTANCE "A criminal case was opened against the defendants for establishing a criminal organization, administering this organization and acting on behalf of the organization.” During the hearing dated 27.03.2008, my request for a decision for splitting the case due to the defendants who will soon be subject to statute of limitations and for the continuation of the case as to the other defendants was rejected by the court and I was asked for the declaration of my opinion on the considered judgment. The reversal decree in respect to the statute of limitations by the 8th Chamber of Supreme Court of Appeals is an opposing verdict. It would constitute contradiction of TCCP (Turkish Code of Criminal Procedure) Article 326/2 if a verdict is reached for the other defendants whose statute of limitations are not due without taking the statements of 4 of the defendants regarding their opinions on the reversal decree. Other than the statements that defendants have given at police security without the presence of defense lawyers and which they have rejected due to claims that these were taken under torture. THERE IS NO EVIDENCE AGAINST THE DEFENDANTS in respect to all evidence gathered by our court. On the 5th clause of the interlocutory decree dated 29.02.2008 by the court, it was decided that the testimonies received by prohibited methods cannot be considered as evidence, but the request for removing the testimonies claimed to have been taken in an unlawful manner and evidence based on Article 148 of the Code of Criminal Procedure was rejected. So, in regard to the TCCP Article 148/4, the fact that testimonies received at police security without the presence of a defense lawyer cannot be considered as evidence was also accepted by the court. In relation with the 5 defendants whose case were split from the main case, as the Public Prosecutor, we had asked for the postponement of the final verdict based on the provisions of Law No. 4616, and the court decided on the acquittal of these 5 defendants from crimes of racketeering and being administrators and members of a criminal organization, and this verdict became definitive without any appeals. In this case, because crimes of establishing a criminal organization by Adnan Oktar and administering or acting on behalf of the criminal organization by other defendants is not plain on evidence, based on TCCP Article 223/2e, it is formally requested and deliberated that all defendants ARE SEPARATELY GIVEN ACQUITTAL from any alleged crimes. ----- 8th Chamber of the Supreme Court of Appeals has apparently made a mistake by reversing the decree on the statute of limitations for the BAV case. The Supreme Court of Appeals has based its decision on the testimonies received at the police security – and under torture without the presence of a lawyer – which have no validity before law. However, there is also a ruling that these testimonies cannot be considered as evidence. As to the 4th paragraph of TCCP Article 148 of Law No. 5271: “The testimony received by the police force without the presence of a defense lawyer (attorney), CANNOT BE CONSIDERED PRINCIPAL CAUSE FOR THE JUDGMENT UNLESS VERIFIED BY THE SUSPECT OR THE DEFENDANT before the chairman of the court or the court.” In the 29 February 2008 dated hearing of the BAV case, Istanbul 2nd Criminal Court of 2nd Instance has decreed the following in its No.5 interlocutory decision: "Since it is understood that testimonies received by using prohibited methods may not be considered as evidence based on TCCP Article 148, the testimonies and evidence which are claimed to have been taken in an unlawful manner…” In the 1 April 2008 dated Legal Opinion of Acquittal on the principal cause by the Public Prosecutor: "On the 5th clause of the interlocutory decree dated 29.02.2008 by the court, it was decided that the testimonies received by using prohibited methods cannot be considered as evidence, but the request for removing the testimonies and evidence taken in an unlawful manner from the case file based on TCCP Article 148 was rejected.” Therefore, the fact that testimonies received at the police security without the presence of a lawyer (attorney) CANNOT BE CONSIDERED AS EVIDENCE was also accepted by the court. Despite all these facts, the 8th Chamber of the Supreme Court of Appeals has ruled a decision by depending on these testimonies that were received in police security and with no validity before law, and thus has made a grave legal mistake. IT SHOULD NOT BE FORGOTTEN THAT THE SUPREME COURT OF APPEALS MAY ALSO ERR. Osman Arslan, the former Chairman of Supreme Court of Appeals, made clear in a statement he made that the Supreme Court of Appeals may also err: THE SUPREME COURT OF APPEALS MAY ALSO ERR. Provided that the working days in a year are accepted to be 200, then the Supreme Court of Appeals issues more than 2500 VERDICTS A DAY. UNDER THESE CONDITIONS, IS IT POSSIBLE NOT TO MAKE ANY ERRORS? The members of the Supreme Court of Appeals who issue 2500 verdicts a day can only devote 5-10 minutes to a particular case consisting of tens of files. In this case, they have to issue a verdict for a particular case without finding the opportunity to examine tens of files of evidences and documents. Erarslan Özkaya, the Chairman of the Supreme Court of Appeals, draws attention to the fact that in no other state governed by the rule of law does the Supreme Court of Appeals is placed under such heavy workload. ERARSLAN ÖZKAYA EXPRESSED CLEARLY THAT “EXTREME WORK LOAD POSES A THREAT TO THE SOUND EXAMINATION OF CASES.” (http://www.memurlar.net/haber/6058/) Indeed the statistics reveal some facts of paramount importance: ... THE CHAMBERS OF SUPREME COURT OF APPEALS that conduct the appellate reviews ALSO UNDERSIGN INCORRECT VERDICTS. (Daily Zaman, 19 May 2005) 2003 2004 In such a case claiming that all the decisions given by the members of the Supreme Court of Appeals are flawless is not possible. The Penalty Commission of the Supreme Court of Appeals reversed the verdicts given by the Chambers of their own institutions by itself. And the rate of error seems to be very high, reaching a level of 61 percent. This means that there exists no rule saying, “The Supreme Court of Appeals is absolutely correct.” On the contrary the Supreme Court of Appeals may issue incorrect verdicts for more than half of the cases coming in. Osman Arslan, the former Chairman of the Supreme Court of Appeals said: “In our country, judicial errors exist. Quantity and quality are inversely proportional. As quantity increases, quality decreases, and it does not increase.” Arslan also added: “A judge will be successful only if he works on 10 cases a day. Or otherwise his performance will decrease and he may give incorrect decisions.” Ass. Prof. Sami Selçuk, the Honorary Chairman of the Supreme Court of Appeals said, "Including Africa, there exists no country in the world like Turkey whose Supreme Court of Appeals has so much workload.” And Sami Selçuk made another very important remark: In Turkey court judges are graded primarily by the Supreme Court judges. JUDGES AND PUBLIC PROSECUTORS SET ASIDE WHAT THEY HAD BEEN TAUGHT AT THE FACULTY ONLY TO GET HIGH GRADES. THEY DECIDE ACCORDING TO THE DECISIONS OF THE SUPREME COURT OF APPEALS. THEY LOSE THEIR PERSONALITIES, THEIR BRAINS’ INDEPENDENCE. Improvement also ceases. Our local courts should consider all these facts while working on the cases that are reversed by the Supreme Court of Appeals. It would be very erroneous to think, “If Supreme Court of Appeals has reversed a decree, then it is absolutely correct.” As if being hypnotized, it is unbecoming to sense of justice to accept a decision made by the Supreme Court of Appeals in 5-10 minutes without subjecting it to questioning, setting aside all the convictions they formerly had from the evidence and investigations. Indeed, the individual chairmen of the Supreme Court of Appeals reminded personally how erroneous would such an approach be, drew attention of the judicial staff to this subject, and warned them about being alert towards these erroneous decisions. This issue should absolutely be taken into consideration. CONCLUSION: The 8th Chamber of the Supreme Court of Appeals has reversed the statute of limitations given by the local court, on the grounds of invalid statements signed under torture by the police without the presence of attorneys. In this case, the 8th Chamber of Supreme Court of Appeals did not notice the invalidity of the statements given in the police security without the presence of attorney TCCP Article148/4. Here, there exists an error in law. The fact that Supreme Court of Appeals can err due to heavy work load and indeed each year more than half of the decisions made are incorrect should be taken into consideration. In the light of these issues, it should be recognized that the 8th Chamber of Supreme Court of Appeals has obviously made an erroneous decision about the BAV (Science Research Foundation) case.
Sedat Altan
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