T.C.
ISTANBUL
2nd High Criminal Court

 

TRIAL TRANSCRIPT

FILE NO:                                 2007/186 
DATE of TRIAL:                     13/07/2007
NO of HEARING:                    1

 

PRESIDENT JUDGE:             SALİH ÖZTÜRK 20709
MEMBER:                               NAŞİT GÜREL 22838
MEMBER:                               NURAN YALINBAŞ 36079
PUBLIC  PROSECUTOR:     ORHAN ERBAY 27986
CLERK:                                   ŞAFAK ÜSTÜN 65942

The 1st hearing was opened on mentioned date and time.

It was seen that defendant HASAN BASRİ GÜNER, defendant HALİL HİLMİ MÜFTÜOĞLU, defendant TARKAN YAVAŞ and defendant KORKUT YASA, intervening parties Ebru Şimşek and Fatih Altaylı and their attorneys Attn.Rezzan Aydınoğlu and Attn.Nalan Kuğuoğlu, defence lawyers of the defendants Adnan Oktar, Halil Hilmi Müftüoğlu, Mustafa Kemal Gül, Hasan Basri Güner, Uğur Örmen, Korkut Yasa, Kartal İş, Turgut Aksu, Tarkan Yavaş, Adnan Tınarlıoğlu; Attn. Kerim Kalkan, Attn.Fatih Doğan, Attn.Melih Demir, and defendant attorney of Ersin Alacadağ, Attn. Selçuk Ülgen  were present ; the open hearing was held.

Defense lawyers Attn.Kerim Kalkan, Attn. Fatih Doğan, Attn. Melih Demir said: Since the affirmance of judgment given by the 8th Circuit of the Supreme Court of Appeals includes affirmance of judgment about the alleged offences in respect of Fatih Altaylı  and Ebru Şimşek who were the intervening parties then; Ebru Şimşek’s and Fatih Altaylı’s attribution as intervening parties would not be valid in respect of defendants about whom decision was given and then reversed. In case the court sees it relevant, the mentioned could be heard as witnesses. Before all else, we request a decision about this issue.

Lawyers of the intervening parties Attn. Rezzan Aydınoğlu and Attn. Nalan Kuğuoğlu said: The 8th Circuit of the Supreme Court of Appeals had reviewed the case in accordance to our request as the attorneys of the intervening parties and thus reversed the decision in respect of 18 defendants. Within the text of the decision it has been said that the request of intervening parties Ebru Şimşek and Fatih Altaylı was well advised, thus the request of the defense lawyers is not relevant.

PUBLIC PROSECUTOR said: A criminal case had been filed about the defendants with the claim of constituting an organization with the aim of blackmailing and committing offense;  since the intervening parties, Ebru Şimşek and Fatih Altaylı and their attorneys had stated that they had been harmed by the offense of blackmailing and also by the activities of the organization, the mentioned complainants upon their proving in which respect they would be harmed if the case was seen with Art.313 of TCL, they will gain the attribution of being the intervening party. Since their attribution as intervening parties continues in the previous case, it is requested and deliberated that the request about this issue should be denied.

HELD AS REQUESTED: It has been unanimously decided to deny the request of the defendants and their defense lawyers stating that Ebru Şimşek and Fatih Altaylı’s attribution as the intervening party is not any more valid, since in the reversing verdict of 8th Circuit of the Supreme Court of Appeals it has been declared that the appeals of the attorneys of the intervening parties Ebru Şimşek and Fatih Altaylı were regarded relevant. Open hearing is continued.

DEFENDANT: HASAN BASRİ GÜNER, son of Ali Gürhan and Türkan, born in 1967, registered in Center, Meşrutiyet Mah. District Zonguldak population, still resides in Bağdat Cad. Sarıgül Sok. 36/2, Caddebostan. Electronical Engineer and industrialist, single, literate, citizen of TR.

DEFENDANT: HALİL HİLMİ MÜFTÜOĞLU, son of Mahmut Celal and Nevin, born in 1965, registered in İstanbul, Üsküdar, Kısıklı mah/village population, still resides in Bostancı Şemsettin Günaltay Cad. No:134/10 Başak Apt. Kadıköy/Istanbul. Industrial Engineer, single, literate, citizen of TR.

DEFENDANT: TARKAN YAVAŞ, son of Günay and Sevgul, born in 1968, registered in Istanbul, Fatih, Muratpaşa Mah, Mah/village population, still resides in Emlak Kredi Bankası Evleri, B1 11 Blok K:4, No:1 Beylikdüzü/Istanbul, single, self employed, literate, citizen of TR.

DEFENDANT. KORKUT YASA, Son of Ali Doğan and Tijen, born in 1966, registered in Istanbul, Sisli Teşvikiye Mah/village population, still resides in Merkez Mah. Evren Cad: 16/1 Sok. No:7 Güneşli/Istanbul, publicist, single, literate, citizen of TR.

INTERVENING PARTY FATIH ALTAYLI: Son of Talat, born in 1962, resides in Mimar Sinan Cad. No:131, Göktürk Istanbul.

INTERVENING PARTY EBRU ŞİMŞEK: Daughter of Erdem, born in 1975, resides in Yılgaz Sitesi, B.Blok, K.5 D:13 Küçükbakkalköy/Kadıköy.

The verdict of the 8th Circuit of Supreme Court of Appeals had been read.

INTERVENING PARTY FATIH ALTAYLI said: I request that verdict of reversal given by the 8th Cirtcuit of the Supreme Court of Appeals is abided.

INTERVENING PARTY EBRU SIMSEK said: I request that verdict of reversal given by the 8th Cirtcuit of the Supreme Court of Appeals is abided.

The attorneys of the intervening parties, Attn.Rezzan Aydınoğlu and Attn. Nalan Kuğuoğlu said: we request that verdict of reversal given by the 8th Circuit of the Supreme Court of Appeals is abided.

DEFENDANT: HASAN BASRİ GÜNER said: The participating council for the reversal verdict of the 8th Circuit of the Supreme Court of Appeals is recused. No decision had been given upon this recusation yet.

DEFENDANT: HALİL HİLMİ MÜFTÜOĞLU said: The participating council for the reversal verdict of the 8th Circuit of the Supreme Court of Appeals is recused. No decision had been given upon this recusation yet. The verdict of reversal given by the 8th Circuit of Supreme Court of Appeals is null.

DEFENDANT: TARKAN YAVAŞ said: The participating council for the reversal verdict of the 8th Circuit of the Supreme Court of Appeals is recused. No decision had been given upon this recusation yet. The verdict of reversal given by the 8th Circuit of Supreme Court of Appeals is null.

DEFENDANT: KORKUT YASA, HALİL HİLMİ MÜFTÜOĞLU said; The participating council for the reversal verdict of the 8th Circuit of the Supreme Court of Appeals is recused. No decision had been given upon this recusation yet. The verdict of reversal given by the 8th Circuit of Supreme Court of Appeals is null.

The defense lawyers Attn.Kerim Kalkan, Attn. Fatih Doğan, Attn. Melih Demir and Attn. Selçuk Ülgen said; The judges constituting the participating council for the reversal verdict of the 8th Circuit of Supreme Court of Appeals had been recused. This request is still been discussed by the 8th Circuit of the Supreme Court of Appeals. The result of this appeal for recusation should be waited.

It has been understood that a report signed by Dr.Cengiz Aslan dated 13/07/07 stating the back pain diagnose about Defendant Hatice Tijen Özdemir had been submitted to the file.

It has been seen that a petition and a report had been sent to the file by the defense lawyer of defendant Adnan Oktar stating that the defendant is on sick leave starting from 12/07/07.

It has been understood that the invitation papers had not been conveyed to the defendants Mustafa Kemal Gül, Uğur Örmen, Korkut Yasa, Adnan Tınarlıoğlu and Turgut Aksu.

It has been understood that the invitation papers had been conveyed to Emre Nil, Ufuk Özturgut, Alev Ulaşoğlu, Meltem Arıkan.

HELD AS REQUESTED:  Since the intervening party Fatih Altaylı had requested to leave due to his excuse, it has been unanimously decided for him to leave the hearing as requested. Open hearing is continued

It has been asked from the attorneys of the intervening parties whether or not the offenses mentioned in the 1/1 article of the law numbered 4422 and Article 220. of the TCL numbered 5237 falls into the jurisdiction area and authority of the special court of assizes; Replied;  First of all, the Supreme Court of Appeals had not given any decision in respect of jurisdiction. For that reason Istanbul 2nd High Criminal Court is charged and authorized.

Intervening Party Ebru Şimşek: I agree with the declarations of attorneys.

P.PROSECUTOR said: It has been stated in the verdict of reversal of the 8th Circuit of the Supreme Court of Appeals that law numbered 4422 had been abolished with the 18th Article of the Code Of Criminal Procedure numbered 5320 and that the offense of constituting an organization with the aim of committing offense is been charged with the Article 220 of TCL numbered 5237. 

The 323rd Article of the Code of Criminal Procedure which still is in effect, it states that“if a verdict is reversed due to a court seeing itself injuriously in charged and authorized, the Supreme court of Appeals will also send the file to the authorized court in charge.”

In the 304/3rd Article of Code of Criminal Procedure;  it states; “if a verdict is reversed due to a court seeing itself injuriously in charged and authorized, the Supreme Court of Appeals will also send the file to the authorized court in charge.”

In respect of its verdict, if the 8th Circuit of the Supreme Court of Appeals had determined that there was a lack of jurisdiction in respect of our court, it would have reversed the decision in this respect above all else and would demand the file to be sent to the Istanbul Special Court of Assizes. However the 8th Circuit had clearly stated that the realization of the alleged crime would be referred to the 220th Article of the TCL numbered 5237. Moreover, since the penalty of being the founder and the director of an organization constituted with the aim of committing offenses subject to the 1st sentence of Article 1/1 of the law numbered 4422 is heavier than the penalty given for the same offense in the Article 220 of the TCL numbered 5237, the current TCL is in favor of the defendants.

In the Article 250/1-b of the Code of Criminal Procedure it has been stated that “the crimes committed with coercion and threat in respect of the activities of the organization constituted with the aim of providing unjust economical benefit would fall into the jurisdiction area of the Special Courts of Assizes. Since there is no allegation of coercion and threat within the alleged crimes of the defendants, it does not fall in to the jurisdiction area of the Special Courts of Assizes. Moreover in respect of  Article 220/1-c, it is not regarded as the Article 220 of the TCL.

Thence since the reversal was not clearly given due to lack of jurisdiction, we determine that our court is in charge and authorized.

Defense lawyers of the defendants said: As per the request of the intervening parties and their attorneys and also as stated in the deliberation of the Public Prosecutor, Istanbul 2nd Higher Criminal Court is authorized and in charge of hearing this case.  It is not in the jurisdiction area of the Special and Authorized Court of Assizes.

Defendants said: Istanbul 2nd Higher Criminal Court is the court in charge and authorized.

The file has been reviewed. The open hearing is ceased.

HELD:  As the reasons will be expounded in the attached reasoned verdict: