dAttorney Erdag Abukay

Istanbul, Turkey

September 22, 2000

Dear Mr. Abukay:

You have asked my opinion on several matters related to the indictment of your clients, members of the Scientific Research Foundation (SRF), under Turkish law. Specifically, you have asked me to state the American law as to eleven questions detailed in your letter E-Mailed to me earlier this month. Some of your questions, such as the first, ask me in part to comment on Turkish law. Thus, question 1 asks, “What are the definitely obligatory legal elements for the realization of a crime of ‘establishing directing or being a member of a crime ring organized for personal gain' as described in Code No.4422. This is a question about Turkish law which I don't feel fully competent to answer. However, I can answer those questions which relate to American statutes and constitutional requirements and can point out apparent differences in the scope of the Turkish statute based on its language in the translated version I have received.

In particular, you note that your clients have been charged under a statute similar to the Racketeer Influenced and Corrupt Organizations (RICO) statute in the United States. RICO (18 U.S.C. §1961, et seq. ) provides, in pertinent part that it is an offense, subject to up to 20 years imprisonment, to “use” any income derived from a “pattern of racketeering activity” to “acquire any interest in” “any enterprise which is engaged in interstate commerce.” [18 U.S.C. §1962 (a)]. It is further a crime to “conduct, or participate, directly or indirectly, in the conduct of (such an) enterprise's affairs through a pattern of racketeering activity.” [18 U.S.C. §1962 (c).] The statute goes on to define “enterprise” as including “any individual, partnership, corporation or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”

In the 1994 case of National Organization of Women ( N.O.W.) v. Scheidler, the United States Supreme Court held that RICO could, in theory, be violated by any organization, including the anti-abortion political activist group of which Scheidler was the head. Thus it is not necessary for an organization to be profit seeking in order to be subject to civil suit or criminal prosecution under RICO. It would appear that, in this respect, RICO is broader than the Turkish statute which is, at least in its title, limited to a “Crime Ring Acting for Personal Gain.” Financial gain need not be a motive under RICO.

The Turkish statute, as I read it, contains four elements. The government must prove that someone has “ 1. established a ring 2 for the purpose of committing crime 3 in order to achieve a variety of goals, such as “gaining control over an enterprise, or “creating a cartel.” Finally, the statute requires that the goals listed in the third element above be achieved 4 by the use of “force or intimidation, frightening or threat through open or secret cooperation among its members.” There follows some observations about this statute.

First, I note the Turkish statute requires the government to show that the defendants “established a ring for the purpose of committing crimes.” Thus, if the SRF was established for some other purpose than committing crimes, as you inform me that it was, it would not seem to violate this statute. The statute does not cover an organization which, established for some legitimate purpose, later engages in criminal activity. Thus, unlike RICO, the Turkish statute seems to be limited to people who establish criminal organizations that are aimed at illegal activity from the beginning --i.e. criminal organizations like the Mafia.

Second . Many of the acts alleged in the indictment, especially sexual conduct of various