Report of Professor G. Robert Blakey

on Relation Between Turkish and United States Organized Crime Legislation

Professor G. Robert Blakey

Notre Dame Law School

Notre Dame, IN USA

September 26, 2000

I. Background of Professor G. Robert Blakey .

Professor G. Robert Blakey is the William J. and Dorothy O'Neill Professor of Law at the Notre Dame Law School, Notre Dame, Indiana, United States of America. He teaches courses in Criminal Law, Federal Criminal Law, Federal Criminal Procedure, and Jurisprudence.

Professor Blakey graduated from the University of Notre Dame with Honors in Philosophy in 1957 (A.B.) and from the Notre Dame Law School in 1960 (J.D.). He is a member of Phi Beta Kappa, the Order of the Coif, and the American Law Institute. He was admitted to the District of Columbia and North Carolina Bars in 1960 and the Supreme Court Bar in 1963.

From 1960 to 1964, Professor Blakey was a Special Attorney in the Attorney General's Honors Program in the Organized Crime and Racketeering Section of the Criminal Division of the United States Department of Justice. In 1964, he became Associate Professor of Law at the Notre Dame Law School, and a full Professor in 1968.

As a consultant to the Subcommittee on Criminal Laws and Procedures, Professor Blakey was the principal draftsman of Title III on wiretapping of The Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2510 et seq. ).

Professor Blakey was the Reporter for the American Bar Association Project For Minimum Standards in Criminal Justice: Electronic Surveillance (1967-1968) and a Presidential Appointee to the National Commission on the Review of Federal and State Law Relating to Wiretapping and Electronic Surveillance (1974-1975).

From 1969 to 1973, Professor Blakey was the Chief Counsel of the Subcommittee on Criminal Laws and Procedures of the U. S. Senate Judiciary Committee. During 1969 and 1970, Professor Blakey was the principal draftsman of P.L. 91-452, Title IX of which is known as "RICO".

From 1973 to 1980, Professor Blakey was a Professor of Law and Director of the Cornell Institute on Organized Crime at the Cornell Law School, Ithaca, New York, United States of America. In 1980, he returned to the Notre Dame Law School, where he became and remains the William J. and Dorothy O'Neill Professor of Law.

Between 1985 and 1986, Professor Blakey was counsel to the U. S. Senate Committee on the Judiciary in connection with hearings into white-collar crime. In 1988, he was a consultant on RICO reform for the U. S. House of Representatives Judiciary Committee. He is also a former Vice Chairman of the RICO Cases Committee of the Criminal Justice Section of the American Bar Association. He was also a member of the Council of the Criminal Justice Section of the American Bar Association.

Professor Blakey testified on RICO before various committees of the U. S. Senate on several occasions since RICO was enacted in 1970: before the U. S. Senate Committee on the Judiciary in 1980 in connection with codification of proposed forfeiture amendments; before the U. S. Senate Permanent Subcommittee on Investigations in 1983 in connection with RICO and organized crime in Chicago; and before the U. S. Senate and House of Representatives Judiciary Committees in 1985, 1986, 1988 and 1989 in connection with pending proposals for RICO reform.

Professor Blakey also drafted, worked on, or testified on behalf of a majority of the twenty-nine state RICO statutes enacted since 1970. He has also consulted on the adoption of RICO-type legislation with the Ministry of Justice in Canada, the Attorney General's Office in Puerto Rico, and the Ministry of Justice in Jamaica. His work with the Jamaica Ministry of Justice was sponsored by the U. S. Department of State.

Professor has Blakey lectured on RICO for a number of years in judicial seminars for the Administrative Office of the U. S. Courts. The seminars are held for circuit and district court judges and magistrates. He also lectures on RICO to groups from the Department of Justice, the U. S. Attorney's Offices, and the Federal Public Defender Offices. In addition, he lectures on RICO throughout the United States in continuing legal education programs sponsored by Federal and state bar associations, law schools, and private groups.

Professor Blakey has represented both plaintiffs and defendants in RICO litigation before various United States and state courts. For example, he has appeared in the United States Supreme Court, including representing thirty-four states as amici curiae in Sedima, S.P.R.L. v. Imrex Co., Inc. , No. 84-648, U. S. Supreme Court (1984), and American National Bank and Trust Co. of Chicago v. Haroco, Inc. , No. 84-822, U. S. Supreme Court (1984), fifteen states as amici curiae in H. J., Inc. v. Northwestern Bell Telephone Co. , No. 87-1252, U. S. Supreme Court (1987), and the National District Attorney's Association as amicus curiae in Fort Wayne Books, Inc. v. State of Indiana , No. 87-470, U. S. Supreme Court (1988). He has also argued in the Supreme Court in Rico appeals. Humana, Inc. v. Forsyth ,525 U S. 292 (1999.); NOW v. Scheidler , 510 U.S. 249 (1994); Holmes v. Securities Investor Protection Corp , 503 U.S. 258 (1992). He has also assisted criminal prosecutions under RICO in state courts. Finally, he has also represented defendants indicted under the RICO statute.

Professor Blakey's principal scholarly publications on RICO are:

a. Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts - Criminal and Civil Remedies , 53 Temple Law Quarterly 1009 (1980) (with Gettings);

b. The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg , 58 Notre Dame Law Review 237 (1982);

c. Equitable Relief Under Civil RICO: Reflection on Religious Technology Center v. Wollersheim: Will Civil RICO Be Effective Only Against White-Collar Crime? , 62 Notre Dame Law Review 526 (1987) (with Cessar);

d. An Analysis of the Myths that Bolster Efforts to Rewrite RICO and the Various Proposals for Reform: "Mother of God -- Is This the End of RICO?" , 43 Vanderbilt Law Review 851 (1990) (with Perry)

e. Reflections on Reves v. Ernst & Young: Its Meaning and Impact on Substantive, Accessory Aiding and Abetting and Conspiracy Liability Under RICO , 33 Am. Crim. L. Rev. 1345(1996)(with Roddy).

United States courts frequently rely on Professor Blakey's publications on a variety of issues, including nine decisions by the United States Supreme Court: Ginsberg v. New York , 390 U.S. 629, 643 (1968); Sabbath v. United States , 391 U.S. 585, 590 (1968); Dalia v. United States , 441 U.S. 238, 241 (1979); Payton v. New York , 443 U.S. 573, 596 (1979); Russello v. United States , 464 U. S. 16, 28 (1983), Tafflin v. Levitt , 493 U.S. 455, 466 (1990); NOW v. Scheidler , 510 U.S. 249, 259 n.5(1994); Wilson v. Arkansas , 514 U.S. 927, 933-36 (1995)

II. Organized Crime Control Act of 1970.

In 1970, Congress enacted the Organized Crime Control Act, Title IX of which is known as"RICO." Title IX was drafted to deal with "enterprise criminality," that is, "patterns" of violence, the provision of illegal goods and services, corruption in the labor or management relations, corruption in government, and criminal fraud by, through, or against various types of licit or illicit "enterprises." Because Congress found that "the sanctions and remedies available" were "unnecessarily limited in scope and impact," it enacted RICO to provide enhanced criminal and civil sanctions, including fines, imprisonment, forfeiture, injunctions, and treble damage relief for "person[s] injured" in their "business or property" "by reason of" a violation of the statute.

1. Standards

RICO sets forth "standards" of "unlawful" conduct, which are enforced through "criminal" and "civil" sanctions. Section 1963 of Title 18 sets out the criminal remedies. Section 1964 of Title 18 sets out the civil remedies.

IV. Elements of Section 1962(a)

The standards of 18 U.S.C. § 1962(a) embody four essential elements: (1) income derived from a "pattern" of racketeering or the collection of an unlawful debt (2) the use or investment of the income in the acquisition, establishment, or operation by a defendant (3) of an "enterprise" (4) engaged or affecting interstate commerce.

V. Excursus: "Pattern" and "Enterprise"

The two elements of RICO that give commentators the most trouble are "pattern" and "enterprise." Each is unique. The Supreme Court clarified the "pattern" element in H.J. Inc. v. Northwestern Bell Telephone Co. , in which the Court developed a fairly precise six-step process that can be used for determining if a "pattern" is present within the meaning of RICO. Two goals must be realized: relationship and continuity (or its threat). To see if these two goals are met up to six questions must be asked: (1) Are the acts in a series (at least two) related to one another, for example, are they part of a single scheme? (2) If not, are they related to an external organizing principle, for example, to the affairs of the enterprise? If both questions are answered in the negative, relationship is not present, one prong of the two-prong test is not met, and it is not necessary to proceed further. If either question is answered in the affirmative, up to three additional questions must be asked: (3) Are the acts in the series open-ended, that is, do the acts have no obvious termination point? (4) If not, did the acts in the closed-ended series go on for a substantial period of time, that is, more than a few weeks or months? If either question is answered in the affirmative, continuity is present. If both questions are answered in the negative, up to two additional questions must be asked: (5) May a threat of continuity be inferred from the character of the illegal enterprise? (6) If not, may a threat of continuity be inferred because the acts represent the regular way of doing business of a lawful enterprise? If either question is answered in the affirmative, a threat of continuity is present.

The application of "enterprise" to legitimate entities presents few problems. Its application to associations-in-fact, however, is not without difficulty. The Supreme Court attempted to clarify the issue in Turkette , in which the Court observed: An association in fact “is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. ... The ... [enterprise] is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit."

VI. Elements of Section 1962(b).

The standards of 18 U.S.C. § 1962(b) embody three essential elements: (1) the acquisition or maintenance through a "pattern" of racketeering activity or the collection of an unlawful debt by a defendant (2) of an interest in or control of an "enterprise" (3) engaged in or affecting interstate commerce.

VII. Elements of Section 1962(c) .

The standards of 18 U.S.C. § 1962(c) embody four essential elements: (1) employment by or association of a defendant with (2) an "enterprise" (3) engaged in or affecting interstate commerce (4) the affairs of which are "conducted by or participated in" by a defendant through a "pattern" of racketeering activity or the collection of an unlawful debt.

VIII. Elements of Section 1962(d) .

Section 1962(d) makes it "unlawful for any person to conspire to violate . . . [subsections (a), (b) or (c)]."

IX. The Criminal Enforcement Mechanism

The criminal enforcement mechanism of RICO provides for imprisonment, fines and criminal forfeiture. RICO authorized imprisonment of up to twenty years, or life, where the predicate offense authorizes life. In conjunction with other sections of United States Code, Title 18, RICO authorizes fines for RICO violations of up to $250,000 if an individual is convicted, or, alternatively, twice the gain or loss. Further, sentencing courts can order defendants to pay restitution to victims of an offense. RICO itself mandates that forfeiture can be of illicit proceeds, related property, or any interest in an enterprise.

X. The Civil Enforcement Mechanism .

The civil enforcement mechanism of RICO provides for injunctions, treble damages, and counsel fees.

XI. Implementation of Public Criminal and Civil RICO .

At first, the Department of Justice moved slowly to use RICO in criminal prosecutions. Today, it is the prosecutor's tool of choice against sophisticated forms of crime. The Department of Justice is also beginning to implement the civil provisions. Since 1970, criminal RICO is effectively being used against:

1. organized crime groups;

2. political corruption;

3. white-collar crime; and

4. violent groups.

Independent studies conclude that RICO is effective against sophisticated forms of crime. The President's Commission on Organized Crime had high praise for RICO and recommended that states adopt similar legislation. The General Accounting Office, too, in its study of Federal organized crime prosecutions concluded:

Prior to the passage of [RICO], attacking an organized criminal group was an awkward affair. RICO facilitates the prosecution of a criminal group involved in superficially unrelated criminal ventures and enterprises connected only at the usually well-insulated upper levels of the organization's bureaucracy . . . . .

Before the Act, the government's efforts were necessarily piece-meal, attacking isolated segments of the organization as they engaged in single criminal acts. The leaders, when caught, were only penalized for what seemed to be unimportant crimes. The larger meaning of these crimes was lost because the big picture could not be presented in a single criminal prosecution. With the passage of RICO, the entire picture of the organization's criminal behavior and the involvement of its leaders in directing that behavior could be captured and presented.

XII. Current Caseloads .

Criminal RICO prosecution did not begin to be brought with regularity until around 1975, but since 1970, they are running at the rate of about 125 per year. Roughly 39% have been in the organized crime area (not Mafia alone, but also drugs, gambling, labor racketeering, etc.), while 48% have been in the white-collar crime area (corruption of government, general fraud in the private sector, securities and commodities fraud, etc). Thirteen percent fall into other categories (violent groups, including terrorists, white-hate, anti-Semitic, etc).

XIII Turkish Statute

COMBAT AGAINST ORGANIZED CRIME RINGS

ACTING FOR PERSONAL GAIN

The Turkish organized crime statute is as follows:

ACT NO. 4422 Date of Acceptance: 30.7.1999

Crime Ring Acting For Personal Gain

ARTICLE 1 - Those who establish a ring for the purpose of committing crime by “taking over the management or control of an institution or an enterprise directly or indirectly,” gaining control and power over public services, media institutions, bid, privilege, or license proceedings,” creating cartel and trusts in economic activities, providing the prices to go down or up,” reaping unjust profit for themselves or others,” using force or threat for the purpose of gaining vote in the elections or preventing the elections, or “forcing individuals to follow them, or “using the force of intimidation, frightening, or threat through open or secret cooperation among its members,” who guide such a ring, “who are engaged in any action on behalf of such an ring or who purposefully serve such a ring will be sentenced to three to six years imprisonment, and those who are member to the ring will be sentenced to two to four years imprisonment just for this reason.

If the ring is armed, the penalty will be increased by one third to half. Even if no action has been taken for an armed attack, if the firearms and explosive materials are prepared and kept ready in line with the purposes of the ring, the ring is considered to be armed.

If the perpetrator of crime is a government officer or someone serving in public services, the penalty to be given according to the items above will be increased form half to one fold.

It is judged that the assets or products spared for the performance of the crime, or used in the performance of the crime, or anything to replace these, and the profit of all kinds of goods that is required to be confiscated, or all kinds of profits obtained from the crime are taken over by the State.

The verdicts of this article will be exercised on open or secret rings, regardless of how they are called, that carry the same purposes as the ring described above, or that use its power to frighten, intimidate or silence others.

The penalties of the crimes committed to realize the purposes indicated in the first article by the members of the ring or those who are not members of the ring, but act on behalf of the ring, and the crime noted in article no. 196 of o. 765 dated 1.3.1926 will be increased from one third to half.

Those who publish or broadcast or promote the acts, purposes, targets of these rings or those who commit the crimes stated in this law, with the purpose of securing unjust profit for these people or rings, or increasing the intimidation, frightening, or silencing power of the ring will be sentenced to two years to four yours imprisonment and fined of one billion lira to five billion lira. Also, decision will be given to halt the activities of the press institution in question from one day to three days.

Tapping of Correspondence or Its Identification

ARTICLE 4. - In order for the crime foreseen in this act and the pieces of evidence, the computer data and all official and private records, except those that have to be kept secret in relation to the national security of the state, present in the offices, institutions, establishments owned by those who engage in acts and exercises reminding the way these crimes are committed can be examined.

The involvement of secret agents

ARTICLE 5. - In the investigation of the crimes covered by this Act, if other measures prove to be insufficient, public officers may be used as secret agents.

Secret agent is responsible of observing, watching, making all kinds of investigation about the ring, and to collect other pieces of evidence, traces, valuable pieces and signs related to the crime even by intruding secretly into the ring.

For the secret agent to be appointed to observe one or more than one person who are suspected of committing the crimes states in the first article, it is necessary that these people have earlier committed a crime also or there exist concrete signs implying the existence of the threat of their committing the crimes foreseen in this Act, or that they have turned committing crimes into a profession or a habitual act.

The secret agent cannot be held responsible of the crimes of the ring he is assigned to penetrate to. The secret agent cannot commit a crime while he is serving his duty.

The identity of the secret agent is kept secret.

The execution of this article, the necessary points for the assignment of the secret agent himself, or family members to a similar service in terms of their security, are determined with a directory issued by the Ministry of Internal Affairs.

Measures related to rights and assets

ARTICLE 6. - The provisions of the act no. 4208 dated 13.11.1996 being reserved; It can be decided during the investigation period, that all personal assets and immovable goods of those people about whom strong suspicion has been formed about their having acquired these through their activities covered by this Act, be confiscated, their authority over their rights and assets in respect to banks or non-banking financial institutions and other actual or juridical persons, including their safe deposit boxes, be partly or wholly annulled, that these be deposited to an entrusted location, that other measures be taken about the management of rights and assets as well as possessions, valuable documents, cash and other valuables.

The investigation, examination, calculation and the value rating of the above mentioned assets locally and aborad, are carried out upon the demand of the related attorney general's office by the Finance Ministry Financial Crimes Investigation Council Offices.

ARTICLE 2. - The communication tools such as signals that are cabled, non-cabled, or those that work with other electromagnetic systems or received and transmitted by one-way systems, which include telephone, fax and computer, texts, pictures, images or sounds and information of any other form likely to be used by those persons that are suspected of committing these crimes stated in this law, or accomplice or, after the crime is committed, those who are suspected of aiding or mediating or acting as a receiver whatsoever, can be tapped or identified. Those that are fixed are stamped and recorded by the authorities.

The decisions about the tapping and identification of the communication can be taken only if strong signs exists.

If it is possible to identify and catch the perpetrator, or to provide evidence of crime, decision cannot be taken to tap or identify the communication.

The same verdicts above are practiced for records kept by official or private, all communication institutions that are irrelevant with the body of the communication.

The judge decides as regards to the tapping or identification or the examination of records. In cases where delay is important, Attorney General also holds authority on these subjects. Such facilities carried out without the decision of a judge have to be bound by the decision of judge in twenty four hours. In case the period expires or the judge decides adversely, the measure is immediately overruled by the Attorney General.

Tapping and identification decisions can be given at most for three months, this period can be extended at most twice not being for more than three months.

If, during the tapping and identification of communication, the suspicion about the committing of the crimes foreseen in this Act is dismissed, the measure is overruled by the Attorney General. In such circumstances, the information collected as a result of the precautionary practice is immediately and directly destroyed under the supervision of the Attorney General and the situation is reported in written form.

When Attorney General or any other authority appointed by him asks those who serve in related institutions or offices and who are authorized to give such a service, to carry out tapping and recording facilities and to set up devices for this purpose, this demand is immediately fulfilled and the commencement and termination date and hour of the exercise are fixed with a written report.

Spying

ARTICLE 3. - The homes, residences, offices of those who are suspected of committing the crimes foreseen in this act, and all of their activities carried out in places open to public can be secretly observed, watched, and recorded in sound and image with technical devices.

The examination of records and data

When the assets are understood to be legal, the confiscation decision is not carried out or the decision that is taken is overruled.

When the accused is sentenced, the assets in question are taken over by the State.

The protection of witnesses and officers

ARTICLE 7. - If the discovery of the identity of the witness or the address of his residence, or home or office, will pose a serious threat for him or others;

a) A different address may be determined for the witness where all the notices can be sent to and the identity of the witness can be kept secret in every step of the investigation.

b) In case the identification of other pieces of evidence is possible setting out from the information provided by the witness, the identity of the witness will not be revealed in any stage of the investigation.

If the identity of the witness has to be revealed because of the necessity to give statement at the court, it can be decided that the laws in article 20 of the Act of Combating with Terror no. 3713 dated 12.04.1991 are executed.

The verdicts stated in the above paragraphs are executed also about the police chiefs and officers who have served in the intelligence and investigation of crimes covered by this Act, their identity information being kept secret and no information related to their services and private lives being revealed.

Those who disclose identity, service or other information related to private life or who help in their disclosure will be sentenced to one year or two years imprisonment.

The Implementation of Procedures

ARTICLE 8. - In the adoption and implementation of measures and procedures foreseen in article nos. 3, 4, 5, 6 and 7, the methods and basics defined in article 2 are employed.

Ban of traveling abroad

ARTICLE 9. - With relation to the crimes covered by this Act, it can be decided, in the preliminary investigation stage, by the judge, and in the final investigation stage, by the court, to temporarily ban the traveling of the suspects or accused abroad. However, if it is risky for this practice to be delayed, the Attorney General can also decide to temporarily ban suspects from traveling abroad. This decision is immediately submitted to the approval of the judge in twenty four hours. The judge declares his decision in twenty four hours, otherwise, the decision of the Attorney General is automatically overruled.

The breach of confidentiality, the responsibility of the authorities and their punishment

ARTICLE 10. - The procedures executed in accordance with this Act and the decisions taken during the preliminary investigation stage are secret. Those who breach confidentiality are sentenced to two to three years imprisonment.

According tot he seventh paragraph of the 2 nd article of this Act, those who have to destroy the data that has to be destroyed, or who disclose these data, or somehow use it will be sentenced to the same punishment.

If the authorization related with the implementation of this Act are abused and serve to breach other judicial acts, the penalties stated in those laws are increased by one fold and the verdicts of the 12 nd article of this act are executed.

XIV. Question And Opinions .

1. What are the legal elements for the crime of “establishing directing or being a member of a crime ring acting for personal gain” as described in law (Code No. 4422). Or which element or elements should not be existent to eliminate the possibility of forming a crime ring acting for personal gain? *

Answer: The elements of RICO are set out above. Significant differences between Turkish and United States law include:

1. RICO does not require financial gain; Turkish law does.
2. RICO does not necessarily require the use of force or violence; Turkish law does.
3. RICO does not sanction publication of any kind; Turkish law does.

The First Amendment in the United States Constitution prohibits criminalizing speech.

Significant similarities include:

Answer: No. Mere membership in a group, financial support of it, or voiced support for it without personally subscribing to its criminal objectives , or knowingly committing crimes on behalf of it, would not render a person criminally responsible for his relationship to the group under RICO or Turkish law.

1. It is stated in relevant law and the Turkish Constitution, unless there is a special law regulating this issue, telephone listening is prohibited; otherwise, the outcome of such listening cannot be used as evidence. Despite this, in the case the telephones of some SRF members were listened–without a legal support but based on court decisions–and presented as evidence in both the summation and the indictment. Even though this telephone listening is based on a court decision, does the outcome of this telephone listening have any legal grounds as evidence considering that there is not a law to regulate this action?

   Answer: Electronic surveillance may be conducted in Turkey and the United States under legal authority. If the legal authority itself is valid, the electronic surveillance is valid. If the legal authority is valid, but the search does not, in fact, uncover illegal activity, the evidence obtained is not inadmissible if it shows elements of another crime.

2. The SRF members and other people taken into custody during the interrogation were for 6 days kept with their eyes covered, continually made sit on the floor with their hand handcuffed, kept awake, subjected to blows and electricity application and were forced to sign some testimonies under pressure and force. After the period of detention, the entire group of 36 accused stated at the presence of the public prosecutor and the court that the testimonies they were forced to sign did not belong to them and that they had to sign these texts without reading because they were subjected to force and pressure. Besides, with the filing of a complaint at the State Security Court's prosecution office that is also related to the case, an investigation was opened against the illegal treatments of the police officers on duty. Do the testimonies taken at the security under such circumstances and not verified by any other concrete evidence have any quality of being an evidence?

   Answer: No. Forced confessions are not admissible as evidence in any legal system of which I am aware that complies with international standards of human rights.

3. The 5 complainants who were heard during the 4.8.2000 dated hearing stated that they were put under pressure by the police and they were forced to bring up a complaint, and that they were forced by the police to make a complaint against Oktar and some of the accused under detention and stated that they in fact did not have any complaints. Besides all complainants, contrary to allegations, declared that they were by no means threatened, blackmailed, or oppressed by the accused. In this respect is it possible to talk about a “crime ring for personal gain” that does not employ powers of fear provoking, intimidating or threatening?

   Answer: No. Testimony obtained by police by force or pressure is not reliable. Unless witnesses independently confirm such prior testimony, it is not evidence. Turkish law for establishing a crime ring requires the use of force or its threat. Without it, no crime is committed.

4. The texts of the testimonies that some of the accused were made to sign by force and pressure were later repeated in front of the cameras and then leaked to the televisions to have them broadcasted. Do these camera recordings made at the security have any value in terms of law? In order for recordings of this type to have a status of legal evidence which conditions should have been realized?

   Answer: No. The witnesses would have to freely and independently affirm what they were previously forced to say.

5. Oktar and the other accused are charged with the allegation of “organizing a crime ring for personal gain.” In the indictment, it is stated that the purpose of this alleged “crime ring” is to get “material gain.” Yet, depending on this assumption in the indictment, the public prosecutor has carried out an investigation by an official institution, (Financial Crimes Research Council) (MASAK), that is related to the Ministry of Finance and all the material properties of the accused have been inventoried.

   Thus, according to the findings of these official departments, the following were determined as the property of the 35 accused:

   1. 6 of them have a car and the remaining does not,
   2. 8 of them own an immovable property, five of these were received by inheritance, three of these were acquired by means of sales approved by the notary, and the remaining 27 of them do not own any immovable property,
   3. 6 of them have personal bank accounts and the amount in these accounts range from 200$ to maximum 2000$.

   In this report, there is no mentioning of an income whose origin is not known or that is considered to be dirty or illegal. Furthermore, the documented properties are humble enough to prevent any qualification of dirty money. Up to now, there are no investigations done for this matter. As it is declared with official reports that the accused have no illegal income, in that case is it possible to claim that these people who have no illegal gains in person or as a group constitute a “crime ring acting for personal gain”? In the indictment it is alleged that some of the accused willingly make donations to contribute to the activities of the foundation or the group. Though such allegations have no evidence; does the claim that willing donations are made without the execution of any pressure or illegal methods correspond to the concept of unjust and unlawful gain by a crime ring?

   Answer: No. Mere donations to a group without personally assenting to its unlawful objectives is not criminal. The donation alone would not establish assent; additional evidence of criminal state of mind would have to be introduced.

6. As to your prior observations and definitions in law, what are the customary activities of a crime ring acting for personal gain? Have you come across with any such activity in this lawsuit?

   Answer: Crime rings engage in criminal behavior, including tax evasion, fraud, price fixing, vote fraud, drug dealing, prostitution, gambling, unlawful dealing in liquor, and violence (murder, kidnaping, robbery, witness intimidation, etc.), etc. I am not familiar with all of the evidence in this lawsuit. I cannot answer this aspect of your question.

7. Neither Oktar nor any one of the other 35 people accused in the lawsuit have previous criminal records. The entire group of these people who have university degrees and almost totally speak two foreign languages, carry on their academic careers with master or doctor degrees. These people who are known with their intensive cultural activities do not even have any penalty for traffic crimes. Even though this fact does not have any connotations as to the legal elements of the attributed crime, is it an ordinary occurrence that the persons who are alleged and charged to be the members of a crime ring for personal gain have not committed any crimes and have no previous criminal convictions?

   Answer: No.

8. The activities of social institutions or organizations, which do not get involved with unjust gains or any activity like threatening, oppression or intimidation, are solely within the scope of the practice of constitutional rights. Nevertheless, it is stated by many academicians that such codes put in force with the intention of combat against organized crime are misused by certain groups and “used” against legal organizations outside the purpose of the lawmaker not only in Turkey, but also other countries. Are there any preventive measures taken against such instances of misuse (amending the text of the code, excluding the written regulations, etc.) in your country or in other countries that raise set of laws to combat organized crime? What are these measures?

Answer: RICO is not limited to “organized crime” in the sense of “the Mafia.” It applies to “any person” who engages in conduct that it prohibits. In the United States, the United States Constitution limits the application of general legislation in such a fashion that it would infringe on constitutional rights. See , e.g. , NAACP v. Claiborne Hardware Co. , 458 U.S. 886 (1982).

Professor G. Robert Blakey

Notre Dame Law School

Notre Dame, IN USA

September 26, 2000