THE RIGHT TO A FAIR TRIAL IS BEING VIOLATED IN THE SCIENCE RESEARCH FOUNDATION CASE

UFUK ZEYTINOGLU

14 August 2011

Numerous unlawful acts have taken place during the Science Research Foundation case that began in the year 2000. Most recently, there was a very serious violation of the law during the appellate review for LCP [Law of Criminal Procedure] 3081, initiated at our behest at the Supreme Court at the end of June, 2011. The development of the incident that is the subject of our appeal is as follows:

The case brought against Mr. Adnan Oktar (Harun Yahya), Honorary Chairman of the SRF, and his friends on two separate accusations pertaining to “establishing a criminal organization and committing blackmail,” was dismissed by the 2nd High Criminal Court of Istanbul on November 24th, 2005 due to the expiration of the legal statute of limitations.

The allegation regarding “committing blackmail,” which is the first accusation in the case, had expired under the statute of limitations many years prior to this ruling [2003 for Fatih Altaylı and 1999 for Ebru Şimşek]. All legal rights of intervention in the case for the individuals named Fatih Altaylı and Ebru Şimşek (who stood as the intervening parties in the case ONLY in regard to the allegation of blackmail) had been terminated and thus their right to APPEAL THE CASE HAD SUBSEQUENTLY EXPIRED SEVERAL YEARS PRIOR .

The second accusation within the context of the case, “establishing a criminal organization,” (TCC 220) falls under that part of the Turkish Criminal Code dealing with “crimes against public peace”.

In cases involving accusations about “establishing a criminal organization” natural persons cannot acquire the standing of “injured party of the crime.” As a result, it is not possible for any individual person to become the “intervening party” in a case brought on the allegation of “establishing a criminal organization” and to subsequently appeal against the case. Only the Public Prosecutor can follow the proceedings in cases involving criminal organizations, in the name of the public.

Consequently, NO NATURAL PERSON, (i.e., NO INDIVIDUAL), APART FROM THE PUBLIC PROSECUTOR, HAS THE RIGHT TO APPEAL AGAINST THE RULING OF STATUTE OF LIMITATIONS (dated November 24th, 2005, as previously mentioned) given in the aforementioned case with the allegation of establishing a criminal organization.

Yet despite this manifest legal reality, Ebru Şimşek and Fatih Altaylı, who had only become the intervening party in respect to the claim regarding “blackmail, “ and whose legal standing as intervening parties was terminated many years ago, (whilst bearing in mind that the aforementioned individuals were NOT NAMED AS INTERVENING PARTIES in the case in regard to “establishing a criminal organization”) UNLAWFULLY APPEALED AGAINST the statute of limitation ruling issued by the Local Court. HOWEVER, ACCORDING TO TURKISH LAW AND THE JURISPRUDENCE OF THE SUPREME COURT, THIS APPEAL IS INVALID because the Office of the Public Prosecutor, who is THE ONLY AUTHORITY with the legal right to appeal in the case, did not and has not filed any cross appeal.

Despite there being no appeal filed on behalf of the Prosecutor’s Office, in the year 2007, the Supreme Court, Criminal Chamber No. 8, OVERTURNED THE STATUTE OF LIMITATIONS RULING ON THE BASIS OF AN APPEAL by Ebru Şimşek and Fatih Altaylı, who were not the aggrieved party in regards to the accusation about the criminal organization. The fact that this unlawful appeal, which formed the basis of this annulment ruling, was INVALID, has emerged very recently.

In order to appeal this invalid ruling of annulment of the Supreme Court Criminal Chamber No. 8 (dated May 17th, 2007), a brief of appeal has been submitted to the Supreme Court Chief Public Prosecutor’s Office within the framework of Article 308 of the Code of Criminal Procedure (CCP). This brief of appeal has been submitted by the retired Supreme Court Prosecutor Mr. Ahmet Gündel, and thirteen scientific legal opinions prepared by the most prominent criminal lawyers and academicians of Turkey have been submitted as letters of amicus curiae in the annex of this petition.

Following this request the case file, consisting of 676 folders and 84 sacks, was brought to the Supreme Court Chief Public Prosecutor’s Office on June 29th, 2011. However, a ruling of refusal was handed down on this 676-folder file, in only one hour of a workday, and despite the fact that the truck was never unloaded and these folders were never even taken inside the physical premises of the Supreme Court building. It is glaringly obvious that such a sizable case file could not possibly have been examined in only one day, and thus, it is equally obvious that no sound legal consideration could be duly ascertained.

Even though there are 650,000 files currently waiting to be evaluated, it is quite astonishing that this file had been deemed inadmissible with such unprecedented haste, and that our just appeal had been refused despite the many established practices of the Supreme Court. (According to the tables published in the official website of the Supreme Court, there are hundreds of thousands of files waiting on the desk of the Office of the Chief Public Prosecutor. The number of the files passed on to the year 2010 from the year 2009 is around 390,000 and the number of the files passed on to the year 2011 from the year 2010 is about 450,000) All the legal opinions submitted as amicus curiae briefs in the annex of the petition of appeal, and the opinions of the defense lawyers state that “there is a severe violation of law in this ruling.”

As you can surely appreciate, if there are similar practices in our Supreme Court, and if many of our citizens are thus being wronged because such erroneous practices are not brought to the fore of the agenda and duly resolved, this would constitute a most unacceptable state of affairs in regard to our legal system and contemporary Turkish Democracy.

Our request from your esteemed self is that you could present your opinion on this obviously unlawful proceeding in the aforementioned event, and that you could share with us your opinions and proposals for seeking a legal remedy, which would be deeply appreciated by us.