[OPINION] Do You Think Ergenekon-Balyoz Were Unfair?

By MELIS TON

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Ergenekon & Balyoz (Sledgehammer) Trials are the most controversial legal cases in Turkey’s recent past. On the one hand, there were ammunitions that were buried in the ground in different cities, written documents that had been showed by the judiciary as the evidence of the coup plans, voice records showing that some state officers, academics and business people involved in illegal activities to topple the AKP government in an antidemocratic way. The judiciary found the evidence sufficient to rule that these people have formed a criminal organization. On the other hand, many like Gareth Jenkins slammed the trials by claiming that some evidence presented at the court are fraud and the indictments have significant shortcomings.

From the both sides, very few people actually read and examined the indictments which contained thousands of pages and the justified decisions which contained tens of thousands of pages.

Although Jenkins is one of those few people who attempted to read indictments it is not clear if he read all of the indictments and justified decisions in their entireties. The discussions on the trials were usually built on media reports and statements of popular figures such as lawyers of the defendants and journalists who followed the cases.

Ergenekon & Balyoz trials had allegedly been launched and run by police and judiciary members who have link with the  Gulen Movement or close relationship with the AKP government. After the corruption probes of 17-25 December 2013 that President Erdogan’s family and members of his cabinet involved, Erdogan initiated a witch hunt against the movement. To make them allies against the movement, he released all those who have been convicted in Ergenekon and Balyoz trials. The witch hunt has been a state policy after the failed coup attempt of 15 July 2016. Thousands of judges and police officers -alongside tens of thousands of teachers, businessmen and academics- have been dismissed and arrested over their links with the movement.

It would now be interesting to make comparison between the Ergenekon & Balyoz trials and AKP Trials from the perspective of legal proceedings and detention conditions.

Comparison of the legal proceedings

1. First of all, there were hundreds of defendants who were detained in the Ergenekon & Balyoz Trials. In the AKP Trials, there are nearly 60.000 people are in jail while more than 150.000 were dismissed from their jobs.
2. During the court hearings of Ergenekon & Balyoz (Sledgehammer) cases, the media always had to use the expression “The Alleged Ergenekon Terror Organisation” all the way through the trial process in covering the news relating to the cases due to the court orders imposed. Whereas during the cases heard under the influence of the ruling party AKP , the media has been insistently using the expression of “FETÖ”(acronym of Fethullahist Terror Organization)  without “alleged” ; people are declared guilty even before they are tried with the use of many statements reflecting bias. Without similar court orders prohibiting such biased statement, the media -not only the Erdoganist media but also so-called independent newspapers such as Cumhuriyet and Sozcu- is instead taking the place of the courts and issuing pre-judgements and conviction without any judicial decision.
3. During the Ergenekon & Balyoz Trials, with no exception, all of the defendants had been addressed with a formal language and titles of respect. During the AKP Trials, however, a vulgar and coarse language is used at the court-rooms and the defendants are addressed with their first names only.
4. During the Ergenekon & Balyoz Trials, court hearings were held nearly every day of the week and these hearings were continued until late at night. The defendants’ requests and objections to detention were received initially every day and later once every week/every fortnight. For years, the courts had carefully followed this order of procedures. During the AKP Trials, however, the hearings are held for two or three days and then postponed to a date 3 or 4 months later. Then, another one or two hearings are held and the so-called verdicts are very hastily issued.
5. At the Ergenekon & Balyoz Trials, the defendants were given unlimited right to defend themselves and they were not interrupted or not told to cut short while they were defending themselves. The court members were listening to the defendants with great patience, even when they were talking about subjects that are not related to the accusation. This was why, people like Perinçek had been able to make their oral defence for more than two months. At the AKP Trials, however, oral defences of the defendants are interfered, frequently interrupted and the defendants are told to cut their talks short.
6. At the Ergenekon & Balyoz Trials, each defendant was represented by multiple lawyers. Meanwhile, representatives from Istanbul Bar and the Union of Bar Associations had been able to attend and observe all stages of the court hearings and, from time to time, they were allowed to make their own remarks. However, at the AKP Trials, leave aside the possibility of allowing the defendants to be represented by multiple lawyers, the statements are taken without the presence of a lawyer even when it is legally mandatory to take statements with the company of a lawyer, as hundreds of lawyers defending the accused persons are detained and this openly outlaw situation is nevertheless condoned by the authorities.
7. During the Ergenekon & Balyoz Trials, Ümit KOCASAKAL, Istanbul Bar President, had been present at every court hearing and witnessed the trials as observer, ignored his position as being an observer, incited and organised other lawyers at the courtroom against the court members. At the AKP Trials, however, despite the fact that appointing a lawyer is legally mandatory when a defendant requests so, Ümit KOCASAKAL has replied the requests for lawyer appointment with these words: “Am I that stupid to appoint lawyer to the suspects of Fetö! Of course, we did not appoint anyone for them, and we will not!” After using such statements under normal judicial circumstances, he should have been immediately disbarred let alone being allowed to remain as the head of a Bar.
8. During the Ergenekon & Balyoz Trials, interim rulings were issued about numerous defendants’ requests and defendants’ questions were promptly addressed and many communications were written to the respective institutions. For example, the Ergenekon court mentioned this in its reasoned judgement and stated that 7200 interim orders had been issued. However, at the AKP Trials, many requests and questions of the defendants are straightaway rejected, the judiciary is merely rushing to issue refusal decisions.
9. The sound recordings of the Ergenekon & Balyoz Trials were submitted to the defendants and their legal representatives in a very short time. While, at the AKP Trials, it takes months for the court recordings to reach the defendants.
10. At the Ergenkon & Balyoz Trials, no one interfered with people about what to wear, while there was no prohibition on the defendants appearing at court wearing smart suits. Indeed, a majority of the defendants attended the court hearings wearing very smart suits. At the AKP Trials, however, the defendants are prohibited to wear suit during the hearings. People keep silent on this unlawful prohibition; some even suggest that the defendants are obliged to wear one standard type of prison uniform.
11. During the Ergenekon & Balyoz Trials, the defendants were brought into the court-rooms from the back doors in service buses without hand-cuffed and the press were not allowed to take photos of the defendants. During the AKP Trials, however, all of the defendants are brought into the court-rooms hand-cuffed, they are specially exhibited in front of the press and frantic crowds of people.
12. At the Ergenekon & Balyoz Trials, the defendants were allowed to go into the tea-coffee rooms allocated specially for them outside the court-rooms while the hearings were being held. At the AKP Trials, it is not possible even to have a dream of such treatment.
13. At the Ergenekon & Balyoz Trials, the defendants were allowed to see and physically contact with their family members during the trial breaks. They were even allowed to celebrate their birthdays with birthday cakes, while the communication of the spectators with the defendants were not interrupted. During the AKP Trials, however, it is impossible for the defendants to enjoy such a humane treatment.
14. At the Ergenekon & Balyoz Trials, none of the judges feared from being dismissed from their judicial profession, and had never been subjected to a threat or pressure. At the AKP Trials, on the other hand, the trials are performed under the psychological pressure of the existence of thousands of judges and prosecutors dismissed from their profession and put under detention. The judges and prosecutors who “accidentally” issue verdicts that are not approved by the government are being immediately punished by being either suspended from duty or completely dismissed from judicial profession.
15. At the Ergenekon & Balyoz Trials, İlhan Cihaner, the Former, Chief Public Prosecutor had been detained and remained under detention for only 3 months, had never been hand-cuffed and transported to and from the court-rooms by aeroplane; had written a manifesto against his detention; had been, allowed to throw threats and use a harsh language at adalet.org –the website of the judges and prosecutors– and there were many judges and prosecutors who were allowed as well as willing to preach the judges of the trials about professional ethics. At the AKP Trials, however, on one side, there are thousands of judges/prosecutors who have been detained for more than a year now, who had been arrested by being hand-cuffed behind their backs as if they are murderers and are brought to the court-rooms in barred, windowless prison vehicles. And, on the other side, there are thousands of judges/prosecutors who, let alone writing something on the adalet.org website, opt to remain speechless about all these unlawful detentions and maltreatments, fear to death even to open their mouth, and have already forgotten the general principles of law and professional ethics.
16. At the Ergenekon & Balyoz Trials, monthly wages of civil servant defendants (soldier, police officer, teacher, etc.) had continued to be given and they even had a pay rise with a legal amendment. Termination of their civil service has not even been an issue. At the AKP Trials, however, let alone receiving wages, possessions and properties of all the defendants have been seized and the money in their bank accounts have been confiscated. All of the detained public officials, although there is not any final judgement placed against them, are dismissed from their profession.
17. During the Ergenekon & Balyoz Trials, there were “conscientious” politicians, who were reiterating at every platform that detention is an exceptional judicial measure and they are opposed to keeping defendants detained during the trials. At the AKP Trials, however, those politicians are not around anymore and even uttering such words is beyond any probability.
18. At the Ergenekon & Balyoz Trials, the nefarious act of harassing and attacking family members of the defendants had never been committed. Nobody from their families had been deprived of their liberty, nor lost their jobs. At the AKP Trials, however, family members of the accused persons are systematically taken hostage. The officials have blatantly and shamelessly said, “We could not find your husband/father and detained you instead. Let him come, so we will release you!” People have also lost their jobs just because their relatives are tried.
19. For the defendants of the Ergenekon & Balyoz cases, private rooms had been built where they can spend up to 24 hours together with their spouses once a month. At the AKP Trials, however, although the laws still allow this facility, defendants are arbitrarily prevented to come together with their spouses.
20. During the Ergenekon & Balyoz Trials, there has not been even a single case of arresting or detaining pregnant or postnatal women. At the AKP Trials, however, the atrocities and cruelties exerted on pregnant and postnatal women have peaked and are still incessantly being practised.
21. There was not even one claim of torture or ill-treatment during the Ergenekon & Balyoz Trials. This had also been confirmed by Celal Ülgen, the famous lawyer of these cases, by his following statement: “None of the defendants have been subjected to any physical torture.” Many defendants were praising the highly educated, kind and polite police officers and prison wardens many of whom now are arrested over their alleged links to Gulen Movement. At the AKP Trials, however, the number and intensity of torture claims are dramatically high according reports published by international organizations such as UN and Amnesty International. In their statements, defendants are talking about police officers, soldiers, or even retired military members who are torturing the detainees. Photos of the tortured people are exhibited on newspapers and the social media as if it is something to be proud of. Black transporter vehicles are moving around kidnapping individuals. Families cannot reach or receive any news from their missing loved ones. And not a single judicial authority can dare to examine these allegations out of fear.
22. At the Ergenekon & Balyoz Trials, there were lawyers who were emphasising to abide by only the law; who were constantly reminding the fundamental principles of the law and stressing the necessity of the law and order for everyone. At the AKP Trials, however, these lawyers are absent and they play deaf and blind in the face of unlawful acts committed.
23. During the Ergenekon & Balyoz Trials, at any platform, the lawyers had been able to define, reveal and discuss many subjects, such as the irregularities of the police searches, legal validity of digital evidence and intelligence procedures. At the AKP Trials, however, about the vileness of showing to download a messaging software app (ByLock) as criminal evidence, which has no legal ground at all, the same lawyers are playing three wise monkeys.
24. At the Ergenekon & Balyoz Trials, there were “sincere” bars and lawyers who regard detention of lawyers as violation of the right to defend and were showing solidarity for their few detained colleagues. At the AKP Trials, however, the same bars and lawyers remain silent about the detention of hundreds of lawyers. They regard the right to defence as sacred only when their client is of concern. The President of the Union of Bar Associations, on the other hand, attempts to be the government’s associates of crime and act as its spokesperson abroad, instead of investigating thousands of claims of violation and not taking even a single step to defend their unlawfully detained colleagues.

Comparison of the detention conditions

1. Detainees of the Ergenekon & Balyoz cases had been able to phone their family members once a week. However, detainees of the current cases are allowed to phone their families once in every fortnight.
2. During the Ergenekon & Balyoz Trials, detainees had been able to see their visitors at contact visits once every month. Now, however, many prisons allow contact visits only once in two months. Detainees of the Ergenekon & Balyoz Trials were able to be visited by a wide range of relatives and friends (spouse, mother, father, grandmother, grandfather, children, grandchildren, siblings, grandmother, grandfather, mother, father, daughter, son, brother and sister-in-laws, step children, children of grandchildren, nephews and nieces, uncles and aunts and their spouses, guardians, trustees and 3 friends names of whom they had determined). Detainees of the current cases, however, can be visited only by their spouses and first degree family members, guardians and trustees. For that reason, for example, Idil Eser of Amnesty International is not allowed to accept visitors except her lawyer since she has no first degree family members.
3. All of the detainees of the Balyoz case, and majority of the detainees of the Ergenekon case were staying with 6-7 other detainees in 21-person wards. While a small number of detainees, such as Mustafa Balbay, were staying in five-room cells with separate toilet, bathroom and a courtyard. In these cells, they were being able to go outside the courtyard whenever they wanted during the day. Detainees today, however, are forced to stay in either solitary confinement or in overcrowded wards with other detainees whose number is 2-3 times more than the capacity of the ward.
4. Detainees of the Ergenekon & Balyoz cases had been able to watch TVs with more than 40 channels, which included both opponents and supporters of the government. At present, however, many prisons do not allow the detainees to watch TV. In prisons where watching TV is allowed, the detainees are forced to watch only the pro-Government channels. Broadcasts of opponent TV channels are prevented.
5. Detainees of the Ergenekon & Balyoz cases had been able to listen to the radio in their cells. Now, however, prison administrations do not allow the detainees to listen to the radio at all.
6. Detainees of the Ergenekon & Balyoz cases had been able to get access to all kinds of periodicals and newspapers. At present, however, journals with opponent views such as Yeni Asya, Evrensel, and Birgün are not allowed inside the prisons.
7. Detainees of the Ergenekon & Balyoz cases had been able to obtain every book they wanted and to keep whichever book they wanted inside their cells. Many of them had turned their cells into a small library. For example, when Mustafa Balbay being transferred from Silivri Prison Number 5 to Prison Number 1, reportedly a small van was brought to the prison to exclusively carry his books.
8. Detainees of the Ergenekon & Balyoz cases had been able to conduct all kinds of cultural and art activities they wanted. For example, Hayrettin Ertekin, who said that he was once a gold jewellery maker, had created such a great amount of artworks from stone and plastic material that the walls of his cell had reportedly been covered with them. Mr. Ertekin’s handmade artworks were also overwhelmingly occupying the workshop of the prison. Let alone preventing Mr. Ertekin from practicing his art, the prison administration of the time was encouraging him to display his skills.
9. Similarly, the detainee Veli Küçük had been able to give small concerts every-so-often with his UD (a musical instrument) to the prison staff. At present, however, none of the prisons in Turkey allow the detainees to involve in any cultural or art activities, and many prisons do not allow to have musical instruments inside the wards.
10. İlker Başbuğ, the former army chief, joined Ahmet Hakan’s program on CNN after he was released from prison. When he was asked, “What were you doing at the New Year’s eve?” he said that they had been able to celebrate the New Year, they had even ordered a turkey from outside and humbly celebrated the New Year together.
11. Defendants of the Ergenekon & Balyoz cases had never reported any insulting or offending treatment from any of the prison staff. The staff members were always using titles of respect when addressing the detainees. Not even a single bill of complaint –neither about judicial nor about administrative services– was filed by the Ergenekon & Balyoz defendants while they were staying in prison, which is a clear evidence of the high standards provided at that time. Today, however, with the order of the Government, prisons are turned into simply “torture houses”. Many of the guardians today use even insulting and offensive words against the defendants, let alone being addressed with titles of respect.
12. Detainees of the Ergenekon & Balyoz cases had enjoyed the right to computer available at the computer room in prisons at certain times during the day. On these computers, some of the detainees were preparing their statements and defences, while others were writing books. The detainees were allowed to use USB memory sticks to save their documents. Many of those detainees had written many books by using those computers in prisons. Today, however, leave aside writing books, etc., the detainees are denied the right to use computers even for preparing their statements against the accusations they are facing with.
13. The representatives of human rights organisations or NGOs were allowed to visit the detainees of the Ergenekon & Balyoz whenever they wanted. Today, however, even the family members of the detainees are not permitted to visit the detainees and they are faced with severe restrictions.
14. Detainees of the Ergenekon & Balyoz cases were freely benefitting from the health facilities of the prisons. Whenever the diagnosis and/or treatment of a detainee’s illness was not possible in the health facility of the prison, they were sent to the hospitals within the referral chain. Today, however, when the illness of a detainee cannot be diagnosed and/or treated at the prison’s infirmary, they are either not referred to a hospital at all, or they are sent to a hospital only months later.
15. Detainees of the Ergenekon & Balyoz cases were granted 4 days of permission to attend the funerals of their relatives. For example, Mehmet Haberal, Doğan Yurdakul, Dursun Çiçek had attended funerals of their relatives for a duration of 4 days. They accepted commiserations and also spent the nights at the funeral house. Today, however, most of the detainees are denied the right to attend the funerals of their even very close relatives. While those given permission are granted only a very short time for such occasions. For example, Mümtazer Türköne was able to attend his mother’s funeral held on 19 August 2017 for only a few hours.