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 Vahit Bıçak, a professor of criminal law, says the most important element in deciding where the trial should be held is the location of the latest crime committed. "We are faced here with an ongoing series of crimes. In such crimes, the files should be merged at the court located in the last place criminal activity was carried out. For this reason, they have to chronologically list the crimes and then give it to the court hearing the latest crime. Since there are a number of crimes here, it is possible to reach differing conclusions. If the essential crime is plotting against the government, then the Ankara court should hear it. Currently the Ankara 11th High Criminal Court has the initiative. If they send it to the İstanbul court, the İstanbul court will continue hearing it. In other alternatives, there will be a lengthy process to resolve the differences in opinion."
(Todays Zaman, 21 December 2008, Sunday) Last week, the Supreme Court of Appeals announced two rulings merging the case of an armed attack on the Council of State in 2006 and the trial of a gang called Atabeyler with the ongoing trial of 86 suspects charged with, among other things, plotting to overthrow the government, and these rulings quickly brought about debates on which court should hear the case.
The trial of the suspects of Ergenekon, a clandestine crime network nested within state institutions including the armed forces, is being heard at the İstanbul 13th High Criminal Court. The Atabeyler and Council of State trials, as two separate cases, are being heard at the Ankara 11th High Criminal Court.
An Ergenekon prosecutor established in the course of an official investigation that was started in the summer of 2007 that Ergenekon may have played a role in the 2006 shooting. Council of State hit man Alparslan Arslan was also charged with bombing the secularist Cumhuriyet daily in 2006; the hand grenade used in that attack was part of a batch produced by the state that was found in a stockpile of ammunition and explosives discovered at a house in İstanbul belonging to an Ergenekon suspect.
The Supreme Court of Appeals statement on last week's ruling to merge the cases noted that the Ergenekon indictment makes references to the armed attack on the Council of State. It also urged prosecutors to establish the character of the organization formed by the suspects of the Council of State shooting and evaluate evidence from the shooting together with evidence obtained in the Ergenekon investigation. However, the court did not specify which court should hear the merged case.
Some legal experts maintain that, based on a divide in the law between a main case and side cases related to it, the İstanbul court has the jurisdiction to continue hearing the merged case. Others point out that the law makes clear that the chronology of the crimes committed by an organization should be taken into account in deciding where a case should be heard, asserting that the Ankara court might be the one to hear the case as the Council of State shooting -- apparently the latest known crime Ergenekon has been indicted for -- took place in the capital. A third group of legal experts worry that if the legal discussion on the physical location of the court proves to be lengthy, the statute of limitations on the Council of State attack may expire, leading to the release of the suspects.
Some experts believe the Ankara court should obey the Supreme Court of Appeals ruling and refer the case to the İstanbul court. Retired military judge Ümit Kardaş said: "Ergenekon is an organization. There are various attacks, one of which happens to be the Council of State shooting. If the court in Ankara decides to keep the case, this would fall outside the logic of law. The main case is in İstanbul. How will Ankara establish that organizational link? In addition, there is already an investigation going on in İstanbul. It goes against legal logic to bring in a case that is under way elsewhere to Ankara."
Vahit Bıçak, a professor of criminal law, says the most important element in deciding where the trial should be held is the location of the latest crime committed. "We are faced here with an ongoing series of crimes. In such crimes, the files should be merged at the court located in the last place criminal activity was carried out. For this reason, they have to chronologically list the crimes and then give it to the court hearing the latest crime. Since there are a number of crimes here, it is possible to reach differing conclusions. If the essential crime is plotting against the government, then the Ankara court should hear it. Currently the Ankara 11th High Criminal Court has the initiative. If they send it to the İstanbul court, the İstanbul court will continue hearing it. In other alternatives, there will be a lengthy process to resolve the differences in opinion."
Associate Professor Mustafa Şentop states: "The part has to be attached to the whole and not the other way. The real case here is Ergenekon; the Council of State murder is one of the many cases that fall within the scope of the Ergenekon investigation. Just like its other crimes, this is one of the acts the terrorist organization staged in order to reach its eventual goal. The Ergenekon trial is the main case. This being as such, the merger should be done with the Council of State murder being integrated into the Ergenekon case." Şentop also says the reasoned opinion of the Supreme Court of Appeals on its ruling indicates the same understanding.
What comes next in Council of State merging process?
If the Ankara 11th High Criminal Court, which made the initial ruling, submits to the high court's ruling, it will have to send the case to the İstanbul 13th High Criminal Court, which is hearing the Ergenekon case. If the court insists on its initial ruling, the case will be referred to the Criminal General Council of the Supreme Court of Appeals. If the Ankara court insists the case is under its jurisdiction, it will have to request the Ergenekon case indictment and addendums from the İstanbul court on the case. The Fifth Chamber of the Supreme Court of Appeals will ultimately decide which court will hear the case if the İstanbul court does not send the files, insisting that the Ergenekon trial is part of its jurisdiction.
21 December 2008, Sunday
ALİ ASLAN KILIÇ ANKARA |
