ECtHR deals blow to Ergenekon terror

In the first review of the landmark Ergenekon trial, a case where a vicious terror organization plotted to wreak havoc in the country in order to pave the way for a military coup, the Strasbourg-based European Court of Human Rights (ECtHR) ruled in December 2011 that two applications lodged by Ahmet Tuncay Özkan and Mustafa Levent Göktaş, both defendants in the case, did not even pass the “admissibility” criteria.

Although the court did not examine the “merits” of the cases because the applications failed the screening in the admission test, even the initial examination of the facts by the court spells bad news for Ergenekon suspects currently being tried in an İstanbul high criminal court. Sitting with a chamber of seven judges on Dec. 13, 2011, the court unanimously dismissed both applications as inadmissible on all counts of alleged violations of the European Convention on Human Rights with the exception of complaints over the length of pretrial detention and the alleged lack of effective remedy to challenge this term.

The current decision shows that Özkan lost the case in five of the six alleged violations he raised against Turkey, while Göktaş lost in three of four complaints filed with the court. On the remainder of complaints, the court deferred its decision pending the receipt of an explanation and response from the Turkish government. Let’s examine the ruling in detail.

First, both Ergenekon suspects alleged that they were arrested and detained in the absence of reasonable grounds for being suspected of having committed a criminal offense, thereby breaching Article 5.1 of the convention. The court disagreed with that, saying they were “suspected of being an active member of a criminal organization called Ergenekon.” For Özkan, the court listed evidence such as possession of highly classified national security documents as well as explosives in his residence and directing a TV station to broadcast Ergenekon terror propaganda. It also included wiretap records to substantiate claims that he was complying with instructions from other Ergenekon suspects. As for Göktaş, the European court noted that he was suspected of leading a cell conducting paramilitary activities for Ergenekon, while he was discovered with explosives and a weapons cache.

The court said that all these crimes are clearly punishable according to the Turkish penal code and agreed that national judicial authorities have relied on concrete evidence for the arrest of suspects. “The Court therefore finds that there is no evidence in this case to indicate the interpretation and application of legal provisions cited by the domestic authorities were arbitrary or unreasonable,” the decision said. Citing the case law, the European court further clarified how to interpret Article 5.1 of the convention. The court noted that the purpose of questioning during a detention is to further the criminal investigation by confirming or dismissing strong suspicions. It also argued that this article should not be applied in a way that causes undue hardship to the police combating organized crime, giving a great deal of room to maneuver for Turkish police authorities in conducting their investigation into organized crime.

Second, in contrast with Göktaş’s application, Özkan also invoked Article 5.2 of the convention in his complaint, claiming that he was not informed of the reasons for his arrest or the charges against him. Article 5.2 stipulates that any person who has been arrested should know the reasons for his/her arrest. The court rejected Özkan’s claims, saying that “during his arrest, police officers in İstanbul informed the applicant that he was suspected of belonging to a terrorist organization known as Ergenekon.” It also found that during the interrogation, the police detailed Özkan’s activities including his relationship with other Ergenekon suspects. Interestingly, the judges at the EctHR identified an irony in Özkan’s application, indicating that he had actually referred to the information provided by the police during his appeals submitted to the İstanbul court to challenge detention decisions, refuting claims that he was not aware of charges leveled against him.

“The Court therefore finds that at the time of his arrest, even at the beginning of his detention the applicant was duly informed of the legal and factual grounds of his arrest, so that [he] [could] discuss the legality in court,” the court decision said, while rejecting his application as “manifestly ill-founded.”

Third, unlike Göktaş, Özkan also alleged that the length of the interrogation by the police and the conditions under which the interrogation took place amount to an inhuman and degrading treatment within the meaning of Article 3 of the Convention. The court flat-out rejected this claim as well simply because Özkan did not produce a single shred of evidence such as a doctor’s report to back up his claim. For the court to consider any violation under this article, treatment must be severe, continue for a long time and cause either actual bodily injury or intense physical or mental suffering. Humiliation must be different from the usual element of humiliation inherent in arrest or detention.

Hence, the court held the view that Özkan had not produced any evidence suggesting that the length of the interrogation and the conditions under which the questioning took place reached the level of severity required by Article 3. As a result, it rejected his claim.

Fourth, both Özkan and Göktaş invoked in their applications a violation of Article 6.1 of the convention, which is the excessive length of proceedings. Özkan was arrested on Sept. 23, 2008, while Göktaş was arrested on Jan. 7, 2009, which put them in detention about three years. When reviewing the complaint over the length of proceedings, the court takes into consideration a variety of factors like the complexity of the case, the conduct of the applicant and the competent authorities. In the Ergenekon case, the ECtHR believed that the case is complex because of the large amount of evidence compiled by the prosecutors against suspects as well as a large number of co-defendants.

There is also no problem in the eyes of judges of the European court with regard to the conduct of the authorities. For example, the court acknowledged that the prosecution presented its indictment within six months after the applicant’s arrest. It also noted that there were no significant periods of inactivity during the course of the proceedings before the Turkish court. In fact, considering the other cases in Turkey, the Ergenekon case is moving at a much faster pace. Therefore, the court ruled that the length of the proceedings has not exceeded, to date, a reasonable time within the meaning of Article 6.1, resulting in the dismissal of the complaint.

The fifth and the last complaint by both Özkan and Göktaş were about the absence of a fair trial before an independent and impartial tribunal. Again this complaint was made under Article 6.1. Özkan also raised an Article 13 violation in this case, saying he did not have an effective remedy in domestic law by which they could have challenged this. The court rejected the complaints, saying that Ergenekon suspects brought these complaints to the attention of the court prematurely because the case is still going on in an İstanbul court.

Overall, I do not think a very promising result awaits Ergenekon suspects at the ECtHR even after complaints brought to the court after the completion of the trial. There may be some violations cited by the Strasbourg court due to systemic deficiencies in the Turkish judicial system, which is not unique to the Ergenekon case, by the way. If you ask me, the high-profile Ergenekon case receives much better judicial review and due diligence than many cases going on in Turkish courts.

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