Situation in Turkey

Report of MEDEL's observer to the ongoing trial of Murat Arslan, President of YARSAV (in German and English)

murat.arslan.webMurat Arslan: "This trial is a revenge against YARSAV". Report about the first day of trial in the criminal proceedings against the chairman of YARSAV, the banned Turkish Association of Judges and Prosecutors. 

Murat Arslan began his career in law at the Turkish National Court of Accounts (Sayıştay). He changed paths in 2005 when he became a reporter judge for the Constitutional Court. He first became active in YARSAV, the Turkish association of judges and prosecutors founded in 2006, as a member of the board. Later he became the vice-president of the association, and was elected president in 2011. He was reelected several times and was the chairman of YARSAV until the organization was banned by an emergency decree after the attempted coup d’état on 15.07.2015. Murat Arslan had already been transferred back to the national Court of Accounts in 2015. After the attempted coup d’état, he was dismissed and from 19.10.2016 on he has been in detention pending trial.

Murat Arslan was born in 1974. He is married and has two children. On 09.10.2017, he was awarded the Václav-Havel Prize by the Parliamentary Assembly of the Council of Europe.

Murat Arslan is accused of having been an active member of the FETÖ/PDY. “FETÖ” stands for “Fethullah Terror Organization”, and “PDY” stands for “Parallel State Organization” (“Paralel devlet yapilamasi”). This is an organization led by the Islamic preacher Fethullah Gülen, who has lived in the United States since 1999.

On November 2nd, the trial proceedings began in a criminal court in Ankara (25. Agir Ceza Mahkemesi). I took part in the hearings representing the “Neue Richtervereinigung” and MEDEL (Magistrats Européens pour la Démocratie et les Libertés). Another foreign trial observer was present in Ankara: a colleague from the Judges’ Organization of the Netherlands, “Rechters voor Rechters”.
Some EU-countries, including Germany, not only keep trials against their own nationals under surveillance through their embassies and consulates but also observe certain trials against Turkish nationals. The countries agree upon which trial is to be observed by which country and then mutually inform each other. The German Embassy, which was chosen to be the observer for the criminal procedure in the Murat Arslan case, was represented by a member of the diplomatic mission and an interpreter at the proceedings.

The main part of the general public prosecutor’s 200 page indictment attempts to demonstrate that FETÖ/PDY is a terrorist organization whose aim has been the infiltration of State institutions, including the Judiciary. During the proceedings this was not discussed. The questions and opinions of the three judges were focused on YARSAV’s role, its possible infiltration by FETÖ/PDY, whether Murat Arslan was part of FETÖ/PDY, and whether he participated in the infiltration of Judiciary through his activities in YARSAV.

His attorney was Professor Öykü Didem Aydin, assisted by two co-defendants. The defendants had the opportunity to speak, could make requests and could comprehensively confront the indictment. The public prosecutor made few statements. The president of the court led the proceedings calmly and professionally. Even though the proceedings were led correctly, it is questionable whether Murat Arslan can expect a fair trial by an independent court. As is still to be demonstrated, some decisions of the court have to be evaluated very critically.

 The claim against Murat Arslan, much like other criminal trials held in Turkey, can only be understood in the framework of the intricate political struggles for power of the past years. These struggles opposed the Prime Minister/President Erdogan and his Party for Justice and Development (AKP) to the Kemalist military as well as to Fethullah Gülen and his movement. An important reason for these was to obtain control of the courts, public prosecution and the police. A general overview of the political tensions is summarized in the next paragraph.

From the deprivation of power of the Military to Gülen’s fall from grace

When Recep Tayyip Erdogan’s rise to becoming the most powerful politician in Turkey began in 1982, a secular state order with extensive military power was established in accordance with the constitution adopted during the military dictatorship of General Kenan Evren. Among other things, a National Security Council, appointed by the Chief of Staff, had the possibility to ban parties. On 04.11.2002, the AKP, the party founded by Erdogan in 2001, won the anticipated elections with an overwhelming majority. He then undertook to limit the military influence with the help of the Gülen movement.

Muhammed Fetullah Gülen already lived in the United States at that point. As a preacher with a State License, from the 60s onwards he managed to create commune lodging for students, tutoring institutes, and schools for the conveying of Islamic education. He also gained a considerable political influence as a media owner and with his preachings. In 1999, his success abruptly came to an end as a secretly recorded speech was broadcast on Turkish television. In the much edited version of the speech, Gülen stated that the members of his movement should not be content with public offices such as those of a judge or country commissioner but that they should aim for the highest position in the State’s organization without being noticed. To avoid arrest he never returned from his stay in the United States. From there he kept developing his movement, both in Turkey and internationally. He strongly supported Erdogan’s 2002 election campaign, mostly through his newspaper “Zaman”. In return he was allowed to strengthen his movement in Turkey.

The weakening of the military happened partially by lawful means, for example through the modification of the Constitution in 2010 or the limitation of powers of the National Security Council to the benefit of the Parliament and the Government, and partially by unlawful and criminal methods. An example of this is the two-year long Ergenekon trial which condemned hundreds of officers, journalists and businessmen to imprisonment and life sentences in 2013 because of an alleged attempted coup d´état. The action was presumably brought by prosecutors close to the Gülen movement. Since then, the judgement was declared invalid by the court of cassation.

In 2013, Erdogan and Gülen came to a rift: journalists of “Zaman” criticized Erdogan’s violent repression of demonstrations in Gezi Park. In response he announced that he would have thousands of schools funded by Gülen shut down. In December, numerous people from Erdogan’s entourage, including his own son and sons of three of his ministers, were arrested under suspicion of corruption and the payment of bribes. Consequently, Erdogan accused Gülen and his movement of having infiltrated the Judiciary and the police and of planning a coup d´état against his legitimate government. This was the starting point of a first wave of disciplinary dismissals and transfers both in the Judiciary and in the police. The Government contemporaneously gained control over the High Council of Judges and Prosecutors (HSYK).

YARSAV – A hidden instrument of FETÖ/PDY?

YARSAV strongly criticized the above mentioned measures, both in Turkey and internationally. Murat Arslan and the vice-president of YARSAV at the time, Mehmet Tank, expressed their view in an article written in English on 20.04.2014. According to them, the Judiciary has been brought under the control of the executive branch with the help of the parliamentary majority to prevent further investigations of corruption and to cover up the already existing scandals.

At the very beginning of the proceedings against him, as he was personally being interrogated by the criminal court, Murat Arslan underlined that YARSAV had been in opposition to the Turkish regime long before the attempted coup d´état, regarding both its judicial and legal policy and the bringing into line of the Judiciary. According to him, this was the only reason he was being tried: the Turkish State was taking revenge on YARSAV because they advocated for the rule of law and for democracy. Moreover, the defense also argued that YARSAV did not only criticize the government but also warned against the infiltration of institutions, among others the judiciary, by FETÖ/PDY. They submitted a series of press articles and other documents (dated 2008 to 2015) to prove this.

Contrary to the defense, the indictment does not address the public positioning of YARSAV towards the judicial policy of the government and towards the Gülen movement. During the proceedings, the prosecutor has not addressed this either. The accusation alleges that Fetullah Gülen himself has asked his followers within the Judiciary to infiltrate and to take over YARSAV. About 300- 400 members of the FETÖ/PDY, among them Murat Aslan, would have worked in YARSAV (with more than 1500 members all together). Their aim would have been to smuggle their own people into important positions during the 2010 and 2014 HSYK elections using illegal methods. Moreover, through their membership in YARSAV, the Gülen followers would have pretended to be a social- democratic group, thus concealing their true objective.

With this argument, the prosecution avoids addressing YARSAV's public statements about the government policy and the Gülen Movement. It also perfectly fits the image of the terrorist organization secretly operating even within YARSAV that the governments wants to create.

The fact that the prosecution focused on the personality of Murat Arslan to belittle and discredit him instead of merely presenting its interpretation of the facts shows what can be expected from this trial. Murat Arslan has been presented in the indictment as being a man during the day but a wolf at night, an officer who would do anything to lead the enemy of the State to victory, and as a traitor and a deserting soldier. He has also been compared to a football player who can be bought and who, without any respect for the struggles of his team, would play against it while betting on its loss.

Communication platform ByLock

The communication platform ByLock plays an important role in the trials against people accused of being Fetullah Gülen's followers because members of FETO/PDY allegedly used it to communicate. The indictment states that Murat Arslan used the platform ByLock on his mobile phone between 27.08.2014 and 20.02.2015. Kazim Uslu, a former YARSAV board member, was also accused of being part of FETO/PDY, and allegedly testified during his interrogations that Murat Arslan used ByLock to contact Gülen followers within YARSAV as well as more broadly within the judicial system. To the contrary, when questioned about it during his trial, Murat Arslan stated that he had never used ByLock.

Furthermore the chief public prosecutor produced an expert opinion of the Turkish secret service, MIT, about the functioning and use of ByLock. This additional document for the indictment drew the conclusion from a series of facts and considerations that only FETÖ supporters had used ByLock.

According to a Dutch report from the FOX IT institute which was presented by the defendant in the proceedings, the opinion of the Turkish secret service is flawed in many ways. FOX IT's report specifically notes that the methods used in several domains by the MIT are not transparent and that numerous specific results are incorrect.

The defense extensively grappled with the issues raised by the Dutch report during the proceedings. They were not discussed any further during that day of trial, nor was the matter of Murat Arslan's use of ByLock. Nevertheless, it is to be expected that the court will have to do another investigation as the defense request to obtain information from the telecommunication agency was completed with. On the other hand, the outcome of the defendants' motion for an independent expert opinion about the quality of the secret services' report still has to be decided by the court.

Questionable pre-trial examination of imprisoned witnesses and anonymous testimony

According to the indictment, the infiltration of the judiciary by FETO/PDY followers within YARSAV, led by Murat Arslan, took place during HSYK elections in 2010 and 2014. For each of these elections Murat Arslan allegedly influenced the voting behavior in favor of a candidate. As proof, the prosecution called Ibrahim Okur as a witness. He was the president of HSYK’s 1st chamber and was accused of being a member of FETÖ/PDY. The prosecution says that he testified during pre-trial interrogations that he met with Murat Arslan during the 2010 HSYK election. The latter allegedly shared with him that some 300-400 members of YARSAV would support him in the election. This witness is under arrest and was heard through video transmission after the defendant’s statement in response to the accusation.

His testimonies to the court do not match his previous alleged declarations. He denied that he ever stated that Murat Arslan was a member of FETÖ/PDY or that he had any relation to the movement. He said that, in fact, this is not accurate: it could only be that other people, whose names he does not remember, asserted that Murat Arslan was a FETÖ/PDY member. The president of the court reproached him for having testified otherwise at other hearings. The witness explained that the long and numerous interrogations by the prosecution could have led to possible inaccuracies or mistakes in the record keeping. He also stated that he did not always have the opportunity to thoroughly read the testimonies he was invited to sign. He now only recognized that he met with Murat Arslan in the Ministry of Justice in 2010, but does not specify the reason for the encounter.

A further witness is Birol Erdem. He was the head of the personnel department at the Ministry of Justice at the time of the 2010 HSYK elections, after which he became State secretary. According to the indictment, he stated during pre-trial interrogations that some YARSAV members tried to manipulate him before the 2010 HSYK election. He was introduced to Murat Arslan by a member of FETÖ/PDY, thus he imagined that Murat Arslan himself was part of the movement. Birol Erdem was invited to appear at the proceedings but did not show up. Therefore, he will be brought in at the next hearing date. He was also arrested and interrogated in detention pending trial after the attempted coup d´état of 15.07.2016 but has been freed since.
The president of the court questioned Murat Arslan to determine whether YARSAV supported a member of FETÖ/PDY during the HSYK elections. Indeed, FETÖ/PDY member, Levent Ünsal, received 5,143 votes at the elections according to the indictment, whereas other candidates had less than 1,500 votes. Murat Arslan responded that the rumors about the candidate’s affiliation to FETÖ/PDY arose only after the election.

I learned only later that two more witnesses were heard by judges in Kahramanmaras and Konya without consultation of the defense. The identity of one of the witnesses was not made public. The defense held an objection against this process and sought to be allowed to cross-examine the witness. The court decided that the defense could ask its questions to the witness, known in court under the alias Defne, in writing and through the court only. The court has not yet decided the request with regards to the second witness. Both statements were not read out loud during the proceedings so that their content cannot be discussed.

During the proceedings, two witnesses for the defense were heard. The defense asked for the interrogation of the former secretary general of YARSAV, Leyla Köksal, as well as of three other judges. The court refused to hear testimonies from two witnesses, and only agreed to hear Leyla Köksal and Mustafa Karadag. Both stated that Murat Arslan did not have any connection to FETÖ/PDY.

Main hearing postponed to 18.12.2017

The first day of trial has revealed nothing so far that could justify the detention of Murat Arslan. The prosecution’s accusations, which were the object of the proceedings, are vague. Besides, Ibrahim Okur, the witness who concluded that Murat Arslan was a member of FETÖ/PDY in his statements, did so before the trial and relying on few circumstances. His statement was not maintained during the trial proceedings. The witness Birol Erdem has also concluded, according to his statement in the indictment, that Murat Arslan was a member of FETÖ/PDY only under certain circumstances.

Moreover, the credibility of witnesses is questionable. They were under considerable pressure due to their detention and to the accusations that they faced. Lawyers have reported that their clients were offered sentence remissions if they agreed to incriminate other people.

Even if the first day of proceedings was very positive for Murat Arslan, the defense’s petition to have him released from detention pending trial was not accepted. It is also concerning that the court only allowed the defense to communicate in writing with the witness known under the alias Defne. This is inconsistent with the rights of the defense. The Turkish criminal procedure allows witnesses to testify anonymously but only when their personal safety could otherwise be compromised. The anonymity can also be guaranteed through a personal questioning by the defense, for instance through a physical separation allowing the witness not to be seen. The main hearing has been postponed to the 18th of December 2017 in order to carry on with the collecting of evidence.

By Ingrid Heinlein

Translation: Carla Saxer


Original article in German Language you can read here:

Murat Arslan: “Dieser Prozess ist ein Rachefeldzug gegen YARSAV”5.02 MB

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