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The complete indictment in English

FROM THE INDICTMENT of the Firat Dink Murder Case

...

6. Legal Qualification

At this point, what sort of a definition of organization - in legal terms - the acts committed by the consensual opinion of the group formed by the suspects in a period of time should be discussed.

The point that should be mentioned in the first place is that no evidence as regards material benfits was found in relation to the acts committed by the suspects; on the contrary, the suspects have committed these acts out of an ideological aim that stems from their common political and social views when all the verbal accounts and the features of the acts are placed under scrutiny.

When defining the crime of forming an armed organization, the 168th Article of the Turkish Penal Code No. 765 anticipated that for a prospective armed organization to be evaluated with respect to this article, the organization must be formed with the aim of committing a restricted number of crimes against either the international personality of the state or the state forces.

Similarly, adopting a similar structure, the 314th Article of the Turkish Penal Code No. 5237 comprises the provision that entails a ten-to-fifteen years' imprisonment of the founders and leaders as well as a five-to-ten years' imprisonment of the members of an organization that is formed with the aim of committing the crimes stated in the fourth and fifth parts of the fourth section of the same law (TPC No. 5237).

The fourth and fifth parts mentioned in the article are to be understood to comprise the crimes committed against the security of the state, the constitutional order, and the functioning of this order. In this sense, the limit that the old law entailed has been expanded significantly in the new law.

To give an example concerning the view formed in jurisprudence regarding the characteristics of an armed organization as mentioned in the 168th Article, keeping in mind the definition formulated in the TPC No. 765, the decision numbered 2003/9-7E, 2003/46 K. by the General Board of the Criminal Panels of the Supreme Court of Appeals, in line with many other decisions, includes the following:

"As a rule, our Penal Code does not punish acts of preparation. There are situations, however, in which such acts that are geared to certain aims posit a special crime with respect to the code. One of these acts is the type of crime that concerns the character of the state, as formulated in the 168th Article of the TPC No. 765. In this article, which formulates the "crime of armed organization," the aim of evaluating the acts of preparation as "special and exceptional crime type" is to help punish the acts that entail the "danger of severe damage" against the state.

With the first part of the 168th Article of the TPC No. 765, maintaining an armed group or organization with the aim of committing the crimes defined in the Articles 125, 131, 146, 147, 149, and 156, or the act of taking up a position of command, leadership, or a special task, have been connected with sanctions.

The penal sanction of being a member of an armed group or organization is formulated in the 2nd part of the 168th Article of the TPC No. 765; and as emphasized in many judiciary decisions, those who do not hold a position of command, leadership, or a special task but participate in the group/organization on a simple level; agree with the issues concerning the aim; is aware of what the group/organization entails when participating in it; view the aims of the gang as compatible with their own aim are regarded as members of the group/organization.

The crime types mentioned individually in the first part of the 168th Article of the TPC No. 765 comprise the "aim crime." In terms of the legal value that is meant to be protected with the "aim crime type," the establishment of an armed group or organization, which is assumed to pose the "danger of severe and immediate damage," constitutes an "aim crime." In this respect, the crime of forming an armed group at the same time constitutes a crime of "danger of damage" that is approved within the frame of a particular aim. The article comprises such an expression.

It is thus an appropriate approach to claim that the 314th Article of the TPC No. 5237, which adopts the same structure, formulates an 'instrument crime' whereas the fourth and fifth parts of the fourth section of the same law (TPC No. 5237) formulate an 'aim crime.'

While defining terror, on the other hand, the 1st Article of the Anti-Terror Law No. 3713 anticipates that all kinds of acts that constitute a crime, committed by a member(s) of an organization and holding the aim of changing the characteristics of the Republic as specified by the Constitution as well as the political, legal, social, secular, and economic order via one of the methods of pressure, intimidation, deterrence, suppression, or threat by the use of force and violation; violating the indivisible integrity of state with its country and its nation; jeopardizing the existence of the Turkish State and Republic; weakening, toppling, or seizing the state authority; undermining the basic rights and liberties; and violating the domestic and foreign security of the state, public order, or the general health, will be considered as a 'crime of terror.'

While the aims stated in the 314th Article of the TPC No. 5237 are included in this definition, one is to see that a wider arrangement of aims has been held; and that those acts which are committed with the aim of violating the domestic security of the state, public order, or the general health and which comprise the use of force are considered within the scope of the 'crime of terror.'

However, it will not be an inappropriate approach to view that, up until the modification of the 7th Article of the ATL No. 3713 on 29.6.2005, these two definitions do not entail an absolute congruity; and that the acts that do not target one of the 'aim crimes' specifically formulated in both the now void 168th Article of the TPC No. 765 and the still valid 314th Article of the TPC No. 5237 yet match the content of the definition of the 1st Article of the ATL No. 3713 cannot comprise a crime of armed organization with respect to these articles. As a matter of fact, the case law and the practice confirms this.

The 7th Article of the ATL No. 3713 has been modified on 29.6.2005 through the law No. 5532, and it introduces a provision including sanctions for those who form, lead, and become a member of a terror organization with the aim committing a crime that concerns the aims defined in the 1st Article, and they are to be punished under the 314th Article of the TPC No. 5237.

In our opinion, this is a brand new attribution. With the new arrangement, the aims defined in the 1st Article of the ATL No. 3713 are to be understood to lead to the crime of armed organization, apart from the limited 'aim crimes' defined in the 314th Article of the TPC No. 5237. In this sense, the evaluation of those acts that do not aim at changing the constitutional order or at separating a part of the land under the state administration from the administration itself, yet do aim at violating the public order with an ideological aim and with the use of force and violence, as a crime of armed organization is to be congruous with the legal definition, provided that they comprise as well the elements of consensual target and continuity within a period of time.

When the features of the acts explicated respectively above are considered, one is to see that all these acts have been committed in line with an ideological aim and for the sake of punishing the holders of opinions that are incongruous with the suspects' own social and political world view by total rejection to be followed by the performance of force and violence, and of generating fear and anxiety geared towards these opinion holders, by a group of suspects that have come together within a period of time.

When all the reactions that arose in Trabzon in the aftermath of each committed act and from within the public opinion all around in Turkey and the world in the aftermath of the assassination; claims of negligence and intentionality on the part of the state; and the image of Turkey within the domain of international relations and the problems it has been left to face are taken into consideration, one is to see that after the incidence of these acts the public order has deteriorated seriously and that a threat to domestic security has arisen.

Under these conditions, it will be congruous with the law to view the "instrument crime" the group formed by the suspects in line of the aims mentioned has committed as a terror organization with respect to the 314th Article of the TPC No. 5237.

Another question that needs to be discussed in relation to this prosecution and criminal case is the question of whether the data acquired via the intelligence-based communications determinations, named as 'audio-recording for prevention' and done in accordance with the laws of the concerned institutions, is to be used in judicial inquiries and prosecutions and to be accepted as lawful evidence.

According to the known supplemental 7th Article added with the TPC No. 3233 on 16.6.1985 to the Law of Police Duty and Authorization No. 2559, the police will be involved in intelligence acts in line with the aims mentioned in the article to collect information; analyze them; and hand them over to the authorized officials.

In the parts added with the Law No. 5397 on 3.7.2005 to the supplemental 7th Article of the Law of Police Duty and Authorization No. 2559, the methods and essentials regarding the communications determination that involves the collection of information, audio-recording, and the evaluation of buzzer information explicated in the 1st part are regulated.

In the 7th part of the supplemental 7th Article, it is stated that the recordings obtained within the framework of the act carried out in line with the provisions of the article cannot be used for the purposes outside of the ones defined in the 1st part. In this sense, the aim of the general protection of the state, as defined in the 1st part, plays a determining role in this very case.

In the 11th part of the same article, it is stated that the audio-recordings held outside the scope of the methods and essentials determined by this article are to be legally invalid. The same part concerns as well the concept of the legal validity of the data obtained via intelligence audio-recording; the legal convenience of this data as evidence during the investigation and prosecution; and its possible use for this case.

As a matter of fact, while defining the duties of the chairmanship, the d-part of the Regulation Concerning the Duties and Authorizations of the Telecommunications Communication Chairmanship, established in order to administer acts related to both the intelligence- and the forensic recordings from one distinct center, articulates as well the duty of informing the Office of the Chief Public Prosecutor in the case of a demand of the data obtained via the intelligence-based acts in accordance with the supplemental 7th Article of the Law of Police Duty and Authorization No. 2559. The reason for the demand of such technical data by the court or the Office of the Chief Public Prosecutor will be nothing other than making use of the data as evidence. For the use of data for any other purpose has already been made legally impossible with the supplemental 7th Article.

These motives considered, the data obtained via the intelligence-based communications determinations within the knowledge of the Trabzon Police Headquarters, as well as the reports and recordings kept by the Police Intelligence Bureau, have been treated as documents to be demanded from the concerned institution and presented before the court to be included as evidence; and those records concerning the secrecy of private life and the security of the state, found within the intelligence data yet not concerning the subject of the investigation, have been destroyed by the Office of the Chief Public Prosecutor and the Trabzon Police Headquarters.

7. The Organizational Positions and the Acts of the Suspects

In line with our explanations, it is acknowledged that,

Suspects Erhan Tuncel and Yasin Hayal hold the position of leaders of the organization, and the two encouraged Firat Dink's assassination by conducting together the McDonald's bombing in Trabzon within the frame of this organization; what is more, Yasin Hayal has threatened the aggrieved party Orhan Pamuk,

Suspect O.S. is a member of this organization and has killed Firat Dink with the command and encouragement of the organization leaders,

Suspects Zeynel Abidin Yavuz, Ersin Yolcu, Ahmet Iskender, Mustafa Ozturk, and Tuncay Uzundal are members of this organization and have assisted in the assassination of Firat Dink under the commands of the organization leaders,

Suspect Salih Hacisalihoglu, though not a member, has helped the organization consciously and on his own will, providing the bullets used in Firat Dink's assassination, and therefore should be punished the way the members are.

Suspects Alper Esirgemez, Irfan Ozkan, Osman Alpay, Erbil Susaman, Numan Sisman, Senol Akduman, and Veysel Toprak, though not members, have hid Yasin Hayal at their homes in the aftermath of the McDonald's bombing, treated the convict medically, helped him financially to flee to İstanbul after the event, and refrained from informing the authorities about the committed crime; have helped the organization consciously and on their own will, and therefore should be punished the way the members are.

Suspects Yasar Cihan and Halis Egemen, though not members, have helped the organization consciously and on their own will, undertaking to support the organization materially and morally both during the McDonald's bombing and before and after Firat Dink's assassination, and therefore should be punished the way the members are.

8. Other Procedures Conducted as Part of this Investigation Dossier

Documents concerning certain civil servant crimes that were unveiled during the investigation have been treated separately, and decisions of non-jurisdiction have been sent to the authorized and appointed Office of the Chief Public Prosecutor.

Within the framework of the investigation, an additional decision not to prosecute the suspects whose relations with the acts and the organizations cannot be specified has been taken.

There exists the possibility of filing other lawsuits against some other suspects with the demand of conjoining this file with another file that is yet to comprise new facts and crime evidence that might emerge with the gathering of all the evidence whose pursuit and investigation is completed.

This indictment has been made with the aim of preventing the unnecessary prolongation of the time period during which the suspects are to be called before the court in the light of the acquired evidence, the possibility that such an investigation and evidence determination might take longer than expected being taken into consideration, and criminal prosecution has been started.

For the reasons explained above;

The evaluation of the evidence being a task of this court, the prosecution of the suspects shall be conducted as explicated in the 250th and the following articles of the Turkish Code of Criminal Procedure, and:

1. Suspect ERHAN TUNCEL for the crimes of

- Being a member of a terror organization, Law No. 5237 (TPC) Article 314/2 via Law No. 3713 (ATL) Articles 1 and 7/1; Law No. 3713 (ATL) Article 5,

- Manufacturing explosive material, Law No. 5237 (TPC) Article 174/1-2,

- Setting explosive material, Law No. 5237 (TPC) Article 170/1-c,

- Vandalizing property, Law No. 765 (TPC) Articles 516/7-last section and 522,

- Acts targeting victims Derya Degirmenci, Gulumser Kurt, Gurcan Toprak, Merve Serdar, Ozlem Araz, and Hasan Koc, Law No. 765 (TPC) Articles 456/4, 457/1 (6 times),

- Act targeting the deceased Firat Dink, Law No. 5237 (TPC) Article 82/1-a via Law No. 5237 (TPC) Article 38,

2. Suspect YASIN HAYAL for the crimes of

- Being a member of a terror organization, Law No. 5237 (TPC) Article 314/2 via Law No. 3713 (ATL) Articles 1 and 7/1; Law No. 3713 (ATL) Article 5,

- Act targeting the deceased Firat Dink, Law No. 5237 (TPC) Article 82/1-a via Law No. 5237 (TPC) Article 38,

- Act targeting aggrieved party Ferit Orhan Pamuk, Law No. 5237 (TPC) Article 106/2-d,

- Holding unlicensed firearm, Law No. 6136 Article 13/3

3. Suspect O.S. for the crimes of

- Being a member of a terror organization, Law No. 5237 (TPC) Article 314/2 via Law No. 3713 (ATL) Article 1 and 7/1; Law No. 3713 (ATL) Article 5,

- Act targeting the deceased Firat Dink, Law No. 5237 (TPC) Article 82/1-a, 31/3,

- Carrying unlicensed firearm, Law No. 6136 Article 13/1, Law No. 5237 (TPC) Article 31/3,

4. Suspects ZEYNEL ABIDIN YAVUZ and ERSIN YOLCU for the crimes of

- Being a member of a terror organization, Law No. 5237 (TPC) Article 314/2 via Law No. 3713 (ATL) Article 1 and 7/1; Law No. 3713 (ATL) Article 5,

- Act targeting the deceased Firat Dink, Law No. 5237 (TPC) Article 82/1-a, 39,

5. Suspect AHMET ISKENDER for the crimes of

- Being a member of a terror organization, Law No. 5237 (TPC) Article 314/2 via Law No. 3713 (ATL) Articles 1 and 7/1; Law No. 3713 (ATL) Article 5,

- Act targeting the deceased Firat Dink, Law No. 5237 (TPC) Articles 82/1-a and 39,

- Keeping unlicensed firearm, Law No. 6136 Article 13/3,

6. Suspects MUSTAFA OZTURK and TUNCAY UZUNDAL for the crimes of

- Being a member of a terror organization, Law No. 5237 (TPC) Article 314/2 via Law No. 3713 (ATL) Article 1 and 7/1; Law No. 3713 (ATL) Article 5,

- Act targeting the deceased Firat Dink, Law No. 5237 (TPC) Article 82/1-a, 39,

7. Suspect SALIH HACISALIHOGLU for the crimes of

- Helping a terror organization, Law No. 5237 (TPC) Article 314/2 via Law No. 3713 (ATL) Articles 1 and 7/1 and Law No. 5237 (TPC) Articles 314/3 and 220/7; Law No. 3713 (ATL) Article 5,

- Being in possession of unlicensed bullets, Law No. 6136 Article 13/3,

8. Suspects ALPER ESIRGEMEZ, IRFAN OZKAN, OSMAN ALPAY, ERBIL SUSAMAN, NUMAN SİSMAN, SENOL AKDUMAN, and VEYSEL TOPRAK for the crimes of

- Helping a terror organization, Law No. 765 (TPC) Article 169 via Law No. 3713 (ATL) Articles 1 and 7/1; Law No. 3713 (ATL) Article 5,

- Hiding the offender, Law No. 765 (TPC) Article 296/1,

9. Suspects YASAR CIHAN and HALIS EGEMEN for the crime of

- Helping a terror organization, Law No. 5237 (TPC) Article 314/2 via Law No. 3713 (ATL) Articles 1 and 7/1 and Law No. 5237 (TPC) Articles 314/3 and 220/7; Law No. 3713 (ATL) Article 5,

are demanded to be punished in line with the respective articles,

10. Law No. 5237 (TPC) Articles 53, 58, and 63 are to be applied to all the suspects,

11. The crime weapons registered with the array numbers 2007/52, 2007/56, 2007/63, 2007/95, 2007/105, 2007/174, 2007/186, 2007/188, 2007/189, 2007/196, 2007/218, 2007/240, 2007/265, 2007/301, and 2007/372 are to be confiscated in accordance with the Law No. 5237 (TPC) Article 54; and the CDs and communications determination accounts shall be preserved in the file as evidence.

The decisions concerning these eleven articles mentioned above are demanded and prosecuted in the name of the public. 20.04.2007

FIKRET SECEN

PUBLIC PROSECUTOR, İSTANBUL

34460
SELIM BERNA ALTAY

PUBLIC PROSECUTOR, İSTANBUL

30477