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Cablegate: No Quick End in Sight for Ergenekon Trial

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TO RUEHC/SECSTATE WASHDC PRIORITY 8641
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id: 182983
date: 12/15/2008 14:33
refid: 08ISTANBUL611
origin: Consulate Istanbul
classification: CONFIDENTIAL
destination: 08ANKARA2041|08ISTANBUL380|08ISTANBUL505
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C O N F I D E N T I A L SECTION 01 OF 02 ISTANBUL 000611

SIPDIS

E.O. 12958: DECL: 11/24/2018
TAGS: PHUM PREL TU
SUBJECT: NO QUICK END IN SIGHT FOR ERGENEKON TRIAL

REF: A. ANKARA 2041
B. ISTANBUL 505
C. ISTANBUL 380

Classified By: CONSUL GENERAL SHARON A. WIENER FOR REASONS 1.4(B,D)

1. (C) Summary: Because of the peculiarities of the Turkish
judicial system, the Ergenekon trial of 85 defendants
suspected of plotting to overthrow the Turkish state is
expected to last at least a year, and perhaps much longer.
End Summary.

2. (U) We recently interviewed three prominent lawyers who
have been following the Ergenekon case including: Tugrul
Ansay, former Dean of Koc University Law School; Muammer
Aydin, president of the Istanbul Bar Association; and Ergin
Cinmen, human rights lawyer. All said they expect the trial
to be quite lengthy, even by Turkish standards, but
reasonably fair.

4. (U) The trial commenced on October 3. It is being
conducted in a makeshift courtroom at the Silivri prison
complex near Istanbul, which is inadequate to hold all of the
defendants, their attorneys and families, and press
representatives. In an attempt to ease the overcrowding,
early in the case the court issued an order directing that
the 47 detained defendants be tried separately from the 39
who are free on bail. That order was quickly rescinded when
various defendants argued that its effect would be to deny
one group of defendants the right to witness testimony given
by the other group. Reportedly, Justice Minister Sahin has
now directed the construction of a new mixed-use facility,
that would serve as a courtroom during the week and a sports
hall on weekends. (Comment: It is some measure of the
anticipated length of the trial that the construction of an
entirely new facility while the trial is ongoing could be
considered a plausible solution to the problem of
overcrowding. End Comment.)

5. (U) On the third day of the trial, prosecutors began an
oral recitation of the 2500 page indictment, which required
nine days of hearings. On November 12, examination of the
defendants began.

6. (U) Turkey's judicial system is "Napoleonic" or
"Continental" in nature. In Turkey (as is typical in
Continental Law countries), juries are not utilized; rather,
a three-judge panel decides both the law and the facts.
Accordingly, cases normally do not proceed day-to-day.
Indeed, said Cinmen, Turkey's criminal procedure code
requires a court to hold only one session per month, which
may last only a few minutes.

-- In Turkey, the Court reporter normally does not make a
simultaneous and verbatim transcript of testimony; rather,
the judge will periodically stop the proceedings in order to
dictate to the reporter a summary of what was said.

-- While Turkey recognizes a defendant's right against
self-incrimination, a negative inference can be drawn from a
defendant's failure to testify. Accordingly, Cinmen said, he
and most other defense attorneys normally have their clients
Testify, since otherwise the court will conclude that the
defendant is hiding something. Cinmen thinks that the
Ergenekon defendants will similarly choose to testify, and at
great length, using the opportunity to deliver political
speeches.

-- The Turkish judicial system permits testimony by "secret"
witnesses, whose names are not divulged to defense attorneys.
(However, said Cinmen, no conviction can be based solely
upon the testimony of a secret witness.)

7. (U) As a result, in Turkey the average length of a
criminal trial is about one year, according to Cinmen. The
Ergenekon trial, with its extraordinarily long indictment and
large number of defendants, is expected to take much longer
than the average Turkish criminal trial. In order to reduce
its length, Cinmen said a number of unusual procedures have
been put in place. First, the judges and prosecutors have
all been relieved of other responsibilities, so that they can
concentrate on this case alone. Second, the proceedings are
being electronically recorded. Finally, the case is to
proceed on a day-to-day basis. Thus, said Cinmen, although
the case will involve much more courtroom time than the
average case, it could be concluded within the normal one
year period.

ISTANBUL 00000611 002 OF 002

8. (U) Aydin is not as optimistic. He thinks it would
neither be proper nor possible for the case to go day by day,
as it would place too much pressure on the court and
litigants. (Silivri is located some 40 miles from downtown
Istanbul, where most of the attorneys maintain their
offices.) And, in fact, since the trial began, hearings have
been held 2-3 times per week, a decent pace for a Turkish
criminal trial, but one which implies that it will
take substantially longer than a year to conclude.

9. (U) The court will declare its verdict within a week or
two of the end of the trial, and sometime thereafter submit a
written explanation. An appeal must be lodged within seven
days of the verdict. A guilty verdict can be reached only if
the judge has a "certain conviction" of guilt which,
according to Cinmen, judges interpret as requiring 100
percent certainty. A conviction does not require unanimity
among the judges, and can be based on a majority vote.

10. (C) The three attorneys conceded that Turkey's judiciary
views its primary task to be the protection of the state,
rather than the even-handed administration of justice.
Cinmen acknowledged that Turkish judges often are seen as
pro-prosecution, and that this calls into question their
independence. However, he noted that acquittals do occur,
and expressed confidence that in the Ergenekon trial the
rights of the defendants are being observed. Our other
interlocutors similarly predicted that justice would be
done. Aydin did acknowledge, however, that if political
pressure is put on the judges (a possibility he would not
discount), he does not expect they would be able to resist,
nor does he expect them to "do the right thing" and resign.
WIENER

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