TURKEY'S PROSECUTION OF TERRORISM CASES

UNCLAS ANKARA 000483 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PTER PGOV TU SUBJECT: TURKEY'S PROSECUTION OF TERRORISM CASES ¶1. (SBU) SUMMARY: In meetings in Istanbul and Ankara, high ranking terrorism prosecutors described terrorism "specialty courts," procedures for prosecuting terrorism cases, evidence used in terrorism prosecutions, and the level of expertise of terrorism prosecutors. Although Turkey's criminal justice system is markedly different from that in the United States, it appears that the Turks have instituted measures similar to ours in handling classified information, and are capable of protecting the identity of cooperating witnesses if necessary. END SUMMARY. ¶2. (SBU) On March 23 and 24, the U.S. Department of Justice's (DOJ) Resident Legal Advisor (RLA) met with terrorism prosecutors in Istanbul and Ankara. The meetings, also attended by Ministry of Justice officials, revealed a highly organized and well-defined system for prosecuting terrorism and other "high penalty" crimes. Turkey's laws allow for the use and protection of classified information, the use and protection of cooperating witnesses, and the sharing of information with allies regarding terrorism investigations and prosecutions. The Meetings -------------- ¶3. (SBU) On March 23, RLA and Istanbul PolOff met with Aykut Cengiz Engin, Chief Prosecutor of Istanbul; Turan Colakkadi, Deputy Chief Public Prosecutor of Istanbul and acting chief of the terrorism unit; Ayben Iyisoy, Ministry of Justice, International Affairs Unit; and Zeki Yildirim, Ministry of Justice, Legislative Affairs Department. ¶4. (SBU) On March 24, RLA met with Ankara Deputy Chief Terrorism Prosecutor Hamza Keles; Seval Arslan, Ministry of Justice, International Affairs Unit; and Zeki Yildirim, Ministry of Justice, Legislative Affairs Department. The Structure of Turkey's Specialty Courts -------------- ¶5. (SBU) In 2004 Turkey created "specialty courts," sometimes referred to as "high penalty courts," responsible for handling cases involving terrorism, organized crime, and drug trafficking. For this purpose, the country is divided into 8 regions with courts located in Istanbul, Ankara, Izmir, Adana, Malatya, Erzurum, Van, and Diyarbakir. Each court is staffed with its own judges and prosecutors; Istanbul has 6 courts and 23 prosecutors, while Ankara has 1 court and 5 prosecutors. According to Engin and Keles, the prosecutors and judges assigned to specialty courts are generally very experienced; although their terms used to be limited to 3 or 4 years, that policy was abolished within the last year and now prosecutors and judges can work in specialty courts indefinitely. (NOTE: The assignment and promotion of prosecutors and judges is made by the High Council of Judges and Prosecutors (HCJP),in which the MOJ has considerable influence. The Draft Judicial Reform Strategy prepared by the Ministry of Justice as part of Turkey's EU accession efforts criticizes the current system because the HCJP has complete and unfettered discretion in the assignments and promotions, with no right of appeal for the prosecutors or judges affected. END NOTE.) Procedures for Investigation and Prosecution -------------- ¶6. (SBU) According to the prosecutors, investigations of terrorism, drug trafficking, and organized crime are jointly conducted by the police and prosecutors. For gathering "technical evidence" (i.e., evidence obtained via a search warrant or wiretapping) a court order is required. When the investigation is concluded, the prosecutor prepares the indictment and submits it to the court, along with the evidence gathered during the investigation. The reviewing court has 15 days to approve or reject the indictment. If the court approves the indictment the prosecution commences and the defendant is entitled to review the case file containing the evidence against him/her. During trial the defendant has a right to challenge the evidence against him/her, including wiretapping evidence, as improperly gathered. ¶7. (SBU) Generally speaking, the prosecutors who conduct the investigations are not the prosecutors who conduct the trials. When questioned about the efficiency of such a system, the prosecutors explained that they are concerned about decisions of European Court of Human Rights which have criticized prosecutions in which one prosecutor handles the case from inception to conclusion as being unfair. Apparently the concern is that a prosecutor might unintentionally, or otherwise, influence a judge based on the prosecutor's pre-indictment work. (NOTE: The ongoing Ergenekon investigation and prosecution is one notable exception to this general rule; the Chief Prosecutor in Istanbul explained that this was because the investigation is so complex that it would not be feasible to have another prosecutor step in for trial. END NOTE.) ¶8. (SBU) During an investigation of a "high penalty" crime the police can detain a suspect for 4 days without a court order; thereafter every additional 24 hour period of detention must be authorized by a court. Once the prosecutor sends the indictment to the reviewing court, however, the court can authorize the detention of a suspect for the duration of the court proceedings. (NOTE: In Turkey, the term "arrest" refers to a judicial order following the acceptance of an indictment. The police are authorized only to detain suspects, not to arrest. This may be a distinction without a difference, but the terminology can be important to avoid confusion. END NOTE.) Classified Information -------------- ¶9. (SBU) The prosecutors explained that if there is information they wish to keep from the defendant, such as classified information, they may apply to the court for permission to keep the information sealed. If permission is granted, the classified information is turned over by the prosecutors to another judge who is responsible, via a clerk, for safeguarding the information. Prosecutors related that they employ such procedures relatively frequently, with some, although not complete, success. (NOTE: This procedure is comparable with the procedure used in the United States; when classified information is used in a prosecution it is ultimately the court's decision as to whether or not the information must be disclosed to the defendant to ensure a fair trial. There is one significant difference between the Turkish system and the American system, however: in the U.S., the prosecutor has the authority to dismiss an indictment whereas in Turkey only the court has that authority. Thus in the U.S. if the court requires the prosecutor to disclose classified information, the prosecutor has the ability to dismiss the indictment and protect the information; in Turkey dismissal by the prosecutor is not an option to protect classified information when the court requires its disclosure. END NOTE.) ¶10. (SBU) Evidence obtained abroad is permitted to be used as evidence in Turkish courts. As to wiretaps, the only proviso is that the foreign wiretapping procedures must comply with Turkish law for the evidence to be admissible. As to classified information, the same procedures are used in protecting foreign classified information as in domestic classified information. Witnesses - No Right to Confront or Cross-Examine -------------- -------------- ¶11. (SBU) Witnesses are not generally called to testify during Turkish trials as most evidence is presented to the court (consisting of a 3 member panel) via documents. If, however, a judge feels it important to hear from a live witness, the witness can be "invited" to testify. Failure to comply with an "invitation" can result in sanctions (fine or imprisonment) unless the witness can assert a recognized privilege: marital, family, etc. ¶12. (SBU) Recent legislation created a Witness Protection Program (see Law No. 5726, effective July 5, 2008). According to the prosecutors, if a witness is accepted into the program he/she is designated a "secret witness," given a pseudonym, and all references in the file to that witness are made using the pseudonym. If a "secret witness" is summoned to testify, he/she sits in another court, with a judge, and questions are relayed to him/her from the trial courtroom. The witness' answers are then transmitted to the trial courtroom either using a microphone which distorts the witness' voice or via the judge. Authentication of Evidence Considered at Trial -------------- - ¶13. (SBU) In discussing evidence obtained from wiretaps, commonplace in terrorism cases, the prosecutors explained that (unlike in the U.S.) there is no requirement that they prove that the intercepted voice belongs to the defendant unless he/she challenges that conclusion. In that case, the court will "invite" the defendant to provide a voice recording sample which is compared with the wiretapped conversations by a forensic unit in Istanbul. If the defendant declines to provide a voice sample, the court is free to conclude that the voice heard in the wiretapped conversation is in fact the defendant's. ¶14. (SBU) Coded language is frequently heard in terrorism cases, and in response the Turks have developed a database of code words and phrases along with their interpretations. During trial, prosecutors may provide documents from the database to support their interpretation of the coded conversations. Prosecutors were unable to explain how they would deal with new code words (words that have not previously been entered in their data base). "Repentance" - Plea Bargaining by Any Other Name? -------------- -------------- ¶15. (SBU) Turkey does not have a system of plea bargaining. In describing the use of cooperating witnesses, however, the prosecutors explained the concept of "repentance," which allows a defendant to offer mitigating circumstances for a sentence reduction. In some circumstances, particularly where a conspirator provides valuable information to law enforcement, however, prosecutors may cite "repentance" as a reason not to file criminal charges at the outset. Comment -------------- ¶16. (SBU) Turkey's "specialty courts" appear to be highly organized and well-functioning. Although Turkey's criminal justice system is markedly different from that in the United States, it appears that the Turks have instituted measures similar to ours in handling classified information (i.e., ex parte orders),and are capable of protecting the identity of cooperating witnesses if necessary.