Wednesday, November 11, 2009

The 8th Criminal Chamber of the Supreme Court of Appeals reversed the verdict applying the statute of limitations dated May 21st, 2007 in the Science Research Foundation case. The reason why the case file had been sent to the local court from the Supreme Court of Appeals was NOT TO DEMAND THE CONVICTION OF THE DEFENDANTS.

According to the ruling of the Supreme Court of Appeals, the local court was only commissioned to DEFINE UNDER WHICH LEGAL CODE THE CASE FILE SHOULD BE CONSIDERED. An assessment for the conviction of the defendants could only be made after this was established. THEREFORE THIS IS THE FIRST TIME THAT THE CASE FILE HAS BEEN SENT TO THE SUPREME COURT OF APPEALS, TO APPEAL AGAINST THE IMPRISONMENT RULING.

Here are some of the reasons why the imprisonment ruling given in the SRF case, which is subject to appellate review at the Supreme Court of Appeals as of today, should be REVERSED, together with some related rulings by the Supreme Court of Appeals that set precedents in the case;

1. Using matters which were totally unconnected with the defendants on trial in the SRF case, an INCREASE IN THE PENALTY had been applied to the defendants and the 61st article of the TCC had thus been contravened. To present subjects that have no connection with the defendants as grounds for an INCREASE IN SENTENCE is a LEGAL BASIS FOR ANNULMENT.

Supreme Court of Appeals General Commission of Penalty, E 1979/39, V 1979/126

A ruling to accept the cassation appeal by the defendant and to ANNUL the verdict of withstanding, should be issued, because EVEN THOUGH THERE ARE NO LEGITIMATE GROUNDS FOR INCREASING THE PENALTY that arises from this form of committing the offence or from the personality of the defendant, acting in CONTRARY TO THE RIGHT AND WORTH PRINCIPLES by indicating a penalty far above the lowest limit, had been regarded as an infringement of the law and as irregular conduct.

2. Following the reversal verdict, even though the article of law under which the defendants were tried was changed, the local court had not notified the defendants of this. Requests by the defendants to be informed under which article of law they were being tried were left unanswered by the local court. Therewithal even though the defendants were being tried within the scope of a completely new article of the law, the local court DID NOT OBSERVE THE DEFENDANTS’ RIGHT TO A SUPPLEMENTARY DEFENSE. Both of these actions ARE LEGITIMATE GROUNDS FOR ANNULMENT.

Supreme Court of Appeals 8th Criminal Circuit, E. 2001/13616, V. 2002/2670

... even though criminal proceedings had been filed against them with the indictment in respect of their being penalized according to the article and clause 1/1-2 of the law code No. 4422, the contravention of Article 258 of the Code of Criminal Procedure (CCP) by applying Article 313 of the TCC to which the mentioned actions are regarded as being in the scope of, without permitting the SUPPLEMENTARY RIGHT TO A DEFENSE, requires ANNULMENT… and it was decided to ANNUL the verdict for these reasons.

3. The fact that the defendants in the SFR case were denied THE RIGHT TO A DEFENSE during the 7 years of the legal procedures and the DISMISSAL OF THE DEFENSE REQUESTS by the defense lawyers BY THE COURT, ARE LEGITIMATE GROUNDS FOR ANNULMENT.

Supreme Court of Appeals General Commission of Penalty, E. 2006/331, V. 2006/313 a result of the assessments carried out on the documents… since the verdict of imprisonment results in the complete elimination of the right to a defense, it completely contravenes the law ... on the legal grounds described ... it was decided to consign the file to the Chief Public Prosecutor of the Supreme Court of Appeals to be sent to the relevant destination.

4. All the allegations in the indictment in the SRF case file are based on statements that the defendants of the case were made to sign under duress and torture in the absence of their lawyers. USING LEGALLY VOID STATEMENTS AS EVIDENCE AGAINST the defendants and the local court’s REFERRING EXACTLY 16 TIMES TO THE VOID STATEMENTS TAKEN IN THE SECURITY DEPARTMENT ARE LEGITIMATE REASONS FOR ANNULMENT.

Supreme Court of Appeals General Commission of Penalty, E. 1999/1-213, V. 1999/219

IN THE ABSENCE OF ANY SOLID AND CONVINCING EVIDENCE other than the declarations taken by the law enforcement officers, which were later retracted on the grounds that they were TAKEN UNDER DURESS, and which had not been VERIFIED BY ANY OTHER SUBSIDIARY EVIDENCE, THE DEFENDANT MUST BE ACQUITTED OF the charges, to order the imprisonment of the defendant in writing… it was decided to annul the verdict at appeal… to RENDER THE VERDICT NULL AND VOID FOR the reasons mentioned above...

5. NOT CONSIDERING THE CASE REGARDING TORTURE that is going on regarding police officers who made the defendants sign the statements in the security department under duress, AS A PRELIMINARY ISSUE is a LEGITIMATE REASON FOR ANNULMENT.

Supreme Court of Appeals 9th JUDICIAL CIRCUIT, E. 2007/13883, V. 2008/6812

... the case that is to be made a preliminary issue is to be tried in another court and THE TWO CASE FILES SHOULD BE LINKED… the verdict of the other file should be awaited and regarded as AN ISSUE THAT WOULD EFFECT THE VERDICT in this case.

Since the verdict that will be given by …… in the present case WOULD AFFECT THE OUTCOME of this case as well, and since it was understood that these two cases should be linked together… the case heard in the other court SHOULD BE MADE A PRELIMINARY ISSUE by the court UNTIL THE CASE IS COMPLETED AND FINALIZED, and the case should be evaluated and resulted only after the afore mentioned case is completed. It is decided to ANNUL THE VERDICT that is the subject of appeal for the reason appended...

6. In a criminal case, reasons for conviction should be set out separately in the reasoned verdict for every single person convicted. However, as was seen in the SRF case, to explain the reasons with some general statements that embrace all the defendants without INDIVIDUALIZING THEM and not stating who had been convicted for what reason constitute LEGITIMATE GROUNDS FOR ANNULMENT.

Supreme Court of Appeals General Commission of Penalty, E. 1976/7-390, V. 1976/386 the reasoning of the evaluation that brought the court to determine a penalty exceeding the minimum limit, NEITHER THE CHARACTERISTICS REGARDING THE PERSONALITY OF THE DEFENDANT NOR THE WAY THE CRIME HAD BEEN COMMITTED WAS MENTIONED. The reason being relied on …. is not a reason that refers to the personality of the defendant.

...It was decided to ANNUL THE VERDICT on the above mentioned grounds.

7. Law code No. 4422 on which the indictment in the SRF case was based came into effect on August 1st, 1999. The defendants in the case had been taken into custody on November 12th, 1999. Consequently, for the alleged offences to be considered within the scope of the law code No. 4422, they should have been committed during the 103 days between these two dates. However, neither in the indictment nor in the allegations put forward during the time the case was heard is there any action allegedly committed during this period. This constitutes a LEGITIMATE GROUND FOR ANNULMENT according to Article 15 of the 1982 Constitution of the Turkish Republic, which states “LEGAL SENTENCES CANNOT BE APPLIED RETROACTIVELY”.

Supreme Court of Appeals 6th Criminal Circuit, E. 2004/10046, V. 2005/3689

To come to a judgment about the defendant under law code No. 4422, instead of TCC Article 313, without presenting and discussing the evidence on the spot that states the defendant was still actively involved in the organization after 1.8.1999, the date when law code No. 4422 came into effect, IS GROUNDS FOR ANNULMENT.

8. Even though, during the course of the case, the Chief Public Prosecutor of the Supreme Court of Appeals had twice requested the court case file from the president of the local court in order to solve the dispute between the two verdicts from the Supreme Court of Appeals, the president of the court did not send the file to the Chief Public Prosecutor for a period of 1.5 years, and concluding the case with a conviction without sending the file constitutes LEGITIMATE GROUNDS FOR ANNULMENT.

9. The fact that the local court commission tried 23 of the 42 defendants who were all tried under the same indictment and same allegations in accordance with TCC 313 and the remaining 19 in according with TCC 220 constitutes a LEGITIMATE GROUND FOR ANNULMENT. The fact that same court had ACQUITTED some of the defendants tried under the same indictment and had applied the STATUTE OF LIMITATIONS for others and had issued a verdict of IMPRISONMENT for the remaining defendants, is a LEGITIMATE GROUND FOR ANNULMENT.

Supreme Court of Appeals 9th Criminal Circuit, E. 1995/1402, V. 1995/2647

Dividing a single action by the defendant into two in respect of the nature of the offense, and giving an acquittal verdict on the one hand and imprisonment on the other for the same action, in contravention of CCP Articles 258,257 and 254 is unlawful … and for that reason it was decided to ANNUL THE VERDICT...

However, the final verdict is of course at the discretion of the Court and the members of the SRF will respect any verdict that may be given. Nevertheless, shedding light on the above listed points is of great importance with regard to the working of the justice system.


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