Att. At Law Akın Atalay
Approximately 14,5 years ago on July 9, 1998, there was an explosion at the food stand at the entrance of the historical Spice Bazaar in Istanbul. Consequently, 7 people lost their lives and over 100 were injured by the explosion. The immediate reasoning of this explosion was that it was a terrorist attack carried out by a bomb placed at the food stand. Istanbul police force and the judicial authorities immediately launched an investigation. First, the scene of explosion was searched and evidence and facts were collected. On the day of the explosion and the following ten days, the police authorities who were bomb experts and who investigated the scene prepared six protocols and reports titled “incident scene investigation protocol”, “criminal expertise report” and “incident scene investigation report”. The common point in all these protocols and reports was stated as follows: “no sign of bomb evidence was discovered”, “no piece, no material or substance that can belong to a bomb was found”. As a matter of fact, a Chief Inspector who was also a bomb expert was heard as a witness during the trial, and stated that they have not encountered any sign of a bomb explosion and that the explosion could be due to a gas leak.
On July 11, 1998 (two days after the explosion at the Spice Bazaar), Pınar Selek was detained by the Anti-Terror Branch of Istanbul Police Force for a completely different reason that was independent of the explosion. She was accused with being a member of the PKK terror organization. She was detained for seven days during which she was not allowed to contact anybody and was subject to various types of torture including strappado and electrocution. During this period, regarding the dislocation of her arm due to torture, a protocol was prepared at the police force stating that the arm was dislocated because she fell at the police station. After seven days of police detention, when she was brought before the then State Security Court military prosecutor and the judge of the same court, she was forced to admit the statements that were obtained under torture which she was forced to sign under pressure and threat. Selek was not allowed to use the assistance of a lawyer at any moment from the day she was detained until she was arrested and sent to prison. She was left completely alone. As you know, today a statement obtained in the absence of an attorney has no legal validity and such a statement cannot be used as a reasoning for the court’s verdict. However, back in those times, the routine practice was just the opposite. The fact that Pınar was subject to heavy torture during the entire detention period was revealed by medical reports in the following period. What I have been explaining so far has nothing to do with the explosion at the Spice Bazaar. In fact, during that time, as I have previously mentioned, as a result of the investigation the police had already found out that the explosion was not due to a bomb. As a matter of fact, Pınar was not addressed a single question -directly or indirectly- regarding the Spice Bazaar explosion either at the police, the prosecution or before the court. On July 28, 1998, ten days after her arrest, the State Security Court prosecutor prepared his indictment and charged Pınar Selek with 10-15 years prison sentence on the grounds that she is a member of PKK terror organization.
On August 12, 1998, 15 days after the case against Pınar Selek was filed, Edirne police force detained a man named Baran Öztürk on the charges that he was about to illegally flee to Greece to join PKK camps. In the couple of days following his interregotion, 21 more people were detained by the police on the charges that they were members of PKK and that they have been involved in some illegal acts in Küçükyalı and Maltepe parts of the city. After this moment weird developments followed. While giving their testimonies at the police station, some of these detainees, -most probably with their own free will (!) and under no pressure whatsoever(!)-, stated that they have taken the bombs as well as the orders about the acts from Pınar Selek. Even more, as if this was not weird enough, one of the detainees named Abdülmecit Öztürk, all of a sudden owns the explosion at Spice Bazaar as one of their own acts and confesses to have organized and realized the bombing together with Pınar Selek… At that moment, following this statement -that was most probably very difficult to obtain for the police-, the direction of the events and the color of truth suddenly changes. In the absence of a single sign, fact or evidence pointing in the direction of a bomb, a new fiction emerges that associates Spice Bazaar explosion with a bomb. In line with this new fiction, the prosecution appoints a new commission of experts chaired by Prof. Sevil Atasoy. These people submit their November 2, 1998 dated coherent with the fiction but technically incompetent report to the prosecution. In the report, it was stated that various reports prepared by expert police teams were insufficient and that there were traces of nitrocellulose at the incident scene which could prove that the explosion was due to a bomb. Hence, while on the one hand, with this report the Spice Bazaar explosion was converted to an act of bombing; on the other hand, based on the confession of Abdülmecit Öztürk and the statement of his aunt whom he lives with it, it was proven that the act of bombing at the Spice Bazaar was executed by Pınar and Abdülmecit together. As those following the case closely are well aware of, in the following stages of the case, the new report that the prosecution wanted to highlight regarding the filing of the case and the association of Spice Bazaar explosion with a bomb was trashed and refuted… But, very interesting developments were observed in the testimonies regarding Pınar’s association with this bomb explosion… For instance;
When brought before the State Security Court prosecution after his detention period was over, the same Abdülmecit Öztürk who could not turn down the police requests (!) while under detention and had decided to confess the truth (!), who confessed to have placed the bomb at the Spice Bazar and in fact prepared it at his aunt’s house together with Pınar Selek, told that he did not know about the Spice Bazaar incident or Pınar Selek and that all of this was made up and a conspiracy which he was forced to confess to and sign by the police while he was under detention. Yet another divine miracle was realized minutes after he gave his statement to the prosecution…Öztürk, who was taken by the police to the next room in the courthouse until the prosecutor delivered a decision, while waiting with the same police officers who interrogated him before, must have felt remorse (!) about what he has told the prosecution and about denying his statement at the police station, because at that very moment he said that he wanted to add something to his recent statement at the prosecution and hence gave a new one. That statement was written down and together with Öztürk’s name the prosecutor’s name was also added for him to sign. However, heaven knows why, the prosecutor did not sign this newly added part to the statement even though the part he was supposed to sign was clearly marked with a cross. Upon our objections as lawyers that there cannot be a prosecution statement that is not signed by the prosecutor, this new addition to the statement was only signed by the prosecutor 2,5 years later with an interim decision of the court.
Another weird incident was the statement and identification of Abdülmecit Öztürk’s aunt which was obtained by the interrogators to support Öztürk’s statement. According to her statement, Öztürk’s aunt identified Pınar Selek from the photo shown to her by the interrogators, and stated that her nephew introduced Pınar as his fiancé and brought Pınar to her house where they locked themselves in a room. Just like Abdülmecit Öztürk, who at his police statement willingly and under feelings of remorse confessed to have produced the bomb at his aunt’s house together with Pınar; similarly, his aunt also said that Pınar came to her house with her nephew and identified her as the person who came to her house from the photo that was shown to her. Hence, the proof of the fiction was complete. This aunt whose statement was obtained as a witness during the investigation phase was later on also called by the court to give her statement at the trial. Yet, what on earth was happening? This Kurdish woman did not know Turkish at all; she could only speak Kurdish. Then how was it possible that she gave a written Turkish statement at the police in the absence of a translator? She was listened to by the court with the assistance of a translator and this is what she said: “I did not give a statement before; I do not have a statement on identifications either. I do not know how to read and write; I just put my thumbprint on a paper without knowing what it said; I do not know this girl you show me now and call Pınar Selek”. Abdülmecit Öztürk, too, kept repeating the same thing before court once he was freed from the police: “they made me sign this statement under torture, under threats; I do not know Pınar Selek and I do not have anything to do with Spice Bazaar explosion. This is all a police scam”…
Against all these facts, together with other defendants, a second case was filed against Pınar who was never appealed to for her statement. This time the case was about the act of bombing at the Spice Bazaar. During trial phase, in 1999, the first case and the second case against Pınar were consolidated. After the court questioned the defendants during the four hearings in 1999, in 2000 the expert reports on the explosion were received by the court. One was prepared by a professor at Istanbul University Department of Chemistry, the second one was prepared by a commission of three experts on explosion from Cerrahpaşa Faculty of Medicine Forensic Department, and yet another one was a report prepared by three expert scientists on explosion and gas which was requested by the court ex officio. These reports stated that, in light of the given facts and evidence, it was not possible to argue that the explosion was due to a bomb. As such, they were refuting the November 2 dated expert report that was specially ordered so that the prosecution could file a case.
Hence, the least that was revealed was this: Based on the investigation at the scene, all the evidence collected, the analysis from the clothes of the deceased, the autopsy results etc., it could not be claimed that the explosion was due to a bomb… On the one hand these scientific reports concerning the explosion and the statement of Abdülmecit Öztürk taken by the police which he later on denied saying that it was taken under torture, and his aunt’s statement at the police which was later on at the trial proven to be a total “fiasco” on the other, all made the case completely unfounded. This fraudulent game was now before all eyes in all its nakedness. The decision to be delivered at the end of the trial was almost evident…
Exactly at this stage, it was understood that in places other than the court, the course of this case was followed and that there were some who were not happy at all with the way things were progressing. On April 19, 2001, Istanbul Police Department wrote a letter to the prosecution office saying that the court needed to carry out a new expert examination. Annexed to this writing was a dateless and unsigned report prepared by the Ministry of Internal Affairs which claimed that the explosion was due to a bomb. The Ministry of Internal Affairs and Istanbul Police Department had decided to intervene in an ongoing trial which was quite uncommon. It was highly incredible that they could place such a demand on the court without the court asking for it; yet, here it was…Consequently, while before an ordinary and legal court the parties of a case are the prosecutor, the victims, the defendants, the lawyers and the judges, in this case for the first time the Ministry on Internal Affairs and Istanbul Police Department illegally intervened between the parties… Two months after this weird and unsigned report and the police department’s request for a new report, the First Specialized Division of the Institution of Forensic Medicine working under the Ministry of Justice. Six months later this report was followed by another one; this time from the General Assembly of the Institution of Forensic Medicine… In both of the reports from the Institution of Forensic Medicine which is a governmental agency, it was stated that the reason of the explosion was not and could not be determined. Nonetheless, in line with the demand in the Police Department’s letter, the court -let us just say that because it did not want to upset the Ministry of Internal Affairs and Istanbul Police Department-, still appointed a new expert commission of five people (two being gendarmes) for the new report that will be prepared at the Gendarme Criminal Division. This time, the 2002 report signed by four of the experts on this commission stated that the explosion was due to a bomb. Yet, the fifth member of the commission, a professor from Middle East Technical University (METU), prepared a separate report because he did not agree with the other one. Lastly, another report was added to the file that was prepared by another commission of experts from METU and demonstrated the contradictions and the errors of the Gendarme Criminal Division report.
In the end, in 2006, narrating all of this expert report process, the court ruled that regarding the Spice Bazaar case it was not possible to deliver a judgment because despite all the investigation and efforts, it was not possible to prove without a shadow of a doubt that the explosion was due to a bomb…The prosecutor appealed this decision on the grounds that Pınar Selek and Abdülmecit Öztürk needed to be sentenced. His reasoning was two of the expert reports in the case file: one was the 1998 dated report the prosecutor obtained from Prof. Sevil Atasoy and her colleagues at the beginning of the case; and the other was the report prepared at the Gendarme Criminal Division. All the other reports did not need to be taken into consideration because Abdülmecit Öztürk’s statement at the police -which he later on denied- also confirmed these two reports. The case file went up to the Court of Appeals where the Penal Chamber revoked the court’s decision procedurally on the grounds that in the procedure code there is not a decision in the form of “not possible to deliver a judgment” and that the court had to deliver an open verdict either as conviction or as acquittal as a result of its own personal conviction. Upon this, overseeing the reasons for overruling, in 2008 the court that received back the case file this time delivered a clear acquittal decision based on its previous reasonings. This decision was too appealed by the same prosecutor on the same grounds. Yet, at this stage, we were faced with a situation that is hard to -OK let me just say it clearly-, not hard but impossible to explain. The prosecutor who copied and pasted his previous three paged petition of appeal from 2006 in the exact same fashion only left out 3 words. These words were “Abdülmecit Öztürk and”. In his 2006 petition, the phrase “defendants “Abdülmecit Öztürk and Pınar Selek” was now turned into “defendants Pınar Selek”. In other words, the prosecutor did not appeal the acquittal decision regarding Abdülmecit Öztürk; he only appealed the one about Pınar Selek. Not to mention the fact that the appeal reasoning was based on Abdülmecit Öztürk’s “we placed the bomb together with Pınar” statement at the police which he gave under torture…Consequently, another thing that is impossible to happen in fact does happen and a person’s own statement regarding such a cooperation is not found convincing and valid for himself but can easily be found convincing for the other person he claims to have cooperated with…
This time, ignoring all the facts, evidence, contradictions and reports, the Penal Chamber of the Court of Appeals stated that the explosion was due to a bomb, that this was proven with expert reports and that Abdülmecit Öztürk confessed to this at this police statement. On the grounds that Pınar needed to be convicted with aggravated life sentence according to Article 125 of the Penal Code, the Chamber revoked the judgment of the court on the merits.
Upon this revoking, before the case file was brought back to the court, this time the General Prosecution Office of the Court of Appeals used an exceptional judicial power of objection and brought the decision before the Court of Appeals General Assembly for Criminal Matters on the grounds that it was erroneous and against the law…
The General Assembly for Criminal Matters, rejected the objection of the General Prosecutor by majority of votes. When we read the decision of the General Assembly for Criminal Matters, once again seeing that the highest judicial authority in the country is in this state, we were faced with another example proving how right we are to have lost our faith in the judiciary…The members of the General Assembly did not even bother to read the two page objection petition of the General Prosecution Office, let alone reading the case file, or the demands or the petitions of the defense. Or we should say that they do not understand what they read which would be a much more serious accusation so I prefer to say they have not read at all.. Indeed, even though the prosecution objected to the decision of the Penal Chamber on the grounds that “it could not be proven that the explosion was due to a bomb”, the General Assembly for Criminal Matters did not mind at all making the following assessment: “there is no conflict between the Penal Chamber and the Prosecution on the fact that the explosion was the result of a bomb; the conflict between them and hence the grounds for objection is about who has placed the bomb there”.
General Prosecution said in a clear and explicit fashion that whether the explosion was due to a bomb was debatable and that the examination that is carried out and the reports on the issue could not prove bombing. Yet, the majority of the General Assembly left aside the two page objection petition, and stated that just like the Penal Chamber the Prosecution did not have any doubts that the explosion was due to a bomb and that the conflict between the Penal Chamber and the Prosecution stemmed from a disagreement on who has placed the bomb at the scene. Naturally, it has limited its investigation and decision within this framework.
During the progress of this case, many weird and unbelievable things and facts have followed one another, and they still do. At the stage of General Assembly, another small but interesting detailed revealed itself. One of the reports that was used in the decision of the Assembly as an evidence for proving that the explosion was the result of a bomb was the report prepared by Prof. Sevil Atasoy and her colleagues which the prosecution received before the case was filed. The majority of the Court of Appeals General Assembly for Criminal Matters identified this report as the basis for a bomb. However, in the statements she gave to Vatan and Taraf newspapers, Prof. Sevil Atasoy who is the author of this report, very clearly said: “In our report, there is no assessment on the explosion being the result of a bomb, there is not a single sentence on this matter. In our report, there is only information regarding the necessary scientific method to be followed in order to determine how and why the explosion happened”. Apparently, the majority of the General Assembly for Criminal Matters decided what to write as a reasoning not based on what the author of the report said, but rather on a decision that has already been settled. A small (!) and insignificant (!)) detail, as can be seen. On this matter, Prof Atasoy later on repeated her exact statement at a program (Aykırı Sorular) on CNNTÜRK TV channel.
When the objection of the General Prosecution was revoked by the General Assembly based on such a deep and meaningful evaluation (!), the case file was brought back to the court. Under normal circumstances, a case file can be brought before the Court of Appeals General Assembly for Criminal Matters in two ways. One of these, and the principal one, is the conflict between the Penal Chamber and the court. It is used for settling the conflict that was the result of the court using its right to resist in its original decision against the decision of the Penal Chamber. In this case, the decision of the General Assembly is final and the court is legally obliged to abide by this decision. In the second case, as in the case of Pınar Selek, the case file can be brought before the General Assembly not because the court resists in its previous decision, but because the General Prosecution of the Court of Appeals objects to the decision of the Penal Chamber. In this second way, the court still has the right to resist in its previous decision againts the decision of the Penal Chamber. If the court decides to use this right, this time the case file is again brought before the General Assembly for Criminal Matters because the court insists on its previous decision. This is the law and this has also been the judicial practice so far…Here at Pınar Selek’s case, in the first hearing after the case file was brought back to itself, the court used its right to resist against the reversal decision regarding Pınar Selek and Abdülmecit Öztürk and again ruled for acquittal. The next day, trial prosecutor appealed this acquittal decision with a written petition. On the other hand, regarding other defendants in the case file who were charged with other acts, the court decided to abide by the reversal decision and hence continued with their hearings. After the court’s decision on February 9, 2011 to resist in its acquittal decision and to abide by the reversal for some defendants, -since the case file that was supposed to come before the General Assembly had to wait for the adjudication of other defendants to come to an end-, the final verdict for other defendants’ had to be waited. When a decision is delivered for all the defendants in the case file, for some defendants the case file was to be brought back to the Penal Chamber, while for Pınar and Abdülmecit it would be brought before the General Assembly. While waiting for the ordinary process to come to an end in this fashion and the adjudication of other defendants was still going on, last week again we witnessed a situation that is hard to explain in reference to the standard procedure and the law. Although by now we are used to or even accustomed to these weird developments, let us confess that we still preserve feelings of astonishment in the face of each new event. Honestly, we did not expect this. You must have read in the papers that during the hearing even the trial prosecutor said “I am shocked; I did not expect this”. Yes, against all established judicial practice, against the entrenched, unchanging practices of the Court of Appeals and the explicit provision of law, the court invents a new procedure by revoking its own acquittal decision a year and a half after its delivery and decides to abide by the reversal decision of the Penal Chamber. Well then how is this possible? This decision was delivered by a commission of judges headed by a temporary judge appointed by the Justice Commission because the head of the commission that resisted in its acquittal decision, i.e. the Chief Judge of the court, was recovering from a heart condition. Abiding by the reversal decision means that there will be an aggravated life sentence for Pınar. But how is it possible for a judge to rule for a sentence that will turn a person’s life upside down without ever looking at, examining what is now two piles of documents or without ever hearing witnesses or defenses? Besides, considering that in the 46 hearings since 1998, the next hearing date has always been set within a 2,5-3 months period on average, isn’t the fact that in order to deliver an aggravated life sentence this new commission of judges postponed the trial for 21 days an indicator on its own? When we wonder why the rush, we learn from the press statement of the original chair of the court -which he gave from his sick bed- that he has a medical report for 45 days and that his recovery period ends 3-5 days following the new hearing date… In other words, they want to bring this case to an end before the original chair of this court comes back from recovery; a judge who has followed the case for the whole 14,5 years, who has full command of the case file and who has listened to all the defenses and witnesses with the evidence being debated in front of him…Since the case no longer proceeds on a legal basis, it is time to take responsibility and action…Honestly, I have no faith in domestic legal remedies… There is already way too much concrete evidence and practices in this case.
One of the most constitutive moments of this case has been the decision of the Court of Appeals General Assembly for Criminal Matters. The judge who was the investigating judge on the file, who prepared the report and wrote the reasoning of the decision, and who demonstrated great proficiency in distorting the case and the file, was later on awarded by being appointed to the Court of Appeals in the following judicial elections. If this is correct, then the necessary symbolic and functional message has been given to all judges… What can I say more…