VZCZCXYZ0007
PP RUEHWEB

DE RUEHAK #0483/01 0890850
ZNR UUUUU ZZH
P 300850Z MAR 09
FM AMEMBASSY ANKARA
TO RUEHC/SECSTATE WASHDC PRIORITY 9272
INFO RUCNMEU/EU INTEREST COLLECTIVE

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.