November 18, 2015

Gov’t charges in Kaynak takeover ludicrous, lack any evidence

The Justice and Development Party (AK Party) government-engineered legal pretext to seize Kaynak Holding, which owns the country's largest publishing house, is part of the politically motivated witch hunt on the private sector and crackdown on independent media.

Ali Arslan Giritli, the judge at the 10th İstanbul Criminal Court of Peace approved public prosecutor Hüseyin Önerge's charges leveled at Kaynak, which consists of 23 companies, despite no evidence presented to support those charges in the court order. The court is dubbed by Turkey's political opposition as a special project court to punish critics and opponents of the government .

“Courts of peace” are a new feature of the Turkish justice system, established by the government in 2014 when President Recep Tayyip Erdoğan was prime minister as specially authorized courts with extraordinary powers that contradict the universal rule of law. The former Constitutional Court described the courts as violating the Constitution as well.

The first evidence cited in the seizure order was a prayer list found during a search of the computers at Kaynak's offices in September when police raided the conglomerate with auditors and inspectors. It said a prayer list on a Microsoft Excel document was found on a computer operated by an employee of the company and the list of the names included Islamic scholar Fethullah Gülen, as well as Kaynak employees and people who have nothing to do with Kaynak.

Turkish-Islamic scholar Gülen, who lives in the US in self-imposed exile, is known for leading prayers and asks his followers to pray for others in compassion and for peace in the world as part of his vision of interfaith culture, education, dialogue and community service. Yet the prosecutor cited Gülen's name on a prayer list as some kind of criminal activity that has no corresponding code in the Turkish Penal Code (TCK).

Kaynak is the leading publisher of Gülen's books and there is nothing strange about his name being listed in documents found on Kaynak's computers.

The prosecutor also found it suspicious that employees of Kaynak talked with high praise about Gülen on internal communications, when in fact the company is known to be close to Hizmet (also known as the Gülen movement), which is inspired by him.

In one note, prosecutor Önerge said several employees prayed for the health of Gülen when he got sick and he questioned why some employees called Gülen as Hocaefendi, a name often attributed to the Gülen followers. The sharing of Gülen's public speeches among some employees was also deemed as suspicious, according to the prosecutor.

In another finding, the prosecutor said an Excel document with the name "seminer" in which employees were identified as whether they attended a company seminar is a discriminatory list.

Listing a company document regarding a seminar meeting as a suspicious incident indicates the political motivation behind the investigation into Kaynak Holding.

The prosecutor also questioned why the company made donations to universities, schools and hospitals without explaining on what grounds these donations should be deemed to be illegal.

The 12 cases mentioned by the prosecutor as a pretext for asking the investigating judge to appoint trustees to take over Kaynak Holding lack any evidence.

The prosecutor claims there is a suspicion of money laundering in the holding accounts but did not offer any evidence to suggest that charge, either. He acknowledged that money transfers to and from abroad are legal but still maintained that the transfers are "against the reality of daily routine" without explaining why that is the case.

The judge's order often repeated Kaynak's alleged association to the so-called Fethullah Gülen Terrorist Organization (referred to as FETÖ) or Parallel State Structure (PDY), when in fact there is no such organization.

Metin Feyzioğlu, a professor of Turkish criminal law and the chair of the Turkish Bar Association (TBB), said recently that there is no judicial decision proving that such a terrorist organization exists.

“If a 'parallel state' outside the constitutional structure exists, it is the duty of an independent, impartial and accountable judiciary to present the evidence. But so far, no such decision or evidence has been presented on this matter,” he explained.

The government also failed to produce any evidence linking the Gülen movement with arms, armed attacks or terrorist incidents when it accused Gülen of establishing and leading a terrorist group.

FETÖ is a derogatory term that President Recep Tayyip Erdoğan and his political associates developed in order to disparage Islamic scholar Gülen, who has criticized the government, accusing it of being corrupt, practicing favoritism and abusing religion for political and personal gain. Erdoğan has targeted Gülen relentlessly since the investigations into graft implicated members of his family and senior government officials in 2013.

In response to the Justice Ministry's application to secure an international search-and-arrest warrant for several suspects alleged to be members of FETÖ/PDY and who had allegedly left the country, Interpol told the Turkish government that it does not recognize the so-called “FETÖ” and therefore rejected the application. Interpol also underlined that it had been provided with no evidence of the suspects having been involved in any crimes.

Kaynak has little legal recourse to remedy the unlawful takeover because the criminal courts of peace act as “closed circuit” courts. Appealing a judge's ruling can only be made to the same court and often to the same judge who issued the original ruling. They were designed by the government to pursue its critics and opponents by orchestrating what many have said are sham trials in politically motivated cases.

The court has made extremely controversial rulings against a number of people and companies critical of the government since their establishment. It was the same courts that appointed trustees to take over the Koza Ipek group in violation of the Constitution.

In both cases, the government abused Article 133 of the Code on Criminal Procedure (CMK), which states that “if there is evidence that a crime has been committed within the framework of activities of a company and it is necessity to reveal the material truth during the stage of investigation and trial, the judge or court may appoint a trustee for the undertaking of the company's business.”

The government also orchestrated falsified reports issued by the Finance Ministry's Financial Crimes Investigation Board (MASAK) in the unlawful seizure of private companies.

Published on Today's Zaman, 18 November 2015, Wednesday