Sledgehammer lawyers focus on tactical moves rather than defense

The defense lawyers are particularly worried because the prosecutor in his final legal opinion demanded the conviction of 365 suspects, including retired Gen. Çetin Doğan, for attempting to stage a coup. This means that the case is about to be concluded. Normally, the suspects and the lawyers would give their final defense statements, and subsequently, the court would issue its final ruling. However, the suspects and their lawyers are now using various tactical moves in an attempt to undermine the legal process. Their goal is to make the case questionable in terms of procedural matters. To this end, the lawyers refrain from attending the hearings.

The legal opinion presented by prosecutors Savaş Kırbaş and Hüseyin Kaplan includes allegations and evidence against all the suspects. The prosecutors argue in the file that Doğan, a former commander of the 1st Army, devised a plan to overthrow the elected government and that under the plan he considered forming a new government to replace the Justice and Development Party (AK Party) government, which he alleged acted inconsistently with the principle of secularism. The prosecutors further note that the criminal organization that Doğan created outside the military hierarchy drafted an extensive plan to topple the government. These arguments were also included in the indictment of the Balyoz case. Reference to the charges against the suspects in their final legal opinion means that the prosecutors conclude that the defendants failed to prove the allegations false.

Subsequent to the presentation of the prosecutors’ legal opinion, the suspects and defense lawyers allege that the evidence in the file is not authentic, arguing that although the plan was drafted in 2003, the lists that are used as evidence were included in the CDs at a later time. In particular, CD No. 11 is crucially important because it involves the full text of the Balyoz plan and the appendices to this plan. The prosecutors, in response, note that the entries on the CDs, burnt in 2002 and 2003, were updated by the pro-junta team.

On the other hand, transcripts of a seminar held on March 5-7, 2003, confirm the existence of the lists on these CDs. Even though the defense lawyers argue that false documents were generated out of the voice recordings and transcripts of the seminar, they cannot offer an answer to the question, “If the lists on the CDs are fake, where are the evidentiary lists referred to in the transcripts of the seminar?” In general, the argument raised by the defense is not accepted by the prosecutors. The court will make its final ruling based on strong evidence, including a seminar report undersigned by former chief of General Staff retired Gen. Yaşar Büyükanıt, voice recordings of the seminar, expert witness reports and subsequent voice recordings and transcripts.

Instead of presenting defense statements on behalf of their clients, the defense lawyers seek to stall the legal process by raising discussions concerning procedure. In the recent hearings, most of the defense lawyers deliberately refrained from attending the sessions. Under a provision of the Code on Criminal Procedure (CMK), defense lawyers must be present in criminal cases where five-plus years of jail time are sought by the prosecutor. This provision introduced in favor of the defendants is being misused by the lawyers, who now do not attend the hearings. In this case, the court has to ask the bar to assign new defense lawyers. However, the İstanbul Bar Association, which has repeatedly expressed its support for the Balyoz suspects, now says it will not assign defense lawyers to the Balyoz trial although this would be a clear violation of the law. The court will have to address this abuse.

Why are the defense lawyers resorting to these tactical moves, given that they initially rushed for the conclusion of the case? Some comments may be made, particularly in reference to recent developments. During the early stages of the Balyoz investigation, the 11th Criminal Chamber of the Supreme Court of Appeals ruled for the release of the defendants, including former Erzincan Chief Prosecutor İlhan Cihaner. This ruling by the 11th Chamber, which was in violation of criminal procedure, raised hopes for the Balyoz suspects. For this reason, they rushed for a conclusion of the case in the local court at the beginning. However, subsequent developments confirmed that their plans could not be realized. And because they now hold no hope that the Supreme Court of Appeals would rule in their favor, the Balyoz suspects and their defense lawyers are trying to undermine the whole process by reliance on loopholes in the system of legal procedure.