Introduction
According to the Turkish authorities, on the 18th of April 2017, a “man” walked into Ankara Prosecutor’s Office, said that he was a member of the Gulen Movement (‘FETO/PDY’ as referred to by the Turkish Government) and handed an SD card and mobile phone which he brought with him which allegedly included the names of the members of Gulen Movement’s secret organisation within the Turkish police.
Based solely on the information allegedly contained in the memory card and the mobile phone the Ankara Prosecutor’s Office immediately issued warrants for the arrest of about 4,900 people on 26 April 2017, only 8 days after. On the other hand, some 9,000 police officers who were named and identified were subsequently dismissed with an emergency decree law.
The person in question was subsequently granted anonymity under the pseudonym “Garson” (meaning waiter in Turkish) and has been named as a prosecution witness in numerous different cases across the country. The courts treated his testimonies as pivotal for their respective verdicts.
National Regulations and ECtHR
Before moving on to the details of Garson’s problematic testimonies, it would perhaps be best to briefly mention the current Turkish law on the use of anonymous witnesses and the pattern of abuse of this mechanism by the Turkish authorities. According to a very recent report authored jointly by Dr Emre Turkut, Ali Yildiz and Kevin Dent KC:
- CMK, the Turkish Code of Criminal Procedure, allows the use of secret/anonymous witnesses only in certain circumstances. The ECtHR, on the other hand, does not prohibit it provided that the right to a fair trial is not unjustifiably impaired and necessary safeguards are taken to counterbalance the suspect’s disadvantageous position.
- In Turkey, the use of secret/anonymous witnesses has become a common practice in the last decade, particularly in political trials. The case of 11 human rights defenders affiliated with the Amnesty International Turkey[1], the Progressive Lawyers Association lawyers’ case (CHD case), and the party closure case against the pro-Kurdish People’s Democratic Party[2] provide leading examples where secret/anonymous witnesses were weaponized against the defendants. To make it clearer, it was revealed that the secret/anonymous witness used in the CHD case was also used in the same role in more than 100 different cases.[3]
- Some anonymous witnesses do not even exist. For example, the Diyarbakır Police Department admitted that an anonymous witness codenamed “Venüs” whose testimony led to the detention and imprisonment of scores of people including Selahattin Demirtas was in fact made up by the police.[4]
- The use of secret witnesses in cases concerning the Gulen Movement (GM) produces similar controversial results. As reported in the Turkish media, a secret witness who testified against 145 suspects who he accused of having links to the GM later admitted before the court that he did not actually know any of them.[5]
According to the ECtHR, the use of anonymous witness can be acceptable only if adequate and sufficient safeguards against abuse are in place, in particular, a clear and foreseeable procedure for authorising, implementing and supervising the investigative measures in question (Ramanauskas v. Lithuania [GC], 2008, § 51).
Garson’s Pivotal Testimonies and Their Peculiarities
Garson’s status as a prosecution witness in multiple cases garnered significant attention. As time went on, however, defence counsels began to point out the discrepancies, inconsistencies and peculiarities in Garson’s testimonies. First, Mesut Can Tarım, a lawyer acting for several defendants who were charged as a result of Garson’s testimony, published a report entitled “Anonymous Witness Garson -Controversies in Statements” in which he pointed out the problems with the testimonies of the “anonymous witness”, later a jurist, Dr Gokhan Gunes identified many other similar discrepancies.
Is there more than one Garson?
The most striking of controversies around Garson was the revelation that Garson provided testimonies to different courts at the same time, raising serious doubts about their authenticity.
In one instance an eagle-eye defence counsel asks Garson:
“My client is currently accused of being a member of an armed terrorist organisation. (So) It is very important for us. As a last question, I would like to ask you that you connected via SEGBIS (Audio and Video Information System) to Ankara 25th Aggravated Criminal Court at 9:50 while you connected to Izmir 2nd Aggravated Criminal Court at 10:10 and the connection to Ankara Court, however, lasted 40 minutes. (How) Can you be connected to one or more courts at the same time? … Can you be present in Ankara and Izmir while you are in Kirikkale at the same time, this is my final question.”
Garson failed to provide a proper explanation.
According to the Turkish criminal procedure, anonymous witnesses may be heard by the courts through an online module (SEGBIS) while their images have been blurred and voices have been changed. There is no safeguard for the defendants to check their credibility and effectively challenge their claims. Garson’s providing testimony in different courts at the same time raises a legitimate suspicion: Has a group of intelligence agents been tasked with misleading the courts by acting as Garson; provided that he has ever existed, of course?
The Confession and Manipulation of Evidence: Garson has already admitted that the police have doctored the data he provided.
As the controversy deepened, Garson’s credibility deteriorated even further. In court testimonies, Garson admitted that the police had manipulated the evidence provided. He acknowledged that the data he handed over had been doctored, and additional columns were added to the Excel sheets. Elements such as information about individuals’ bank accounts and connections to specific institutions were allegedly inserted after Garson had submitted the data.
In his/her testimonies before two different courts, Garson admits that the police added new columns on the Excel sheets he handed over;
“…. the digital data I handed over was last updated in March 2015, … I gave this data to them (police), but while the hearings in different courts were going based on the lists I gave, things came up about those columns which contained data about Bylock account IDs, bank accounts of those in the lists. In the digitals I have submitted to the Ankara Chief Public Prosecutor’s Office, there is no such information about the bank etc. … These may have been added (by police) to make it easier to examine. … But apparently, as you said, it seems that some additions were made to this to make things easier. The Bylock data in their (the police’s) hand have been added here! Did that person deposit money in Bank Asya, how much he/she deposited, have been added here. These are things that are not included in the original digital material I submitted. (Ankara 23rd Heavy Penal Court, hearing dated 27/12/2022 of Case No. 2022/152)
“Honourable President, normally this (question/matter) has come before me in other courts as well, if I have to express it clearly, I think that the data that whether the person deposited money in Bank Asya, that whether his/her children attended to schools of (the Gulen) network have been later added by the relevant police units, namely Organized Crime or Anti-Terror added later. …. they were not in the formats I gave, but I think there are things that the relevant police unit added to dimension it, to look at it more holistically. (Izmir 2nd Heavy Penal Court, hearing 01/6/2018 of case no. 2016/697)
Conclusion: An utter mockery of justice
Although the anonymous witness mechanism has been abused for a long time by the Turkish authorities, the controversy surrounding Garson/The Waiter is scandalous even by the standards of the Turkish judiciary.
The Garson Affair epitomises a troubling pattern of abuse and manipulation within the Turkish judicial system. The Turkish authorities’ weaponization of anonymous witnesses has allowed for the unchecked propagation of unreliable information, leading to thousands of arrests and dismissals. Garson’s simultaneous presence in different hearings, as well as his concession that the data he provided has indeed been manipulated by the police, has highlighted the systemic issues that plague the Turkish legal system.
As the controversy surrounding Garson continues to unfold, it becomes increasingly evident that a comprehensive reform of the anonymous witness mechanism is essential. The lack of proper safeguards, the absence of opportunities for defendants to challenge anonymous witness testimonies, and the risk it poses as to manipulation of critical evidence have severely compromised the integrity of the Turkish judicial system.
Categories: Turkey Human Rights Blog