Abdullah Bozkurt
Turkey’s Supreme Court of Appeals (Yargıtay), the nation’s highest appellate court, overturned the conviction of an Islamic State in Iraq and Syria (ISIS) militant who was linked to the jihadist organization’s operations in China’s Xinjiang Uyghur Autonomous Region.
In a ruling issued October 23, 2019 in case No. 2018/6706, members of the Supreme Court of Appeals’ 16th Chamber, which reviewed the appeal of convictions on terrorism charges in Turkey, cited the lack of an adequate investigation into the activities of ISIS militant Kulaixi Yimaier (aka Quraysh Omar), a 52-year-old Uyghur from China, as a reason for overturning the conviction that was rendered earlier by the Kayseri 4th High Criminal Court. Casting further doubt on the case, the judges said no determination had been made as to whether an organization called the East Turkestan Islamic Movement (Doğu Türkistan İslam Partisi in Turkish, or ETIM) actually existed.
The top judges’ reasoning contradicted what officials of the government of President Recep Tayyip Erdoğan have publicly been saying with regard to ETIM. Visiting Beijing on August 3, 2017 to attend the Second Meeting of the China-Turkey Foreign Ministers’ Consultation Mechanism, Turkish Foreign Minister Mevlüt Çavuşoğlu said Turkey officially recognized ETIM as a terrorist organization, adding, “We’ll never allow any activities against China on our territory or in the region in which we’re located.” In response China’s Foreign Minister Wang Yi praised Turkey for listing the organization as a terrorist entity.
Çavuşoğlu’s remarks reflected what Erdoğan told Chinese President Xi Jinping during a 2015 visit to Beijing. According to Chinese Deputy Foreign Minister Zhang Ming’s account of the meeting shared with reporters, Erdoğan told Xi that Turkey regarded ETIM as a terrorist group. “He said … Turkey will not allow anyone to use Turkey’s territory to do anything to harm China’s national interests and security,” Zhang said.
ETIM, renamed the Turkistan Islamic Movement (TIM), is designated as a terrorist organization by many countries including the US, members of the European Union and Russia. On September 11, 2002 the UN Security Council also listed ETIM as an al-Qaeda-linked terrorist entity. ETIM set up a Syrian affiliate called the Turkistan Islamic Party in Syria and used Turkey not only as a conduit for sending fighters but also for recruiting them from the Uyghur diaspora in Turkey. It currently operates in Idlib province, which is effectively under Turkish military control. Turkey is also committed as a guarantor of Idlib in a ceasefire agreed with Russia and Iran.
According to the indictment and the lower court’s decision, Yimaier was detained in January 2017 in Kayseri province as part of a nationwide sweep a week after the deadly Reina nightclub attack in Istanbul, which was claimed by ISIS. According to the evidence collected by the police and submitted to the court by the prosecutor, Yimaier had connections to Abdulkadir Masharipov (aka Abu Muhammed Horasani), an ISIS terrorist from Uzbekistan, who killed 39 people on January 1, 2017 when he attacked Istanbul’s famous Reina nightclub on New Year’s Eve.
The prosecutor also claimed that the ISIS suspect was connected to İbrahimjon Asparov (aka İbrahim Danyelik), who was believed to have provided the AK-47 used by Masharipov in the ISIS nightclub attack. Asparov remains a fugitive. The Reina attacker was captured after a two-week manhunt and stood trial in Turkey. Yimaier denied the charges and claimed the statement he gave to the police was incorrectly translated into Turkish during trial.
In a detention sweep in Kayseri, in addition to Yimaier police also captured other suspects — Esedullah Abdullah, Abdullah Erkin, Abdurrahman Zunun, Osman Abdülkerim, Abdurrezzak Abdulhekim, Abdulvaris Razi, Aisa Ruzemaimaiti, Maımaıtıaılı Abula, Ezhar Turgun, Kudusi Maimatiming, Mehdi Abdullah and Nureguli Niyazimaimaiti.
During the arraignment hearing, the judge ruled to put Yimaier in a pre-trial detention in a prison in Nevşehir and release the rest. The Uyghur Turks, namely Esedullah Abdullah, and Ezhar Turgun, were sent to the Immigration Deportation Center (Geri Gönderim Merkezi). The first hearing in the case was held on June 6, 2017 with verification of the identities of the suspects and brief statements from the suspects. Yimaier denied the charges and said he had paid $2,500 to a human smuggler named “Turger” because he wanted to bring his six children to Turkey.
Speaking through a translator at the second hearing on August 8, 2017, Yimaier said he had no links to ISIS and denied meeting with Masharipov. Chinese national Esedullah Abdullah testified that he fled China’s Xinjiang region in 2014 for Dubai and then moved to Turkey through Iran using human smugglers. He also denied having any association with ISIS and vouched for the innocence of Yimaier, the main suspect in the case. Turgun admitted that he was in a prison in China but escaped to Turkey and had been living in Kayseri since 2014. He also rejected allegations of membership in ISIS. Seven suspects — Zunun, Abdülkerim, Abdulhekim, Razi, Ruzemaimaiti, Maimatiming and Niyazimaimaiti – who were released after detention in January did not even show up at the hearing. The court adjourned and issued a warrant for police to bring the absent suspects to the next hearing.
The ruling by the Supreme Court of Appeals on overturning the ISIS conviction:
Ruling by 16. Ceza Dairesi_2019_7239
During a hearing held on November 21, 2017, Yimaier again denied the charge that he belonged to ISIS, said he never pledged his allegiance to the group and defended himself by saying that the aid he had sent to Syria was in fact dispatched by the governor’s office. He also denied the accusation that he was connected to the Reina shooter, Masharipov.
On December 21, 2017, the court in Kayseri sentenced Yimaier to six years, three months in prison while acquitting the others — Erkin, Zunun, Abdulhekim, Razi, Ruzemaimaiti, Esedullah Abdullah, Turgun, Maimatiming, Mehdi Abdullah and Niyazimaimaiti. Two defendants in the case remained at large.
The Ankara Regional Appeals Court upheld the conviction in a ruling issued on May 23, 2018, and the case was referred to the Supreme Court of Appeals for final review. The appellate court reversed the conviction on October 23, 2019 with decision No. 2019/7239 and sent the ruling to the lower court for enforcement on January 29, 2020.
The profile of the judges who unexpectedly overturned Yimaier’s conviction is quite interesting. The 16th Chamber was created in 2014 with a special bill endorsed by the Erdoğan government to transform the top appeals court in the capital. The government recruited 140 new judges in 2014 and another 100 in 2018 to dominate the appeals court. The 16th Chamber’s focus is terrorism cases and crimes against the state. The judges who were named to the chamber were carefully vetted by the Erdoğan government, and the bench was filled with loyalists who came from two distinct backgrounds.
One group boasted Islamist credentials and shared views similar to the political Islamist ideology of the governing Justice and Development Party (AKP). They are seen as sympathetic to the cause of radical Islamist organizations. The other group that sent judges to this special chamber comprises neo-nationalists (Uluslacı) affiliated with pro-Iran Aydınlık group, led by an obscure political figure named Doğu Perinçek. The same power-sharing agreement is also in effect in other judicial institutions and branches of the government. They act in concert to whitewash the crimes of radical groups, be they jihadist Islamists or ultra-left marginal terrorists.
For example, Eyüp Yeşil, president of the 16th Chamber, was described as a hard-core Islamist. In his youth he was closely associated with the Islamist National Salvation Party and National View (Milli Görus) ideology. Yusuf Hakkı Doğan is linked to the neo-nationalist Perinçek group known for orchestrating false flag terrorist acts with operatives recruited from various groups including those from the Uyghur community. The Turkish intelligence service MIT’s facilitation of the travel of Uyghurs from China to Syria was executed by operatives close to the Perinçek group. Hakan Yuksel, another judge in the 16th Chamber, is linked to the Nationalist Movement Party (MHP) and is described as a die-hard nationalist staunchly opposed to China.
This is not the only ISIS case that the judges of the 16th Chamber of the Supreme Court of Appeals have overturned. A survey of cases in recent years shows that the judges in that chamber have ruled in many ISIS cases to overturn convictions and order the release of jihadist militants. As a result, the bulk of the successful ISIS convictions, already rare in the lower courts of the Turkish judicial system, have been thrown out by senior judges who appear to follow the lenient guidelines of the Islamist government when it comes to the crackdown on jihadist groups.
Considering that the rulings by the Supreme Court of Appeals set a precedent for the lower courts to follow, its poor record in upholding ISIS convictions has rung alarm bells in the predominantly Sunni Muslim nation of 82 million.
In 2014 the Erdoğan government started removing judges, prosecutors and police chiefs who were investigating radical groups in Turkey. The dismissed officials were accused of links to the Gülen movement, led by Turkish Muslim cleric Fethullah Gülen, who has been an outspoken critic of the Erdoğan regime due to pervasive corruption in the government and Turkey’s aiding and abetting of jihadist groups in Syria and Libya.
In Turkey over half a million people affiliated with the Gülen movement have been put in detention facilities on fabricated terrorism charges in the aftermath of a coup attempt in July 2016. Since then, more than 130,000 civil servants have been dismissed by the government with no effective judicial or administrative investigation, 4,560 of whom were judges and prosecutors and were replaced by pro-Erdogan and neo-nationalist staff. As a result of the massive purge, the Turkish judiciary and law enforcement authorities have become tools in the hands of the Islamist government of President Erdoğan and his allies.
