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Demolishing all the charges - The full text of Akın Atalay's historical defence

Cumhuriyet Executive Board Chair Akın Atalay presented a 41-page defence in the Cumhuriyet trial in which journalism is in the dock. Atalay said, ‘The investigation targeting Cumhuriyet newspaper is nothing but a legal murder.’ Here is the full text of Atalay’s historic defence.
Yayınlanma tarihi: 11 Ağustos 2017 Cuma, 15:28

CANAN COŞKUN
 
The holding of the first hearing in the trial brought against our newspaper’s columnists and managers and in which journalism is in the dock has commenced at Istanbul Serious Crime Court No 27. Following Kadri Gürsel’s defence at the hearing, our paper’s Executive Board Chair Akın Atalay followed suit.

There follows the full text of the defence by Atalay, who says, ‘This prosecution has two mutually complementary aims. The first is to take over Cumhuriyet newspaper or silence it. The second is to show the end that awaits newspapers and journalists who contemplate or entertain the idea of publishing news undesired by the political rulership and articles that will not be to its liking.’

I. Introduction
I will set out by saying at the very beginning what I will say at the very end. The investigation targeting Cumhuriyet newspaper is nothing but a legal murder. It is a threat and attack against the person of Cumhuriyet newspaper aimed at all newspapers and journalists. When the whys and wherefores of the launching of the investigation, its timing, the things done over the investigation, the indictment that emerged and the thousands of annexed pages most of which are repetition, the investigation’s basic prosecutor, the witnesses and experts are taken in conjunction, a very clear picture emerges:
This prosecution has two mutually complementary aims. The first is to take over Cumhuriyet newspaper or silence it. The second is to show the end that awaits newspapers and journalists who contemplate or entertain the idea of publishing news undesired by the political rulership and articles that will not be to its liking.

To spread the fear, ‘Is there anything those cannot do to us who can do this to this country’s oldest and longest established newspaper that was named by Atatürk, is of the same age as the Republic of Turkey and has constantly defended its values and achievements?’ and to deliver this message in the starkest manner. I wish to stress that not the slightest regret or fear has been instilled in me by the severe injustice and wrong we have suffered thanks to being Cumhuriyet newspaper’s managers. I am actually of the view that those responsible for this injustice are undergoing great fear. They cannot intimidate us with oppression, threat and imprisonment. Our will, resolve and determination to conduct journalistic activity in accordance with the ethical demands of the profession, without distorting events, and objectively, factually and fairly is intact. That is, Cumhuriyet newspaper will not be afraid, give in and surrender. For, it has no business, relationship, connection or adjunction with illegal formations, terrorism, terrorist organisations and gangs and brotherhoods that have ensconced themselves within the state. This newspaper’s sole activity is journalism that it conducts in the legitimate and legal sphere.
This newspaper that has fallen victim to an operation with the wish to secure its surrender, break its resistance and force it to fold is no ordinary paper. It is this country’s longest established and most venerable newspaper, and numbers among its most esteemed newspapers. This paper has a passion for independence and freedom in its roots, history and even its genes. It has paid heavy prices for the sake of these values and journalism. Out of the responsibility imposed by this history and legacy, those working on this paper will not compromise on journalistic values and will not do homage to, bow before or surrender to anyone. It is known that, thanks to this paper’s dogged insistence on informing the people and imparting the truth to the public, our columnists and employees have been slaughtered, subjected to assassinations, murders, attempted lynchings and imprisonment, but it still has not surrendered. This paper is Cumhuriyet newspaper and is a monument to journalism.

Those tens of journalists senior to us who were our predecessors, we who have been imprisoned for about nine months, occupied important positions in this paper’s past and that of the Turkish press. How can we forget them? This paper, today just as in the past, has suffered enmity, threat and intimidation, embargo and oppression from the political rulership. Those holders of power and oppressors have all become history. But this paper is still firmly on its feet. If there are those who think that an honourable entity possessing and imbued with a rich historical heritage like Cumhuriyet newspaper can have its resistance broken and will bow to fear and oppression and compromise on journalism, they are mistaken. We have the following to say to those who think we will give in: We will stand firm, will not give in and will not bow until we have taken our final breath and until we have fulfilled our duty without ever besmirching the profession of journalism, the profession’s ethical principles and the well-earned respect and honourable past of the entity we represent.
Before moving on to countering the indictment and the acts imputed and the charges raised against us in the indictment, I will pass comment on certain matters relating to the outset of the proceedings. There are things that I wish to comment on and that I have perceived to be important in the investigation stage of this case. It is known that the first stage of a case is investigation and the second is prosecution. These two stages are mutually complementary stages that are not independent of one another. However soundly and productively the investigation stage is conducted, the prosecution stage that starts with the acceptance of the indictment by the court will proceed that much more soundly, speedily and fairly. When the opposite prevails, this means that all flaws and errors within the investigation process will infect the prosecution stage and will negatively impact on that process. When account is taken of what was done and what happened in the investigation stage of this case, it will be clearly apparent just how contrary to reason, logic, fairness, justice, the law and conscience the prosecution is.

Concerning the investigation process

There is a prosecutor’s record in binder number 30; its name is EX OFFICIO INVESTIGATION COMMENCEMENT RECORD. According to this record, which is undersigned by Republic Prosecutor Murat İnam and clerk Sevgi Karadeniz, the process that has lasted until we were brought before the court today and caused us to be detained for nearly nine months started on 18 August 2016. The following is entered in the record:

‘Since there was mention in columns and news reports appearing in certain press and publishing outlets that Cumhuriyet newspaper had been taken over by the PKK and FETO/PDY terrorist organisations and the newspaper was working in accordance with these organisations’ interests, a coup attempt was staged on 15 July 2016 in which there was a bid by a group in military attire to overthrow the government, the group that attempted the coup named itself the peace at home council, an article entitled ‘Peace in the world, so at home what?’ was published in Aydın Engin’s column in Cumhuriyet newspaper’s 13 July 2016 edition, there exists suspicion that Cumhuriyet newspaper’s managers have connections with the PKK and FETO/PDY armed terrorist organisations and the opinion was reached that there was adequate suspicion to launch this investigation, an ex officio investigation was commenced. 18 August 2016.’

The first thing that Republic Prosecutor Murat İnam did on 18 August 2016 on which he launched the ex officio investigation was to send a letter to the Financial Crimes Investigation Board (FCIB). In this instruction letter, request was made for a financial report starting from 1 January 2013 showing the financial relationships between natural and juristic persons under investigation in relation to the PKK and FETO/PDY and a total of eleven people, being the board of directors’ members (five people) and second-degree authorised signatories (four people) of Yenigün Haber Ajansı Basın ve Yayıncılık AŞ which publishes Cumhuriyet newspaper, two editors-in-chief who had served over this period (one of them was at the same time a board of directors’ member) and a person named as an editor. The next investigatory procedure saw him take a witness statement on 22 August 2016, the first Monday following the weekend. The witness’s name was Cem Küçük. Two days after this, the Istanbul Police Directorate Anti-Terrorism Branch, serving as the judicial police, was notified in writing of the investigation. It is curious and noteworthy that according to the file a hasty witness statement was procured as soon as the investigation had been launched. The launching of the investigation by the prosecutor relying on the said person’s testimony gives an adequate idea of the seriousness, quality and subsequent fate of the investigation. There will be a general assessment of mine regarding witness statements in later sections of my comments. But the need arises just now to point out the difference in formal terms of this witness statement from the others, because, until 31 October on which the search, seizure, apprehension and arrest operations were carried out, no need was felt to hear any other witnesses following this person whose statement was obtained on the fifth day after the investigation was launched. This means that Cem Küçük was deemed to be an acceptable and sufficient witness. All his statements conflict with the material truth and facts. An investigation stage that started with just such a witness is proceeding with such a lack of merit, seriousness and quality. How? Let me explain. But, first, I wish to point to an important consideration. The aim in penal proceedings is to investigate the truth to reach the truth. If we seek the truth in fact and not in fiction we have a chance of reaching it. If we take personal interpretations and analyses, rumour, speculation and guesses as data in place of facts, there is no chance of reaching the truth. Consequently, I will endeavour to base my own answers to an assertion that has entirely been dreamt up on concrete documents, corroborated information and actually occurring facts.

The investigating prosecutor

The name of the prosecutor who is conducting the terrorism investigation targeting the newspaper through the person of Cumhuriyet newspaper’s managers is Murat İnam. We learnt on the day following that on which the paper’s managers had been arrested at his behest that the prosecutor himself was standing trial at Penal Chamber No 16 of the Court of Cassation for committing a good many terrorism-related crimes, not least the charge of FETO membership. Apart from one aggravated life and one life sentence, custodial sentences running into the tens of years for other crimes are sought against him. Moreover, given the opinion as to the existence of strong suspicion of guilt that he committed these crimes and grounds for detention, he has been subjected to pre-trial release conditions.

Can you imagine a venerable newspaper having the defence of the principle of secularism at the heart of its editorial policy being imputed with having acted on behalf of FETO, which sprang up as a religious-based brotherhood formation, gradually infiltrated the state and turned into a terrorist organisation? And also the person making this imputation as prosecutor himself being charged with FETO membership and facing the most serious penalty under our law?

According to Article 8 of the Judges and Prosecutors Law, numbering among the reasons barring a person from being a candidate judge or prosecutor is the opening of an investigation into that person for terrorism-related crimes. In the event of, not even prosecution, but an investigation being opened against you for these crimes, far from being a judge or prosecutor, you cannot even be a candidate. The same circumstance has been enumerated among the situations that act as a bar to serving as a lawyer in Article 5 of the Attorneyship Law. Under a decree with the force of law promulgated last month, being attached or adjunctive to an armed terrorist organisation now serves as a bar to both undergoing training as a notary and also acting as a mediator and expert witness.

As has been seen, we find ourselves defendants here on the strength of an indictment drafted at the conclusion of an investigation conducted by a prosecutor who cannot even be a candidate prosecutor due to the proceedings against him. It is not a procedure that a balanced, reasonable person in possession of their senses can easily perform to accuse a newspaper whose entire past and established practice is replete with proclamations and elucidations to the public and relevant persons about the danger and threat in relation to the democratic, secular, law-based state posed by this terrorist organisation of aiding the same organisation. It may well have been precisely for this reason that such an investigation could be commissioned from a prosecutor who stands charged of and is being prosecuted for membership of this terrorist organisation.

Taking stock as a whole of the witnesses he has heard and the identity, capacity and merit of the expert he has selected, I wish to say that the bringing before a court of such an indictment that has been manufactured out of such material and can only serve as an ironic text does disrespect to both the law and the court.

One is really left wondering at how so much irrationality, illogicality, irresponsibility and lack of seriousness could arise at the same instant. The assessment that I have managed to elicit from this entire process is as follows:

As you know, in the European Court of Human Rights’ (ECHR) case law on the fair trial principle, there is an expression that it forever repeats: ‘Not only must justice be done; it must also be seen to be done.’ The proprietors of the Cumhuriyet newspaper investigation have, inspired by this expression of the European Court of Human Rights, lent their signature to a new expression. They say, when Cumhuriyet is involved, ‘It does not suffice for injustice to be done; injustice must also be seen to be done’ so that it may be a warning to others.

Concerning the investigation process

There is a prosecutor’s record in binder number 30; its name is EX OFFICIO INVESTIGATION COMMENCEMENT RECORD. According to this record, which is undersigned by Republic Prosecutor Murat İnam and clerk Sevgi Karadeniz, the process that has lasted until we were brought before the court today and caused us to be detained for nearly nine months started on 18 August 2016. The following is entered in the record:

 ‘Since there was mention in columns and news reports appearing in certain press and publishing outlets that Cumhuriyet newspaper had been taken over by the PKK and FETO/PDY terrorist organisations and the newspaper was working in accordance with these organisations’ interests, a coup attempt was staged on 15 July 2016 in which there was a bid by a group in military attire to overthrow the government, the group that attempted the coup named itself the peace at home council, an article entitled ‘Peace in the world, so at home what?’ was published in Aydın Engin’s column in Cumhuriyet newspaper’s 13 July 2016 edition, there exists suspicion that Cumhuriyet newspaper’s managers have connections with the PKK and FETO/PDY armed terrorist organisations and the opinion was reached that there was adequate suspicion to launch this investigation, an ex officio investigation was commenced. 18 August 2016.’

 The first thing that Republic Prosecutor Murat İnam did on 18 August 2016 on which he launched the ex officio investigation was to send a letter to the Financial Crimes Investigation Board (FCIB). In this instruction letter, request was made for a financial report starting from 1 January 2013 showing the financial relationships between natural and juristic persons under investigation in relation to the PKK and FETO/PDY and a total of eleven people, being the board of directors’ members (five people) and second-degree authorised signatories (four people) of Yenigün Haber Ajansı Basın ve Yayıncılık AŞ which publishes Cumhuriyet newspaper, two editors-in-chief who had served over this period (one of them was at the same time a board of directors’ member) and a person named as an editor. The next investigatory procedure saw him take a witness statement on 22 August 2016, the first Monday following the weekend. The witness’s name was Cem Küçük. Two days after this, the Istanbul Police Directorate Anti-Terrorism Branch, serving as the judicial police, was notified in writing of the investigation. It is curious and noteworthy that according to the file a hasty witness statement was procured as soon as the investigation had been launched. The launching of the investigation by the prosecutor relying on the said person’s testimony gives an adequate idea of the seriousness, quality and subsequent fate of the investigation. There will be a general assessment of mine regarding witness statements in later sections of my comments. But the need arises just now to point out the difference in formal terms of this witness statement from the others, because, until 31 October on which the search, seizure, apprehension and arrest operations were carried out, no need was felt to hear any other witnesses following this person whose statement was obtained on the fifth day after the investigation was launched. This means that Cem Küçük was deemed to be an acceptable and sufficient witness. All his statements conflict with the material truth and facts. An investigation stage that started with just such a witness is proceeding with such a lack of merit, seriousness and quality. How? Let me explain. But, first, I wish to point to an important consideration. The aim in penal proceedings is to investigate the truth to reach the truth. If we seek the truth in fact and not in fiction we have a chance of reaching it. If we take personal interpretations and analyses, rumour, speculation and guesses as data in place of facts, there is no chance of reaching the truth. Consequently, I will endeavour to base my own answers to an assertion that has entirely been dreamt up on concrete documents, corroborated information and actually occurring facts.

 The investigating prosecutor

 The name of the prosecutor who is conducting the terrorism investigation targeting the newspaper through the person of Cumhuriyet newspaper’s managers is Murat İnam. We learnt on the day following that on which the paper’s managers had been arrested at his behest that the prosecutor himself was standing trial at Penal Chamber No 16 of the Court of Cassation for committing a good many terrorism-related crimes, not least the charge of FETO membership. Apart from one aggravated life and one life sentence, custodial sentences running into the tens of years for other crimes are sought against him. Moreover, given the opinion as to the existence of strong suspicion of guilt that he committed these crimes and grounds for detention, he has been subjected to pre-trial release conditions.

 Can you imagine a venerable newspaper having the defence of the principle of secularism at the heart of its editorial policy being imputed with having acted on behalf of FETO, which sprang up as a religious-based brotherhood formation, gradually infiltrated the state and turned into a terrorist organisation? And also the person making this imputation as prosecutor himself being charged with FETO membership and facing the most serious penalty under our law?

 According to Article 8 of the Judges and Prosecutors Law, numbering among the reasons barring a person from being a candidate judge or prosecutor is the opening of an investigation into that person for terrorism-related crimes. In the event of, not even prosecution, but an investigation being opened against you for these crimes, far from being a judge or prosecutor, you cannot even be a candidate. The same circumstance has been enumerated among the situations that act as a bar to serving as a lawyer in Article 5 of the Attorneyship Law. Under a decree with the force of law promulgated last month, being attached or adjunctive to an armed terrorist organisation now serves as a bar to both undergoing training as a notary and also acting as a mediator and expert witness.

 As has been seen, we find ourselves defendants here on the strength of an indictment drafted at the conclusion of an investigation conducted by a prosecutor who cannot even be a candidate prosecutor due to the proceedings against him. It is not a procedure that a balanced, reasonable person in possession of their senses can easily perform to accuse a newspaper whose entire past and established practice is replete with proclamations and elucidations to the public and relevant persons about the danger and threat in relation to the democratic, secular, law-based state posed by this terrorist organisation of aiding the same organisation. It may well have been precisely for this reason that such an investigation could be commissioned from a prosecutor who stands charged of and is being prosecuted for membership of this terrorist organisation.

 Taking stock as a whole of the witnesses he has heard and the identity, capacity and merit of the expert he has selected, I wish to say that the bringing before a court of such an indictment that has been manufactured out of such material and can only serve as an ironic text does disrespect to both the law and the court.

 One is really left wondering at how so much irrationality, illogicality, irresponsibility and lack of seriousness could arise at the same instant. The assessment that I have managed to elicit from this entire process is as follows:

 As you know, in the European Court of Human Rights’ (ECHR) case law on the fair trial principle, there is an expression that it forever repeats: ‘Not only must justice be done; it must also be seen to be done.’ The proprietors of the Cumhuriyet newspaper investigation have, inspired by this expression of the European Court of Human Rights, lent their signature to a new expression. They say, when Cumhuriyet is involved, ‘It does not suffice for injustice to be done; injustice must also be seen to be done’ so that it may be a warning to others.

II. What does the indictment charge us with?

As far as I can comprehend, given that they appear in the indictment in a pretty jumbled, dispersed and careless manner, we are accused of the following acts:

1- The ‘taking over’ of the Cumhuriyet Foundation Management Board,

2- The changing of Cumhuriyet newspaper’s editorial policy,

3- The publishing of news and articles in Cumhuriyet newspaper that serve the purpose of the FETO, PKK and DHKP/C armed terrorist organisations, and

4- The selling below reasonably equivalent value of one immovable property each of Cumhuriyet Foundation and Yeni Gün Haber AŞ, which publishes Cumhuriyet newspaper, the transferring of funds from Cumhuriyet Foundation to Cumhuriyet newspaper, and the non-convening of a company general meeting in accordance with Article 376 of the Commercial Code even though more than half of Yeni Gün Haber AŞ’s capital was uncovered.

The indictment claims that, through taking over Cumhuriyet Foundation and changing editorial policy, news and articles serving the purpose of armed terrorist organisations were published, and asserts that these acts fall within the definition and scope of the offence of ‘aiding a terrorist organisation’ in Article 220/7 of the Turkish Penal Code.

The first charge

What is the event that the indictment is from the very outset phrased and worded to criminalise with its resort to the term ‘take over?’ What happened at the foundation, when did it happen and who took over the foundation and from whom? How did the takeover happen; with coercion or threat, or using intimidation or even violence? The affair calculated to leave a psychological influence on the judicial authorities with it described as the Cumhuriyet Foundation being ‘taken over’ and through the application of perception management, stacks up as follows:

According to Cumhuriyet Foundation’s official deed, there are twelve people on the management board and they are elected to serve for a period of two years. When management board members’ terms of service expire, the old management board members whose terms have expired elect the new management board members. Should a place on the management board be vacated for reasons such as death or resignation prior to the expiry of the term of service, a management board election is held for the place that has been vacated. Prof. Aydın Aybay, one of the twelve foundation managing board members, passed away in March 2013. An election was held for the one vacant place in April 2013. Then, as the terms of service of all the management board members expired six months later, fresh management board elections were held in October 2013. Three or four days after this election held in October 2013 for all places on the management board, application was made to the General Directorate of Foundations in an anonymous and unsigned tip-off letter. It was asserted retrospectively in the application that the election held in April 2013 for the vacant place on the management board was contrary to the provisions in the foundation’s official deed and should be deemed invalid. Since the election held in April for one place affected the elections for membership of the new management board, the declaration that those elections were invalid was also sought. An investigator appointed to investigate the matter by the General Directorate of Foundations’ Istanbul Regional Directorate compiled a report to the effect that the elections should be repeated. This report was forwarded by the Regional Directorate to our foundation with a request for the necessary action to be taken. The Cumhuriyet Foundation Management Board discussed the matter and summoned the eleven management board members who had voting rights in April 2013 to a meeting with repeat elections on the agenda, in compliance with the Regional Directorate’s letter, to avoid giving rise to any controversy in the future, even though there was no obligation to comply with this legal opinion. The date of the meeting was set for 18 February 2014 and service was made on the eleven management board members prior to the day of the meeting along with the agenda. On 17 February 2014, one day prior to the meeting, a management board member submitted his resignation in writing and indicated that he was not standing for management board membership. Hours before the meeting, another member submitted his resignation in writing and intimated that he was not standing for membership of the management board that was to be elected, either. Following the vacancies ensuing from the death of one member and the resignation of two members, six of the nine remaining members of the twelve-person management board attended the meeting, while three did not attend.

This is precisely where the whole storm broke out and the legal dispute had its inception in this meeting. Viz:

Two of the three management board members who did not attend the meeting held on 18 February 2014 brought legal proceedings over the meeting a full two years after the date of the meeting. Their claims took the form that the meeting held on 18/02/2014 was conducted without the meeting quorum in the foundation official deed being attained; to constitute a meeting one more than half of the full number of management board members had to be present at the meeting and this amounted to seven people, while six people attended the said meeting, and so the meeting and the election held at the meeting was invalid and should be annulled.

Conversely, the legal argument and view asserted by the foundation takes the form:

No provision is made in the founation deed for any meeting quorum for meetings at which elections are to be held; this point is expressly stressed in the foundation official deed; indeed, even were it for a moment to be presumed that the meeting quorum required for non-electoral meetings had to be imposed for electoral meetings, the meeting quorum was met because the meeting quorum had to be calculated based not on the total number of members but the existing number of members; it would neither comply with reason and logic for people whose membership has ended due to death or resignation to be included in meeting quorum calculations nor would this be a manner of interpretation that was fit for purpose, either; a contrary manner of interpretation would amount to enabling a few members who remained in the minority to frustrate the foundation’s business, bring it to a standstill and leave it without an organ; there was no wording in the foundation official deed that the meeting quorum was to be calculated based on the full number of members; it is envisaged in the Civil Code, in Article 78 concerning juristic persons which includes provisions concerning associations and foundations, that in determining meeting quorums the number of members entitled to attend the meeting be adopted as the base; and, for these reasons, at the meeting attended by six of the existing nine members, the quorum was not seven members but six members, being one more than half of the nine members.

As has been seen, the legal dispute and controversy between the juristic person of the foundation and the two former management board mambers who did not attend the 18/02/2014 meeting is based entirely on a difference of legal interpretation and opinion. Indeed, the legal dispute over this matter was brought as a claim before the civil courts by the said persons some six months prior to the present investigation and, moreover, fifteen months before the indictment, and, on the other hand, was also subjected to administrative examination at the General Directorate of Foundations.

This is the affair that has, thanks to the use of terms such as ‘take over’ and ‘purge,’ intentionally been brought onto another plane, into the criminal and penal arena. There was no takeover but an election; no purge but an inability to be elected. Thus, even if it makes sense as a description in political terms for somebody to speak of being purged following an election in which they were unable to be elected, in the legal arena this situation is referred to not as a ‘purge’ but an ‘inability to be elected.’

Let me add that had it been the intent and wish of the foundation founder for certain management board members to be elected every time they stand or to be unchanging and unchangeable members of the management board until they die, he would have been able to expressly state this in the foundation official deed. In fact, in temporary Article 1 of the foundation official deed, it is laid down expressly and clearly that three people from among the first management board members would have no time limits on their term of service and these three people would be management board members until they died. With the demise of the last of these three people, İlhan Selçuk, in 2010, there remained no unchanging and unchangeable members of the management board. There is no guarantee that any management board member whose term of service has expired will be reelected to the management board. This is what makes sense and is logical, too.

It must be noted that the bringing of a civil dispute that relates to the sphere of private law and falls to the jurisdiction of the civil court of first instance before the serious crime court and bringing charges over it is a bad-faith endeavour to exert influence, guidance and pressure. The aim is to procure a judgment along certain lines in the civil court of first instance. Although the prosecution is aware that civil proceedings are pending over this civil dispute, experts’ reports have been obtained within these civil proceedings from specialists in the area and there are also detailed reports of General Directorate of Foundations’ inspectors into the same matter, it speaks volumes that he has commissioned a fresh expert examination into the meeting quorum as if the matter fell to his own subject-matter and territorial jurisdiction. Moreover, the expert he has chosen is somebody who is not included on the list of judicial experts but who has been nominated from outside the list in flagrant breach of the law with no reason adduced. There is also no information as to his specialisation, competence, capacity, experience and accumulated knowledge.

Basically, it is obvious that which of two candidates is elected to a place that has been vacated on a foundation management board and whether the meeting at which the election was held was conducted in accordance with the quorum in the official deed has no relation to or connection with the public prosecution, probes, crime and penal law. It is clear that the prosecution is also aware of this from the following comment in the introduction to the section on the matter in the indictment:

‘While a portion of the procedures concerning the Cumhuriyet Foundation are of the nature of a civil dispute and are external to our concerns, on account of the change that the foundation underwent after 2013 such that the newspaper carried manipulative content detrimental to national security, there was a need for an examination of the penal law aspects of the matter so as to shed light on the penal responsibility of Foundation Management Board Members.’ (page 102 of the indictment)

This could be summed up by saying that the prosecution has embroiled itself and become embroiled in a private-law dispute that is absolutely unconnected with its duties and has protected and aided the proponents of one of the legal arguments against the other by waving the stick of a penal investigation. In the prevailing political and legal atmosphere and judicial climate, given the existence of prosecutors and judges who are wary of being accused of FETO allegiance, there can be no doubt that a civil court of first instance judge, aware of a terrorism trial that has been brought against the suspects for aiding FETO and in which the charges include taking over the foundation that owns the newspaper, will get the required message. I imagine that everyone who is cognisant of the worries and concerns that plague judicial offials today as to whether they may possibly be expelled from the profession and accused of FETO alliegance will acquiesce to the following truth:

In the face of claims by the chief prosecution which is conducting a FETO investigation that the foundation was taken over through the holding of an inquorate meeting and that this constitutes an offence relating to aiding FETO, a civil court of first instance judge cannot easily say, ‘The meeting was quorate and no takeover of the foundation is involved; the meeting and election were conducted as per due procedure.’ The judge, were he or she to rule along these lines, could well fear being accused at any moment of aiding FETO under the guise of judicial activity.

At this point, it will be beneficial here once more to individually mention the names of those members who attended and did not attend the meeting held on 18/02/2014. The names of the six management board members who attended the meeting are:

1- Orhan Erinç

(The year in which he first started to work as a journalist on Cumhuriyet newspaper was 1963. So, he has been a member of Cumhuriyet newspaper for a full 54 years.)

2- Hikmet Çetinkaya

(The year in which he first started to work as a journalist on Cumhuriyet newspaper was 1966. So, he has been on this newspaper for a full unbroken 51 years.)

3- Cüneyt Arcayürek

(His name was synonymous with journalism and later with Cumhuriyet newspaper and he numbered among the fabled names of journalism, and passed away in 2015.)

4- İbrahim Yıldız

(He is a journalist who has worked on the newspaper since 1981 and who served as Cumhuriyet newspaper’s editor-in-chief from 2000 until 2014.) 

5- Mustafa Ali Balbay

(He is a journalist who was on Cumhuriyet newspaper for thirty years from 1986 to 2016 and served at various managerial levels. He is currently a CHP member of parliament for Izmir.)

6- Akın Atalay

(He has filled juristic and managerial posts at Cumhuriyet newspaper for an unbroken 25 years since 1992.)

It is precisely these six people who took over Cumhuriyet Foundation. How and from whom do you say these people, the newest of whom has been on the paper for an unbroken 25 years and the mention of each of whose names conjures up Cumhuriyet newspaper, took over Cumhuriyet newspaper? To answer the question, it is necessary to list the names of the two management board members who resigned immediately prior to the meeting and the three management board members who did not attend the meeting.

The members who resigned:

1- İnan Kıraç

(He is a member of Koç Holding’s board of directors and his institutional and duty-based relationship and connection with Cumhuriyet newspaper started in 2009 as a management board member elected from outside the paper to the Cumhuriyet Foundation.)

2- Nevzat Tüfekçioğlu

(He is a member of the supervisory board of the Koç Foundation and Suna İnan Kıraç Foundation and his relationship and connection with Cumhuriyet newspaper is restricted to his having been a member of Cumhuriyet Foundation management board for two years at the recommendation of İnan Kıraç.)

The three members who did not attend the meeting:

 1- Alev Coşkun

(He first took up a post at Cumhuriyet newspaper in 1992 and continued to perform managerial duties at various levels and serve as a management board member until the end of 2013.)

2- Şevket Tokuş

(He was elected as a management board member following the demise in 2006 of his wife, the late Lale Tokuş, in her place and, given that he is the son-in-law of the paper’s founder Yunus Nadi’s granddaughter, so as to represent the family.)

3- Şükran Soner

(She has been a member of Cumhuriyet newspaper for an unbroken 51 years since 1966.)

The truth that this depiction of the affair reveals is as follows:

There were conflicting votes by the eleven management board members for the person who was to fill the vacant place and, with six of the members voting for Önder Çelik, the preferred candidate of five of them was Mustafa Pamukoğlu.

It is clear that, in the absence of unanimity or the reaching of an understanding over the electee, the person that the majority, i.e. the six people, voted for will be elected. Two of the five members who were in the minority resigned in protest one day prior to the meeting and election, while three opted not to attend the meeting.

Following the passage of two years, two former members who were in the minority, Alev Coşkun and Şevket Tokuş, who had been unable to get their candidate elected in the election conducted by majority vote, turned the matter into a civil dispute and brought it before the courts and alleged that their non-participation had been abused and the meeting was inquorate. This is the heart of the matter.

So, who is Önder Çelik, the candidate six people preferred and voted for to fill the vacated place on the management board? Is this person somebody who is a stranger to the Cumhuriyet newspaper community, having no relation or connection with journalism, and whose thoughts and chemistry do not conform to the paper’s well-established philosophy and publishing line?

Was it, as the prosecution asserts, the electing of Önder Çelik, whom the six people in the majority voted for, and not Mustafa Pamukoğlu, the preference of the five members who were in the minority, that was instrumental in the foundation and newspaper management more or less passing into the hands of FETO/PYD? Was this really so? You can get nobody who knows this newspaper and this newspaper’s make-up and memory to believe this nonsense and this absurd claim. Why? Because, in stark contradistinction to the other candidate Mustafa Pamukoğlu, who joined the paper in the 2000’s from the outside and whose name was known to hardly anybody on the paper until that date, Önder Çelik's past, employment, career and position on the paper has been as follows:

He started work on Cumhuriyet newspaper in 1984 as an administrative supervisor and then continued as operations manager and subsequently as printing and production manager. He has served this paper as an administrator since that date in an unbroken and continuous manner. With no such juristic person as the Cumhuriyet Foundation yet in existence, a company named Yenigün Haber Ajansı Basın ve Yayıncılık AŞ was established in 1992, i.e. 25 years ago, to publish this paper and this company began to publish the paper as of October 1992. They set up this company, established to publish the paper, with eleven people whose names were synonymous with Cumhuriyet newspaper as founding shareholders holding equal stakes with the aim of publishing the paper following a certain line. One of these eleven founders whose names are synonymous with Cumhuriyet newspaper, from İlhan Selçuk to Uğur Mumcu and from Cüneyt Arcayürek to Ali Sirmen and Hikmet Çetinkaya, was Önder Çelik. So, the fact is that, even before the foundation was in existence, Önder Çelik was among the eleven founding and equal shareholders of the company that published the paper. The electing to the foundation management board of a venerable Cumhuriyet newspaper member who has devoted more than half his life to this paper should not give rise to charges against those who voted for him, but, if anything, be deemed to be a correct preference and procedure. My final comments on this matter are as follow:

The first sentence of Article 38 of the Constitution and the imperative provision of Article 2 of the Turkish Penal Code emphasise a universal principle of penal law. What is this? ‘Nobody can be punished for an act that the law does not expressly deem to be a crime.’ So, what then is the act that the prosecution alleges us to have committed? To convene the foundation management board in the absence of the meeting quorum and pass invalid resolutions. Do you wonder what crime the prosecution thinks this act corresponds to? It does not set this out very cogently, or, more to the point, is incapable of doing so, but it says that this act falls within the scope of aiding FETO. That is, we have aided FETO by electing a Cumhuriyet newspaper employee of 33 years standing, a left-winger who has spent his life in revolutionary struggle and at Cumhuriyet newspaper, embracing and practising Cumhuriyet’s basic values and enlightenment, secularism, freedoms and contemporariness. The maker of this accusation is also a prosecutor who himself stands charged of FETO membership. What can I say? This is as absurd as it can get. Deeming it futile to comment any further on this comedy, I bring to a close the legend of Cumhuriyet Foundation being ‘taken over’ through an election.

We come to the second charge ...

We supposedly changed the editorial policy.

Could there possibly be truth in what some people are saying out of enmity, as others are doing in exercise of criticism within the bounds of freedom of expression? Did Cumhuriyet newspaper’s editorial policy change? While greeting contrary assessments and criticism with respect and understanding, I wish to state most forcefully that editorial policy has not changed. Essentially, courts cannot be the place and arena for this debate. I thus protest about the diverting of this matter from its own natural channel and its being dragged into penal proceedings that have been taken as far as detention.

I believe that the majority of those who comment on and criticise Cumhuriyet newspaper’s editorial line and policy in good faith and within the bounds of freedom of expression and the right to criticise will also be disturbed at their own criticism being taken out of context and adduced as evidence for detention and charges. I most certainly know, am aware and accept that a newspaper that informs the public from a certain perspective, reports the news, criticises and publishes thought-provoking articles every day must put up with the harshest of criticism emanating from all quarters. And Cumhuriyet newspaper has put up with the criticism and until today, with one or two exceptions, has not even sued anyone despite encountering a barrage of rhetoric and injustice some of which goes well beyond not only criticism, but foul-mouthing, defamation and aspersion.

Cumhuriyet newspaper’s editorial policy underwent radical change after 2013. This is what the indictment says. Because, in 2013, the candidate named Önder Çelik, and not the candidate named Mustafa Pamukoğlu, was elected as twelfth foundation management board member to the place on the management board made vacant by death, that is why. I have already explained who Önder Çelik is. If so, why the resort to such a hollow lie? Certain parties, drawing on the authority of the public prosecution, investigations and penal courts, are striving to determine Cumhuriyet newspaper’s editorial policy and procure a result from this. Those desirous to learn what Cumhuriyet newspaper’s editorial policy is and is not can refer, not to those commenting glibly on various media platforms, certain self-appointed Cumhuriyet foes or the fabrications of the minds of non-expert people stated to be experts, but to the preamble to the Cumhuriyet Foundation Official Deed. I wish briefly to recall this basic policy that is also to be found on Cumhuriyet newspaper’s website:

‘Cumhuriyet is neither a government nor party newspaper. Cumhuriyet is the defender of nothing but the democracy of the republic in the scientific and broad sense. It will fight every force that tries to overthrow the Republic and the notion and principles of democracy. It will devote its utmost to the cause of establishing a true democracy in all senses in our country. It will endeavour to bring about the unfettering of reason from bigotry and science from religion and the embracing by society of the principle of secularism along the path of enlightenment ushered in by the Republic and Ataturk’s revolutions and principles. Cumhuriyet, which adopts the Declaration of Human Rights and Fundamental Freedoms as the universal constitution of democracy, deems by way of basic principle that its goals may only be attained within the independence and integrity of the Republic of Turkey established by Atatürk.’

Cumhuriyet newspaper still continues to publish within the framework of these principles. The assertion that its editorial policy has changed is untrue.

Looking at the indictment, there is persistent mention of Cumhuriyet newspaper’s editorial policy having changed and having been changed over the last three years. The thrust of the indictment is to prove, not that the reports and articles published in the paper were criminal in nature, but that editorial policy changed. Included are criticisms and assessments penned by certain people about a change in editorial policy. Witness testimony has been obtained. Normally, it would be absurd for prosecutors, courts and the judiciary to concern themselves with whether newspapers have changed their editorial line and policy, how this is supposed to take place, the framework governing reports and articles and whether there has been compliance with editorial principles. Regimes in which this is done are fascist regimes. In democratic societies, it does not fall to prosecutors to assess, measure and set newspapers’ editorial policies and press charges over them, nor are they entitled to do so. Prosecutors may conduct an examination and investigation, not into those newspapers’ editorial policies, but purely into whether newspaper content, reports and articles are criminal in nature. If there is thought to be content that is expressly defined in the law as being criminal, they may conduct an investigation limited to the persons they hold legally responsible for that content. This can be taken no further.

The unjust, misplaced and untruthful claims and criticisms of people the majority of whom are in a relationship of political or personal enmity with Cumhuriyet newspaper cannot be made the basis for a penal investigation. Relying on these people’s assertions that the paper’s editorial policy changed, the ‘crime of a newspaper’s editorial policy being changed’ cannot be invented. By virtue of this invention, all a newspaper’s managers cannot be arrested, detained and punished in an injustice the like of which is rarely encounterable in the world.

This unjust operation targeting Cumhuriyet newspaper has gone down in both the history of the press and the history of the judiciary: In the former as an honourable stance and position in the name of journalism, and in the latter as a shameful investigation. It is said in the expert’s report on which the indictment relies that the newspaper, ‘Suddenly changed its statist, traditional, secular and neo-nationalist line and targeted the state.’ This finding in the expert’s report was also cited as grounds in the detention order. The determining of Cumhuriyet’s editorial line is not a business so trivial that it can be left to the assessment of an individual who describes himself as a ‘Communications and IT expert’ of uncertain competence and expertise. Within Cumhuriyet’s editorial line, ‘the principle of secularism and national integrity’ have always been the paramount lines. Apart from these, ascribed attributes such as ‘statism’ and ‘traditionalism’ are valid for the ascriber alone. We wish to remind those who, in proclaiming that Cumhuriyet newspaper has deviated from the Ataturkist editorial line, act as if they were authorised to define the Ataturkist line and determine its scope, and the prosecution in this context, that there have been those who set about doing the same thing before you. This paper’s leading columnist at the time, Nadir Nadi, told those who were making glib pronouncements on behalf of Ataturkism where to get off by saying ‘I am not Ataturkist’ in response to these excesses.

At this point, I wish to counter the desire to use the judiciary to facilitate interference in editorial policy by saying that editorial policy concerns the readership alone and is accountable to it and the place and arena for this is not the courts. Absolutely no official and authority can interfere in a newspaper’s editorial policy under the guise of a penal investigation. This cannot and will not be permitted.

If there is a price for preserving Cumhuriyet newspaper’s independence, for defending its principles and values, for continuing its editorial policy, for not surrendering the paper to any political or economic power clique and for standing firm without compromising on reporting and journalistic principles – and it is abundantly apparent that there is – we have paid and will pay it.

The assertion that editorial policy has changed and the statement that the law deems this to be a crime neither accords with jurisprudence nor complies with the law. The political line that newspapers adopt, be it liberal or conservative, nationalist or revolutionary, right or left-wing, the editorial policy they follow and whether they subsequently change this policy is not a matter relating to crime and penal law. There is hence no merit in manufacturing an investigation and charges with reference to what Cumhuriyet newspaper’s editorial policy is, whether it has changed and the dynamics and interactive relationship it has with its readership. Everyone who takes stock of this situation will see that there is merely the illusion and impression of an operation and prosecution within legal rules and statute. The fundamental aim and goal is the mass punishment and silencing of a newspaper whose coverage causes discomfort and, by this means, for a salient message to be sent to other journalists.

Now is the turn of the third charge.

Reports and articles that serve the aims of the armed terrorist organisations FETÖ/PDY, PKK/KCK and DHKP/C are alleged to have been published in Cumhuriyet newspaper. With reference in this connection to certain reports, headlines and opinion pieces, the indictment speaks of these constituting the crime of aiding terrorist organisations. It is stated that not only the owners of the articles and those responsible for their publication bear criminal responsibility for these reports or articles, but, along with these, all board of directors’ members of the company that published the paper, those granted second-degree signature authorisation at the company and even the management board members of the foundation that rented the right to the newspaper’s name to the publishing company. Why? Because criminal responsibility is incurred in delivering the instrument by means of which the ‘crime’ was committed (i.e. the paper) to those who committed the ‘crime.’

To the best of my knowledge, this is a first. As a consequence of this chain of responsibility that was not even conceived of in the Inquisition period in the Middle Ages, it is not hard to engage in flights of fantasy that lead to criminal responsibility extending as far as family members who fail to prevent the instrument from being delivered, and not just to newspaper bosses and board of directors’ members.

Out of my respect and love for the institutional traditions and values of Cumhuriyet newspaper and the principle of editorial independence that is this paper’s ingrained culture, I deem that it does not behove me and would exceed my authority to comment on the reports or articles at issue in the charges.

The charge of employment-related abuse of trust:

It is alleged that the offence described in the second paragraph of Article 155 of the Turkish Penal Code was committed four times. I must note at the outset that punishment is sought for the crime of aiding a terrorist organisation. So as to engineer an altered perception among the public, they have also watered down the investigation and indictment and brought up an accusation of this nature. However, trials into this offence do not fall to the jurisdiction of serious crime courts competent to hear terrorism charges or even to normal serious crime courts. Charges over a crime that penal courts of first instance will hear have been included in this investigation and trial with a view to discrediting us in the public eye.

Charges are pressed for employment-related abuse of trust over four transactions that were or were not conducted within the setting of the board of directors of, in two cases, the juristic person of the Cumhuriyet Foundation and, in two others, Yenigün Haber Ajansı AŞ that publishes Cumhuriyet newspaper. While pressing charges and bringing prosecution for aiding terrorist organisations by publishing reports and articles that serve the aims of the FETO-PKK-DHKP/C terrorist organisations, the inclusion within a prosecution for terrorist offences of inconsistent and unrelated allegations along the lines of us as the company’s board of directors having neglected to convene a general meeting or having made a loss of ten lira by selling an immovable property at ninety lira instead of a hundred bears witness to how unbalanced and frivolous an investigation stage this case has passed through.

The first of the acts to give rise to charges was the failure of Yenigün Haber Ajansı AŞ board of directors’ members to fulfil the obligation to convene a company general meeting. It is laid down in Article 376 of the Turkish Commercial Code that, should it be ascertained from the company’s most recent annual balance sheet that half or two-thirds of the sum of the capital and statutory reserves are uncovered due to loss, the board of directors must convene a general meeting. Additionally, should there be signs that the company has become insolvent, it stipulates that an intermediate balance sheet must be drawn up and certain procedures conducted as circumstances dictate. Let us not go into any greater technical detail here. I will suffice by saying that Yenigün Haber Ajansı AŞ which publishes Cumhuriyet newspaper is not an insolvent company. Apart from a reasonable level of debt to its controlling and preferential shareholder, the Cumhuriyet Foundation, it owes no debt to either the state or the public sector or third parties. In fact, the continuation of its commercial activities in denial of unjust and ill-motivated findings in the General Directorate of Foundations inspector’s report and despite the pressure that has been brought to bear on dozens of occasions provides the clearest indication and proof that it is not insolvent.

That the company has constantly made a loss since 2013 and the loss has grown and the necessary commercial measures have not been taken is another untruthful claim that has been transferred from the inspectorship report into the indictment. Even though this bears not even the slightest connection or relation to the crime in Article 155/2 of the Turkish Penal code, let us still make the point. The year in which this company was established was 1992. I am in possession of the 25 annual financial statements and corporation tax statements it submitted to the ministry of finance from that date until now. I will furnish you with them all. Let them enter the file. We have no shortcomings or deficiencies to be hidden, concealed or feared. On examination of these statements you will see the following. The company that publishes Cumhuriyet newspaper made a miniscule amount of profit of between 2,000 and 30,000 lira in the first six years after 1982, i.e. until 1998, and always broke even in commercial terms. Conversely, in the 18 years stretching from 1999 until now, with the exception of four years, it made a loss in the remaining 14 years. With the loss incurred in 1999 alone, the company came into a position in which it had lost, not simply more than half of its capital as laid down in Article 376 of the Turkish Commercial Code, but all of it. The same situation continued in the following years. I will tell you the amount of profit or loss each year and you will easily understand. Losses of 272.000 lira in 1999, 794,000 lira in 2000, 29,000 lira in 2001, 3,494,000 lira in 2002, 9,086,000 lira in 2003 and 2,639,000 lira in 2004 were made and there was a profit of 102,000 lira in 2005 and a loss once more of 243,000 lira in 2006.

Let me stop here and provide the running total. As of the end of 2006, the total accumulated loss had exceeded 16 million lira! In 2007 and 2008, the company made a profit of 1,368,000 lira and 1,260,000 lira respectively. The newspaper’s daily average sales in these two years was in the 70-80,000 range. In the preceding years, this sales (circulation) figure was in the daily range of 40-60,000. At the end of 2008 and the beginning of 2009, an operation was undertaken to besmirch the paper’s identity and good name by including Cumhuriyet newspaper’s Ankara representative in the Ergenekon investigations following its publisher İlhan Selçuk. As a result of this, the paper’s daily sales once again fell to trend in the region of 50,000. The paper, losing 477,000 lira in 2009, made a profit of 80,000 lira in 2010.

Following this, the financial crisis that was experienced in the newspaper sector both in our country and globally also certainly affected Cumhuriyet. Students of the sector to any degree know in any case that many newspapers and many businesses either folded or closed. Those who are curious can access plenty of information in a brief search on the internet. I will continue to impart the figures from the point at which I broke off. Let this enter the public domain, too, and be common knowledge. Losses of 895,000 lira in 2011, 1,080,000 lira in 2012, 919,000 lira in 2013, 2,336,000 lira in 2014 and 1,727,000 lira in 2015 were made. However, the management that is alleged to have taken no steps of any kind in the face of the ever-growing loss, to have augmented the loss and to have made the paper insolvent in fact made a profit of 326,000 lira in the 2016 operating period. Coming as a masterful sharp blow to the dark propaganda asserting otherwise, to those witting and unwitting imparters of disinformation out of their personal grudges against the paper and their malice and hostility and to the claims of the inspectorate and prosecution, one of the three years in which the company made a serious profit in its 25-year past was last year, i.e. 2016. Moreover, this profit was achieved in spite of the economic woes caused by the 15 July coup attempt, increases in exchange rates and the politically inspired economic embargo applied to those who place adverts in Cumhuriyet newspaper.

I address this comment to those who know the newspaper sector. The total accumulated loss over Cumhuriyet’s 25-year operating period equates to no more than the annual losses of most of the newspapers in the pool media, a name known to all, that publishes with the support of and commercial means furnished by the political rulership. Despite all the efforts of the political rulership and, subsequently, certain zealots who cast themselves in the role of supposed Cumhuriyet lovers, Cumhuriyet newspaper and the company that publishes it has succeeded in staying afloat. It has still proved unsinkable despite its entire management being in detention for nine months.

I believe that for as long as its readership and friends stand by it, Cumhuriyet will remain firmly on its feet and will continue to impart the truth to the people. It is as clear as the light of day that this charge, the would-be creation of the mentality of an inspector at the General Directorate of Foundations that tries to make a crime under Article 155 of the Turkish Penal Code out of the obligation to convene a general meeting under Article 376 of the Turkish Commercial Code which the prosecution has unquestioningly and undoubtingly placed in the indictment, is unfounded, unsupported and unjust. I reject it.

As per the General Directorate of Foundations inspection report, we are accused of breaching Article 155 of the Turkish Penal Code through the transaction in which an unsecured loan was provided from the foundation to an insolvent company and the expending of foundation resources in the absence of consideration despite the foundation management board resolution of 4 June 2015. Let us first look at who these funds were transferred from the foundation to. To Yenigün Haber AŞ, which publishes Cumhuriyet newspaper and has the status of the foundation’s sole preferential shareholder, i.e. to Cumhuriyet newspaper. So, what size of funds were transferred on what dates? One million lira in 2012, 1.3 million lira in 2013, 1,275,000 lira in 2014, 90,000 lira in 2015 and 2.5 million lira in 2016. A total of 6.2 million lira. Of this, 3.6 million was transferred to fund the paper before June 2015 to which the inspector refers, and 2.6 million on later dates. The 2.5 million lira that were transferred from the foundation to the newspaper in 2016 were used in their entirety to eliminate the newspaper’s paper and printing works debts that had accumulated and were unpaid despite having fallen due. The newspaper thus had no remaining outstanding debt and was spared the burden of additional interest. Well, did the Cumhuriyet Foundation management make a mistake, fail to act as a prudent manager and make disposition outside the foundation’s objectives in making foundation resources available to Cumhuriyet newspaper, which was in strained economic circumstances? Did it, as set out in Article 155 of the Turkish Penal Code, make use of funds that had been entrusted to it so as to be used in a certain manner outside the purpose for which they had been entrusted?

The definitive answer to this question can be found from analysis of the preamble to the Foundation Official Deed in conjunction with Article 3 with the heading ‘Objectives of the Foundation’ and subparagraph (ı) of Article 12 with the heading ‘Duties and Powers of the Management Board’ thereof. It will be seen that the Foundation indeed has the duty to secure the survival of and support Cumhuriyet newspaper. Subparagraph (ı) of Article 12 of the official deed reads as follows:

‘When deemed necessary, the realisation through sale or other means of movable and immovable property in the foundation’s possession or its being exchanged for other property, provided the necessary legal terms are observed for carrying out activities that accord with the foundation’s objectives.’

In line with this imperative and founding intent, there could be no activity more natural and compliant with objectives than the transferring of funds to Cumhuriyet newspaper in keeping with the foundation’s sole objective.

When the General Directorate of Foundations inspectors raised this matter in the course of inspection and inquired about it to the foundation management, we replied as follows:

‘In assessing the business, transactions and activities of the Cumhuriyet Foundation, account must be taken of the objective for which the foundation was established and the function, objective and structural wholeness of a mutually complementary and inseparable nature between the foundation and the newspaper and the company that publishes the newspaper. Stated in the ‘Preamble’ section of the Cumhuriyet Foundation Official Deed is, “In the first edition of Cumhuriyet newspaper published in May 1924, its editorial principles were set out with founder Yunus Nadi’s pen. (...) Securing the continuation in the same orbit of Cumhuriyet, whose identity, principles and aims have become established and have taken root in society over this long time, has assumed the nature of a duty (...). Cumhuriyet Foundation has been established to fulfil this purpose.”

It has also been stipulated expressly and precisely in Article three with the heading “Objectives of the Foundation” that, “The objective of the foundation is to support (...) Cumhuriyet newspaper.” As such, the bounds, scope and nature of the founding objectives, activities, business and transactions of the Cumhuriyet Foundation are clear-cut to the extent of dispelling all doubt. The reason for this foundation’s existence is to support with all of its means and strength the continued publication of Cumhuriyet newspaper. The integration, dependence, organic and structural unity and togetherness of purpose between Cumhuriyet Foundation and the publishing company Yenigün A.Ş clearly point to both entities’ mutual interests. Business and transactions between these two entities must be assessed in these terms.’

Punishment is also sought pursuant to Article 155/2 of the Turkish Penal Code for the act of causing loss to the foundation with it alleged that a loss of at least 100,000 lira and at most 933,333 lira ensued from the sale for a price of 2,400,000 lira on 17 December 2015 of Cumhuriyet Foundation’s immovable property located in Istanbul Şişli. We encounter one of the most blatant examples of the dire situation one can end up in from an inspection and investigation that focuses, not on the law and objectivity, but on enmity and establishing guilt come what may.

The Cumhuriyet Foundation resolves to sell an immovable property. Is it empowered to do so? Undoubtedly yes. Does it have to obtain permission from anybody? No. What does it need to do? An objective reasonably equivalent value appraisal. Well, did it do this? Yes. Did it commission a trustworthy, capable, competent and licensed body with registered expertise in the field to appraise the reasonably equivalent value of the immovable property it was going to sell? Yes. Well, who did it commission the appraisal of the reasonably equivalent value from? From Vakıf Gayrimenkul Değerleme AŞ. This valuation company, which is one of the oldest, best established, most trustworthy and expert bodies in the immovable property appraisal sector, is a body that is affiliated to Vakıfbank AŞ of which the General Directorate of Foundations is the owner. The majority of foundations established in Turkey, even if this is not mandatory, commission their appraisal work from this valuation company that is affiliated to the same general directorate to avoid giving rise to any later impropriety or trouble. The Cumhuriyet Foundation followed suit. But, when ill will prevails, look at the result to ensue. The General Directorate of Foundations Inspection Board inspectors attached no credence to the valuation report provided by the body that is licensed and authorised for this business of which its own institution is the owner, and commissioned a fresh report from certain institution employees who are neither licensed nor possess expertise. Have you really lost your grip on reality to this extent? The General Directorate of Foundations inspector who is investigating whether the immovable property was sold at reasonably equivalent value attaches no credence to the valuation report into the matter provided by its own institution’s body that is licensed and authorised for this business, and, attaching credence to the opinion of natural person who have neither licences, expertise nor competence, endeavours to create accusations and charges out of this. Once again, this takes the cake!

About one month later, on 16/12/2015, we sold Yenigün Haber Ajansı AŞ’s immovable property in Ankara province Çankaya sub-province for the price of 2,900,000 lira as against the appraised value of 2,500,000 lira in the valuation conducted on 19/11/2015. The purchasing company for its part sold the same immovable property for the price of 3,563,600 lira some three months after this sale. According to the inspectorate and the indictment based on the report it drafted, the difference in price at which the company that bought the immovable property sold it three months later was deemed to be the company’s loss. The making of an accusation based on such logic, the raising of such an inference and the endeavour to create a crime out of this turns the makers of such claims into the objects of ridicule. Cumhuriyet newspaper made a loan instalment payment every month for a period of five years until the end of 2015 for this immovable property that it acquired with a bank mortgage in 2010. Having repaid the loan, it had the mortgage in favour of the bank established over the immovable property deregistered and transferred the self-same property to Doğan Dış Tic. AŞ, the transferee of the property, for the purpose of paying a portion of its accumulated newspaper paper debt. It once more had the immovable property appraised by Vakıf Gayrimenkul Değerleme AŞ and the sale transaction was conducted at a price 400,000 lira above the appraised value as per the agreement reached with the purchasing company. The price of this sale was, as said, offset against the newspaper paper debt to the purchaser. A copy of the invoice raised by the purchasing company in respect of this particular immovable property sale is on page ten of binder 18. On examination, it will be apparent that VAT did not arise and so the benefit secured for the company from the sale of the immovable property was 2,900,000 lira net. For its part, Doğan Dış Tic. AŞ, which bought the immovable property for 2,900,000 against amounts due to it, sold this property to the third party of Alter Limited Company on 25.3.2016 for 3,563,600 lira, as stated in the indictment. But, one particular detail has not been included in the indictment. Of course, in the inspectorate report, to the inspectors’ question of how much Alter Limited Company bought the said immovable property for, they obtained the reply that they had bought it for the net sale price of 3,020,000 lira plus VAT at 18% of 543,600 totalling 3,563,600 lira. That is, after deduction of the payable VAT, 3,020,000 lira net remains in the hands of the vendor Doğan Dış Ticaret AŞ following this sale. Because three months later they disposed of the immovable property for the net sale price of 3,020,000 lira that they bought from us paying 2,900,000 lira net, i.e. sold it three months later for a price 120,000 lira higher, we are deemed to have caused loss to the company and committed the crime of abuse of trust. Were I to go into detail, I would need to explain that Doğan Dış Ticaret AŞ would additionally pay tax on the amount of profit derived from the property sale in respect of its profit from the 120,000 lira price difference three months later, while we had no tax liability thanks to having held it for five years and selling after five years, and many other needless pieces of information.

I finally wish to say the following on this point: 

First, foundations are not commercial companies. The object of their activities, in contradistinction to commercial companies, is not profitability, but to accomplish the bequeather’s wishes as set out in the official deed. The bequeather of the Cumhuriyet Foundation has laid down in an express manner in the official deed that the sole objective of his bequest and the foundation he had established was to secure the survival of Cumhuriyet newspaper and to support it. Thus, foundations managers can be judged in terms, not of activity aimed at profit-loss in a commercial sense, but of activity aimed at the objectives of the foundation. It will be useful to recall that foundations have property assigned to them not for commercial activity but for a certain objective (and this objective is stated to be to support Cumhuriyet newspaper). However much it would appear that the foundations inspectorate and prosecution think differently, our thoughts and evaluations concerning our journalistic activity are as follow:

Just as in justice, judicial, health and educational activities, the prior and defining function and aim of journalistic activity is not to make a profit or to provide commercial earnings for proprietors or shareholders. The prior aim of journalistic activity is the public good. As such, journalism, as much as and before it is a free commercial activity, is a public service of a nature that is indispensable for a democratic society. Just like those who bequeathed this valuable brand without seeing Cumhuriyet newspaper as a profit-oriented commercial activity, the newspaper managers who followed them approach journalistic activity from this viewpoint. It has and will be seen that, when journalism is conducted for profit and as a profit-oriented activity, this comes at the price of relinquishing the news and truth and the loss of the purpose and meaning of journalism, and it is democracy and the people itself that are the losers.

III. The experts

Normally people go to the doctor, not a lawyer, when they have a temperature or a headache. Likewise, you go to the pharmacy, not the greengrocer’s, to get medicine. Application is sometimes made to experts in legal disputes. As is stated in Article 63 of the Code of Penal Procedure, in situations whose resolution calls for expertise or special or technical knowledge, it is possible for an expert to be appointed. For example, application is made to a civil engineer or academic working in the field as an expert regarding whether there was a fabrication error and the materials were inadequate in a collapsing building. What is both sensible and logical and also complies with the law is for the expert to have expertise, capability and competence in whatever matter they are consulted for their opinion on. However, for some reason, when an investigation into Cumhuriyet newspaper is involved, to put it crudely everyone’s circuits burn out and an exercise in futility replaces reason, logic and the law. There is a flagrant breach of Articles 62 et sequentes of the Code of Penal Procedure governing the appointment of experts. This is not a situation we encounter in the sphere of the penal investigation alone. We run into the same irrational mindset in the examinations and inspections conducted by administrative institutions. For example, the Foundations Regional Directorate appoints an archaeologist from its own institution as an investigating expert into the dispute over the meeting quorum in accordance with the foundation deed and the provisions of the Civil Code and Foundations Law for the meetings held by the Cumhuriyet Foundation and the resolutions it adopted. When Cumhuriyet newspaper is involved, an institution having dozens of jurists and inspectors for some reason keeps on appointing the same person, somebody whose profession and specialism is archaeology, as investigator.

But, our present concern is these proceedings. I thus wish to size up the two expert examinations and reports that the prosecutors commissioned at the investigation stage. One of these is the examination commissioned from the expert named Ünal Aldemir. Who is this expert and what was the matter on which he was consulted? Reference to the expert appointment record provides no information as to the matter over which he was appointed. We gather from the report the expert compiled on 24 October 2016 and the undated report he submitted later that the expert indicates himself to be a ‘communications and IT expert.’ Well, is this really so? Is this information correct? It is uncertain. Should your court concur, I wish him to be summoned to the hearing for account to be given in accordance with Article 68 of the Code of Penal Procedure.

I believe that light will be shed on the matter through the questions that we will ask him. Whatever is in the expert’s report, which contains the accusations constituting the basis for these proceedings, the reports and articles relied on in the charges, and interpretations, analysis and criticism that have been lifted from other media sites and cited as evidence for the charges, has been transferred verbatim into the indictment. The basis and foundation of the indictment, the source of the allegations and all the related reports and articles have been taken from this expert’s report. It is laid down in Article 64 with the heading, ‘Those who may be appointed as experts’ of the Code of Penal Procedure that experts must be nominated from the list compiled by judiciary justice commissions, but experts may also be nominated from among those not included on the list with the reason for the appointment cited in the decision. The name of Ünal Aldemir, whom the prosecution appointed and who describes himself as a ‘communications and IT expert’ beneath the report, is not on lists of experts circulated by the judiciary justice commission. As such, pursuant to the statutory provision, he had to be appointed from outside the list with the reason cited. I looked at the annexes to the file, and in binder number 30 there is an ‘Expert Swearing-in and Document Delivery Record’ dated 14.10.2016 undersigned by Republic prosecutor Murat İnam, chief clerk Sevgi Karadeniz and expert Ünal Aldemir. On reading the three-line record, you see that there is absolutely no mention of the statutorily required reason. However, the statute states that the reason must be cited if the expert is nominated from outside the list. If you look at the record, there is not a single word, even by implication, as to the reason. In truth, I am curious about this talented Mr Ünal Aldemir who drew up a report with this level of detail in the very short time of ten days. My curiosity was enhanced even more as I read the report. I wondered where the prosecutor found this person and who guided him in his direction. I am deprived of the opportunity to investigate because I am in detention. So, I passed on requests to my friends and lawyers. I said, ‘Who is this expert? Who is he in relation to others? What’s his line? Would you make a simple search of public domain sources on the internet?’ The results I got hold of were that this individual, i.e. our expert Ünal Aldemir, studied between the years of 2007-2011 at and graduated from the Computer Engineering department at Gebze Higher Institute of Technology’s Engineering Faculty. That is, he is a young computer engineer friend. I wonder if the appointing in an investigation that is proceeding under close domestic and international public scrutiny and attention of a computer engineer aged around 26-28 to read reports and articles in the country’s oldest and most venerable newspaper and analyse where journalism and news reporting stands in relation to penal law, crimes and terrorist propaganda also appears dubious and odd to you. What knowledge, ability and expertise, unknown to us – and I imagine to the court, informed the appointment of this computer engineer to such a demanding task?

Also, according to information that can be viewed first hand in the public domain, he became a contributor to the news site with the URL www.haber10.com in 2012. He has experience of voluntary work at such public bodies as the Prime-Ministry Disaster and Emergency Management Authority and the Turkish Cooperation and Coordination Agency, and at the Foundation for Political, Economic and Social Research, known for its closeness to the political rulership. He apparently holds the post of lecturer at the Recep Tayyip Erdoğan University’s Ardeşen Higher Vocational School. I imagine that if I quote three example tweets from the expert’s Twitter account, this will enable an idea to be formed. Our expert posted on 17 May 2017, ‘The chief’s bodyguards make mincemeat of PKK terrorists in the heart of America and the world becomes a better place.’ On 4 June 2017, he posted photographs of a visit to the family of one who died for the country by AKP Istanbul Provincial Chair Selim Temurci. On 5 June 2017, he posted a photograph of President Erdoğan along with the text, ‘The chief has once again taken a deep look.’ Informed by these facts, I do not imagine it would be very hard to form an idea of how impartially the expert will have acted in an investigation targeting Cumhuriyet newspaper. I have referred to his profession and education a little earlier. I now turn to the expert’s report that this expert compiled and completed in ten days.

He states the following at the beginning of the report:

“(...) I have been appointed as expert. The report I have compiled on the basis of sources in the public domain and newspaper archives follows. Manipulation is a means for foisting ideas. Manipulation is also a method for influencing and guiding people and confusing their minds.’ (p.1)

The expert, who defines manipulation as a method for influencing and guiding people and confusing their minds and concludes that Cumhuriyet newspaper veils the truth through manipulation (see p.2, para. 4), himself makes recourse to manipulation in the report and veils the truth. At this stage, I will not embark on the endeavour to demolish every line of the report that bears the signature of somebody who quite clearly lacks expertise and knowledge and does not possess the competence to be an expert. However, I wish to give one example showing how flawed this expert’s report is and that the truth has been veiled for the purpose of deceiving the court. The following statements and findings are included on pages 12-13 of the report under the sub-heading ‘Cumhuriyet newspaper: The witch-hunt begins’:

‘The citizens who embarked on a democracy watch in opposition to the bloody coup attempt and displayed their reaction in the open spaces to every illegal endeavour, on the other hand, were targeted in Cumhuriyet newspaper’s headline of 19 July 2016. With even the world press greeting the peaceful protests being held in the spirit of a “feast of democracy” with appreciation, the sub-heading “Nobody is speaking of democracy in the open spaces” was used in the Cumhuriyet newspaper report. As to the state’s legal battle against the coupists, the attempt was observed to water this down. The newspaper engaged in perception management in which it described anti-coup demonstrations as “hate” and the removal and expulsion of those linked to FETO from their posts as “purges”.’

Pasted immediately beneath these lines is an image of the paper’s front page that day with the headline, ‘The witch-hunt begins.’ I will be frank: it escaped my attention on my first reading of the report. But, all of a sudden, I noticed it with horror. In the report, the expert had himself engaged in the manipulation, veiling of the truth and perception management that he had imputed to Cumhuriyet newspaper. On making comparison with the images of the paper’s front page on various dates, it became apparent that something was missing on the front page dated 19 July 2016 on which the headline ‘The witch-hunt begins’ appears. Cumhuriyet newspaper’s masthead was absent from the front page whose image is displayed. At this, I looked at the original image of the paper’s front page dated 19 July 2016. It is on page 98 of the 102-page ‘Public domain sources record’ dated 3/11/2016 in binder number 29. Placing the full image of the front page here alongside the image of the front page reproduced in the expert’s report most clearly reveals the truth that it was wished to conceal and the perception management that it was wished to conduct. It is clearly visible from the original image of the front page that the headline of the lead news is, ‘The coupists’ treasonous talk’ along with the reefer, ‘They started by saying shoot at the people and finished by saying let’s flee,’ the off-lead headline in the centre of the page is, ‘The witch-hunt begins,’ and the headline of the third story is ‘Coupists at the judicial complex’ with the reefer, ‘The chain of command in the coup attempt gives account to the judiciary.’

However, the expert, who accuses Cumhuriyet newspaper of engaging in manipulation, veiling the truth and conducting perception management, cuts the top and bottom from the original front page and only takes the portion of the page that serves his ends into his report so as to conceal and veil Cumhuriyet’s headlines about the coupists and conduct perception management. On reading the 36-page expert’s report, it will be seen that this report is the basis for the indictment. This means that the basis for the arrest of sixteen managers of the country’s oldest, most respected and venerable newspaper that has caused uproar in the world, and the source of charges that has led to ten of them spending nine months in detention, is a computer engineer aged around 26-28 whose abilities and identity have been mentioned a little earlier. This is not a joke. The extent to which a judicial system has gone crazy and a country has lost its mind!

I will also speak of yet another expert’s report. Alongside the expert’s report I am now turning to, I have to concede that by comparison Ünal Aldemir's report that I described above merits consideration as a paragon. I saw another expert’s report on page 77 of binder number three while examining our file’s annexes.

The expert’s report of 20 December 2016 introduced an innovation that I think has found application for the first time in our law. The expert was secret. This is the first time I have encountered an examination and report by an expert whose identity was kept secret. The prosecution that was conducting the operation must have felt the need for a ‘secret expert’ scheme in the wake of the ‘secret witness’ scheme such that it went about implementing it in practice with a ‘fait accompli’ logic and no need for a statutory basis and fresh statutory provision. We had it coming to us! What is stated and what kind of findings and expert opinion are contained in this report bearing the date of 20 December 2016 and, while speaking of an expert, not including his or her forename, surname, expertise, profession or absolutely any other information and just bearing an indeterminate signature?

Stated in the introduction to the report is, ‘A decision was made for expert examination of the file number 2016/97293 investigation of your Republic Chief Prosecution and I was appointed ex officio as expert under the expert appointment record of 2/11/2016.’ Let me note before I forget that I have been unable to find this expert appointment record of 02/11/2016 among the annexes to the file. If it is absent, I request that the prosecution be asked why this record was not placed in the file and that a copy be asked for, because the presence in the file of all components of this expert’s report that, as will be pointed out presently, is an incomparable masterpiece in its own field will be most beneficial in terms of serving as a deterrent to others.

The introduction to the report continues with the following comments:

‘The “Preliminary Expert’s Report” concerning our examination conducted into the two FCIB reports dated 18/10/2016 and 24/08/2016 and the two CDs annexed thereto in which account movements pertaining to the examinations made by the FCIB are contained that were entrusted to me has been submitted in attachment to our letter. (...) Should the needed information and documents about individuals and entities a breakdown of which is given in the “CONCLUSION” section of our report be obtained from the institutions and bodies also stated in the “CONCLUSION” section of our report and entrusted to me, it is deemed that a detailed expert’s report can be drawn up.’

An expert’s report totalling 28 pages is annexed to the report’s introductory page. I wish to quote certain sections of this report. This will make it far clearer whether it is warranted to ascribe such attributes as meritlessness, frivolousness and worthlessness to this investigation that directly targets the newspaper through the person of Cumhuriyet newspaper’s managers. A finding made on page 2 of the report is as follows:

‘3-As no information was encountered concerning the shareholders of Cumhuriyet Newspaper AŞ at which Hikmet Aslan Çetinkaya worked between the years of 1967-1991, it is deemed necessary to determine who the shareholders in question were and examine whether there were people among them who were connected and/or adjunctive to terrorist organisations.’

Another finding is as follows:

 ‘It is deemed that money was sent by transfer/EFT from bank accounts by Akın Atalay (...) and there is a need for the monetary relations between the founder and administrators of the Penal Law Association and the reasons for them to be established.’ (p. 15 of the report)

The report even says, ‘The sending by Ezgi Çelik by transfer or EFT of double the total of the transfer/EFT that Önder Çelik sent to his daughter Ezgi Çelik requires explanation and must be investigated.’ (p.17) It is said how come a daughter can send her father more money within a father – daughter relationship and this needs explaining? Come again?

In the concluding section, the information and documents are listed for the prosecution that need to be requested from various institutions and bodies concerning the twelve suspects. There is no end to it. Let us take a slightly closer look at what kind of information and documents are requested and from which institutions concerning the twelve suspects.

The unknown expert says:

These twelve people’s

a) bank account movements of closed and currently open bank accounts from the past until today,

b) credit card statements, including open and closed cards,

c) rented safes,

d) presented or unpresented cheques issued until today and cheques given to these people,

e) promissory notes these people have obtained and made, and

f) Western Union transactions

must be requested in writing from Banks Association members (investment, participation and deposit banks).

Additionally, these people’s foreign transfer, EFT and Western Union transactions must be requested from the Central Bank.

Likewise, these twelve suspects’ account information, account movements, all information resting with the institution and all manner of insurance transactions must be requested from the postal authority, Central Registry Agency, Settlement and Custody Bank, Turkish Brokerage Association and the Insurance Association of Turkey.

Information showing in detail the immovable properties of which these named suspects are the former and new owners within the borders of Turkey, all their former and new owners and the prices at which the immovable properties were acquired must be requested from the General Directorate of Land Registry.

This is still not enough!

These suspects’ civil registry extracts showing events must be procured and their family members identified and the self-same information and documents mentioned above must be requested for each person’s family members.

Yes, these are the opinions of the ‘unknown expert’ in his or her report as to the matters that must be determined and investigated. As can readily be grasped, this is not an investigation into a crime. It is research and investigation in the most detailed manner into the lives starting from their births of the twelve people they are fixated on, covering their entire family. Had it stopped at this, I would have wished good health to the author of such a report and brought the matter to an end. But, the joke has been taken seriously because the investigating prosecutor has set about doing precisely whatever this ‘unknown expert’ whose identity he has concealed recommends in his report. He has drafted writs to the institutions mentioned and asked for the requested information and documents to be furnished. And also, just as the expert said, he has procured the twelve people’s civil registry extracts showing events and has added these twelve people’s mothers, fathers, brothers, sisters, children and grandchildren alongside them. He has requested the same research, information and documents for them, too. There was no holding him back and he has called for these suspects’ former spouses to be investigated in the same way. There are other examples, but I will make do with citing one because it is egregious. One of the suspects’ first former wife whom he divorced 44 years ago and his second wife whom he divorced 26 years ago have also been included within the research and investigation. Is this not enough to justify us saying ‘this is the limit?’ Can the situation we are encountering be shrugged off saying ‘There has been a slip up?’ Let us make a running total. What picture emerges?

Crime: Aiding FETO

Accused: Cumhuriyet newspaper

Accuser: A person who, while legally incapable of being a candidate prosecutor, is still serving as a prosecutor and is being prosecuted with an aggravated life sentence sought for FETO membership and overthrowing the government on behalf of FETO.

Witnesses: Cem Küçük, Latif Erdoğan, Hüseyin Gülerce...

The experts are the people I have spoken of a little earlier. And we have been detained for nine months because of an investigation conducted at this level of merit and worth. I am lost for words about such a state of affairs and its explanation. At best, I can repeat my answer before the Penal Judgship of the Peace where I was brought with an application seeking detention. I said that I wanted to tell a story while contemplating the accuser, accusation, adduced evidence, witnesses and experts, and the relevant party would be able to draw the requisite moral from this. The place and time has come and I need to tell it again:

At the time of Sultan Murat IV, there was a dervish named Bekri Mustafa who was famed for his drunkenness. Bekri Mustafa, who was forever drinking wine and was under the constant influence of alcohol, was passing before a mosque one day. At that moment, there were mortal remains awaiting a funeral at the mosque. Although the congregation had been waiting for a long time, the mosque imam was nowhere to be seen. Some of the congregation, seeing Bekri Mustafa passing along the road and noticing his attire, beard, gown and grandeur, say, ‘Scholarly gentleman, please do us the goodness of performing funeral prayers and let us not leave the mortal remains in the open.’ Even if Bekri Mustafa says, ‘I am not a religious scholar or such, any funeral prayer I perform will not be valid,’ he cannot make himself heard and convince anyone and he is dragged before the stone bier. Having performed prayers and finished the business, Bekri Mustafa bends down to the coffin and mumbles something that nobody can hear. One member of the congregation, his curiosity piqued by this event, later asks Bekri Mustafa, ‘Scholarly gentleman, what did you whisper beside the coffin?’ Bekri Mustafa replies, ‘I told the deceased that he was now going into the next world and they would ask him there about the state of the world and what is going on. I said there was no need to go on at length. If you told them that Bekri Mustafa had become an imam and was holding funerals, they would understand!’ And I say to those inquiring after the state of the law and judiciary in our country that Cumhuriyet newspaper is accused of aiding FETO and all its managers are in detention on this charge. Everyone who has retained their mental health will immediately understand.

IV. The FCIB Reports – Suspicious money movements

On the FCIB Reports:

The following pronouncement with reference to the Cumhuriyet Foundation was made on page 12 of the FCIB financial analysis report of 18/10/2016:

‘(...) out of the search conducted of the FCIB database, from among the people and entities in question, absolutely none of the named people or entities were encountered in analysis reports into the PKK/KCK and FETO/PDY compiled by our department and in correspondence sent to our department by various institutions regarding the PKK/KCK and FETO/PDY.’

Nine transactions from among the results of financial analyses obtained with regard to Yenigün Haber Ajansı A.Ş. are included on pages 239-240 of the indictment as suspicious money movements. We will respond one by one to the allegations in the indictment about money movements between people regarded as suspects in investigations, eight of them into FETO/PDY and one of them into the PKK. However, prior to this, I wish to emphatically point out that the prosecution, which has incorporated what it describes as suspicious ‘money movements’ from the FCIB report into the indictment, ignores and overlooks the final assessment made in the FCIB report. On pages 9-11 of the FCIB report, having listed these nine transactions in detail, the following is set forth by way of final assessment:

‘When it is borne in mind that the total transaction volume in the transfer and EFT data obtained from the results of the search made into Revenue Administration and Republic of Turkey Central Bank data relating to the company under analysis [Yeni Gün AŞ – AA] amounts to some 230 million lira excluding transactions performed between the company’s own accounts, the volume of the monetary transactions conducted with people and entities whose names are directly mentioned in analysis reports into the PKK/KCK and FETO/PDY whose details are set out above and which have been compiled by our department or in correspondence sent to our department by various institutions regarding the PKK/KCK and FETO/PDY appears to constitute a fairly small proportion of the total transactions.’

The FCIB says the monetary value of the total volume of the newspaper’s transactions between the years of 2011-2016 was 230 million lira. By contrast, the monetary value of the nine transactions made over these six years with people recorded as having the status of suspects in relation to FETO/PDY is 174,000 lira. That is, this is not even one thousandth of the volume of the newspaper’s total monetary transactions.

This being so, let me answer them one by one:

1- Payments totalling 51,193.67 lira were made in three transactions between the years of 2014-2016 to Cihan Haber Ajansı ve Reklamcılık AŞ, said to be a FETO/PYD-related company. Well, is this true? Yes, it is true. In 2015 two general parliamentary elections were held in Turkey in 2015, one on 7 June and the other on 1 November. There are only two news agencies that have the capacity and capability to monitor the results by polling station of general elections held in Turkey and to convey the data so gathered to their subscribers or customers. One of these is the Anadolu Agency, and the other the Cihan News Agency. Almost all serious media organs, TV stations, newspapers and news sites in our country, to avoid the risk of remaining dependent on a single news source and to provide a comparative presentation of data coming from both agencies to their readers and viewers, purchase this service from both the Anadolu Agency and Cihan News Agency on election nights. Our paper purchased this service, too, and paid the price for the service. Put differently, the price was paid for service procurement contracts made in respect of the two general elections in 2015 and no other commercial relationship came into play with the said company. Should doubt be felt and the need be perceived by the court, it will be beneficial for a letter to be written to such media entities as Kanal D, CNN Türk, Habertürk, Show TV, Star TV, Fox TV, Hürriyet Gazetecilik A.Ş, Milliyet Newspaper, Habertürk Newspaper and NTV television at the very least and to inquire whether they purchased service from Cihan Haber Ajansı ve Reklamcılık AŞ in the parliamentary elections in June 2015 and November 2015 and, if so, to request a copy of the invoice and information as to payment made.

2- We reputedly acquired advertising income totalling 41,490.85 lira in eight transactions between 2014-2016 from Kaynak Medya AŞ, said to be a FETO/PYD-related company. Is this true? Yes, even if not 41,000 lira, then 37,000 lira of it is true. Kaynak Medya AŞ appears to be a company that conducts announcement and advertising services for many companies, including Bank Asya. Let me also give the details: receipt was taken in 2014 and 2015 of invoiced amounts of 22,400 lira in respect of twelve adverts for seven separate publishers’ university preparation publications and of 14,875 lira in respect of three Bank Asya adverts. Well, does having published Bank Asya’s announcements and adverts and obtaining advertising income amount to being connected and adjunctive to FETO? If so, let me submit as an exhibit a table making a comparative presentation of the number of Bank Asya adverts published in other papers and the number of adverts published in Cumhuriyet newspaper over the past decade from 2008 until 2017. (Exhibit: Cutting of the table published in the 30 May 2017 edition of Sözcü newspaper.) According to this, over the past ten years Bank Asya adverts have been published 309 times in Yeni Şafak newspaper, 286 times in Sabah newspaper, 177 times in Star newspaper, 138 times in Akşam newspaper, 154 times in Hürriyet newspaper, 64 times in Habertürk, 52 in Milliyet, 72 in Posta, 148 in Türkiye newspaper, 44 in Yeni Akit and 75 times in Milli Gazete. Over the same period, however, they have been published five times – yes, just five times – in Cumhuriyet. If, under such circumstances, we are deemed to be connected and adjunctive to FETO/PDY due to the adverts we have run, it will be very hard to find words to describe the relationship between them and the other papers in view of the advertising they have run.

3- An EFT of 1,000 lira was supposedly sent on 13 March 2015 from İpek University, said to belong to and be adjunctive to FETO. In a speedy search that our colleagues made of our paper’s records, no such record or EFT entry was unearthed. It has been determined that an advert for Işık University appeared in the science and technology supplement on the same date. It is felt that they may have been mixed up. But, I point to the amount – a grand total of one thousand lira over decades.

4- The paper was allegedly sent 4,130 lira in an EFT on 5 April 2016 from Koza Altın İşletmeleri A.Ş., stated by the General Directorate of Police to be a FETO/PDY-related company and a company to which a curator had been appointed. When cited thus in the indictment, the impression left on the reader and listener is that money amounting to 4,130 lira was sent to Cumhuriyet newspaper from ‘FETOist Koza Altın İşletmeleri AŞ.’ When the aim is to create suspicion, confuse minds and engage in manipulation, you provide this amount of information so as to obscure the truth and attain the desired effect. If only the prosecution had been curious about the truth and inquired after it. Well, what does the affair boil down to? Did Koza Altın İşletmeleri AŞ really send such a sum to Cumhuriyet newspaper and, if so, why did it do so? Yes, Koza Altın İşletmeleri AŞ really sent 4,130 lira in respect of an advertising invoice to Cumhuriyet newspaper in April 2016. And the date on which the payment was made within this advertising relationship was in the month of April 2016. This is important. Why is it important? Because five or six months prior to this date, in October 2015, a curator had been appointed to Koza Altın İşletmeleri AŞ, as with all the companies in the group. The person who both placed the tender announcement with Cumhuriyet newspaper that was published in April 2016 and paid the invoiced charge for the published announcement was the curator that the state had appointed to this company. What do you see when you look at the tender announcement placed by the curator on behalf of the company? That 22 top-range passenger cars such as Bentleys, Lamborghinis, Porsches, Cadillacs, Chevrolets and Mercedeses had been put up for sale by tender by the curator. Now, with these being the unadulterated facts of the matter and this being the blunt truth, and, moreover, with this having been explained to the interrogating judgeship that ordered detention, is there any room in legal conventions and morality for the endeavour to cover up and conceal this truth and create the impression, as is done in the indictment, that a FETO-adjunctive company sent 4,130 lira to Cumhuriyet newspaper? We will let this question gnaw away at everyone’s mercy, conscience and morality!

5- The FCIB finding that 29,500 lira was sent by EFT to Cumhuriyet newspaper in two transactions on 30 September 2011 and 20 March 2015 from Feza Gazetecilik A.Ş., likewise stated by the General Directorate of Police to be related to FETO/PDY and to be on the list of companies to which a curator had been appointed, was incorporated verbatim into the indictment. Well, what is the truth of the matter? It is that when many journalists and media workers, including Zaman newspaper’s editor-in-chief and the chair of the Samanyolu television publishing group, were arrested on 14 December 2014, three days later a text bearing the title ‘The Free Press Cannot be Silenced’ protesting at the arrests targeting this newspaper and TV station was published in certain newspapers as an announcement, signed by some sixty figures well known to the public. Feza Gazetecilik AŞ paid the charge for this announcement against invoice to Cumhuriyet newspaper, in which it was published on 17 December 2014.

6- The indictment informs us that the person named A.U., who sent the total of 2,785.25 lira to Cumhuriyet newspaper by EFT in two transactions in 2015 and 2016, was included in the list of names containing the founding members and management board members of seven federations and 180 associations attached to the Turkish Confederation of Businessmen and Industrialists. It transpires that receipt was taken of a total of 2,785 lira from this person in 2015 and 2016 in respect of invoiced charges for advertising. Who is this person named A.U.? He is the proprietor of an advertising agency operating under the name of Apostrof in Ankara province. He placed two adverts, one in 2015 and one in 2016. The total advertising charge for the two was 2,785 lira. That it is as far as it goes. If you look at the advertising charges that the same advertising agency has paid to other papers, the most charitable comment that can pass your lips has got to be, ‘The prosecutor is playing a joke on Cumhuriyet newspaper.’

7- Among the claims in the indictment is that Y.T., whose name is stated by the General Directorate of Police to be on the list of suspected persons in FETO/PYD investigations, sent EFTs in the total amount of 3,418.88 lira to Cumhuriyet newspaper in four transactions in 2014 and 2015. This person named Yusuf Taşdöken is the proprietor of the advertising agency named Ahtamara in Izmir and, furthermore, the invoiced charges for adverts that this agency was instrumental in placing in Cumhuriyet newspaper in the 2014-2016 period was 7,790 lira, not 3,418.88 lira as stated in the indictment, and, on the other hand, let me note that, while there were three adverts that the same person and agency placed in Cumhuriyet newspaper over the same period, he placed 42 in Posta newspaper, 28 in Milliyet newspaper, 27 in Hürriyet newspaper, 26 in Habertürk newspaper, 15 in Sabah newspaper and 26 in Star newspaper; and (*Source, Sözcü Newspaper 1 June 2016) based on business volumes over the past decade from 2008 to 2017, as against the number of adverts he has placed in Cumhuriyet newspaper totalling five, there have been 83 in Star, 59 in Milliyet, 55 in Habertürk, 52 in Sabah, 46 in Hürriyet, 32 in Yeni Şafak and 19 in Akşam. The truth is surely visible in all its nakedness.

When we look at the overall picture before us, it is clear that the truth has been concealed and perception management has been engaged in an unjust manner. I leave this to everyone’s mercy, conscience and morality.

8- What is the transaction that occupies eighth place on the list of suspicious money movements in the indictment? Murat Hazinedar, who continues to serve as Mayor of Beşiktaş, transferred a total of 40,590 lira to Cumhuriyet newspaper in four transactions in March 2014. It is common knowledge that the most recent municipal elections were held in March 2014. In this very period, Murat Hazinedar, who was the CHP candidate for Beşiktaş Mayor, paid the total advertising charge of 40.590 lira in respect of personal election adverts that he placed in Cumhuriyet newspaper and on its website. This situation was seemingly odd to the prosecutors, leading them to include it among the suspicious money movements in the indictment. What can I say? We, too, find this stance of the prosecutors to be odd.

9- The final transaction on the list of Cumhuriyet newspaper’s suspicious money movements is a truly astonishing piece of reasoning. Viz:

In common with other employees, a regular monthly salary payment is made to Mahmut Oral, who has worked for a long time on Cumhuriyet newspaper as a reporter in Diyarbakır and the South-East Region. Well, our paper’s reporter Mahmut Oral was a member of the management board in the period from 2006 to 2008 at the association named the Sarmaşık Anti-Corruption and Sustainable Development Association. Where is this going? Food aid was given by this association to poor families. What of it? It is just a charitable association that does good deeds. Apparently not. There exits an assessment report that was compiled in 2010 informed by suspicion that the poor families who were the recipients of food aid were for the most part in the rural ranks of the Kongra-Gel (PKK) terrorist organisation. In this very report, this association’s administrators are named among people who are reported for the offence of aiding a terrorist organisation. The holder of the mentality that seeks to unearth a terrorist crime from a salary payment made to a journalist on the staff of a newspaper, citing his having been named in a crime report seven years ago for having served for a period on the management board of an aid association ten years ago, is being prosecuted for membership of a terrorist organisation and receives a salary from the state every month as a prosecutor.

I suspect that I have given sufficient answers and explanations to the claims about suspicious money movements in connection with terrorist organisations levelled in the indictment against the juristic person of Cumhuriyet newspaper (Yenigün Haber Ajansı AŞ). I will reiterate that even the FCIB states this to be a pretty negligible amount within the newspaper’s turnover over the same period. We have come to the allegations and documents pertaining to me personally that are included in the indictment as ‘suspicious money movements’ in relation to suspected connections with the FETO/PDY terrorist organisation. I quote and read from page 241 of the indictment:

‘It has been established from a search conducted in the FCIB data base into the individual named Hüseyin Aktaş, to whom an EFT in the amount of TRY 2,500.00 was sent through the transaction conducted on 28 March 2011, that Atilla Aktaş, who is the individual’s son, is among the natural persons to whom the company Boğaziçi (…) Ticaret Limited Company, owned by Şaban Aydın, one of the persons who was ascertained (...) in the analysis report number (...) sent by the FCIB Directorate to Ankara Republic Chief Prosecution to have sent money by means of transfers, EFTs and cash deposit transactions made to one another’s accounts so as to be withdrawn from ATMs abroad and who are thus related to one another, has sold goods and services.’

 I wish to make an aside here and enter a sincere confession (!). From among the hundreds of allegations and documents within this indictment and its exhibits, this was the matter which I had the most difficulty comprehending and making sense of, explaining both to myself and others and finding a way, after much puzzlement, of accounting for.

 We are confronted with a bizarre endeavour to create a connection that is really very hard to make sense of thanks to the way it is worded and set out and is really very hard to believe. Since I am unacquainted with the other persons and companies apart from Hüseyin Aktaş, to whom I sent TRY 2,500.00 by EFT on the 28th day of March 2011, and have not the slightest knowledge of what business they are engaged in, for ease of reference, I will assume by way of presumption that Boğaziçi Ticaret Limited Company is a restaurant undertaking in Bursa and I need to rephrase the allegation bit by bit.

 Hüseyin Aktaş, to whom I sent TRY 2,500.00 by EFT on 28 March 2011 is a parquet installer. A payment was due to him in return for parquet relaying work in the living room of the house I live in. The prosecutor sets out from this and to all intents and purposes says: ‘Oh, Akın Atalay, Hüseyin Aktaş whom you paid TRY 2,500.00 six and a half years ago in return for getting your parquet work done in your house has a son. His son’s name is Atilla. Now, one day this Atilla dines at a restaurant in Bursa. There is a FCIB report about Boğaziçi Ticaret Limited Company, which operates the restaurant at which he dined, and this company’s owner Şaban Aydın. Account for this!’ What am I to say?

V. My statement on the Anti-smuggling and Organised Crime Branch analysis reports

Cited in the indictment as the physical component of the offence of aiding the FETO/PDY terrorist organisation are news reports and articles published in the newspaper. But this did not suffice, and accompanying evidence was investigated to enable, come what may, Cumhuriyet newspaper’s managers to be portrayed as having connections and relations with FETO/PDY. One of the pieces of evidence employed to prove that I committed the offence of aiding the FETO/PDY terrorist organisation are detections from the past communications records of the telephone number I use. My phone was searched for Bylock, my educational past for any sign or trace of supplementary education institutions or Gulenist high schools, and my accounts for any sign or trace of companies, associations, foundations, people or entities known to have Gulenist affiliations or relations as a depositor or EFT/transfer relations with Bank Asya.

With even a single sign and trace remaining elusive, this time an investigation was undertaken into who my telephone communications were made with and whether any extraordinary communications were detected from among them. With nothing emerging from this, either, the following strange evidentiary procedure was embarked on. All my communications records starting from 1 January 2013 were examined and detection was made of communications records with people who were under investigation as suspects within a FETO/PDY context or had been established to be Bylock users. From this, I was detected to have had telephone communications over the past four-year period with five journalists who were Bylock users (once with four of them and several times with one of them). Over the same period, I was detected to have had communications with six people alleged to be suspects in relation to FETO/PDY. In this way, HTS records purporting that I had communications with a total of eleven people suspected of being adjunctive to FETO/PDY were incorporated as evidence in the file and indictment.

First, is it a tragedy, comedy or drama? I need to comment on a fact that I do not know how to classify. The prosecution, which incorporates these records as evidence of the act of aiding the FETO/PDY organisation, would appear to be ignorant and uninformed of the thing called a mirror. The person who is conducting this investigation stands charged of FETO/PDY membership. According to his own logic, everyone he has spoken to on the phone has committed the crime of aiding FETO/PDY; his own communications records supposedly constitute evidence of this crime. According to Ministry of Justice records, currently more than four thousand judges and prosecutors have been expelled from the profession for being adjunctive and connected to FETO/PDY. Of these, 2,500 are in detention, and apprehension orders are out for 200. That is, every fourth judge and prosecutor is a FETO/PDY suspect or defendant. Let us contemplate the fact that one in four of the colleagues of the judges and prosecutors appointed to this judicial complex is a FETO/PDY suspect. How can the holding of a phone call with one’s colleague, even if only once, be deemed evidence of a crime? Are you aware that, thanks to such an evidentiary method, there will remain not a single person in this country who will escape classification as adjunctive/connected? And, moreover, with no need even for knowledge of what they talked about and why.

Can you imagine, were a FETO suspect to dial his friend’s seven-figure phone number and by mistake dial a ‘2’ instead of a ‘1’ as the final number, and, if this were your number, you would be for the high jump? This is the point reached by what is called an investigation, evidence and prosecution. I object, not on my own behalf, but on behalf of everyone who has suffered such injustice and illogicalness.

Coming to the contents of the HTS records relating to me, basically, I was going to refuse on principle to go into this detail. I was going make do with saying that I refused to respond to such nonsense. I changed my mind for two reasons. The first was my family. They insisted that I answer every accusation, nonsensical or not, and leave behind no excuse or pretext for the nightmare of detention not to be ended. They said not to protest, but to explain. The second was that there are certain concrete examples in my HTS records showing just how absurd this evidentiary method and way of producing evidence is. So, I will answer them one by one before the court bench inquires.

First, there is the record of calls with five people who are Bylock users. I had research done on the internet about the people behind these names and their jobs, and whether I am acquainted with all of them. The result to emerge was the five people identified to be Bylock users are all journalists. It seems one of these people is Habertürk TV station’s Ankara News Manager and another its court reporter in Istanbul. Of the remaining three journalists, one is supposedly a Radikal newspaper reporter, one a T24 news site reporter and one a Zaman newspaper reporter. Apart from the journalist who is the Habertürk TV court reporter, there appears to be one communication record with each of the other four journalists. And in all of them, the journalists called me. Looking at the date on which the call was made, it becomes immediately apparent that they had called me to consult my opinion in view of certain legal cases in the public eye that I was monitoring as a lawyer or in view of my managerial post at Cumhuriyet newspaper. The journalist A.A. working at T24 called on 2 June 2015. The call prior to this was seven seconds earlier and was a call from my friend D.A., T24 site’s editor-in-chief. It can be inferred that he wanted to get his reporter to call a little later and for me to give an opinion on a point he mentioned. Looking at the date, it is also clear what the point was: The investigation that had been launched into the report on the intelligence agency lorries with the headline, ‘The very weapons that Erdoğan says do not exist’ that had been published in the paper four days earlier, and the ensuing reactions.

The date on which Radikal newspaper reporter F.Y. phoned and made a call of 59-seconds in duration, on the other hand, was 24 January 2013. Looking at my records of other calls made on the same day or one day earlier, I can hazard a guess as to what this call was about. Either one day earlier or the same day was the date of the hearing at which the judgment was read in the trial of Pınar Selek, on whose behalf I was acting as defence counsel. The Radikal newspaper reporter had most probably called to seek an opinion with me being Pınar Selek’s defence counsel.

The date of the record of the call in which Habertürk TV journalist N.A. phoned and spoke for 18-seconds was 6 December 2013. I remembered when seeing the calls made from other TV and press bodies on that date. It was the day of or one day after the violation ruling in the individual application that Mustafa Balbay made to the Constitutional Court. I would guess that they invited me to appear on TV to seek an opinion.

The date shown of the record of the call in which Zaman newspaper reporter M.G. phoned and spoke for 44 seconds was 7 May 2016. The said date coincides with the 92nd anniversary of the founding of Cumhuriyet newspaper. I may have been called on account of this. But, of course, I have no way of remembering.

These above-mentioned four journalists called me one time each. I supposedly had a total of eight calls with the fifth of them, Habertürk TV’s court reporter. He called me seven times and I called him once in reply. Five of the calls took place on the same date: 9 December 2013. Looking at the call records for the same day, it appears that I was also called by a great many media bodies such as CNN Türk, NTV and Kanal D. If I am not mistaken, this was the date on which Mustafa Balbay was released and an opinion on this was sought. The date of two of the remaining three calls was 27 November 2015. Again, I was called to express an opinion on the day following the detention of my clients and colleagues, Can Dündar and Erdem Gül.

And the date of the eighth call was 24 March 2016. This was the day before the first hearing in the intelligence agency lorries trial brought against Can Dündar and Erdem Gül. He called to ask if my clients, whose release had been ordered by the Constitutional Court one month earlier, would attend the first hearing scheduled for the following day and present a defence.

I have given information about the papers the five people determined to have used Bylock work on, the number of calls and what they were probably about. My memory assisted. The dates assisted. Now I ask those who placed this in the file as evidence: Are you happy? Are you satisfied? If you in the future are asked about your old call records, will you be able to reply with such clarity, satisfaction and precision? The number of my calls is five. I was lucky and remembered. Well, how are people having hundreds of calls to remember? An evidentiary method of this kind is not only unlawful, but is also devoid of reason, compassion and pity.

Now the turn has come of the communications records with the six people determined to be suspects in FETO/PDY investigations.

One of my communications records ensues from a call to a supplementary education institution. Given that, as the HTS records show, I called four or five different supplementary education institutions on the same day and in the same time space, as will be apparent, it was a call made to research how much a short-term preparatory course would cost and to make a comparative price analysis in preparation for one of my relative’s Academic Personnel and Postgraduate Education Entrance Exam.

Another is a colleague whom I have known for many years, Faik Işık, Attorney-at-Law. I am stating his name openly without reducing it to initials, because his identity had been exposed in the media well before the hearing. Yes, the indictment thinks that Faik Işık, Attorney-at-Law, is also suspected of FETO/PDY involvement and so my communication record with him will also be evidence. The name of Faik Işık is familiar to the public. He is somebody who is known as President Erdoğan's oldest lawyer and who, later, as Fenerbahçe team’s chair Aziz Yıldırım’s lawyer in the match fixing trial, one of the most media-oriented trials that FETO’s judicial leg cooked up, spoke of the Gulenist judiciary and their lawlessness. But, the interesting development transpired a month ago. One of the institutions that the 15 July coup attempt targeted was parliament. Indeed, those charged of the offence of attempted coup were also charged with crime against the legislature as laid down in Article 311 of the Turkish Penal Code. Last month, an application to intervene in the trial was made on behalf of parliament as a juristic person to Serious Crime Court No 24 in Istanbul. Well, do you know who is representing the juristic person of parliament, which is an aggrieved party in the case over the FETO/PDY coup attempt, as lawyer? Faik Işık, Attorney-at-Law. The parliamentary speaker’s office has appointed Faik Işık as attorney to defend its own rights against the FETO-member coupists. It found its way into the press fifteen days ago that Faik Işık had also submitted an application to intervene in these trials as attorney of the Prime-Ministry, following parliament. I submit these press cuttings as an exhibit. The indictment, however, accuses me of aiding FETO through Faik Işık, based on my having a record of communications a few times with Faik Işık.

Of the remaining four communication records, three of them are people I have never been acquainted with, spoken to or called, and whose names I heard for the first time on reading the indictment – the people named H.Ş., Ş.E. and M.A., one of whom is said to be a prison officer, one a specialised sergeant and the other a teacher. I looked at the call records. One of them appears to have sent a message to my phone in February 2014 and the other in July 2015. I did not receive such a message, or else do not remember it. Sometimes at religious holidays and on holy nights, or on any old day, I receive messages from numbers that are entirely unknown to me that are stock images, have standard content or are irrelevant. I delete them because the number is unknown to me. I imagine that these are two messages of this kind. As to one of them, this is a telephone number beginning in ‘0850’ that is generally used by salespeople or repair shops. In fact, in a reply writ emanating from Edirne Republic Chief Prosecution, it is stated that there is no record under the said name in the National Judiciary Informatics System and the said file was closed in a decision to drop the charges.

Coming to the final communications record, a police officer named E.M. called from the Istanbul police. There were three calls over two consecutive days, 30 September 2014 and 1 October 2014. He called twice and on one occasion I called in reply. He probably called over business relating to our newspaper or our columnists. I cannot recall the details.

This is the extent of my comments on the HTS records. 

VI. Comments on the social media posts

A total of 63 of my Tweets have been placed in the indictment. It has been asserted that these Tweets, in opposing operations targeting FETO’s publishing organs and companies, amount to open support for the organisation, defend and protect FETO and virtually portray the legitimate state edifice and its operations as if they were the activities of a terrorist organisation.

In 2014, eight Tweets were posted in a row on 14 December. On inspection of their content, it appears that they are observations about the operation and arrests made at Zaman newspaper and Samanyolu TV station. They cannot be construed in any way as aiding FETO. The legal mentality that endeavours to turn such a clear and precise text into the offence of aiding, defending and protecting the FETO armed terrorist organisation can only take society to a point at which tongue-holding and silence is the law, criticism is banned and thinking is a crime.

In 2015, there are four tweets on 26 October containing observations about the appointing of a curator to the Koza İpek group. One day later, on 27 October, posts were made on two subjects. In those days, disinformation began to be spread in the media about Cumhuriyet newspaper. In view of this, replies were made with concrete and precise information and figures to lies that the paper was financed through advertising from certain companies said to be connected with FETO.

Certain observations posted on 27 October 2015, on the other hand, were about operations targeting the Gulenist brotherhood. On inspection of the said posts, it is impossible even in a forced interpretation to conclude that this content amounts to support of the FETO armed terrorist organisation. The pressing of such charges as support for FETO over content calling for action to be taken in compliance with the requirements of the law can if nothing else amount to the attempt to support FETO by watering down the FETO investigations and rendering them frivolous.

The Tweets on 28 October 2015 contain the imparting of personal information and comment about the Kanaltürk and Bugün TV stations being taken off the air at the curators’ behest and decision and about curators’ powers and duties under the relevant laws. The two Tweets on 30 October 2015 are posts on the same point.

On 5 March 2016, posts were made in a similar context and vein to previous observations on the transfer of Zaman newspaper’s management to a curator.

On 6 March 2016, two Tweets were posted by way of reply to the attempt that was being made to spread information through various media organs about the appointing of a curator, this time at Cumhuriyet newspaper. Two other tweets, on the other hand, were about the decision that the Constitutional Court passed ten days earlier on an application in which I was acting as defence counsel. It is curious that one of these four Tweets I posted on 6 March 2016 finds inclusion in the indictment. Is it coincidence? Is it part of a pattern? Or, has it been put in the indictment with another end in mind? I have no way of knowing. The Tweet has the following content:

‘Is their latest target to come down on Cumhuriyet newspaper? But they will not do this like they did to the Gulenist media. They will look for a collaborator along the lines of Hüseyin Gülerce.’

The date of the Tweet is 6 March 2016. Following the passage of some eight months, a large operation was staged on 31 October 2016 targeting Cumhuriyet newspaper’s sixteen managers. Just as was said in the Tweet of eight months earlier, collaborators along the lines of Hüseyin Gülerce were brought into play. It did not end here, and Hüseyin Gülerce himself was even made into a witness. To top it all, my prediction that came true eight months later was placed in the indictment. What more could a person want? I thank them for summarising and precisely explaining this trial.

The last five of the Tweets that have been placed in the indictment are on 14 March 2016. Here, too, Tweets were posted in reply to rumours and news that a curator would be appointed to Cumhuriyet newspaper and it would be seized. These are the 63 Tweet messages that are cited in support of the charges in the indictment. However, on the same dates there are far more incisive and precise messages containing my views, conclusions and observations on FETO. For some reason, a blind eye has been turned to them. Contained in those messages are comments that demolish the indictment and charges. For example, with reference to the operation and arrests made at Zaman newspaper and Samanyolu TV station on 14 December 2014, eight of my Tweets on that date have been cited in the indictment. It was said that I supported, defended and protected FETO with these Tweets. But, the observations in the posts that I made eleven days later on 25 December 2014 have been forgotten. In dedication to the indictment that asserts I supported, protected and defended FETO, I submit as an exhibit to the file a printout of those sixteen Tweets that were posted in a row. I wish to read a brief section here to give an idea.

Viz:

‘We clearly say that, yes, especially in the state institutions having to do with law enforcement, the judiciary and education, there is an organised structure that uses its power in the civil service not in furtherance of the legitimate and legal functioning of the state, but in accordance with a religious brotherhood’s hierarchic order and the instructions of that brotherhood hierarchy over and above the legitimate political rule, and public servants who are connected with it. This structure and these people have been appointed to very influential and powerful posts and have embarked on many instances of lawlessness and crime. It is legitimate and necessary for this structure and its members to be speedily purged from these institutions. Secondly, without ever circumventing the principles of the personal nature of criminal and penal responsibility and a fair trial, and without ever resorting to the methods that this hierarchy at one time brazenly employed, their crimes in their entirety must be brought before the courts within the bounds of the law. Heedless of its supporters’ refrain, ‘We are entirely innocent. We are a group of heroic and patriotic people who prosecuted coupists, ended military tutelage and exposed corruption,’ the brotherhood must be tackled with persistence.’

Yes, it is this clear. Period.

It is wrong to take things people say in abstraction from the time, place and context in which they were said. The above views and observations on FETO were made on a platform open to all on 25 December 2014, on the first anniversary of 17/25 December. Not stating certain thoughts in time and expressing them much later can impair the value and credibility of the comment. So, when it was said or even sometimes who it was said by can have the same degree of importance as the comment. I have always adopted the same stance while voicing my attitude and ideas concerning FETO and my views about combatting this structure, before 25 December 2014 and afterwards. Is the following Tweet that I posted in the days in which the 17/25 December operations were underway also support? The date of the Tweet is 25 December 2013. The following is stated by way of content: ‘I am convinced that the government is mired in corruption, bribery and graft, and that there is a brotherhood-focused gang within the police and judiciary. The means and method for holding the government to account is known. If gangs are in control of the judiciary, how are we to hold them to account?’ Following this message, does anybody who speaks of support for FETO not have to be sent on a reading course?

If these things do not reply adequately to such untruthful accusations as that I supported, defended and protected FETO, reference may also be made both to my Tweets listed 1 to 13 dated 22 September 2015 and my Tweets dated 17 December 2015. I will elaborate no further in the interests of brevity. To counter the claim that, in opposing the operations targeting FETO’s publishing organs and companies, I engaged in support for the organisation, let me add my post at the most critical hours of the coup attempt on the evening of 15 July 2016, and its time. The time that my post was made was 01:03 in the morning of 16 July 2016. These were hours that night at which bombs were going off, helicopters were being fired from and everything was uncertain. A short while had passed since the coupists had read the coup declaration on state television. It was thirty minutes after President Erdoğan had summoned the people on television to go out into the open. What did I write in the Tweet? ‘In the future, we will be judged as much for our silence as for our words. Coupists and juntas are not the solution. The solution is democracy.’

These are social media posts that are not included in the indictment. Well, what is there among the facts, documents and information in this regard outside social media?

How about, for example, if I said that in 2008, when it was said in the first indictment in the FETO structure’s first conspiracy trial, the Ergenekon trial, that, ‘Cumhuriyet Newspaper is the Ergenekon Terrorist Organisation’s central base in the media,’ I was one of this paper’s top managers.

How about, for example, if I said that I acted as defence counsel in the Odatv trial, cooked up with the lie that an operation was being conducted against Ergenekon’s media leg. Or, if I said that, by some strange irony of history, I was the defence counsel of Ahmet Şık, with whom I stand together in the dock in this trial on charges of aiding FETO.

How about, for example, if I said that I was told in a written notice served on me on March 2001 by the ruling party’s darling at that time and the hero of some, the legendary prosecutor Zekeriya Öz, to surrender the printed draft of the book ‘The Imam’s Army’ or else, never mind things like my status as defence counsel, he would launch an investigation into me for aiding the Ergenekon Terrorist Organisation.’

The structure and staff in FETO’s special jurisdiction courts made accusations of aiding Ergenekon and issued threats. They did not live to see them through. Today’s terrorist prosecutors make accusations of aiding FETO. They have brought about detention and launched and a trial. What can I say?

An invitation came from the European Parliament at the start of 2012 for me to discuss the judicial process in the Oda TV and Ergenekon trials and events within this process. I made a presentation on this subject at the parliament building in Brussels on 31 January 2012. Along with me, Turkey’s permanent representative Ambassador also made a presentation. He defended the practices that had been implemented. I, conversely, spoke of the injustices in the special jurisdiction courts’ practices, the unjust and widespread detentions, the intimidation applied to members of the opposition, the failure for fair trials to be held at these courts and how people were wronged at the hands of the judiciary.

I have no doubt that I would say the same things about these days that I spoke of that day. Nothing has changed very much. The same things are done and it is only the perpetrators who have changed.

They also asked for the written text of the speech I made that day for translation purposes. It remains in the European Parliament’s archive. I would like to read a brief passage from the text of that speech. I spoke as follows:

‘(...) In Turkey, one now encounters detentions through the intermediation of the special jurisdiction prosecution and courts that function as a kind of sword of Damocles over democracy. Events have followed an even more alarming trend in recent months and it is more than opposition members who fall victim to human rights violations. Now, the performing by journalists and lawyers of their duties is deemed to constitute acts of terrorism or aiding members of terrorist organisations and they undergo investigation with the majority of them being detained. Due to the environment of intimidation that is created, newspapers and TV stations are unable to report the news and criticise, and refrain from acts that will be to the displeasure of the political rulership for fear of receiving unjust treatment. (...)

The special jurisdiction prosecution and courts in Turkey, instead of being a legal safeguard mechanism or a judicial institution, have assumed the function of a tool for political intimidation against members of the opposition. (...)’

I see that there is no change on the legal front in Turkey.

VII. My comments on the reports and opinion pieces that the indictment deems to be evidence:

The reports and opinion pieces on pages 172 to 202 of the indictment have seemingly been deemed to be evidence with no indication of which defendants and which charges they relate to and without a relationship of causality with crimes and defendants being established. Every day hundreds of pronouncements are made containing criticism, accusations, praise or invective about Cumhuriyet newspaper in newspapers, on the internet and social media. Most of these are ideas and opinions that are not based on concrete information or data. Included among them are many inflammatory, provocative and manipulative pronouncements. The incorporating into the indictment of such pronouncements as if the indictment attaches some sort of evidentiary value to some of them does not befit and ill behoves the seriousness and portentousness of a legal document named an indictment. The upshot is that we are obliged to respond to all manner of nonsense, rumour, lie and error and the proper functioning of the trial is impaired. Through the inclusion of such reports and opinion pieces in the indictment, the indictment has more or less been turned into a rubbish heap. Unfortunately, this indictment has ended up as a disaster as far as the notion of an indictment goes. It would be more appropriate to call this document an irony-ment, if anything, because it is clear when reference is made to the compilers of this document, the witnesses, the articles cited as evidence, the experts and the contents of the document that this is an ironic document.

I consider it pointless to attach seriousness to and respond to seven of the articles that are adduced as evidence in the indictment and to which the things I have said apply. All are nonsense and lies that have been penned for manipulative purposes and informed by enmity, and have been disseminated as part of a dirty plan. I reject them. These pronouncements, each line of which is redolent of Aydınlık newspaper’s and the Patriotic Party’s political stance, are hollow lies and the place they belong is the rubbish heap and not indictments. These seven articles are the article published in the 23.09.2016 edition of Turktime, the contents of the Behind the Curtain programme broadcast on Kanal A TV station on 24.09.2016, the article of 31.10.2016 entitled ‘How did Cumhuriyet Get into this State’ by the author named Hikmet Çiçek, the article entitled ‘Cumhuriyet newspaper and Enemy Law’ of 01.11.2016 by the author named Oktay Yıldırım, the article entitled ‘The Inside Face of the Operation against Cumhuriyet’ of 2.11.2016 by the author named Rıza Zelyut, and the same author’s article entitled ‘Even if We are Sinners We Will Write about Cumhuriyet’ of 09.11.2016 and Ceyhan Mumcu’s interview published in the 01.11.2016 edition of Sabah newspaper.

Apart from these seven articles, there are four articles in which my name is mentioned. One of these is the interview conducted with me published on the website named Medyaradar on 26.12.2015. Looking at the contents of the article, I thought that the prosecution must have slipped up badly at that moment given that for the first time it adduced evidence favourable to the defence. I was unsure if I should thank the prosecution for including in the indictment in this way a written statement that at the end of 2015 clarified the matter as to whether Cumhuriyet newspaper aided FETO and its distance from-closeness to FETO. Basically, I realise that we are dealing with a mindset and logic that even considers the statements in this interview to be evidence against us.

One of the other three articles is a critical article by journalist Oray Eğin, who at that time was writing on Sözcü newspaper. In this critical article published on 22.11.2015, he criticised me for the observations I made on the occasion of the appointing of curators through an administrative act to the Gulenist media organs. Asserting that I was sympathetic to the Gulenists, he said that the two people most upset by this seizure were CHP General Chair Kemal Kılıçdaroğlu and I, and we were giving credence to the manipulation by the internet troll named Fuat Avni that, ‘The turn of other opposition newspapers will come.’ At the end of the day, even if it is unjust and misplaced, it is a critical article. At the same time, he was conveying false and untrue information and unjust criticism and assessments to the readership profile of the publishing entity he was writing for. I posted on Twitter in reply to him on the same day, i.e. 22 November 2015. Stating that I had no sympathy but, on the contrary, antipathy towards the Gulenists, I said that to impute in an absurd manner that I myself and Cumhuriyet newspaper were in a relationship or cooperation with any religious brotherhood was not the expression of an innocent idea and amounted to playing a role, wittingly or unwittingly, in the hatching of dark intentions towards Cumhuriyet newspaper. This reply was published under the heading ‘Reply from Cumhuriyet to Oray Eğin’ on the Odatv news website on 23 November 2015. A year has since passed and the prediction in the reply I made then has come to pass. They arrested all of Cumhuriyet newspaper’s managers in an operation on 31 October 2016 and then we were detained. While in jail our lawyers brought it in and I saw that Oray Eğin wrote the following about this operation on his own internet blog page: ‘(...) I will summarise now what I will write later: This was staged with FETO tactics from the beginning to the end; this was an operation in which FETO made everyone fall into the trap. (...) Let us turn to my article being deemed evidence. It is clear that the FETOist prosecutor wanted, with oriental cunningness, to enhance his credibility by including an article “from the same ranks”, i.e. by an opposition journalist. Had it been someone like Cem Küçük etc. they obviously would not believe him. I conduct media analysis based on information in the public domain, that is reports and opinion pieces appearing in printed newspapers. Cumhuriyet’s changed editorial line and the headlines it has run are no secret. Leaving everything to one side, can a probe be launched based on an opinion piece and can it be deemed to be evidence in a trial? Why have those who turned up their noses at the trial aimed at closing the AKP calling it – rightly - the “Google trial” passed over the Cumhuriyet probe? A trap has been set, for sure.’

Another two articles included in this section are two interviews conducted with İbrahim Yıldız and Leyla Tavşanoğlu. In nether interview is any concrete act imputed whereby Cumhuriyet aided terrorist organisations. They predominantly contain personal assessments about the foundation management board elections and editorial policy. I have previously made a detailed statement in this regard.

VIII- Comments on the allegations over falling circulation and CUMOK’s reaction:

We are dealing with an investigation that believes Cumhuriyet newspaper to have changed its editorial policy and its readers to have reacted to this change, and that has embarked on the endeavour of proving this. The indictment has stated that, due to the editorial policy that it says changed after 2013, a marked fall in the paper’s sales was experienced as of this date. With a view to proving its assertion to this effect, it inquired with the Press Announcements Agency General Directorate as to sales made between the years of 2008-2016. Attached to its correspondence of 4 November 2016, the Press Announcements Agency sent a table showing sales volumes in the stated periods. Separate sales volumes for each month as of 1 January 2008 were included in this table. Sales volumes for each month were entered in this table in two separate forms. One of these was stated to be ‘average actual daily sales’, and the column beside it was the ‘monthly circulation’ figure. The indictment, by selecting - as if at random - the highest one or two monthly circulations and the lowest one or two monthly circulations, has based its allegation on this table. Let me state at once that the figures in the ‘average actual daily sales’ field in the table compiled and sent by the Press Announcements Agency are entirely correct, but the figures in the monthly circulation field are almost entirely wrong and erroneous.

Well, who am I to say that sales data attached to the Press Announcements Agency’s official correspondence is erroneous? What am I resting this claim on? What is there to back up the veracity of my claim? I know and make this claim because the Press Announcements Agency obtains these sales volumes that it supplied to the prosecution every month in an electronic environment from us, i.e. Cumhuriyet newspaper; that is how I know. Pursuant to the relevant legislation, all newspapers that receive official announcements from the Press Announcements Agency must compile and submit a condensed statement form every month to the agency. In the process, along with a lot of data, notification is also made of the paper’s sales volume. The agency checks and confirms this sales data with the main distributor who handles the paper’s distribution. In short, the source of the information and data the agency compiles is Cumhuriyet newspaper’s data.

Basically, there is no need to have the kind of knowledge I have of this affair and be in possession of source information to realise that the data entered in the table by way of monthly sales volumes is erroneous, either. If a little attention is devoted to the sales table, a sudden fall of one million after May 2014 is clearly visible. However, despite a sudden fall in total monthly circulation from 2.6 million to 1.6 million and figures that remain at that level for each ensuing month, it is also clear that there has been no corresponding fall in average actual daily sales. As such, either average actual daily sales have been entered correctly, or the figure in the monthly circulation field. It is impossible for both to be correct at the same time, because you find the monthly circulation by multiplying the average actual daily sales by the number of days in the month in question. Or, you obtain the average actual daily sales by dividing the monthly circulation by the number of days in the month in question.

For example, if the average actual daily sales in April are 50,000 copies, from multiplying this figure by the number of days in April of 30, you will come up with the monthly circulation. That is, the monthly circulation has to be 50,000 copies x 30 days = 1,500,000 copies.

For example, if the monthly circulation in May is 3,100,000 copies, the average actual daily sales must, from dividing this figure by 31 (the number of days in May), be 100,000 copies. It will be evident that this correspondence that must, by virtue of this simple arithmetical truth, exist between the ‘average actual daily sales’ and ‘monthly circulation’ fields in the table does not exist in the period from 1 January 2008 to 1 May 2014. When it comes to 1 June 2014 and the months that follow, it is seen that the correspondence between these two figures exists. Inspection of the sales volumes entered in the field of the table containing average actual daily sales – and the correct figures are here – clearly shows that Cumhuriyet’s average actual daily sales have constantly been in the 50,000-53,000 range starting from 2009 until November 2016. On seeing this sales table that was furnished by the Press Announcements Agency and on which the indictment was based, our paper’s lawyer applied to this very agency on 23.11.2016. He applied, pursuant to the Right to Obtain Information Law, for a table to be supplied showing the average actual daily sales and monthly circulation for the 2008-2016 period. What came was the reply correspondence and attached sales table a photocopy of which I have submitted as an exhibit. When comparison is made of the table dated 4 November 2016 that forms part of the proof for the claim in the indictment and has been annexed to the file and the table supplied to us on 15 December 2016, it will be seen that all data entered by way of average actual daily sales is precisely identical. On the other hand, there is clearly a considerable difference in the monthly circulation field in the table dated 15 December 2016 that we are now submitting and the monthly circulations contained in the table in the file. The data in the 1 January 2008 – 1 May 2014 period over which the monthly circulation has been entered incorrectly in the table dated 4 November has subsequently been corrected in the newly prepared table.

This wrong and erroneous presentation of figures provided in data relating to Cumhuriyet newspaper has been used as evidence for the charges. Had we not stepped in and made research, nonsensical charges would have been constructed on them. I thus really have no way of knowing if the mistake made was a material error or was made for manipulative purposes; if this was an incorrectly compiled official document with no intent of any kind or was forgery of an official document done knowingly and willingly simply so as to create false evidence against Cumhuriyet’s management. After all, in recent years one routinely encounters the accidental commission of gross fault to Cumhuriyet newspaper’s detriment. But, given that misleading and false figures about Cumhuriyet newspaper’s sales and effectiveness have been placed in circulation, let us see to it from here that the public is correctly informed. There appears in the table I have submitted to you as an exhibit Cumhuriyet newspaper’s average sales volumes per year for the past 30-year period. The number of average daily sales for any particular year appears in this table. The table contains data from Cumhuriyet newspaper’s sales service. As is evident, over a 25 period from 1991, apart from two years, the paper’s average actual daily sales have ranged between 40,000 and 60,000. I must add that sales volume is no longer a metric that advertisers and advertising people take account of, because there are very serious doubts over whether newspaper’s sales volumes reflect the truth. For this reason, circulation and penetration research into almost all national newspapers in Turkey is conducted by an association created by advertisers and advertising agencies. According to measurements by this body of which all newspapers are members and whose costs are shared, Cumhuriyet newspaper reaches between 350,000 and 450,000 people every day. What this amounts to is that every paper that is bought from a newsagent reaches 8-10 people. In these penetration measurements that have been conducted for very many years, Cumhuriyet newspaper has always come top in terms of readership coefficient and this has been as much as 8-12 times sales volume. Last month, Reuters Agency published research by Oxford University. This research produced results showing Cumhuriyet newspaper to be the newspaper ranked fifth in terms of the newspapers that people followed the news from in Turkey. Why did I bring this up? To show that this is the extent to which Cumhuriyet newspaper is an effective and reliable source for acquiring information. Everybody knows this is the reason, too, why the judiciary has been used as an instrument to secure the detention of all of Cumhuriyet newspaper’s management.

Let us come to the affair called the CUMOK reaction.

The indictment cites in evidence of a change in editorial policy a text that they say was sent to the newspaper’s management, contains the names of 330 people and is a readers’ statement on their behalf, and statements by a person who has given himself the title of Cumhuriyet readers’ coordinator. For a long time, there was no structure called CUMOK connected and related to Cumhuriyet newspaper’s corporate structure. This platform that at the time of its inception was created by a group of well-meaning Cumhuriyet newspaper readers split in subsequent years due to a political dispute between them and two separate CUMOK formations appeared in Istanbul. One of these groups, promoting itself with the image of supposedly representing the paper, attempted to take on unfeasible political missions and to attain a status within the paper’s corporate identity. It published announcements accusing the other CUMOK group of treason. Because of this clash and dispute between readership formations, distance has been placed and communications have been broken off for the past fifteen years between the paper and people claiming to represent these groups. It is an excess and impertinence for a person who proclaims himself to be a CUMOK coordinator to lay down the editorial line and policy to Cumhuriyet newspaper. Ludicrousness of this kind has never had any take-up at the paper. This is the extent of my comments on this point.

IX- Concerning the witness testimony:

No sooner had the investigation in connection with this case got underway than, apart from a special witness who had been heard, a full eighteen people were further consulted for testimony after the arrest procedures. At this stage, I do not propose to answer every single witness’s testimony one by one and line by line. Consequently, apart from the answers I will give to questions posed by either the prosecution and defence or the members of your bench, my overall assessment of the witness testimony is as follows.

Most of the people from whom testimony has been obtained as witnesses have raised points that do not relate to the offences and charges, are of the nature of gossip and bear no relation to the act at issue in the prosecution. As to the witnesses named Cem Küçük, Latif Erdoğan, Hüseyin Gülerce, Talat Atilla, Rıza Zelyut and Mehmet Faraç, who have imparted nonsensical and untruthful information or even made mendacious statements both related and unrelated to the issues in the trial, I wish to state as follows: This is my assessment of these witnesses’ testimony:

I conclude that the negative ideas and criticism about me of people whose styles, personalities and characters are fairly well known to the public have been put forward as very valuable evidence and opinions against me with no need for any other argument. The other witnesses’ testimony amounts to and is limited to personal views as to the election for a vacated place on the foundation and the paper’s editorial policy. I have previously made detailed comments on both matters. I wish to stress once more with reference to these witnesses’ testimony that the forum and place for discussing and talking about either the foundation’s meetings and elections or the paper’s editorial policy and line and for making determinations in these matters is not this hearing room and this trial. The matter regarding the foundation is pending in its own forum, before the Civil Court of First Instance. The making of any political determination over and intervention in the paper’s publishing policy and line by any public prosecution and court will be a move that will be unacceptable and repugnant not only to us defendants here who are on trial, but to Cumhuriyet’s true readership. The readership and public opinion will not forget those who open up such a path and thereby give rise to intervention in the paper through such means.

I wish to take this opportunity to clarify a matter that appears in certain witnesses’ testimony and that the indictment has made into an issue over which it presses charges against me.

The Issue of Executive Board Chairship

Three of our colleagues who are currently working on the paper were consulted for testimony in the capacity of witnesses. These colleagues said that a new formation that had not previously existed at the Cumhuriyet Foundation was embarked on and a new board called the Executive Board was formed. The claim and punishment sought relating to me begins as follows on page 257 of the section ‘Conclusion and Assessment’ of the indictment:

‘... the suspect Akın ATALAY (...) had a communications record and, as was also stated by witnesses Ali Açar, Miyase İlknur and Aykut Küçükkaya, with an organ named the “Executive Board” that was not included in the Foundation Deed having been created by the Management Board, was brought in to head this board and, in this way, the suspect was endowed with considerable influence in newspaper management ...’

It is false information that a new formation that had not previously existed at the Cumhuriyet Foundation was embarked on and a new board called the Executive Board, that according to the indictment was not included in the Foundation Deed, either, was formed. It is obvious that the colleagues of ours who are giving testimony as witnesses are not familiar with the Cumhuriyet Foundation and the official deed. This is also natural. These colleagues of ours have imagined the Executive Board set up within newspaper operations and Yeni Gün Haber Ajansı A.Ş to be a new structure within the Cumhuriyet Foundation. However, the Executive Board formation at the Cumhuriyet Foundation is an organ or structure that has existed for 23 years since its inception by virtue of a provision in the official deed. However much the quote I have made above from the indictment speaks of ‘an organ named the “Executive Board” that was not included in the Foundation Deed having been created’ and my being brought in to head it, the material truth is the very opposite. The Cumhuriyet Foundation’s official deed is in the binder of exhibits. It has been placed among the prosecutors’ evidence. But, they have obviously placed it there without reading it. I now read Clause 11 to you:

‘The Management Board shall elect a Fulfilment Board consisting of an adequate number of Management Board members including a Chair, Deputy Chair, General Secretary and General Accountant. (...) The Fulfilment Board shall be duty bound to implement and execute Management Board resolutions and shall report to the Management Board.’

As has been seen, at Cumhuriyet Foundation, pursuant to Clause 11 of the official deed, there has ever since its inception been a fulfilment, that is an Executive, Board. The information that a new formation was embarked on is false. At the same time, at the foundation’s recommendation, an Executive Board Chairship was created at the operating company, Yeni Gün Haber Ajansı A.Ş. The witnesses and the indictment have mixed up these two different juristic persons.

An interesting method has been resorted to by the public prosecution in view of misgivings that, far from being persuasive and convincing, the nonsense and inconsistency of the charge against Cumhuriyet newspaper of aiding the FETO-PKK and DHKP/C terrorist organisations will place those who press this charge under suspicion. Following the detentions, an instruction was drafted to the General Directorate of Foundations on 18 November 2016. The idea behind this instruction was for the foundation and companies connected to the foundation to be subjected to intense inspection so as to unearth fresh charges against the detained Cumhuriyet managers. The foundation and company, which thanks to this instruction on the part of the prosecution has undergone frequent inspection, was examined once more for a special purpose. The outcome of this inspection, as no other negative imputation presented itself, came in the form of the endeavour to invent the offence of employment-related abuse of trust with reference to the sale of two immovable properties, the giving of a loan from the foundation to the newspaper and failure to convene a company general meeting; more correctly such a crime was fabricated. The inspectorate attached to the General Directorate of Foundations, having, to put it metaphorically, understood the order to shoot emanating from the prosecution to be to kill, did not stop at fabricating a crime and, becoming carried away, issued an opinion going as far as the manner in which the paper’s impressum is to be configured.

While not comprehending why the removal of the wording ‘Executive Board Chair’ from Cumhuriyet newspaper’s impressum has been incorporated into the indictment (page 115 of the indictment), I will not let this go unanswered. What is it to you what titles and words, what posts and ranks are entered on a newspaper’s impressum? Is there really nothing else for inspectors and prosecutors to do that they have started to regulate newspapers’ impressums? Do you also have a notion as to whether or not the editor-in-chief, Ankara representative, section supervisors, advertising managers and similar functions that are indicated in newspaper impressums but are not mentioned in company articles and the Commercial Code are to be included in the impressum? I am now submitting newspaper cuttings to you containing the impressums of three newspapers apart from Cumhuriyet newspaper. The Hürriyet, Star and Yeni Şafak newspapers. The same titles and designations are included in these newspapers’ impressums. Do they also have to remove them? Or is this implementation peculiar to Cumhuriyet?

I bring this point to an end here.

X- Conclusion and Assessment:

A) Concerning the indictment’s conclusion and assessment

I am making a brief quote from this section of the indictment. The indictment says:
‘(...) That the activity essentially has a legitimate basis does not alter this situation. For instance, even if a person performing the profession of doctor is not part of an organisation’s hierarchical structure, his giving medical treatment to organisation members who are secretly brought to him can be deemed to be aiding the organisation.’
I break off from the quote here and read a passage from the book entitled ‘Criminal Organisations’ dated 2011 by Prof. İzzet Özgenç, who chaired the scientific panel that drew up the Penal Code currently in force:
‘(...) We are of the opinion that not all kinds of aid given to organisation members need be classified as a crime. For example, the giving of medical assistance to heal a sick or wounded organisation member need not entail penal responsibility.’
As has been seen, making recourse to the same concrete example, the chief architect of the edifice of the Penal Code, İzzet Özgenç, has contradicted the indictment. However, seemingly, a doctor is not to give medical assistance to a seriously injured person who is brought to him if that they are an organisation member! Should he do so, this will be deemed a crime. What is there to say? The law cannot be perceived in such an inhuman way. What a sick mindset!
I am continuing the quote from the indictment’s conclusion and assessment section from where I broke off:
‘(...) Press members’ activities must also be approached in this context. Activities that, under normal conditions, accord with the law within the scope of the right of the public to obtain information and the right for press members to conduct their professional activities are restricted in all national and international systems informed by such criteria as public peace. (...)’
As has been seen, the indictment expressly acknowledges that, ‘Under normal conditions, what you are doing is journalism. But, neither journalism, nor the judiciary, nor the country are under normal conditions!’
B) My conclusion and assessment:

Those conducting the investigation wrote a letter to the police authorities immediately prior to drawing up the indictment in a final determined drive to enable a connection involving me to be established. The record of Istanbul Police Directorate Counter-Financial Crimes Branch Directorate dated 31.03.2017, three days before the indictment dated 3 April 2017, has entered pages 18-19 of binder five. It is said in the record that:

‘Information is requested about Akın Atalay and Mehmet Murat Sabuncu as to whether they are connected to FETO/PDY. In the search conducted into the individuals, NO RECORD PERTAINING TO THEM WAS ENCOUNTERED in 1- The list of those whose names are mentioned in ongoing investigations, 2- The list of individuals having accounts at Bank Asya, 3- The list of those registered with associations and trade unions deemed to be come under FETO, 4- The list of shareholders and directors of companies that are under investigation in relation to FETO, 5- The list of users of the BYLOCK program, 6- The list of police force members expelled under decrees with the force of law, of appointments of martial law commanders, and similar lists, and 7- The list of individuals encountered in the subscriber particulars of numbers called from the 336 numbers allotted to the 72 people whose HTS record was obtained as part of Ankara Republic Chief Prosecution’s main overarching FETO/PDY investigation, which have been sent to our Branch by various units in relation to the FETO/PDY organisation and have been collated at our Analysis Branch Directorate.’
That is, the investigating prosecutors wanted one more in-depth inquiry. Well, was the result of this inquiry entered in the indictment drafted three days later? Of course not.

Now let us come to my conclusion and assessment:

Those who stand charged here of aiding FETO are Cumhuriyet newspaper’s managers and columnists. A person possessing average intelligence only has to look at the accusations and the accused to realise at once that a machination is involved. When we were detained and sent to jail, even those on duty, learning that we had been detained on charges of engaging in organisational activity on behalf of FETO, said, ‘Give us a break, it cannot get any more nonsensical.’ Why are we in detention and why are we on trial? I will state clearly that we are here because, in relation to FETO, we, unlike some, have no connection, relationship or fault that needs to be forgiven and about which apologies are made with the claim, ‘They used us.’ We are here because we fought in a decisive and insistent manner from the outset against this structure now called FETO, and because we constantly warned public opinion and officials about the threat and danger that this structure posed. We are here because there are in our midst rare people and journalists who, in times when those who touched FETO got burnt, displayed the courage to touch them. It would appear that had we, too, numbered among those who say, ‘We were deceived and tricked. Our eyes were blind and they used us,’ we would now also number among the favoured. This realisation comes readily from looking at those who are investigating us, the witnesses and evidence. But we are guilty; we are guilty because at no time did we reach accord or agreement with or tolerate the structure called FETO, either when it was the community, or the brotherhood, or the service movement, or the parallel structure, or FETO. We always saw this formation, and its methods and aims, to be a threat and danger. We wrote about and criticised the way they were infiltrating and organising and conducting activities within the institutions of the state and said the state must take measures.
Never at any time have we said that we are the same mountain’s breeze and the same garden’s rose as FETO; nor have we trodden the same path and drunk from the same water as them; our innate nature was different as were our words.
But, we defend the right to a fair trial without exception for every person. We deem being fair to be a requirement not just of the law, but of being human and remaining human. We wish injustice to be visited on nobody, irrespective of the past and records of those on trial, whether or not they express contrition, or the serious of their crime. We want justice and equality. The closeness to or distance from our political position of those on trial is not and should not be a measure of their entitlement to rights. We do not proclaim those on trial to be guilty in advance, not because we see them as being blameless, sinless, innocent and good people, but purely because they are people and must have basic rights arising from this. This is how we used to think, too. This is also how we think today. Tomorrow, we will adopt the same attitude without looking at the identity and records of victims and those on trial. Consequently, we will suffer no regret, either.
Let it be known that even if the final decision to be passed here appears to be about us, this is not how it will really be. We have been in detention for months because the one in power today wished it so. I do not know how much longer it will last. But, there are things I do know. We do not accept slavery and we will not abandon our honour, esteem and humanity. We will not succumb to fear. We will not and cannot make a compromise over journalism that will impair the people’s right to acquire information. We will not consent to a dishonourable freedom. I hope that everyone will steer clear of such baseness. You, in the final decision you pass, will also have decided whether or not thinking differently from those in power, criticising, being in opposition and journalism is deemed to be a crime.

In conclusion

İlhan Selçuk said that everyone sculpts their own statue. Those who work there probably sculpt newspaper’s statues, too. İlhan Selçuk, Uğur Mumcu, Muammer Aksoy, Bayriye Üçok, Ahmet Taner Kışlalı and Onat Kutlar sculpted Cumhuriyet newspaper’s statue at the cost of their lives.
We, the people from Cumhuriyet standing here in the dock, have assumed the watch over this singular statue.
We are striving to ensure that no stain is left on this statue on our watch. In common with those who came before us, we do not bow to those in power, succumb to fear or betray journalism.
This comes at a price in this arduous period.
We are honoured and proud to be paying it.
That is all!

Akın Atalay
Silivri Closed Penal Institution
24 July 2017
 

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