Fourth hearing in the Cumhuriyet trial – no crime, no evidence and no release, either

The court bench ruled in its interim decision that our four colleagues remain in detention and the next session will be held on 25-26 December.

Members of parliament, representatives of press professional organisations and citizens convened for a press statement in front of Istanbul Judicial Complex in Çağlayan prior to the fourth hearing of the trial in which our columnists and managers, who were arrested and detained in an operation staged one year ago today, are being prosecuted. CHP Istanbul MP Barış Yarkadaş made the press statement on behalf of the group.
 
The fourth hearing of the trial in which 19 defendants are being prosecuted, of whom Editor-in-Chief Murat Sabuncu, Executive Board Chair Akın Atalay, reporter Ahmet Şık and accounting employee Emre İper along with Ahmet Kemal Aydoğdu, alleged to be the holder of the “Jeansbiri” account, are in detention, was held at Istanbul Serious Crime Court No 27.
 
The presiding judge announced the interim decision. The court bench ruled that all defendants’ detention continue. It was decided in the interim ruling for Can Dündar and İlan Tanır to be apprehended and for Mehmet Faraç, Leyla Tavşanoğlu and Doğan Satmış to be heard as witnesses. The next hearing of the trial in which it was decided to await the expert’s report into Emre İper will be held on 25 and 26 December.
 
Prior to the hearing CHP parliamentarians Sezgin Tanrıkulu, Barış Yarkadaş, Muharrem Erkek and Hılmi Yaraycı together with a large numer of foreign press members including International Press Institute Chair John Yearwood, German journalist and writer Günter Wallraff and Sarah Clarke of PEN International convened in front of the judicial complex to give support to the Cumhuriyet staffers.
 
“THEY ARE BEING PROSECUTED PURELY FOR HAVING CONDUCTED JOURNALISM”
 
Following the chanting of the slogans, “Don’t be silent and shout - journalism is a right” and “Freedom right now,” Canan Yıldız made a press statement on behalf of Journalists on the Outside. Yıldız, recalling that the Cumhuriyet Newspaper and Özgür Gündem Newspaper trials in which journalists are being prosecuted would be heard that day at Çağlayan judicial complex, said, “We wish for the immediated release of our hostage colleagues Ahmet Şık, Murat Sabuncu, Akın Atalay, Emre İper, İnan Kızılkaya and Kemal Sancılı. Because, as we have said countless times, our colleagues who have been detained in the trials brought against the Cumhuriyet and Özgür Gündem newspapers are being prosecuted purely and simply for having conducted journalism.”
 
REPRESENTATIVES OF FOREIGN PRESS ORGANISATIONS ALSO MADE STATEMENTS
 
International Press Institute Chair John Yearwood, stating that he has followed this trial from the outset, commented, “I hope this will be the last hearing I will observe.” German journalist and writer Günter Wallraff, stating that he had come here many times in solidarity with detained journalists, said, “My friend Aziz Nesin once said, ‘The most correct place for a journalist to be in such times is jail’.” Sarah Clarke of PEN International, noting that PEN International had been monitoring this trial from its outset, said, “PEN regards the Cumhuriyet trial as being the greatest infraction against the freedom of expression in Turkey.”
 
CHP’ YARKADAŞ: THIS BUILDING HAVING JUSTICE IN ITS NAME BUT HAVING NO JUSTICE INSIDE
 
CHP MP Barış Yarkadaş proclaimed, “Welcome to our ordinary Tuesday meeting today. Why do I say, ‘ordinary Tuesday meeting?’ Because every Tuesday we gather in front of a building having justice in its name but having no justice inside for our detained journalist colleagues. Unfortunately, the AKP regime seemingly does not change our fate. There are currently 182 journalists behind iron bars and they are paying a heavy price for what they have written, drawn and said, for the tweets they have posted and comments they have made.”
 
LIVE BLOG
09.08 – It was announced that the hearing, slated to start at 09:30, would commence at 10:05.
09.15 – Certain relatives of the defendants were not admitted to the courtroom on the grounds that their names were not on the list.
11.10 – Our Editor-in-Chief Murat Sabuncu, Executive Board Chair Akın Atalay, reporter Ahmet Şık and accounting employee Emre İper were admitted to the courtroom having been brought from prison.
11.20 – Following the commencement of the hearing, the presiding judge made a brief explanation: He said that there were more absent documents than ones that had arrived.
11.25 - The presiding judge announced that the Doğan Satmış interview had entered the file.
11.30 – The presiding judge announced which of the requested experts’ reports had arrived.
11.35 – It was announced that Mehmet Faraç, expected as a witness at the last two hearings, was also not in attendance at the latest hearing.
11.40 – Aydın Engin’s attorney objected to admission of the Doğan Satmış interview into the file. The attorney said, “Satmış expressed his own view as to whether the intelligence agency report fell within journalism and tried to create a perception. The Doğan Satmış interview cannot be used as evidence. It must be removed from the file.”
11.45 – Tora Pekin, Attorney-at-Law: “I draw the court’s attention to the consistent non-appearance in court of witness Mehmet Faraç. Mehmet Faraç is essentially not impartial. There is a further dimension to Faraç’s partiality: competition between Aydınlık and Cumhuriyet.”
11.55 - Tora Pekin, Attorney-at-Law: “We apply for Tunacy Beşikçi to be heard as a witness in relation to Emre İper.”
12.00 - Tora Pekin, Attorney-at-Law: “There is not one single technical explanation in the file as to ByLock being on Emre İper’s phone, just input that he was included on the intelligence agency’s list. It is possible to drown in neswpaper reports over the injustices committed in that list. The expert has not submitted a report to the effect that ByLock is present. No report will ever arrive to the file to the effect that ByLock is present.”
12.10 – An additional defence is being taken regarding accusations that Ahmet Kemal Aydoğdu had ByLock with reference to documents that had arrived.
12.40 – The prosecutor has expressed an opinion that the application for Judicial Communications Expert Tuncay Beşikçi to be heard should be dismissed. The prosecutor also sought the dismissal of the applications for the removal from the evidence of the Doğan Satmış interview that had entered the file and for Mehment Faraç not to be heard as a witness.
12.41 – A recess was taken in the hearing for a decision to be announced on the applications.
13.47 – The trial restarted and the decision taken on the applications was announced. The court ruled that the expert be heard in the courtroom and the Doğan Satmış interview be placed in the file as evidence. As to Mehmet Faraç, whose removal from the list of witnesses had been sought, the decision was taken that, “There are no gounds for dispensing with his testimony.”
EXPERT HEARD AS WITNESS: I SAW NO TIE WITH FETO
13.50 – The hearing continues with testimony from Judicial Comminucations Expert Tuncay Beşikçi.
Beşikçi: “I have 19 years’ experience of communications. I have worked alongside the prosecution in many FETO-connected trials and we have submitted opinions. The examined phone belonging to the suspect was used on 9 November 2013. The phone has never been formatted since it was first used. It lends itself very well to examination because we are able to recover deleted files retroactively. It is an advantage that it is an Android and we may not be able to break the codes on Apples and Blackberries. I made a search of the content. I created keywords relating to FETO and was unable to see any FETO ties as a result. Whatsapp has been used most on the phone. It has been backed up. I searched for ByLock using all known methods. I encountered absolutely no indication of ByLock.
I just saw that he follows the Fuat Avni account. Actually, I follow it, too. I looked into how a phone on which ByLock had not been used was routed to the ByLock server. This could only have been done with another application. There is code included in a music program that was downloaded on 3 June 2014. Someone who downloads the Freezy or Mecca direction ap is routed unwittingly to the Bylock IP. That code routes every visitor to that page to the ByLock server. With you wanting to listen to music you are instantly routed to the ByLock server.
ORGANISATION MEMBERS DEVELOPED THIS PROGRAM
Suspect Emre İper downloaded this program onto his phone on 22 June. Three days later ByLock makes its advertising on this program and, then, one day later it is routed to ByLock.Then it eliminates the program. Some Mecca direction finding progams have also been routed to this server. ByLock was developed and used by the organisation. The accused never used ByLock. The Freezy program was downloaded onto the accused’s phone. This program was developed by organisation members. There may be many people in the accused’s position. People wishing to perform prayer may have been routed to this server. It is easy to ascertain this and it is ascertainable from just one line of code. Real ByLock users can easily be differentiated from those who were routed to the server.”
Presiding Judge: “Is it possible for the Freezy program to route to the server in Lithuania?”
Beşikçi: “It is technically very possible. I did this in the system. I entered some code and routed to this server. Consequently, everyone who visited my site was also routed to ByLock.”
Presiding Judge: “Does the failure to detect a trace of ByLock on a person’s phone constitute evidence that they were not a ByLock user? Because they may have been connected through another phone. We have seen in other examples that it is used through routing.”
Beşikçi: “It is hard to determine this on Apples and Blackberries but I examined this. If you request records from all operators between 26 August – 13 September you can actually see if they are ByLock users or were routed.”
14.43 – Presiding Judge Abdurrahman Orkun Dağ announced that the mobile phone examination record as part of the Osman Kavala investigation had entered the file. He read a message chain between Kavala and Aydın Engin.
“I CALL THIS A CONSPIRACY”
Fikret İlkiz, Attorney-at-Law took the floor and said, “The correspondence that has arrived vindicates us in prodecural matters. If we wait, more documents will come, too. Kavala’s interrogation is being conducted today at the police. This means that Kavala will be detained. Given that he has sent such a document to the Press Prosecution, we will wait like in a case in which the debtor is ordered to deposit funds and, with secrecy applying to the investigation into a defendant, does sending this correspondence not breach secrecy? I make no application, but this is how things stand. The prosecution sends information relating to the investigation into Kavala and we are defendants at the hearing.”
Ergin Cinmen, Attorney-at-Law: “The terrorist prosection draws a connection with the media in a curious manner. This is an abuse of position. I call this a conspiracy from now on.”
Ahmet Şık: “I have said for two sessions that I am making a criminal complaint, but you have evaded making a decision. A document bearing the hearing prosecutor’s name circulates in a newspaper close to the ruling party, but you do not file a criminal complaint. You search for an organisation in our headlines. But, I have told you where the organisation is located. The organisation is in this judicial complex building, in the guise of judges and prosecutors, and their collaborators are the media.”
Presiding Judge: “We were not contemplating prolonging this trial and wanted to end it, but experts’ reports are absent. Mehmet Faraç will come and be heard at the session.”
THE PROSECUTOR ANNOUNCED HIS OPINION THAT THE DETENTIONS SHOULD CONTINUE 
The Republic Prosecutor, making known his opinion with regard to the appliations, voiced the opinion that the defendants’ detentions should continue.
14.58 – MURAT SABUNCU: THE PROSECUTOR HAS MADE US EXPERIENCE THE SAME DÉJÀ VU
Murat Sabuncu: “The interim decision is the same, the prosecutor’s opinion is the same, the documents delivered to you at the last moment are the same – one year has passed, and everything is the same! One year has passed since we lost our freedom. The learned prosecutor has made us experience the same déjà vu. Cumhuriyet takes orders from no-one. The person who gives orders to those on Cumhuriyet has yet to born by their mother. Are we to learn journalism from prosecutors? Is an expert whose age is equivalent to the time I have spent as a journalist to teach us journalism?”
15:15 – AKIN ATALAY: TWISTED TO AID THE PROSECUTOR WHO WAS UNABLE TO FIND A CRIME COMMITTED ON BEHALF OF THE ORGANISATION
“For the period of some five months that passed until the indictment was presented to your court, the charge filed against us in rulings ordering the continutaion of detention by various penal judgeships of the peace was cited to be “committing crime on behalf of an organisation while not being an organisation member” having a counterpart in the Turkish Penal Code (Article 220/6 of the Turkish Penal Code).
In line with the opinion on each occasion of the prosecutor pursuing the investigation seeking continuation of detention for this offence, decisions were also passed by duty penal judges of the peace ordering the continuation of detention.
The prosecution, unable to unearth a crime committed on behalf of the organisation, now amended the charge in the indictment it drafted to aiding terrorist organisations. Over the seven-month period that has passed from that date until now, your bench has actually ordered the continuation of detention on this new amended charge.
In fact, I did not wish to touch on the grounds you include in the decisions ordering the continuation of detention and make an assessment of these grounds, because, were it necessary to speak frankly and sincerely, our detention ever since the start of the proceedings has not been based on legal or statutory grounds and has been based on a political plan and decision; I thought that the statements and wording contained by way of grounds in orders for detention to continue were much more of an excuse and an endeavour to find a legal pretext than grounds; I still think so. I hope that so thinking and expressing this thought of mine is subsumed under the right to defence.”
 “IF I CAME A HUNDRED TIMES INTO THIS WORLD, I WOULD PREFER TO BE ON THE DEFENCE IN THIS TRIAL EVERY TIME”
“So as to determine who is prosecuting whom on contemplating the charges and defences in these proceedings, outer form and formal appearance must not be sufficed with. If I came a hundred times into this world, I would prefer to be on the defence in this trial every time, because lining up with the values of justice, freedom and democracy is honour. For, my conscience is clear and I am at peace. Your bench will most certainly pass the first ruling in this trial. But, this will not be the final decision and the situation we can all foresee is that this trial will not end with this ruling.  Hence, the ruling that your bench passes over me neither worries nor frightens me. I have no doubt that these proceedings will end in our vindication and, conversely, in the bringers of the charges and causers of the injustice being proved wrong and put to shame. I wish to say to everyone who has retained a sense of justice, fariness, compassion and conscience: have no worries, have no doubts – it is not those who appear strong today but those who are in the right who will prevail. My final words in relation to our detention are that we are here as representatives of one of Turkey’s oldest, most venerable and respected newspapers. Those who represent this newspaper have, like the newspaper itself, frequently passed through and been tested by such calamities and tough times.
It has passed through these tests on each occasion with its good name and honour intact. It has at all times refused to be the palace servant of the holders of power, to conceal or emasculate the truth or defile journalism. It has begged for mercy or asked for pity from no-one. In the face of the reality surrounding journalism and the judiciary in the period in which we find ourselves, let no-one expect of us that we will engage in a request or supplication over which our newspaper will in the future feel shame and hang its head. Under circumstances in which, with regard to trials like ours, Islamic social complexes and not the judiciary are indicated to be the venue for the demand and quest for justice, we have absolutely no matter that we will pursue in Islamic social complexes and over which we will raise requests there. We would deem this to be pointless from both our own and our newspaper’s point of view, and, at the same time, we would consider this to be grave disrepect towards the law and judiciary.
Consequently, under these circumstances I see no need for further comment on ending detention.”
16.28 Duygun Yarsuvat, Attorney-at-Law, took the floor: “It is a very rare situation for the Council of Europe Commissioner for Human Rights to apply to intervene at the European Court of Human Rights and the court has admitted this. The Turkish government has requested a six-week extension and this period will end on 7 November for some of the defendants in this trial and on 15 November for one of them.  The commissioner has forwarded his views in his submission and has stated that there is regression in Turkey with regard to press freedom. He said that freedom of expression has regressed in the wake of the proclamation of the state of emergency. There is no evidence in the file. The releasing of the Cumhuriyet staffers will bing comfort to both your court and Turkey.”
16.59 – “WE WANT INFORMATION AND DOCUMENTS TO BE SENT”
Fikret İlkiz, Attorney-at-Law: “We made application on 26 December 2016 to the Constitutional Court on behalf of all the detained defendants. The Constitutional Court replied to our application with the correspondence it drafted following 62 days. Meanwhile, they joined Cumhuriyet reporter Ahmet Şık with this case. We also applied on Şık’s behalf to the Constitutional Court on 30 January 2017. We wrote to the Chief Prosecution saying that we were going to obtain a principle decision and there was an application by both Turhan Günay and Ahmet Şık and we wish for information about the investigation. We said we wanted information and documents to be sent. We submitted an opinion to the Constitutional Court on 22 May. We also applied on behalf of the Cumhuriyet managers to the European Court of Human Rights on 2 March 2017. The government asked for an extension to the reply deadline and asked for a deadline of 24 October due to the complexity of the case and the final date is 7 November 2017. They will reply to us on that date. The government or Justice Ministry have not replied to the court for nine months because it has held up the individual applications. When you use one of your powers contrary to its purpose you are deemed to have violated Article 18 of the Convention. A reply is sought from the government about this. The Council of Europe Commissioner for Human Rights and thirteen organisations have made applications to intervene and the European Court of Human Rights has also admitted these. On the one hand, the ministry is forever requesting extra time of the European Court of Human Rights due to the “complex case”, and, on the other, there is the Constitutional Court that is not repsonding to our opinion, and we and you are stuck in the middle. What kind of reason do you have not to implement the principle of personal freedom? One person may say ‘We do not recognise it’ but this is of no concern to us.”
17.50 - Fikret İlkiz, Attorney-at-Law: “The law does not deserve to be applied just because it is the law. Judges may resist laws that lack just content, do not secure justice, cause severe breaches of human rights and breach the principle of equality. The restriction of the expression in word or writing of beliefs and thoughts in the manner you have seen in the objection runs counter to rights that the constitution guarantees. Fettering certain opinions and thoughts through narrow interpretations prevents the development of recognition of the right of a variety of currents to exist. Judges are responsible for applying the law, but they are not hostages of the law. They are not machines that apply the law. True judges, in applying soulless and lifeless laws, give life to laws with their consciences and sense of justice. Please grant us our truths and undo their handcuffs so as to prevent them from drinking water handcuffed from now on.”
18.02 – Following Fikret İlkiz, Attorney-at-Law’s address, Kemal Aydoğdu’s attorney Adnan Yıldız took the floor and applied for release. Yıldız said that his client has asserted as of the first day that he is not, as the prosecution says, the holder of the account “jeansbiri”.
18.09 – A recess was taken in the hearing until 19.00.
19.10 – The defendants and spectators were admitted to the courtroom for the interim decision to be announced. The court bench is awaited.
19.26 – The court bench has entered the courtroom.
19.28 – The court bench announces the interim decision: Can Dündar and İlhan Tanır’s apprehension is awaited. Mehmet Faraç, Leyla Tavşanoğlu and Doğan Satmış will be heard as witnesses. The expert’s report into Emre İper is awaited. The next hearing of the trial will be held on 25 and 26 December. The continuation of all defendants’ detention was ordered.