On Şık’s removal from the courtroom being ordered, he said, “I hope you will not be tried in a court like yours.” Witness Doğan Satmış, who testified at the hearing, stressed that the detained Cumhuriyet staffers had fought against FETO for years.
Our columnists and managers will appear today before a judge for the fifth time at Istanbul Serious Crime Court No 27 within the trial in which our news reports and columns serve as evidence.
9.30 – Journalists, parliamentarians, lawyers and civil society organisations congregated in front of Çağlayan Judicial Complex in support of the journalists. CHP members of parliament Sezgin Tanrıkulu and Barış Yarkadaş and HDP members of parliament Filiz Kerestecioğlu ve Garo Paylan also contributed to the press statement made prior to the hearing.
“THIS PROCESS WILL BE OF GREATEST BENEFIT TO THE FETO DEFENDANTS”
Istanbul Bar Association Chair Mehmet Durakoğlu, speaking on behalf of the Justice Watch, said, “The gravest measure introduced under decrees with the force of law has been the impunity granted to people involved in quelling the coup attempt and terrorist actions ‘irrespective of whether or not they were in an official capacity and were carrying out an official task.’ Let me state outright that this provision is null and void. Providing for impunity such that any particular person will not be held legally liable notwithstanding an act that constitutes a crime is contrary to general legal logic and philosophy. With us making the law the basis for quenching our longing for democracy, these new measures introduced under decrees with the force of law numbers 695 and 696 have made our task even harder. In short, our burden has increased since yesterday, because even if these decrees have the force of law they do not comply with the law. If you think that you will conduct those sessions you call prosecution more quickly and in the manner you wish by ignoring and disregarding the right to defence in this way, this will all come back from the European Court of Human Rights. This process will be of greatest benefit to the FETO defendants. There is no way that justice can be secured through abandoning the law. We as lawyers will continue our struggle unintimidated.”
“THESE LAST TWO DECREES WITH THE FORCE OF LAW ARE THE FINAL NAIL HAMMERED INTO THE COFFIN OF THE RULE OF LAW”
Ankara Bar Association Chair Hakan Canduran, also criticising the decrees with the force of law issued yesterday, commented, “Unfortunately, the way has been paved for the creation of paramilitary forces, and this has been done consciously. The point has been reached at which citizens will be used to massacre citizens. Are there no law enforcement forces in this country such that the attempt is being made to empower citizens in this way? Do they not foresee that his will lead to a civil war? On the contrary, they do. The result to emerge from this is that parliament is now finished. The state of emergency has now become the regime being enforced. The Constitutional Court is just a court in name. I say this with sorrow. These last two decrees with the force of law are the final nail hammered into the coffin of the rule of law.”
“THERE NOW REMAINS NOTHING THAT IS SECRET OR HIDDEN ... LET THEM BE RELEASED.”
Confederation of Progressive Trade Unions’ Press Trade Union affiliate Chair Faruk Eren, pointing out that Akın Atalay and Murat Sabuncu had been in detention for 421 days, Ahmet Şık for 360 and Emre İper for 263, commented, “Everyone knows that the operation launched against Cumhuriyet newspaper, the detentions and the subsequent prosecution proceedings were a huge lie as of the first day. There now remains nothing that is secret or hidden. Hence, our recommendation is for you to abandon calculations as to how our country can be further disgraced and restore our colleagues to freedom.”
Eren remarked, “We want to leave tomorrow evening with our four colleagues. But, we will most certainly not make do with this. We wish for all detained journalists to be released and for all trials relating to the freedom of expression to be abandoned.”
Following the addresses to the crowd, he entered the courtroom venue for the hearing
10.55 – The doors to the courtroom are opened. Spectators are admitted.
11.00 – The hearing has started. Presiding Judge Abdurrahman Orkun Dağ said, “There are shortfalls on our side. I requested an expert’s report and a real estate report came. All of the witnesses we called were to be present. We drafted three different writs with regard to the digital materials but an investigation has not been made. It was said that the code in some of the digital material was corrupted and some was absent. There is no reply to the writ addressed to Kemal Aydoğdu. This is the state of the evidence at the stage our court has reached. If there are no other applications, we would like to continue with witness Doğan Satmış's testimony.”
11.10 – Bahri Belen, Attorney-at-Law: We have not made any applications because we know that in other proceedings applications have not been granted on the grounds of “not prolonging the proceedings.” However, we will make our applications known later.
11.15 - Ayhan Erdoğan, Attorney-at-Law: We have raised the point countless times that the proceedings are not being conducted in conformity with the law. We applied for revocation along with all the interim rulings because we speicified that the court could not be a penal court. We also wish it to pass into the records that the procedure whereby witnesses were called today is contrary to a fair trail. A person who is to testify for the prosecution cannot give independent testimony here about Doğan Satmış, and I wish it to enter the records that this situation is not just, either.
11.20 – Fikret İlkiz, Attorney-at-Law: You have an order for bringing by force. What we make of this is that witness Mehmet Faraç came to you and declared that the order to be brought by force against him be annulled. Because, apart from your writ, I have been unable to see any petition, document or application at all on the National Judiciary Informatics System as to why the order for bringing by force has been lifted
Presiding Judge Orkun Dağ: Our clerk colleagues phone witnesses repeatedly, not only in this case but also in others. When he was phoned, Mehmet Faraç said he would come as things stand today, but due to a lesson he would attend for the appointed one hour but the order to bring by force would cause difficulty.
11.30 – Doğan Satmış: My interview was misrepresented in certain newspapers. I did not say that the colleagues had FETO ties and this is also what I believe. These colleagues fought against FETO for years. Those words are not mine. It is also negative given the impression that is made abroad with journalism put on trial with such severe sentences sought in this way. I came conscious of the duty to convey this to you because I have been a journalist and part of journalism professional organisations for 35 years.
11.35 – Presiding Judge Dağ: They said that the words in the interview were not yours. Did you take penal action?
Satmış: I noted on Twitter on the day it was published that those words were not mine. But I did not sue for retraction because as a journalist it did not become me to impose retraction on another journalist.
Court prosecutor: There was coverage of the intelligence agency trucks in your interview. Some jurists said, “If you publish that they’ll detain you.” Who were they?
Satmış: There was Akın and Bülent.
Prosecutor: Was Akın at the meeting?
Tora Pekin Attorney-at-Law: You said you were in the post for sixteen months. Could you talk about how that started and ended?
Satmış: 2015 February – I left in June 2016. I think the name of my column was “Last Minute”. I wrote a single column and I wrote it once a week. I penned the Writing on the Wall for a while anonymously. What is written anonymously is generally down to one person and I continued for a while. My name was not shown in the column. We penned it on a weekly basis and then took it out again.
Tora Pekin, Attorney-at-Law: You have both said that certain newspapers contorted your words and there is also an announcement you made on Twitter: “The interview was twisted and used to create an impression.” Are the comments attributed to you yours?
Satmış: The person I spoke to was my friend of thirty years. It took place as a chat. There may be words that go beyond their meaning, but they are my words. Mustafa Balbay’s departure coincided with my time there. I know about the foundation elections to the extent that they have been portrayed in the media. Balbay accused the editorial department of which I was part. I used the term “take over” in the article to describe the alteration to the balance on foundation management.
Pekin, Attorney-at-Law: You said, “Akın Atalay did away with our team one week before 15 July.” Who was your team?
Satmış: I came to the paper when Dündar came. There were 10-11 of us. I left the paper at the said time. That’s what I meant.
Pekin, Attorney-at-Law: You are implying that Atalay had knowledge of the coup attempt.
Satmış: Am I? I said no such thing. I had one or two experiences with Atalay over editorial matters but these were all things to do with journalistic activity.
Pekin, Attorney-at-Law: Was there any instruction that went beyond criticism internal to the newspaper?
Pekin, Attorney-at-Law: At that time [June 2016], was anybody else terminated apart from you?
Pekin, Attorney-at-Law: You have said, “This team knew that it could not follow the editorial policy it wished.” What was the editorial policy that Atalay wished for?
Satmış: I have no idea of that. After me, ten colleagues resigned. Akın wanted a change to management and for Aydın Engin to be more influential.
Pekin, Attorney-at-Law: Did you witness anything concrete with regard to Akın Atalay's wishes?
Satmış: I did not, but the resignations were interpreted in this way.
Pekin, Attorney-at-Law: On what grounds was your contract terminated?
Satmış: There were no grounds in writing. Akın criticised one or two of my articles. And I attended a Turkish National Team match abroad at a company’s invitation. He said it was for that. In fact, 4-5 more people from the paper went on that trip. I don’t remember their names.
Pekin, Attorney-at-Law: Were you criticised by the Cumhuriyet Readers’ Representative for that trip or else other acts of yours?
Satmış: Yes, and I even joked to him, saying “You haven’t written about me this week,” I was criticised once or twice.
Pekin, Attorney-at-Law: Who did not want which reports to be included?
Satmış: When Can Dündar was detained, we gave coverage to keep it on the agenda. Criticism came that this coverage was excessive but we did not acquiesce to this.
11.55 – With Presiding Judge Dağ saying a recess would be taken, Ahmet Şık objected saying, “I wish to make statement and I wish for the hearing to continue.”
Dağ: We said this so that the hearing would not be prolonged needlessly.
Şık: And this is why I am saying this. The hearing is continuing.
12.00 - Presiding Judge Dağ asked the question with reference to the intelligence agency trucks, “Do you also reject you statements in connection with this?”
Belen, Attorney-at-Law: You said that Akın was at the meeting. Was it Akın who made the comment, “You’ll be detained?”
Belen, Attorney-at-Law: Did the journalists knowingly publish despite this?
Satmış: This was actually the point of the meeting. Whether we journalists would publish knowing that we would be detained was a matter for discussion.
Prosecutor: Do rebukes made by newspaper management or foundation management prior to publication or afterwards affect a journalist?
Satmış: The next day when the paper comes out hundreds of thousands of people read it. Following publication, there is talk at the paper over what happened. It has no effect.
Prosecutor: Did Akın attend publication meetings?
In response to one of the member judge’s questions, Satmış said, “When we were on the job, the editor-in-chief was number one and his assistant number two. Then there were news managers. Akın wanted Aydın to have greater influence than the assistant editor-in-chief. The colleagues who left told me that there was a wish to place Aydın over them.”
In response to question of who they were, Satmış said, “The team that left passed on what was being spoken of at the paper.”
12.05 – Presiding Judge Dağ made known that Leyla Tavşanoğlu and Mehmet Faraç would give testimony at around 14.00-14.30 hours. Then the prosecution would submit its recommendation.
12.10 – The presiding judge wished to take a recess, but Ahmet Şık said, “I want to make statement and I want the hearing to continue because of this.” The application was granted. Ahmet Şık addressed the court and started to make a filmed address. Fikret İlkiz, Attorney-at-Law, told the bench, “I wish to indicate to you in advance that certain comments that will be made here do not refer to you.”
12.12 - Ahmet Şık: According to data in the speech made by Court of Cassation President İsmail Rüştü Cirit to mark the new judicial year, eight per cent of the country’s population is under suspicion. This a very high percentage. But, it is necessary to correct the simple miscalculation that Court of Cassation President Cirit made. The percentage made up by people to whom the power of discernment cannot be ascribed such as those in the 0-15 age group and the mentally ill is around 25 per cent. Then, there is a ten per cent composed of people who are physically disabled or confined to bed or physically incapable of committing crime. If, as the Court of Cassation President states, there are some seven million suspects, this amounts in proportional terms to the deeming as being suspect in the eyes of the state of fifteen per cent of the country’s population. In other words, one in every seven people on the street is a suspect.
We are confronted by a vista in which, under a dictatorial regime that feeds its evil on violence, naturally enough, what increases the bounds of its freedom is simply evil. There is a ruling body that treats those of the country that are not part of it in various forms and degrees as terrorists while resting, not on pluralism, but on majoritarianism. There is a media that is collaborating in the crime of clouding our shared future with each truth that is covered up and concealed. There is a silent majority that is trapped in a spiral of muteness out of fear or concern that their comfort will be disturbed as everything plays out before their eyes. With this being so, under a dictatorial regime that is fully devoted to oppression and feeds its evil on violence, what increases the bounds of its freedom is simply evil.
12.15 – With Presiding Judge Dağ saying using the familiar form, “I am interrupting you Ahmet Şık,” a spectator interjected saying “You must use the respectful form of ‘you’; he is not your son.” The presiding judge had the spectator ejected from the courtroom.
Permission was denied to Ahmet Şık's defence by Presiding Judge Dağ on the grounds that it was “political” and Şık’s removal from the courtroom was requested.
At this, Ahmet Şık, stressing that the trial was a political trial, said, “I hope you will not be tried in a court like yours.”
On slogans, “Ahmet will come out and write once more” being chanted in the courtroom, the bench left the courtroom.
It was decided to hold a recess in the hearing until 14.00 hours.
14.00 – A limit has been imposed on lawyers at the hearing. Three lawyers may enter the courtroom for each defendant. Journalists not having yellow press cards and the defendants’ relatives are not being admitted to the courtroom.
14.50 – The hearing has restarted. Presiding Judge Dağ: Ahmet Şık will henceforth not be in this courtroom. He has disrupted these proceedings in a blatant manner pursuant to Articles 203-204 of the Code of Criminal Procedure. We have no doubt that this was going to continue. Everyone knows Ahmet Şık to be a man of protest, and we know, too. It is not correct for this place to be turned into a place for slogan chanting with his friends from the forum. We hope as far as possible to get things right and complete these proceedings.
Presiding Judge Orkun Dağ then corrected himself, saying, "I said Ahmet Şık will not be at this session.”
15.00 – Fikret İlkiz, Attorney-at-Law: Ahmet Şık started at 12.01 and ended at 12.07. He was silenced the moment he mentioned the AKP and ruling body and when he said that this trial was political, he was silenced. We spoke to you first. We did a deal. You said, “The bounds of defence should not be exceeded.” And we said, “Let the defence be made and if there is anything constituting an offence, pass it on to the prosecution.” Just as before. We have said at all hearings and all sessions that this trial is a political trial. This is our opinion. These are comments we have made with reference to the indictment. If by way of defence we need to find out about certain rulings external to the National Judiciary Informatics System without this being 1-2 days before the hearing, we will do so. Whenever an opinion has been aired about the judiciary and the media and mention is made of the AKP and ruling body, you have called a halt. With a view to saving time, we are in agreement over statements. But, you now cite Articles 203-204 of the Code of Criminal Procedure. With respect to conduct. But there is no aspect of his conduct and your interrupting him that hinders the proceedings. According to the Code of Criminal Procedure removal is made such that this does not to hinder the right to defence. You know that we have spoken more harshly by way of defence. Come what may, Ahmet Şık is a defendant. We wish for him to be called again and make that defence instead of any-old defence confined to six minutes, then if you desire for you to make a criminal complaint.
Presiding Judge Dağ: This application of yours is legally well founded.
İlkiz, Attorney-at-Law: He must be present so as to hear witnesses.
Court prosecutor: Since there are no comments in Şık's defence relating to defence and the charges and he has abused his right to defence, it is recommended that the application in this regard by the defendant’s attorney be dismissed.
Presiding Judge Dağ: It has been ascertained that comments that are not contained in Ahmet Şık’s defence and place things on a political footing will disrupt the discipline of the proceedings. This is clearly apparent from the footage on the video link recordings from this courtroom. Ahmet Şık will not be in the courtroom today.
15.10 - Bahri Belen Attorney-at-Law: I wish to make an assessment of your reason for dismissing İlkiz's application. Şık did not shout or scream or engage in unseemliness or rudeness or make insults before being removed from the hearing. But, conversely, he spoke about the situation of the president of the state’s Court of Cassation and the media. The journalists facing trial and especially the country’s oldest and best-established newspaper, Cumhuriyet, have until today defended secularism, democracy, freedom and the Republic. The media that Ahmet Şık refers to as the partisan media has been influential in this trial. Its coverage has been placed in the indictment as supporting material. If the indictment is to be supported by this very partial media, is Ahmet Şık today and the other defendants tomorrow and we defence counsel the following day not to be permitted to say anything about it? Can we not say anything about a media that is influencing a fair trial? The AKP rulership’s newspapers or other newspapers can criticise Cumhuriyet newspapers or its reports. There is nothing we can say about this. In that case Şık today and our other clients tomorrow and we the following day will discuss what this media says and its identity. Does Ahmet Şık not have the right to demand a fair trial in this environment in which there are these dangers? In this case, have both the provisions in the Code of Criminal Procedure and the international provisions that are binding on us been observed from the outset of the investigation? They have not. The trial was filed and have the prosecutors complied with these? They have not. Each time, one day prior to the hearing documents have been submitted by a prosecutor who had pulled out of the case and had no remaining interest in or competence over it, and your court has paid attention to these documents. This has given rise to serious concerns over the court and regarding the indictment that is important for the court’s collective disposing of the case. For both judges and prosecutors, the inviolability and immunity that arises from their performance of these duties is not a prerogative that is awarded to their robes. The immunity that comes along with my robe does not have to do with me, but is an immunity in relation to the right of the person I represent. Immunities, not least the presumption of innocence, are not your prerogative, but are interventions made to preserve justice with regard to the decisions you pass.
Belen said the court bench should recuse itself otherwise he would apply for recusal.
15.30 – The lawyers applied for recusal on the grounds that Ahmet Şık's right to defence had been restricted and the independence of the investigation had been impaired from the outset. A ten-minute recess was held in the hearing.
15.40 – The hearing continued following the recess.
Presiding Judge Orkun Dağ: It would appear that, like Kayahan's song, ours is a love story in smithereens. Pursuant to Article 28 of the Code of Criminal Procedure no circumstances exist that are conducive to deliberation being made or for the recusal application to be dismissed.
15.45 – The court prosecutor sought the awaiting of apprehension of the fugitive defendants Can Dündar and İlhan Tanır to be carried out, the continued application of release conditions to those on conditional release and extension of the detention of the detained defendants since the circumstances in the previous interim ruling had not ceased to exist.
The court bench stated that the application for recusal complied with procedure and it would conduct no business apart from urgent business. The Court Presiding Judge said that the recusal decision would be deliberated on later.
15.50 – Duygun Yarsuvat, Attorney-at-Law: The evidence gathered over five sessions has shown us that the grounds cited for detention are not correct. It is said that according to concrete evidence the deeds were changed. What concrete evidence? No concrete issue is outstanding. You spoke of unheard witnesses, but everyone is responsible for themselves. If somebody did not come from abroad, you cannot burden those who are on trial with their responsibility. Akın Atalay came from abroad and handed himself in and there is no flight risk. Detention is not a measure. It is the restriction of liberty. There will be suspicion that the crime was committed and there will be suspicion as to flight or tampering with the evidence. We have gathered the evidence. There is nether suspicion as to flight or tampering with the evidence. There is talk of “while not being an organisation member” – you can get up and pin this on anybody. Why is Ahmet Şık on trial? For aiding the FETO organisation while not being a member. Ahmet Şık was imprisoned under the FETO conspiracy. There is a truth and you cannot change it: this is a political trial and this political trial will continue. It will take its place in legal history among political trials. Let us see what is said in five years’ time. There was no reason for them to be held in detention pending trial. It would be appropriate to order their release pending trial. If you do not pass it, the European Court of Human Rights will pass such a decision, so at least you pass that decision first. If nothing else, let us depart from here with our honours intact.
16.00 – Our Editor-in-Chief Murat Sabuncu: Yesterday, I embarked on my fifteenth month in detention. I had prepared a defence and I wanted to read it, but as Ahmet Şık could not make his defence, naturally enough I will not, either. I expected both of us to come out and make a defence. We have always looked you straight in the eye. Ahmet Şık is one of this country’s most honest journalists and had he been able to make this defence he would have told the truth again. I have one request of you. Ahmet is alone downstairs. I want to go down beside him. Today is my son’s birthday. My son is 21. He studied law abroad. And the esteemed presiding judge did not admit him to the courtroom today.
16.15 – Akın Atalay did not make a defence, either. Atalay said, “I am deferring my views on the unfolding judicial process and witness testimony. I wish immediately to go to the side of my friend who is waiting on his own. But, if you are going to pass a decision on detention, I want to say one thing. Ten days ago, your bench held a trial for five days in a row at the Silivri Prison Courtroom. It was the trial of the Reina massacre defendant. You read in the indictment that the defendant’s first target was Cumhuriyet newspaper. You are holding us thirty metres away from those who gave up at the last moment on throwing a bomb at Cumhuriyet newspaper.”
Atalay wound up with a reference to Yahya Kemal's lines “Dying is not the worst thing in our lives / What's harder is that one dies before one's death”: Being detained is not the hardest thing in our lives / What’s harder is that one loses one’s freedom and good name.
16.17 – A half-hour recess was held in the hearing. The ruling will be announced after the recess.
16.55 – The interim ruling will be announced shortly. Only the lawyers are being admitted to the courtroom.
17.30 – The court bench ordered the extension of the detention of the detained defendants and the holding of the next hearing at 10 am on 9 March 2018 at Silivri. The court ordered in its ruling that each judge submit an opinion on the grounds for recusal and send them to Serious Crime Court No 28, for the hearing to be held at Silivri for security reasons and for a three-lawyer limit to be imposed.
17.45 – A press statement was made in front of the Çağlayan Judicial Complex following the announcing of the ruling. Istanbul Bar Association Chair Mehmet Durakoğlu, who made an address here, said, “Ahmet Şık's right to a defence was very blatantly hindered. He was removed from the courtroom after some time. There is the spectacle of a hearing in the absence of a defendant and limits on lawyers. A very special duty is incumbent on us all here. Jurists must stand up for justice. We as lawyers are this country’s memory. We have left many politicians behind. They have gone.”
“WE WILL CONTINUE OUR STRUGGLE UNTIL THERE IS NOT A SINGLE JOURNALIST IN DETENTION”
For his part, journalist Ertuğrul Mavioğlu, who subsequently took the floor, remarked, “It appears that this Cumhuriyet hearing that has been put off until March will be heard in the absence of the defendants, because they will most probably introduce the uniform attire implementation. They will place bans on visitors. We will continue our struggle until there is not a single journalist in detention. We will not be defeated. We are sure of this.”