Our newspaper’s Editor-in-Chief Murat Sabuncu and Executive Board Chair Akın Atalay have been held in jail for sixteen months and our reporter Ahmet Şık for fourteen months on an indictment based on gossip along the lines that “FETO has taken over Cumhuriyet” from people like Cem Küçük, Hüseyin Gülerce and Latif Erdoğan within a trial in which our editorial policy is targeted. Not only are the charges and detentions unlawful, they also fly in the face of our colleagues’ entire professional lives. Akın Atalay was Cumhuriyet’s lawyer for 25 years and defended our paper over these long years against lawsuits brought by Fethullah Gülen. Murat Sabuncu, a journalist of 26 years’ standing, tirelessly defended journalism in a period in which headlines reading, “They are not detained for journalism” appeared and the judiciary and media were in an equally dark period as today. Ahmet Şık, a journalist of 28 years’ standing, also spent over a year in detention in 2011 under a conspiracy by Gulenist members of the judiciary and police for having investigated the Gulenists’ organisation in the police. Having emerged from jail, he examined the Gulenist formation and the AKP government’s assistance as this formation developed over time in his books “Ambush/The State’s New Owners” and “We Walked These Roads in Parallel”. Istanbul Serious Crime Court No 27, however, continues to deprive our colleagues of their liberty on grounds that are copies of one another, citing the existence of “concrete evidence pointing to strong suspicion of guilt.” With detention now turning into a sentence, we wished to revisit our colleagues’ articles from years ago that rebut these charges.
He has defended journalism at all times MURAT SABUNCU
The article that Murat Sabuncu penned in T24 about the Oda TV trial whose hearing he observed on 17 September 2012:
“I cannot promise flowers. But chairs and tables are guaranteed. Of the kind favoured of late, capable of taking shape depending on “gravity” and “situation”. At their most plastic. At the judicial complex. No, the spectators’ gallery, sounding and looking big, is not a tiny place. The modest cafeteria outside, immediately to its rear. A good setting, too, for taking a photograph. It is crawling with the “usual suspects”. A group of journalists observing their colleagues’ trial. Perhaps they have come to witness yet another of the “road crashes” that have become commonplace in this country over the years. I am sorry, but not everything in this photograph is plastic. The suffering, for example. You can touch the spouses’, mothers’ and fathers’ feelings. Perhaps you actually like this. This is what you are expecting on the road towards sitcom that never manages to arrive. But, more poignant truths are present. Inquiring as to what could trump this, there are, for example, the defences of people most of whom have become acquainted with one another for the first time in jail and have been detained for months charged with membership of a terrorist organisation. I will speak of one of them here. Of the defence of Barış Pehlivan, who was released on Friday having spent twenty months in detention. Seemingly, there are three files alleged to have come through a virus. How Barış astonished everyone with the headings taken from the report from the Scientific and Technological Research Council of Turkey that was seven months in the coming. He told us all about the viruses sent, two from the same address and one from another, at five-minute intervals to three different computers. He told us the date of this: 5 February 2011. He showed everyone something else. The date on which the court obtained the order to monitor the emails on these computers: 4 February 2011. God works in mysterious ways. From the virus affair that Barış spoke of citing page numbers in the Scientific and Technological Research Council of Turkey report, emails with viruses start to be sent on 3 February, but do not succeed. Emails begin to be monitored on 4 February. The attack is staged on 5 February. Well, in that report trumpeted by some people to attest to there being no virus there in fact is; this is precisely where this information is from. Meanwhile, the Scientific and Technological Research Council of Turkey left the conclusion section within the report that it compiled over seven months so inconclusive despite this information that even the presiding judge was up in arms.
A fresh, comprehensible report was requested from the Scientific and Technological Research Council of Turkey. But, this was requested to be forthcoming within twenty days. I hope it comes. But, if I do not ask the thought will plague me: If the Scientific and Technological Research Council of Turkey can put it together in twenty days, why did it dawdle for seven months with the first one? Why was the report into the viruses requested late in trial proceedings lasting twenty months? The uncertainty and doubt in the Scientific and Technological Research Council of Turkey report is in the defendant’s favour. But, as the presiding judge decrees, “At the time of the judgment.” In this land in which a trial lasts for years. In these years in which detention has become commonplace. Meanwhile, the fresh hearing is in the middle of November. It is easy for you and me, but another sixty days drag by for somebody stuck in detention. The thought is on your mind that years later, perhaps when you have grown old, while engrossed in one of the games you played with relish as a kid, for example battleships, you might say, “Journalism was on trial in those days.” If only you got up and came to the trial. PS: This article was written, not just for those journalists I know, greet and share the same haunts with and a single trial, but for all journalists on whom we turn our backs without even reading their indictments, chiefly Kurdish journalists, who pass through similar processes the main thrust of which is journalistic activity in long detentions and interrogations.”
He has stressed judicial independence AKIN ATALAY
-From his article “Letter to judges serving on special-jurisdiction courts” published in Cumhuriyet on 18 May 2011:
“...We are finally in days in which the existence of special-jurisdiction courts has started to be debated. This debate looks likely to continue and intensify in the days to come. So as not to cause any further loss and social harm in this process, I wished to address in the public eye those prosecutors and judges who serve and exercise powers on these courts and shape their practices and make an open call. I make this call, not in the capacity of a lawyer who has acted as defence counsel out of public duty at these courts, but with the responsibility of a citizen who has closely witnessed practices for 25 years. The role assigned to these courts that have been set up as an extension of the concept and ideology of combatting terrorism is to be the actor in the legal arena of the state’s fight against terrorism. These courts’ functioning and practices must thus conform to this role assigned to them; and this is how it has turned out. The end goal of the concept of a court is to dispense justice. However, these courts’ basic and primary goal is not the dispensing of justice, but has mutated into combatting terrorism. In the contemporary approach to the law, it is not prosecutors, judges and courts that combat terrorism, but such bodies of the state as the police and gendarmerie, which have been set up to this end. Courts are not structures that have been set up for the purpose of protecting the state. The task of prosecutors and especially judges who serve on courts cannot be perceived as being contributing in the legal arena to the state’s fight against terrorism. Once we adopt this approach, then your impartiality and the law will willy-nilly be relegated to the background. You are no longer a judge, but a public servant assigned to the fight against terrorism. When you assume the function and mission of protecting the state, your yardstick is no longer the law and justice. As a slave of statute in combatting terrorism, you are a civil servant charged with implementing it. You have departed from the definition of a judge in many international and national documents. For you, first the law and then the texts of statutes amount simply to means/weapons to be used in combatting terrorism. (...) Please cease surrendering to the state and those who use sanctioned force on behalf of the state, and be judges for the citizenry.”
-From his article titled “Flout it, court” published in Cumhuriyet on 16 July 2013:
(Concerning the decision of – closed – Istanbul Serious Crime Court No 13, which was hearing the Ergenekon trial, to dismiss applications for defendants’ release following the Constitutional Court’s annulment ruling over lengthy detention) “...Is there nothing that can be done in the face of an extraordinary court in the Turkish legal system by itself defying and flouting established legal practice? Looking at the passive stance adopted by the senior legislative and judicial institutions and the Justice Ministry’s torpor, the law would appear to have been abandoned to the initiative of a handful of first-instance judges.”
-From his article titled “Turkey on the Sirat Bridge” that he wrote following the European Court of Human Rights’ ruling on the State Security Courts in the 16th edition of Cogito magazine published in 1998:
“...Turkey is on the Sirat bridge. It will either come to its senses and champion the supremacy of the law and human rights and freedoms. Or else, it will be banished from Europe due to its failure to attach minimum respect to human rights and the supremacy of the law and live in the company of its own shame. The responsibility for our choice will be incumbent on us all.”
He wrote about both what had happened and would happen AHMET ŞIK
From his book “AMBUSH the State’s New Owners”:
“... The Gülen brotherhood, which organised in the police force from the mid-1970’s, reached the point in thirty years at which it could use any force it wanted as it wished. Another important leg of the organisation in police schools and academies was the Staff Branch Directorate. In this way, it also became determined which posts police officers known to be brotherhood members would be assigned to. The units to which the Gulenists attached most importance were the Intelligence Branch Directorate, the Anti-Smuggling and Organised Crime Branch Directorate and the Counterterrorism Branch Directorate. These three branches that were of strategic importance at the start of the 2000’s more or less came under the Gulenists’ control. Here, by way of an important anecdote, it is worth noting that the Gulenists organised in the judiciary in the same manner. To the extent that the staff on the special-jurisdiction courts at which the Ergenekon investigations were heard was, according to a claim by Democratic Judiciary Association Co-Chair Orhan Gazi Ertekin, being made ready as of 2004 and 2005.”
“...Prime-Minister Erdoğan, a guest on 31 March 2012 at the Confederation of Businessmen and Industrialists of Turkey (TUSKON), known for its closeness to the Gulenists, made notable statements in his speech one section of which was devoted to the brotherhood. Erdoğan announced a “ceasefire” in the battle between them and the Gulenists, saying, “We will continue to walk hand in hand and shoulder to shoulder without falling apart from our colleagues, friends and brothers with whom we have walked together until today. Until today, it has never become us to say “I” with reference to us.” The parties’ “ceasefire agreement” in public view took this form. But, for sure, time was to prove this situation to be transient. The Gulenists, as they had always done, resorted to a tactical withdrawal on seeing power once more. Seemingly the Gulenists, who would, just as in the 28 February coup, spend this tactical withdrawal amassing sufficient strength and intelligence, would not desist from waving the sword with which they had once more girded themselves when the time came.”
Cumhuriyet obtains damages from Gülen
A landmark ruling has come from the Constitutional Court in an application by Cumhuriyet. In 2009, Fethullah Gülen brought a lawsuit against our paper over our report on CHP Press Spokesperson Mustafa Özyürek’s press statement and obtained non-material damages of 1,500 Turkish lira. Publisher of Cumhuriyet, Yeni Gün Haber Ajansı Basın ve Yayıncılık AŞ, and its proprietor, the Cumhuriyet Foundation, made an individual application to the Constitutional Court in opposition to the ruling. Sought in the application were a declaration that the ruling passed in favour of Fethullah Gülen was contrary to Articles 26 and 28 of the Constitution regulating freedom of expression and the press, annulment of the ruling and non-material damages. The Constitutional Court granted the application in the ruling it issued on 27 December and ruled that Cumhuriyet’s freedom of expression and the press had been violated by the judgment passed in favour of Fethullah Gülen. The Constitutional Court also ruled that it be sent to the court for all the consequences of the judgment to be eliminated and awarded Cumhuriyet non-material damages of 10,000 Turkish lira.
The ruling will set a precedent
The report that was at issue in the Constitutional Court ruling was about comments CHP Press Spokesperson at the time Mustafa Özyürek made about Fethullah Gülen. Özyürek had commented about developments at that time that, “Gülen-Apo [Abdullah Öcalan] are hand in hand. We are heading towards a Kurdish state.” Gülen brought a lawsuit over this comment and won the lawsuit. The Constitutional Court declared that in press cases of this kind, both the identity as a “politician” of the person whose comment was reported and the identity of the person at whom the comment was directed must be taken into account. The Constitutional Court, announcing that boundaries imposed on statements made in the context of political debate must be subjected to intense scrutiny, found “the restriction on the publishing in a newspaper of statements indicative of political parties’ stance in matters relating to Turkey’s important issues” to be contrary to the law. The warning was also given in the ruling, “The awarding of damages against a newspaper for publishing comments in the newspaper made by a politician about a well-known person in the course of a press statement may be detrimental to the environment of imparting information and criticism.” This decision will in particular set a precedent for high-value damages lawsuits brought by politicians to silence the press.
Judiciary’s never-ending contradiction
The application dated 2014 constituted the first application made to the Constitutional Court on behalf of our paper. In 2014, Gulenist prosecutors and judges were still very influential especially at the Court of Cassation and, consequently, it was a period in which Gülen was winning lawsuits he brought to intimidate the press. So, when the right of individual application to the Constitutional Court became available, the subject of the first application on behalf of our paper was the lawsuit Gülen had brought. The aim was to have the protection the judiciary was affording Gülen removed by the highest court. However, in the Cumhuriyet trial in which our Editor-in-Chief Murat Sabuncu, Executive Board Chair Akın Atalay and reporter Ahmet Şık are still undergoing prosecution in pretrial detention, our paper is alleged to have aided FETO, the PKK and DHKP-C since 2013. This would mean that, in 2014, Cumhuriyet was on the one hand aiding Gülen’s criminal organisation and, on the other, trying to break the protective shield that was being afforded to Fethullah Gülen at Istanbul Judicial Complex. The next hearing of the Cumhuriyet trial based on the irrational claim regarding aid will be held on 9 March at Silivri.
Our application is still being kept waiting
The application made by our Cumhuriyet trial detainee colleagues, in turn, still awaits adjudication by the Constitutional Court. The Plenary Session of the Constitutional Court has only examined Turhan Günay’s application from among the applications made for our eleven detained colleagues and it ruled that detention was in violation of the Constitution. Istanbul Serious Crime Court No 27, which is keeping the detentions in place, has not accepted that this ruling constitutes a precedent and has ordered the continuation of Sabuncu, Atalay and Şık’s detention. Our colleagues’ individual applications over their detention will also be dealt with by the plenary session. However, although the cases were made ready months ago they are still pending before the Constitutional Court.
Detained for 16 months - they will come out and write again