You did not release the “captain” but you cannot make him surrender
The prosecutor sought custodial sentences for our columnists and managers in the Cumhuriyet trial. The court ordered an extension of Cumhuriyet Executive Board Chair Akın Atalay’s detention. The next hearing will take place between the dates of 24-27 April at the Silivri Judicial Complex.
The seventh hearing of the trial in which our newspaper’s editorial policy stands accused was held yesterday in the courtroom opposite Silivri Prison. The hearing prosecutor read his recommendation on the merits and the court bench ordered the extension of Cumhuriyet Foundation Executive Board Chair Akın Atalay’s detention. The court bench ruled that the next hearing be held on the dates of 24-25-26-27 April once more in Silivri.
At the commencement of the hearing, presiding judge Abdurrahman Orkun Dağ reminded our reporter Ahmet Şık, our accounting employee Emre İper and user of the Twitter account named “Jeans Biri”, Ahmet Kemal Aydoğdu, that they had been granted an additional right of defence and said this right may be exercised during the defence on the merits. Dağ, noting that they had written a letter about İper and Aydoğdu to the Anti-smuggling and Organised Crime Branch but no reply had been forthcoming.
“TURKEY’S TRIAL OF SHAME”
Tuncay Özkan said the following in a press statement he read prior to the hearing in front of Silivri Prison on behalf of the CHP Media Commission members of parliament:
“It is sadly the fate of me and my friends to be in front of Silivri Prison. We finally want to make a break with this fate, with this prison mentality. We want justice, we want freedom, we want happiness. The trial currently going on in the courtroom is a truth destruction trial. This trial in which Cumhuriyet columnists and managers are on trial is, sadly, one of Turkey’s trials of shame. What the court refers to as the captain of the ship is still held captive in Silivri for him to leave the ship last. We want freedom for the other politicians and journalists held in Silivri. We want this shame to be eradicated. If it continues like this, this will be our disaster. Imprisoning everyone who speaks and criticises will turn Turkey as a whole into a prison. We expect these trials to end at once and for our friend Akın to be released.”
Baseless recommendation from prosecutor
Prosecutor Hacı Hasan Bölükbaşı, making known his recommendation in the Cumhuriyet trial, sought the severing of the trial against our former editors-in-chief Can Dündar and İlhan Tanır on the grounds that their defences have not been taken. In his recommendation, Bölükbaşı included rebutted witness testimony and unfavourable articles published in other press-publishing outlets about our paper. Bölükbaşı, citing our reports and columns as evidence for the charges, tried to create a foundation for the accusations by also cherry-picking statements from favourable witness testimony.
In his recommendation on our accounting service employee Emre İper, in turn, prosecutor Bölükbaşı asserted that it had not been possible to obtain evidence that Emre İper had beyond doubt of all kinds not used the ByLock programme. Bölükbaşı, reading messages that Emre İper had posted on his Twitter account, alleged that, by means of them, İper had attempted to manufacture an impression and made propaganda that portrayed methods incorporating force and violence as innocent by harbouring the wish for the attempted coup to succeed. İper spent nine months in jail charged with being a ByLock user and it emerged that he had fallen victim to the ByLock network routing conspiracy that was incorporated in the music application named Freezy that operated with the program named Purple Brain.
In his recommendation, Bölükbaşı sought the punishment of our newspaper’s Foundation Chair Orhan Erinç, Editor-in-Chief Murat Sabuncu, Executive Board Chair Akın Atalay, columnists Aydın Engin, Hikmet Çetinkaya, Hakan Kara and Kadri Gürse, reader representative Güray Öz, reporter Ahmet Şık, lawyers Bülent Utku and Mustafa Kemal Güngör, cartoonist Musa Kart and manager Önder Çelik on the charge of aiding an organisation brought against them. Bölükbaşı sought an order for the extension of our Executive Board Chair Akın Atalay’s detention. With regard to our book supplement manager Turhan Günay and our managers Günseli Özaltay and Bülent Yener, he sought the handing down of an acquittal ruling on these counts. He sought Emre İper’s punishment on the count of making terrorist organisation propaganda. On the count of employment-related abuse of trust of which the Cumhuriyet Foundation administrators stood charged, the prosecutor asked for an acquittal ruling to be passed. Conversely, he sought Ahmet Kemal Aydoğdu’s punishment for managing a terrorist organisation.
Bölükbaşı began to read his recommendation that amounted to a repetition of the indictment at 11.10 and finished at 15.00.
10.45- Our detained Executive Board Chair Akın Atalay, Attorney-at-Law, was brought into the courtroom. Lawyers and spectators are being admitted to the courtroom.
11.00- The hearing commenced with the bench having taken its place. Presiding Judge Abdurrahman Orkun Dağ said, “We sent a letter to the Anti-smuggling and Organised Crime Branch about Ahmet Kemal Aydoğdu and Emre İperbut there is no reply.” Ahmet Kemal Aydoğdu was asked to give a statement on his Information and Communication Technologies Authority. In response, Ahmet Kemal Aydoğdu spoke with reference to his Data Commercialisation Centre data.
11.05- Presiding Judge Abdurrahman Orkun Dağ: “Our court’s procedural matters have been completed. Given there is no complainant/intervening party, we can request the recommendation on the merits from the prosecution.”
11.10- Prosecutor Hacı Hasan Bölükbaşı announces his recommendation: “Since it has been impossible despite all searches to find Can Dündar, against whom a trial on behalf of the public was filed for the offence of aiding while not being a member, and İlhan Tanır, against whom a trial on behalf of the public was filed for the offence of membership, we recommend that the apprehension order remain in force. At a time when Cumhuriyet newspaper was carrying illegal publications that were incompatible with press freedom, İnan Kıraç's vote was not accepted in the election with the intervention of Akın Atalay as he was influential over the executive board election. The first step was taken towards changing Cumhuriyet newspaper’s editorial policy through procedures that were contrary to the foundation deed and the law. The meeting was held without the quorum being attained and the executive board election so held was in breach of procedure. At the same election, with the chair’s vote counting twice, action was taken contrary to the deed. Although the foundation has eleven members, the meeting at which Önder Seçim was elected was attended by six members and, since the requirement for seven members was not met, the decisions taken in these membership elections are contrary to the deed. The annulment ruling over this election is still at the appeal stage. Akın Atalay in particular played an influential role and, changing the newspaper’s editorial policy in a way that would enable him to act along with Erinç and Çetinkaya, created an environment that was conducive to aiding the PKK/KCK/DHKPC. People attached to Atatürk’s principles like Balbay and Coşkun were got rid of. The foundation that holds effective sway over the newspaper was designed in this way. With the appointment of publishers and reporters like Aydın Engin, Murat Sabuncu, Ahmet Şık and İlhan Tanır along with Dündar, the ninety-year past and founding philosophy of the newspaper, which maintained an editorial policy tied to certain aims and had a strong interaction with its readers, underwent change. It created the perception that was misleading to the public that Turkey was a country that supported terrorism, as with the intelligence agency trucks. As the Zaman, Taraf and Bugün newspapers had lost their prestige among the public apart from their supporters, the organisation used Cumhuriyet as a means. It engaged in activity that aided terrorist organisations to commit their acts, portray them as being amiable and legitimate and that portrayed Turkey as if it was aiding terrorist organisations. The newspaper was in a sense taken over and diverged from Yunus Nadi’s aims and goals. In this period, Cumhuriyet became the defender and protector of FETO, PKK and DHKPC. By portraying the acts of terrorist organisations as legitimate in a manner incompatible with press freedom, they laid the ground for their goals and embarked on publishing activity. There was a wish to disguise these organisations’ aims through serialised interviews. Its editorial policy cannot be accounted for through press freedom. The inclusion of interviews with prosecutors who then fled in the 17-25 December period and afterwards, and these people being made out to be heroes together with Can Dündar is noteworthy. Cumhuriyet all of a sudden changed its statist, nationalist and secular line after 2013 and set its sights on the state. After he came out of prison, Balbay spoke of being victimised through the ending of his column for expressing his views on FETO. Even if it appeared to be setting out views on current events, Aydın Engin’s support for terrorist organisations and the portrayal of the head of the terrorist organisation as being innocent with the report, “They called my humble abode a mansion” are pointers to the change in editorial policy. This was made apparent in Alev Coşkun's testimony. In Ayşe Yıldırım’s Qandil report, pronouncements were made that would portray the organisation that it is inspired by terrorism and chaos rather than peace as being different and that made praise. Descriptions were made in the article regarding forests and the environment that is of great concern to youth and civil society organisations, with reference to the matter of the equality of women and men and about the organisation members’ life style that were of no interest or concern to the public. The similarity between the “Peace at Home” headline and the name of the “Peace at Home Council” on 15 July is noteworthy. There were comments such as, “I did not say that the Gülen movement was a terrorist organisation” and the responsible person for the website was penalised for publishing terrorist organisation’s announcements in connection with the interview with Karayılan that was published. The same headline as Zaman was carried. Following the bomb attack in Ankara for which TAK claimed responsibility, Zaman and Cumhuriyet carried the same headline, “Bomb in the Heart of the State.” If it is stated that the similarity is coincidence and there are other examples, the carrying of the same headline by Zaman and Cumhuriyet, which have different lines, cannot be accounted for through coincidence. According to Sabuncu’s testimony, Gürsel, who participated at newspaper meetings, in his article, “Erdoğan Wants to be our Father,” even if he gave the impression of writing his opinion on Erdoğan’s criticism of smoking in the final analysis bestowed legitimacy on such antidemocratic images as rebelling against the state. There is a similarity between the title “Peace in the World, so at Home What?” of the article Aydın Engin penned two days before 15 July and the name the terrorists in military uniforms who staged 15 July gave themselves. This is no simple coincidence. On 15 July and hours before the coup, Erdoğan’s location was published at http://cumhuriyet.com.tr under the headline “He has not been around for a week.” By making publication under the headline “The Danger in the Streets” containing statements and classifications that at first glance look like news but actually exceed the bounds of freedom such as that those protesting against the coup attacked the memorial made for the Ankara Station attack, tension was being experienced in Alevi neighbourhoods in Hatay and Malatya, there was an attack on the Samanyolu High School owned by the Gülen brotherhood, homes and businesses belonging to Syrians were being set alight and young people drinking alcohol were set on by AK Party supporters returning from a rally, publication was made in opposition to those who criticised the coup attempt and which served the purpose targeted with the coup attempt. Publication was made that would set the people against one another. By saying, “There is no democracy on the streets” those holding watch on the streets against the coup were targeted. In the interview Ahmet Şık conducted with the prosecutor over the halting of the intelligence agency trucks, the attempt was made to bestow legitimacy on what ex-prosecutor Aziz Takcı did. In Ahmet Şık's interview with Cemil Bayık, the attempt was made to portray the PKK as a legitimate armed organisation and his propaganda was conducted by bringing his comments to public attention. It was observed that Ahmet Şık’s statements and posts on his Twitter account displayed similarity with the allegations, he tried to gain acceptance for their acts as being war and made descriptions of the security forces as if they were murderers. However much it is argued that Şık was a FETO victim, when the interviews and comments covered in the indictment are taken into account, just as he acted in line with DHKP-C and PKK goals, he has reports and interviews with prosecutors who acted in conjunction with FETO. These organisations [DHKP-C, PKK, FETO] are connected to a mastermind having similar ambitions and methods with regard to a common enemy. For this reason, no credence can be given to Şık's defence. After Can Dündar and Erdem Gül had been detained, Fuat Avni wrote wishing them a “speedy recovery.” Akın Atalay and Murat Sabuncu made posts in opposition to the operations against FETO and tried to create a perception favourable to FETO. Even if the defendants’ counsel point to the absence of ByLock and constant calls to FETO defendants saying for the most part these were SMSs, it flies in the face of reason that these people should even once make contact with the defendants who proclaim themselves to be republican and Ataturkist. It is notable that Cumhuriyet suddenly after 17/25 December conducted interviews with the prosecutors who had made investigations into corruption despite previously approaching these prosecutors critically. The intelligence agency trucks reports were publications made on supposition. The attempt was made to discredit the Republic of Turkey both domestically and in the international community by creating an impression among the public and in this way a heavy blow was dealt to the Euphrates Shield Operation of Turkey that was combatting Islamic State.”
13.00- Prosecutor Hacı Hasan Bölükbaşı has completed his summary of the witness testimony.
Bölükbaşı continued as follows:
“When account was taken of its publications and activities, the newspaper, newspaper website and its posts on social media, a trial on behalf of the public was filed on the charge of aiding the organisation while not being included in the hierarchy internal to the organisation. The statutory time period for brining legal action over published news as per Article 11 of the Press Law, as invoked in defence by the defendants, cannot be applied here. What is subjected to charges here are not individual publications but a publishing activity. Even if they claim to have conducted independent publication, the defendants engaged in publishing the was far from impartial and untruthful and was beneficial to the ambitions of the organisations.
13.17- Prosecutor: “A mobile phone call was detected between Osman Kavala and Aydın Engin, and, from the content of this message, it was ascertained that Engin was seeking EU funding or funds from civil society organisations, in contradistinction to his statements that they were not taking orders, instructions or material support from anyone. When the said messages of Aydın Engin are considered, how was he to continue the publications insistently claimed in the defences to be independent and not subject to order by seeking EU funding? Contrary to the defences, it has been ascertained that the newspaper engaged in publishing activity that supported the PKK, KCK, DHKP-C and FETÖ PDY. Just as with all freedoms, there is a limit to press freedom in the interests of the continuation of the state and society. It is accepted by human rights theoreticians that unlimited freedom will lead to anarchy. (The prosecutor did not mention which theoreticians he was referring to.)
13.55- Publications furthering terrorist ambitions cannot be defended by hiding behind press freedom. Freedom of expression is not always used for very innocent purposes and there are states in history that were first undermined and then destroyed in the name of criticism. The public good and territorial integrity must always be taken into consideration in press and publishing activities. In reporting the news, the comments made also have importance and if the comment is an insult or vilification it cannot be subsumed under press freedom. This is even more important in matters of state security. These comments must be selected much more reliably.
14.20- Prosecutor Bölükbaşı asserted, in summary, with reference to the hashtag AkSilahlanma that reports made at the same hashtag showed that some of the defendants acted jointly.
Bölükbaşı said, “The information that İper used ByLock is contained in the indictment. But expert Koray Peksever did not come across ByLock in his phone and could not find it having been downloaded, either. Even if he was prosecuted for membership with reference to him having used ByLock, evidence could not be obtained that the defendant used the program beyond doubt of all kinds. However, he displayed an attitude of dissatisfaction at the coup having failed in his Tweets after 15 July.”
Prosecutor Bölükbaşı deemed such expressions as “virtual coup” and “coup posturing” that Emre İper made in his Tweets after 15 July as being the attempt to “create an impression favourable to the organisation.” Bölükbaşı said, “These statements made in furtherance of organisation propaganda cannot be subsumed under freedom of the press and expression.”
14.45- Prosecutor Bölükbaşı continued to generalise on the charges in his recommendations with regard to the defendants.
“The mere failure to condemn the acts of terrorist organisations serves organisations, and the defendants made publications in favour of such organisations and engaged in activity to create perception favourable to them. The publications cannot be deemed to be innocent.
Set against the stark perspective of the coup attempt in which 249 people fell in action and 2000 people were injured, the publications made are not innocent. Portraying Turkey in the domestic and international arena as a supporter of terrorism does not fall within press freedom activity.
In short, no credence can be attached to the defendants’ claims that they were publishing faithful to Atatürk’s principles and within the bounds of press freedom.
The publishing of reports and articles that portray the actions of armed terrorist organisations as just and innocent and Turkey as being in the wrong as opposed to them does not conform to press freedom. Support for FETO, even if for a certain purpose, can never be accepted.
It was aimed, especially by placing Turkey in a difficult position in the international arena, to place it under international legal liability with the perception that Turkey was supporting a terrorist organisation like Islamic State.
Halil Berktay’s article published in Serbestiyet analyses the relationship between FETO and Cumhuriyet in terms of the way the repeat coverage of the intelligence agency trucks by Dündar coincided with a period in which the Syria crisis deepened.
It added and subtracted information so as to influence and confuse the minds of society, tried to legitimise acts by altering the truth and tried to create an environment of chaos, and following its own outlets of Zaman and Bugün of the terrorist organisation that entered into agreements with lobbying companies and tried to engage in perception management in furtherance of the aim to place Turkey in a difficult position vis a vis Europe, Cumhuriyet carried this out. With press outlets such as Zaman and Kanalturk having lost their credibility, FETO chose Cumhuriyet where they united over the same goal. Foundation administrators Akın Atalay, Hikmet Çetinkaya and Orhan Erinç set the process in motion whereby the Ataturkists would be weeded out. I apply for the continuation of Akın Atalay's detention to be ordered in that he aided the organisation while not being a member.”
15.10- The prosecutor sought the imprisonment of Ahmet Şık, Akın Atalay, Hikmet Çetinkaya, Orhan Erinç, Önder Çelik, Musa Kart, Mustafa Kemal Güngör, Hakan Kara, Güray Öz, Bülent Utku, Aydın Engin, Kadri Gürsel and Murat Sabuncu for between 7½ and 15 years on the count of “aiding the organisation while not being a member” (220/7 of the Turkish Penal Code).
The prosecutor sought the acquittal of Akın Atalay, Orhan Erinç, Önder Çelik, Hakan Kara, Musa Kart, Turhan Günay, Hikmet Çetinkaya, Mustafa Kemal Güngör, Güray Öz and Bülent Utku on the count of “employment-related abuse of trust.”
The prosecutor sought the acquittal of Turhan Günay, Günseli Özaltay and Bülent Yener on the count of ‘aiding the organisation although not being a member.” The acquittal of the three individuals is sought on all counts.
Emre İper’s punishment for making organisational propaganda (7/2 of the Turkish Penal Code) was sought.
Ahmet Kemal Aydoğdu’s punishment for managing a terrorist organisation was sought.
15.30- A one-hour recess was taken in the hearing.
16.20- The hearing has been resumed following the recess. Our detained Executive Board Chair Akın Atalay, Attorney-at-Law is addressing the court.
Akın Atalay made the following comments in his statement:
“I was actually going to make a far shorter assessment confined to detention, but following the recommendation I feel the need for a more comprehensive statement. The basic nature of the recommendation is that it is more or less precisely identical to the indictment. Because of this, I feel the need to return to the start of the investigation. Most of the defendant colleagues were detained on 5 November, and an apprehension order was issued for me. I returned on 12 November, but I made a statement on 9 November prior to my return.”
Atalay reads the statement he made on 9 November.
“Since it is apparent that I will be unable to have the opportunity of addressing, explaining things and commenting to you for a lengthy time, I am writing at length just now. I wished above all to fill my colleagues in on the arrest and detention process we are undergoing, my personal situation, my decision and certain observations. You will have understood from my comments until now that the time has now come to return home and then – without seeing you – go to Silivri where it appears I will be subjected to compulsory residence for an uncertain time. I want you to know that I did not make this return out of “heroism” but have tried in general terms to make the right decision for the common good cold bloodedly and having subjected it to the test of reason and logic rather than my emotions.
The basic factors underpinning my decision to return:
1-Not to make our newspaper bow its head,
2-For a newspaper having a long-established past, an honourable stance and justified esteem not to suffer negative aspersions such as ‘fleeing’, ‘escape’ or ‘guilty’ thanks to its deputy chair and Executive Board Chair,
3-To show through my deeds, too, the hope and faith I have in Turkey’s people who are fighting undauntedly for a democratic and secular republic and the rule of law based on human rights and in my country’s splendid future, and
4-To prevent the excuse, ‘Just look at how some of them have fled; if they are released they will abscond, too’ that will be to the detriment of my nine colleagues who have been detained on flight grounds.
Dear colleagues, as I will also intimate to the public after you, I will have landed at Istanbul Atatürk Airport and have returned home at 12.00 Turkish time on 11 November 2016. We will see and monitor all together what transpires next.
I mean, we said, after all, that we would not bow our heads and could not regard a defendant on trial for FETO membership as being an independent judicial functionary and could not and would not be part of his accusations that we aided an organisation (of which he is charged of being a member) or, more correctly, a game that would be a masterpiece in the genre of black humour.
If that FETO-member defendant is really looking for who aided the organisation which there allegedly exists strong suspicion and evidence that he is a member of, Cumhuriyet newspaper and its members, administrators and columnists is not the correct address.
The correct address is that of those who probably told him, ‘Open this investigation and silence Cumhuriyet, and, if you do so, we will not expel you like the other colleagues or you will even deserve to be acquitted in the trial at the Court of Cassation in which two life sentences are sought against you.’
They asked, ‘You took over Cumhuriyet Foundation and Cumhuriyet newspaper and changed its editorial policy, make statement in this regard.’ The answer to be given to the prosecutor in this matter is clear: What’s it to you! Am I to ask you and am I to get permission from you?
Since when did prosecutors begin to set newspapers’ editorial policies? If you do not like the editorial policy, you do not buy and read it; that’s the end of it. Going beyond that is an overstepping of your limits and your authority.
If our crime is ‘taking over the paper through an illicit meeting,’ how come three (excluding Arcayürek) of the participants of the illicit meeting and resolution (Erinç-Çetinkaya-Atalay) are defendants under this charge and two of them (Balbay-Yıldız) are witnesses?
We are at ease due to the following: We preserved the independence of our paper, we did not gift it to anyone, and we have had no secret/illegal, direct/indirect relationship, connection, adjunctiveness, aid-giving dealings or acquaintance with any political/religious/economic power nexus.”
16.50- Akın Atalay continues his statement: “The prosecutor engaged in polemics as to what the EU funds were about in his recommendation. Most judges in Turkey have made use of funds to receive such training as on human rights. Have they lost their independence?
We have made reference on a number of occasions to the status of the prosecutor who was the initiator of these proceedings and headed the investigation. The prosecutor who brought FETO charges against us is himself on trial for FETO membership.
We know that the likes of Cem Küçük were on the side of FETO at one time and among them there is also Rıza Zelyut, who wrote articles praising Gülen, from what he says, ‘under the boss’s pressure.’ Leyla Tavşanoğlu was also heard at the last hearing and says she got permission from İbrahim Yıldız.
Yıldız's statement was also read. Yıldız said, ‘No, I was told this after she got back.’ We do not know which of them is telling the truth but it is no concern of ours. But what eclipses reason here is that we are defendants and Tavşanoğlu who went to Pennsylvania and Yıldız who she says permitted her are witnesses.
Let us turn to Doğan Satmış. Most of the reports and headlines at issue in the charges pertain to his publications consultancy period. But, for whatever reason, Kadri Gürsel, who had served as publications consultant for a twenty-day period prior to being detained and has not a single publication at issue in the charges in the indictment over that time, is a defendant, and publications consultant at the time at issue in the charges, Doğan Satmış, is a witness.
Satmış says, ‘We made the paper at the time Dündar was in detention. We made no concessions.’ He made a portion of the reports and headlines that are the reason for us standing trial here; he says so.
The ‘Azaz Knot’ headline was run in Satmış’s time. Of course, we did not succumb to any fear and say, ‘We did not run it.’ The witness came and said, ‘We ran it.’ The person who is the cause is a witness. Is it not then our right to inquire? The person who caused the headline that was shared with Zaman newspaper to be run is a witness, while we are defendants.
We can say the following with reference to those aforementioned witnesses, Satmış and Faraç: Cumhuriyet newspaper was at this time one of the rare entities that was quenching the thirst for true news. Most of the other newspaper and media outlets were threatened by the political authority and its supporters.
Both of these witnesses, Satmış and Faraç, are people who have worked at Cumhuriyet at different times. Amin Maalouf says that an honourable person does not throw stones into the well whose water he drinks. These two people did not stop at throwing stones and also degraded themselves by casting aspersions. May God save them.
Neither the election at the Cumhuriyet Foundation nor the change in editorial policy can have anything to do with crime and accusations. Had the reports and articles forming the basis for the charges not been published at all, would charges have been brought for either the election alleged to have been contrary to due procedure or the allegation of a change in editorial policy? Or, let us put the question like this: had the functionaries who had been in place prior to 2013 not changed, and had the reports and articles cited as the reason for the charges still been published, would they be considered to be crimes?
Or let us exaggerate and put it like this: The foundation sat down and resolved for the paper to align its content with the political rulership as many publishing entities have done. It resolved not to publish things that were to the rulership’s displeasure. In that case, would penal proceedings have been brought on account of the change in the editorial policy? Editorial policy is a value judgement that varies according to the point of view, while penal law deals with acts and actions not value judgements.
17.11- We stand charged of aiding the FETÖ/ PDY, PKK/KCK and DHKP/C terrorist organisations. According to the indictment, this is our crime. So, what did we do to commit this crime? Which of our conduct, which of our actions, formed the basis for this charge? It is common knowledge that according to Article 225 of the Code of Criminal Procedure, ‘Sentence can only be handed down for acts and to perpetrators in relation to an offence.’ So, the basic question is not, ‘What is our crime?’ but ‘Which of our actions has caused us to be charged?’ and ‘What are our crime-related acts?’ Certain defendants in this trial among whom I number are being prosecuted on the allegation and for the reason of being a board of directors’ member or else authorised signatory at the Cumhuriyet Foundation or affiliated companies. I imagine that I, too, will learn later along with the judgment the reason I have been given the honour of different and privileged treatment or at least handling as opposed to the other defendants among whom I have been placed in the context both of the indictment and the court bench, even if there is no legal basis or explanation. The acts imputed against the members of the executive board members are as follows:
1- Having elected not (A) but (B) from among two candidates nominated at the election held on 2 April 2013 for a vacated membership on the Cumhuriyet Foundation.
2- Changing Cumhuriyet newspaper’s editorial policy.
3- Providing the opportunity for and not preventing the publication in the newspaper of headlines, reports, interviews or columns that constitute the offence of aiding terrorist organisations. Not subjecting reports and articles of this nature to supervision and checking. In other words, not implementing censorship! I wish to point out at this juncture that the prosecution has made a form of action that we feel pride over, a journalistic tradition, that is, the principle of editorial independence into grounds for charges. What can be said? There are things that we will have to say about these imputed actions at the time of our defence on the merits. At this stage, I wish to state the following within the context of deliberation on detention status. Are foundations and associations obliged, when conducting executive board elections, to consult with or obtain permission or instruction from the prosecution institution as to which of the candidates they are to elect? If not, why is a charge being levelled against us as to why we elected not A but B? Had charges for terrorist organisation membership been outstanding against the person we elected, we could be asked why we elected a terrorist organisation member. But there is no such charge. As such, how come we stand accused for electing Cumhuriyet employee of 34 years’ standing and former board of directors member Önder Çelik and not Mustafa Pamukoğlu? Is the institution facing us the prosecution institution or the “get Mustafa elected institution”? It beggars comprehension. On top of this, with some of those who made this choice charged, others are deemed to be witnesses. Why? No answer! If electing Önder not Mustafa is a crime, why are some of those who elected Önder charged and some not? The indictment also accuses us of conducting an impropriety by not accepting the vote İnan Kıraç sent without attending the meeting in a closed envelope through a representative and deeming the vote cast by proxy in 2013 invalid. Alev Coşkun, who is one of the background figures behind the bringing of these proceedings and the experiencing of such wrongdoing, has assumed an active role within this dirty campaign against the newspaper, let his ambitions run away with themselves and is expecting the paper to be delivered to him with the political rulership’s support and ministration and is involved in this operation in the capacity of witness, submitted a Court of Cassation ruling to your court during his witness testimony at the 25 September 2017 hearing. From what he claims, this Court of Cassation ruling most clearly vindicates his own conjectures. What is this Court of Cassation ruling? In response to intervening parties’ questions at the hearing, the presiding judge revealed the number of the ruling and the civil law chamber that passed ruling. It is a ruling dated 2002 of Civil Law Chamber No 18 of the Court of Cassation. The ruling emphasised that it is possible to cast votes by proxy at foundation meetings and these are valid and this is not subject to the formal requirement of a power of attorney.
17.15- Indeed, the aforementioned witness also made recourse to the same ruling attached to the anonymous tip-off that he submitted to the presidential general secretariat. As the case law of the Court of Cassation’s Civil Law Chamber No 18 having jurisdiction over foundation law disputes takes this form, when the vote held in 2013 was repeated at the behest of the General Directorate of Foundations in 2014, the proceedings were conducted in accordance with the case law compliance with which was requested by the witness and votes cast by proxy were accepted. Do you know what now happened at this juncture? It was said in the appeal ruling on the annulment proceedings brought at the civil law of first instance that, ‘It is not possible and valid for votes to be cast by proxy at foundations.’ Moreover, this decision was based on a new 2016 ruling of the same chamber of the Court of Cassation, that is Civil Law Chamber No 18. Accordingly, this means that Civil Law Chamber No 18 changed its opinion and case law in 2016 and made a 180-degree reversal of its previous case law. Civil Law Chamber No 18, whose previous consistent and well-established case law was that it was valid for votes to be cast by proxy at foundations, adopted an opinion and case law to the precise contrary in 2016 and said that votes cannot be cast by proxy at foundations. Now, by virtue of this, we who held a meeting and election in compliance with Court of Cassation case law as it stood in 2014 stand charged of not thinking and foreseeing that the same chamber would change its case law two and a half years later. We could even accuse those members of Civil Law Chamber No 18 who passed that ruling of complicity in the act of usurping our foundation. Let there be no misunderstanding, it is an absolutely natural and normal business for the Court of Cassation to change its opinion and case law on any matter. What is not natural is the accusation of failing to know and foresee that the Court of Cassation would two years later call ‘black’ something that it now calls ‘white.’ The charge that editorial policy was changed is not an act but a value judgement. They are the subjective value judgements that serve a certain purpose of the prosecution and prosecution witnesses such as Cem Küçük, Hüseyin Gülerce, Latif Erdoğan, Rıza Zelyut, Alev Çoşkun, Namık Kemal Boya and Mehmet Faraç who are known to the public for their most respected(!) stances and attitudes. On the other hand, thousands and tens of thousands of readers who have formed the readership of Cumhuriyet newspaper for decades reject these value judgements of the aforementioned witnesses and the prosecution.
17.27- By way of representatives of these people, we called the individuals Altan Öymen, Kani Beko and Rıza Türmen as defence witnesses and two of them were heard at the last session. For a change of editorial policy, such a charge, to be brought into issue in these proceedings at this court is a disgrace, not to Cumhuriyet newspaper and the defendants on trial here, but to Turkey’s democracy and press freedom. With your bench ordering the extension of detention by majority vote it emphasised that I had the duty and responsibility of oversight by virtue of the capacity I held. In other words, your bench is of the view that I have a duty of prior oversight and control over the newspaper’s content, publication, reporting and articles.
17.33- However, I made it clear when interrogated. You have also asked the other witnesses, prosecution witnesses and former editors-in-chief. You have always received the same reply. This is Cumhuriyet newspaper. Here there is editorial independence. Here, board of directors and executive board members do not and cannot have prior oversight and control over publications and the newspaper. There is no interference with headlines, which news is to be published, the manner in which it is to be published and columns. The newspaper to appear the next day is not first submitted for the knowledge and approval of the board of directors. It has always been so, and I hope and wish that it will be this way hereafter, in the future. Your honours, the meteorological office makes regular announcement of the weather, rain, fog and the direction and strength of the wind; this is its business and job. If it does not do its job properly and issues incomplete and incorrect data and information, this may cause huge disasters, destruction and loss. In wars, planning and implementations are made in military operations on the basis of information provided and issued by the meteorological office. Plans of action, timings of operations and positionings are always made in accordance with meteorological information. It is likely that terrorist organisations make use in the same manner of information issued by the meteorological office. No person in their right mind would get up and accuse the meteorological office and its experts of aiding terrorist organisations on the grounds that terrorist organisations benefit from this information. So, why are newspapers accused when they write the truth and what happens because terrorist organisations benefit from this and use it for their own propaganda? What are newspapers and journalists supposed to do? Should they conceal the truth? Your honours, the aim behind this operation targeting Cumhuriyet newspaper is clear and manifest.
The political rulership is deeply troubled by Cumhuriyet publishing as an independent and free press outlet, not falling in line with the rulership and imparting the truth to the public not as the political authority decrees it should be but as it actually is. There is a holding to reckoning and paying a price for this. There is a reluctance to court the reaction the closure of Cumhuriyet newspaper, the closure of this country’s oldest, most venerable, most internationally renowned, trustworthy and respected newspaper, would provoke in the domestic and international arena. Consequently, it has been deemed to be a better option, in place of closing and silencing the paper, to transfer it to certain talentless ambitious souls who have departed from the paper and who want to take charge of the paper again with the political rulership’s backing. This plan has been put into operation. This is the calculation behind the operation and investigation that has given rise to this trial. But, let it be known that this calculation has not come to fruition, nor will it.
17.41- We know that there are those who, consenting to be partisans of the political rulership and with its support, aid and blessing dream of returning to the management of Cumhuriyet newspaper. Even had those who have debased themselves to this extent taken over at the helm of Cumhuriyet newspaper in return for an undertaking to act as his majesty’s opposition, in that case the paper they would have published would be Cumhuriyet newspaper in name alone. Nobody would perceive a newspaper that had been usurped in this manner to be the continuation of a venerable and respected ninety-four-year-old newspaper. Rather than its name, a newspaper’s line, content and positioning come to the fore. I wish to impart the following words of Mevlana – I will note for the benefit of the uninitiated that Zülfikar is the name of Saint Ali’s sword: ‘Imagine you inherited Zülfikar from Ali / If you lack Ali’s heart / What good is Zülfikar to you?’ Imagine you usurped Cumhuriyet newspaper. My final words are that it is a generally accepted opinion that judgeship is a very hard profession and sacred duty having a very heavy responsibility. Beyond that, it is subject to many ethical principles. I am not about to remind you of the Bangalore Judicial Ethics Principles, that is, the professional ethical principles which you know full well. I will simply mention a definition in a ruling that was issued 42 years before now. In the ruling of 31 December 1976 of Civil Law Chamber No 1 of the Court of Cassation, the following definition was given of judges’ duty: ‘The judge must find a resolution with a human smell to a dispute without turning their back on people, the truth, nature and the ordinary.’ I wish to express my view that until now in these proceedings backs have been turned, never mind on people and the truth, even on the law and statute. Never mind a resolution with a human smell, we have been unable to encounter one morsel of equity and justice, restraint and mercy. I have been punished in advance with detention, the harshest of measures. It has not been my lot until now. It is too late for me now. But, perhaps the law and justice will return even if belatedly for others and a light of hope as to its possible arrival may be emitted.”
18.15- The bench is awaited in the courtroom to announce its interim ruling. The defendants and spectators have taken their places.
18.27- Istanbul Serious Crime Court No 27 has announced its interim ruling. The extension of our newspaper’s Executive Board Chair Akın Atalay, Attorney-at-Law’s detention has been ordered. Execution of the order is awaited with respect to Can Dündar and İlhan Tanır. The next hearing will be held between the dates of 24-27 April 2018.
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