Court refuses to follow Supreme Court ruling in Cumhuriyet retrial
Thirteen former columnists and executives of Cumhuriyet daily appeared once again before the 27th High Criminal Court of Istanbul on 21 November 2019 for the retrial of their case.
The retrial followed on the heels of a Supreme Court of Appeals ruling in September 2019, which overturned the majority of the convictions in the original trial and ruled that Akın Atalay, Orhan Erinç, Murat Sabuncu, Aydın Engin and Hikmet Çetinkaya should be acquitted and that Ahmet Şık should instead be charged with “terrorism propaganda” and “denigrating the bodies and organs of the state of the Turkish Republic.” The high court had also ruled for a stay of execution concerning the defendants who were sentenced to prison terms less than five years, which, before the recent Judicial Reform Package, could not be appealed further once they were upheld by an appellate court.
P24 monitored the retrial, which was also observed by representatives from Article 19, Reporters Without Borders (RSF), Human Rights Watch, DİSK Basın İş, the Turkish Journalists Association (TGC), and other rights groups and press freedom organizations.
Cumhuriyet’s former Editor-in-Chief Murat Sabuncu, columnists Aydın Engin, Hikmet Çetinkaya, Kadri Gürsel, Hakan Kara, investigative reporter Ahmet Şık, cartoonist Musa Kart, ombudsman Güray Öz, former Cumhuriyet Foundation executives Orhan Erinç, Akın Atalay, Bülent Utku, Mustafa Kemal Güngör and Önder Çelik were present in the courtroom for the hearing. They were accompanied by their lawyers.
Early in the hearing, the prosecutor presented his opinion, asking the court to rule against the Supreme Court of Appeals judgment and insist on its earlier verdict in the original trial, which concluded in April 2018.
The court had convicted 15 of the 20 defendants in the case of terrorism-related charges at the end of the original trial. Thirteen former Cumhuriyet executives and journalists were convicted of “aiding a terrorist group without being its member”; Emre İper, an accounting department employee, was convicted of “terrrorism propaganda”; Ahmet Kemal Aydoğdu, who is not a Cumhuriyet staffer, but is purported to be the user of the Twitter account “JeansBiri,” was convicted of “leading a terrorist organization.” Bülent Yener, Günseli Özaltay and Turhan Günay were acquitted of all charges while the files of journalists Can Dündar and İlhan Tanır were separated.
Addressing the court following the prosecutor, all 13 defendants and their lawyers requested the court to abide by the Supreme Court of Appeals ruling.
Court hears last words before announcing its decision regarding Supreme Court ruling
After hearing the defense statements, the presiding judge asked the defendants for their last words before the panel’s verdict. Defendants and defense lawyers objected to the court, saying this was against the Criminal Procedure Code and that the panel should declare its decision on whether to comply with the higher court’s ruling first.
Following a brief recess for deliberation, the panel ruled to proceed with hearing the last words of the defendants before the announcement of the verdict along with their decision on whether to comply with the Supreme Court of Appeals ruling. The panel cited “criminal procedure economics” and “the principle of judicial independence” as the grounds for their decision.
Defense lawyers objected to the decision, demanding the recusal of the panel for bias. The court rejected the request, saying it was “aimed at prolonging the proceedings.”
In their last words, all defendants asked the court once again to abide by the higher court’s ruling and requested to be acquitted.
One defendant acquitted, 12 convicted
Announcing its verdict at the end of the hearing, the 27th High Criminal Court of Istanbul ruled partially in line with the prosecutor’s opinion.
In its unanimous ruling, the court acquitted Kadri Gürsel but ruled against the Supreme Court of Appeals judgment concerning the rest of the defendants: Akın Atalay, Ahmet Şık, Aydın Engin, Bülent Utku, Güray Öz, Hakan Kara, Musa Kart, Hikmet Çetinkaya, Murat Sabuncu, Orhan Erinç, Mustafa Kemal Güngör and Önder Çelik.
The court convicted all 12 of the charge in the original trial — “aiding a terrorist organization without being its member” — and ruled for the continuation of the judicial control measures imposed on the defendants.
The original trial
Cumhuriyet newspaper executives and columnists were taken into custody on 31 October 2016 on the allegation of “aiding the PKK/KCK and FETÖ/PDY terrorist groups.” On 5 November 2016, the newspaper’s editor-in-chief Murat Sabuncu, columnist Kadri Gürsel, cartoonist Musa Kart, executives and columnists Önder Çelik, Bülent Utku, Mustafa Kemal Güngör, Güray Öz, Hakan Kara and Turhan Günay were jailed pending trial. Akın Atalay, who was abroad during the operation, was arrested upon his arrival in Istanbul on 11 November 2016 and jailed pending trial the next day. Investigative reporter Ahmet Şık was jailed pending trial on 30 December 2016. The indictment issued on 4 April 2017 held 106 news reports and 149 tweet messages as evidence against the defendants.
At the end of the trial, the court convicted 14 columnists and executives of Cumhuriyet daily as well as the only defendant in the case who is not a media worker of terrorism-related charges. Three former Cumhuriyet staffers were acquitted and the files of two defendants at large were separated.
In February 2019, the 3rd Criminal Chamber of the Istanbul Regional Court of Justice, an appellate court, rejected the appeals against the convictions, saying it had not found “any substantial or procedural violations” in the ruling or any “shortcomings in the evidence or proceedings.” The appellate court’s ruling finalized the prison sentences for eight defendants (Utku, Gürsel, Öz, Çelik, Kart, Kara, Güngör and İper), who were sentenced to prison terms less than five years.
The Constitutional Court took up the individual applications of the defendants in May, ruling that Kadri Gürsel’s “right to liberty and security had been violated” while rejecting the applications of Akın Atalay, Murat Sabuncu, Ahmet Şık, Önder Çelik, Güray Öz, Musa Kart, Hakan Kara, Mustafa Kemal Güngör and Bülent Utku.
On 12 September 2019, the 16th Criminal Chamber of the Supreme Court of Appeals overturned the convictions against Atalay, Erinç, Sabuncu, Engin, Çetinkaya and Şık. Separately, the Chamber ruled for a stay of execution concerning Gürsel, Çelik, Utku, Öz, Kart, Kara and Güngör and remitted the case file to the trial court. The high court upheld the convictions against İper and Aydoğdu and the acquittals of Bülent Yener, Günseli Özaltay and Turhan Günay.
Turkish court ruling on Cumhuriyet journalists judicial harassment - right’s group
A Turkish court’s decision on Thursday to overturn an appeal court acquittal of journalists in what is known as the Cumhuriyet trial is shocking and amounts to judicial harassment, rights group Article 19 said. The lower court ruled in favour of the acquittal of journalist Kadri Gürsel, but upheld previous prison sentences for the remaining 12 defendants, despite a ruling by the Supreme Court of Appeals in September demanding a reversal of all the sentences.
The defendants, including journalist and opposition member of parliament Ahmet Şık, can appeal the lower court’s ruling again. “We are shocked by the lower court's decision to reject the Supreme Court ruling to acquit #Cumhuriyet journalists,” Article 19 said on Twitter. “This is pure judicial harassment.”
“The order must have come from the politicians,” said Şık after the ruling. The Supreme Court of Appeals in September demanded a reversal of the sentences against the Cumhuriyet staff, who were all later released from prison.
The lower court had convicted 13 former Cumhuriyet executives and journalists of the crime of aiding a terrorist group while Emre İper, an accounting department employee, was convicted of terrorist propaganda. The court set aside the cases against journalists Can Dündar and Ahval’s English editor, İlhan Tanır, who are both outside the country.
He was imprisoned again
Journalist Kadri Gürsel, who was sentenced to 2 years, 6 months in prison on charge of "knowingly and willingly aiding a terrorist organization as a non-member" in the Cumhuriyet newspaper case, was imprisoned again for the execution of his sentence yesterday.
On February 19, 2019, the 3rd Penal Chamber of the İstanbul Regional Court of Justice, the court of appeal, upheld the verdicts of imprisonment and acquittal previously given by the İstanbul 27th Heavy Penal Court. Accordingly, Gürsel went to the İstanbul Courthouse in Çağlayan yesterday upon invitation. After the legal procedures at the courthouse were completed, Gürsel was sent to the Metris Prison in İstanbul so that the necessary procedures for probation could be initiated.
2 May 2019:
Turkey's Constitutional Court rejects appeals from four Cumhuriyet staff
Turkey’s highest legal body has rejected applications from four out of nine Turkish journalists who appealed against their jail sentences on grounds their rights had been infringed on.
Nine of the Constitutional Court (AYM)’s 15 judges voted against accepting the appeal by Akın Atalay, Murat Sabuncu, Ahmet Şık and Bülent Utku, former staff of the secularist daily Cumhuriyet who were jailed in the wake of a coup attempt in July 2016 for alleged links to outlawed organisations.
The journalists were returned to prison last month after a court rejected their appeals against the long prison sentences handed to them and 11 other former staff at Cumhuriyet.
Turkish prosecutors say the journalists aided both the Gülen religious movement, which the government blames for the 2016 coup attempt, and the Kurdistan Workers’ Party (PKK), an outlawed group that has fought Turkish security forces since the 1980s.
Ahmet Şık, an investigative journalist, spent around a year in jail from March 2011 after publishing a book critical of the Gülen movement and its founder, Fethullah Gülen.
The AYM ruled in favour of Kadri Gürsel, a former Cumhuriyet journalist, and Murat Aksoy, who wrote for the shuttered daily Yeni Hayat, who had been hit with similar charges.
The court ruled that Gürsel and Aksoy’s personal freedoms and security and freedom of expression had been breached, and ordered 40,000 lira ($6,700) compensation paid to Aksoy, Turkish news site Gazete Duvar reported.
The AYM will convene again on Friday to review appeals by two more journalists sentenced in relation to the 2016 coup attempt, Ahmet Altan and Nazlı Ilıcak.
International rights groups have expressed long-running concerns about press freedom in Turkey, which has been known as the world's leading jailer of journalists for years running.
Six former Cumhuriyet employees returning to prison a second time
Journalists and executives that worked for the opposition Cumhuriyet newspaper are waiting for final procedures to be completed before entering prison on Thursday, after a court in Istanbul upheld their prison sentences, Diken news site reported .
Some 15 staff of Cumhuriyet were handed out long prison sentences last year in April in the Cumhuriyet trials, during which the prosecutors claimed the newspaper aided the Kurdistan Workers’ Party (PKK), an armed Kurdish group designated as a terrorist organisation in Turkey, and the Gülen movement, followers of an Islamist preacher accused of plotting the failed July 2016 coup attempt.
Journalists Ahmet Şık and Aydın Engin and the newspapers former editor-in-chief Murat Sabuncu received seven-and-a-half-year sentences. Journalists Hikmet Çetinkaya and Orhan Erinç received six years and six months each, while cartoonist Musa Kart and four other Cumhuriyet staff, Güray Öz, Mustafa Kemal Güngör, Hakan Kara and Önder Çelik received 45-month sentences. Columnist Kadri Gürsel was handed a 30-month sentence, while the court decided to handle files of former editor in chief Can Dundar and Cumhuriyet's former Washington reporter Ilhan Tanir separately since they were not in Turkey. All defendants in Turkey were held in pre-trial detention and were released at different stages of the trial.
The defendants appealed the ruling, but the regional court upheld the sentences. According to the Turkish law, those who are sentenced to more than five years in prison can apply to the Supreme Court of Appeals. For sentences less than five-year in prison, the defendants have to go to prison once the verdict is issued.
Accordingly, six of the defendants went to the courthouse today for the finalisation of the procedures. The journalists will serve the rest of their sentences in Kandıra prison in the northwestern province of İzmit, Diken said.
Appellate court upholds convictions in Cumhuriyet trial
An appellate court upheld on 18 February convictions against 14 former journalists and executives of the Cumhuriyet daily, paving the way for the return of eight of them to prison to serve the remainder of their terms.
14 columnists and executives of the paper handed down prison sentences varying between 2.5 years and 8 years, 1 month and 15 days
Fourteen columnists and executives of Cumhuriyet daily were convicted of “aiding a terrorist organization without being its member” at the final hearing of the Cumhuriyet trial on April 25, held at a courtroom inside the Silivri Prison compound.
The 27th High Criminal Court of Istanbul handed down prison sentences varying between 2 years and 6 months and 8 years, 1 month and 15 days to 14 of the newspaper’s columnists and executives standing trial in the case, while acquitting three of the suspects and separating the files of two journalists from the case.
The court handed down the newspaper’s editor-in-chief Murat Sabuncu, reporter Ahmet Şık and the 77-year-old veteran columnist Aydın Engin seven-and-a-half years in prison each, while Akın Atalay, the chairman of the Cumhuriyet Foundation’s executive board, was sentenced to 8 years, 1 month and 15 days in prison, the lengthiest sentence in the verdict. The court ruled to release Atalay, who spent more than 500 days in pretrial detention as part of the case, awaiting the appeal process.
Orhan Erinç, an 82-year-old veteran journalist, who is the president of the Cumhuriyet Foundation, and columnist Hikmet Çetinkaya were each handed down 6 years and 3 months in prison.
Columnist Kadri Gürsel was sentenced to 2 years and 6 months, while cartoonist Musa Kart, columnist Hakan Kara, reader representative Güray Öz, executive board members Önder Çelik and Mustafa Kemal Güngör were sentenced to 3 years and 9 months.
The newspaper’s attorney Bülent Utku was sentenced to 4 years and 6 months while accounting department employee Emre İper was sentenced to 3 years, 1 month and 15 days in prison.
Turhan Günay, the editor of the newspaper’s book supplement, was acquitted of both the “abuse of authority” and the “helping a terrorist organization without being its member” charges. Günay had spent 272 days in pretrial detention before his release in 2017. Accountants Bülent Yener and Günseli Özaltay were also acquitted.
All of the defendants charged with “abuse of authority” in the indictment were acquitted of that charge.
Ahmet Kemal Aydoğdu, a suspect in the case who was purported to be the user of the Twitter account with the handle “JeansBiri” and charged with “leading a terrorist organization,” was handed down 10 years in prison. The court ruled for the continuation of his detention.
The court ruled to impose judicial control measures on all of the suspects who were handed down prison sentences.
The 27th High Criminal Court of Istanbul also ruled to separate the files of Can Dündar and İlhan Tanır from the case.
The second day of the hearing began with lawyers’ closing remarks.
Duygun Yarsuvat, defense attorney for Cumhuriyet Executive Board Chairperson Akın Atalay, said in his address to the court that the case was politically motivated, adding: “There is nothing in this indictment that can be handled through principles of criminal law. The rule of law has been sacrificed in this case, designed to silence Cumhuriyet.”
Also criticising the expert opinion submitted to the case file, Yarsuvat said the experts drafted their reports using information readily available in open sources. Yarsuvat also said that one of the experts had proven in a Tweet he had posted that he was an admirer of President Recep Tayyip Erdoğan, adding: “This expert does not hold an academic title. His only significance is being a member of the foundation headed by Bilal Erdoğan.”
Yarsuvat also touched upon Article 220/7 of the Turkish Penal Code (TCK), upon which the accusations against Cumhuriyet columnists and executives rest. Yarsuvat said the term “aiding” in the charge of “aiding a terrorist organization without being a member” meant “providing material aid,” adding, “We cannot modify articles of the penal code in order to please those in power.”
Yarsuvat said the prosecutor attempted to prove his allegation that “the newspaper’s editorial policy had been changed” through witness testimonies based on hearsay.
He also said Atalay and editor in chief Murat Sabuncu to have attended the Abant Platform meetings, put together by the Gülen network-affiliated Gazeteci ve Yazarlar Vakfı (Journalists and Writers Association), were held as evidence against both Atalay and Sabuncu. Is it a crime that they attended those meetings? Burhan Kuzu, Cemil Çiçek and Fehmi Koru were among participants too. Why haven’t these meetings, held since 1997, been banned then?
Speaking after Yarsuvat, defense attorney Abbas Yalçın told the court that despite a confidentiality order to have been issued on the investigation file, the information contained in the file were leaked to pro-government media outlets.
Lawyer Tora Pekin said that Cumhuriyet had been already overwhelmed with countless court decisions ordering the court to publish retractions, decisions to ban access to articles and criminal cases brought against it, but even then no one had thought of a court case where Cumhuriyet journalists would be charged with aiding three different terrorist organizations.
Pekin said the defendants and lawyers were giving statements for the past two days knowing that the court was unlikely to rule for acquittal, but added that it was still important to make these statements as they would be put on record. “You cannot commit an unlawful act through publications that are lawful. You cannot find any word that recommends or praises violence in the news reports and articles published in Cumhuriyet because there isn’t any,” said Pekin.
Commenting on the news reports and articles included in the case file, Pekin said they consist of those which criticize government actions such as those about interception of Syria-bound trucks carrying arms, and those about the Kurdish issue. “Talking about certain issues disturbs the government, so it is a crime!” he said, adding that the prosecutor was of the view that Cumhuriyet could not publish any critical reports on the Kurdish issue because it was a “nationalist, statist and traditionalist newspaper.”
Pekin also recalled that, according to the law, the statute of limitations to file charges in connection with news reports was four months after publication. “This limit was introduced to ensure the journalists will not feel under pressure all the time. Otherwise, anyone can be prosecuted any time for a tweet they posted or an article they wrote any time in the past,” he said.
Responding to the accusations stemming from the fact that Cumhuriyet had used the same headlines in a few occasions with the shuttered Zaman daily that was affiliated with the now-banned Gülen network, Pekin said it was now a common occurrence in Turkey that about 10 newspapers use the same headline for the same story, but when Cumhuriyet uses the same headline with Zaman in a couple of instances, it is considered an anomaly.
Speaking after Pekin, defense attorney Fikret İlkiz said in his address to the court that the prosecutor alleged that Cumhuriyet had “actively aided terrorist organizations from 2013 up until the coup attempt of July 15, 2016.” “So why did you not press charges back then” İlkiz asked.
“Journalists and lawyers standing trial in this case are being criminalized for being journalists and lawyers. The very existence of this newspaper is considered a crime. The fact that no documents to indict my clients to have come up during searches on their homes is considered a crime,” İlkiz said.
Defendants’ closing speeches
Following the defense attorneys, the court asked the defendants to make their closing speeches before a recess ahead of the verdict. Below is what they said.
Akın Atalay: Whatever the verdict, we would like everyone to know that Cumhuriyet newspaper and we Cumhuriyet staff will never give up our fight against malice. We will fight until our last breath to prevent malice from becoming routine in this society.
Kadri Gürsel: We have been jailed because we are journalists. We have been presented with a crumbling, hollow, baseless indictment. Our lengthy pretrial detention turned into the execution of a penalty. Our right to fair trial has been violated. During my defense statement I defended my occupation and answered the allegations which I think are absurd. Now you are facing a tough decision. Because you will render a judgment based on a case file that includes no evidence. Which means, you will be issuing your verdict using your reason and your conscience. And I believe you will do so. I do not want to regret this belief. We will leave this courtroom with dignity and continue doing our jobs. I request our acquittal.
Güray Öz: Journalism is being put on trial in this case — which is a tough task. Accusing Cumhuriyet newspaper of [helping] a terrorist organization and of being FETÖ’ists is beyond all reason. I hope this does not turn out to be the case.
Murat Sabuncu: Being free is such a delightful thing [but] one only comes to appreciate when one loses it. Cumhuriyet journalists have always spoken the truth, no matter the circumstances. Journalism is not a crime.
Turhan Günay: Journalism is not a crime.
Aydın Engin: You had once told me that I had “the spirit of James Bond,” which I had taken as a compliment. But on second thought, I figured Bond was at the service of her majesty, whereas I am at the service of the public. The public’s right to access to information is being put on trial in this case. And you are obliged to defend the public’s right to access to information; it’s a tough task, but I cannot be of help, you’ll do it on your own.
Hikmet Çetinkaya: I wrote for years in Cumhuriyet about who Fethullah Gülen really was and his purpose. I am now accused of helping Gülen, and I reject all the accusations. Journalism is not a crime. The real crime is attempting to establish sharia rule.
Orhan Erinç: I saved my final speech for our lawyers: I would like to express my gratitude to our defense lawyers.
Mustafa Kemal Güngör: An unfair treatment on one person is an unfair treatment on the entire society. Stop this unfair treatment that has been going on for months.
Ahmet Kemal Aydoğdu: I am mostly affected by the feeling of longing. Put an end to my longing for my daughter.
Ahmet Şık: I’m beginning my words by saying, “This is just the beginning.” The purpose of this setup perpetrated by a gang formed by some of the members of political, bureaucratic and media circles, was clear from day one. Then, on behalf of those who have been standing against unlawfulness and violation of rights for their entire lives, let’s respond to this gang by repeating what we’ve been saying all along: It’s you who should surrender. Source