21 November 2020:
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.
Cumhuriyet Journalists Released After Supreme Court of Appeals Judgment
The Chamber, in line with the notification of the Supreme Court of Appeals Chief Public Prosecutor's Office, reversed the judgment of conviction for "aiding a terrorist organization." It requested Ahmet Şık, who is currently an MP for the Peoples' Democratic Party (HDP), to be penalized for "terrorist propaganda."
Attorney Akın Atalay, a former CEO of the Cumhuriyet Foundation and a former defendant in the trial of Cumhuriyet, told Ayça Söylemez from bianet that they expect their colleagues to be released within a few hours: "The Supreme Court of Appeals judgment has been reached the prison administration. The proceedings for their release are underway."
Musa Kart, Güray Öz, M.Kemal Güngör, Hakan Kara ve Önder Çelik were released from prison at around 9 p.m. Emre İper, whose sentence was approved, will continue to stay behind bars.
Caricaturist Musa Kart made a statement for the press after the release: "It is hard to live in countries that lost the sense of humor. It is also hard to live in countries where everything is humor. We are experiencing a period where everything is humor. It can also be seen in our case file. In modern states of law, people are first tried and then penalized. For us, it was the exact opposite. After staying arrested for nine months in Silivri [prison], we were able to appear before the judge."
The case file will be sent to İstanbul 27th Heavy Penal Court.
İstanbul Regional Court of Justice 3rd Penal Chamber (court of appeal) on February 19 approved the judgments of conviction that were given on April 25, 2018. That was the final judgment for those who were sentenced to prison for less than five years while the verdict was open to appeal for those who received a prison term for more than five years.
Top court issues judgments in Ahmet Altan case, 13 others
The Constitutional Court’s Plenary has issued the judgments concerning its 3 May 2019 decisions, in which it rejected the individual applications filed on behalf of jailed journalists Ahmet Altan, Nazlı Ilıcak and former Cumhuriyet staff members including Murat Sabuncu and Ahmet Şık.
All nine applications, filed in 2016 and 2017, asserted that the applicants’ arrests violated their rights to liberty and security and freedom of expression and freedom of the press.
The top court’s judgments were published on 26 June 2019 on the court’s official website. The judgments concerning the rejected applications said, in a nutshell, that “the assessments made by the investigation authorities and the decisions rendered by the courts that ruled for [the journalists’] arrests could not be deemed as ‘arbitrary and baseless’.”
In Ahmet Altan’s application, the President of the Constitutional Court Zühtü Arslan, Vice President Engin Yıldırım and three other justices disagreed with the majority opinion. All five judges were of the opinion that Altan’s arrest violated his rights to liberty and security and freedom of expression and freedom of the press.
In his four-page dissenting opinion, Constitutional Court President Zühtü Arslan wrote that the investigation authorities have “failed to demonstrate relevant and sufficient grounds proving that the contents of Altan’s columns and his commentary, held as evidence against him, constituted strong indication of guilt.”
“Based on several sentences excerpted from two columns by Altan that were included in his investigation file, the investigation authorities have alleged that Altan had prior knowledge of the 15 July 2016 coup attempt and laid the groundwork for a coup, however, the same authorities have failed to provide the factual grounds to prove this claim,” Arslan wrote.
Regarding the allegation in the investigation file that “Taraf newspaper, under Altan’s administration as editor-in-chief, published content in line with the objectives of the FETÖ/PDY terrorist organization,” Arslan wrote that the investigation authorities have “also failed to factually demonstrate that the newspaper content that constituted the grounds for Altan’s arrest was published in line with the objectives of the terrorist organization and based on instructions from the said terrorist organization.”
Vice-President Engin Yıldırım also wrote in his dissenting opinion that among the grounds for Altan’s arrest, there was no evidence factually demonstrating a strong suspicion other than certain expressions and his harsh criticism in his columns and his commentary. Yıldırım wrote: “For certain expressions the applicant has used in some of his columns and his commentary to be deemed ‘strong indication of guilt’ does not amount to anything beyond a speculative assessment.”
Yıldırım wrote that Altan’s columns and commentary that constitute the basis for the accusations “neither laid the groundwork nor called for a coup, but were rather aimed as a warning about the potential chaos which the policies adopted and the discourse employed by certain political figures whom Altan had been harshly criticising could stir and at informing the public about their possible consequences. Yıldırım wrote: “Speaking of a probable coup and supporting a coup are not the same thing. Otherwise, anyone who speaks about the danger of a coup or other internal disturbances could later be accused of laying the groundwork for the coup in the event the coup they had warned of does indeed take place at some point.”
At the end of two days of deliberations on 2 and 3 May, the Constitutional Court’s Plenary had rejected the applications of Ahmet Altan, Nazlı Ilıcak, who is Altan’s co-defendant in the “coup” case, Akın Atalay, Murat Sabuncu, Ahmet Şık and six former Cumhuriyet Foundation executives, including Önder Çelik and Musa Kart. The judgments issued on 26 June revealed that the Plenary had ruled that Ahmet Şık’s application was “inadmissible.”
The top court had found rights violations in the files of journalists Kadri Gürsel, Murat Aksoy and Ali Bulaç.
25 April 2018:
"We condemn the convictions handed down to Cumhuriyet journalists by a justice system so compromised it should be on trial itself," said CPJ Europe and Central Asia Program Coordinator Nina Ognianova in New York. "Conflating journalism with terrorism is a transparently cynical ploy by the Turkish authorities to shut down the press. We call for all of these verdicts to be overturned on appeal."
Turkish prosecutors accused the journalists and newspaper staff of being or aiding followers of exiled preacher Fethullah Gülen, whom the government accuses of masterminding a failed military coup in July 2016, and of aiding the Kurdistan Workers' Party (PKK). Turkey classes both groups as terrorist organizations.
Before issuing its verdict, the court removed Cumhuriyet's former chief editor, Can Dündar, and a reporter, İlhan Tanır, from the trial because they are not in Turkey. The court acquitted three of the defendants--Bülent Yener, a former board member of Cumhuriyet, Turhan Günay, chief editor of the daily's literary supplement, and Günseli Özatalay, the chief accountant.
The court handed down the following prison sentences, Cumhuriyet reported:
23 November 2014:
Satire, cartoonists battle for survival under AK Party rule
Prosecutors seek 9 years for cartoonist over Erdogan caricature