22 November 2019 14:33
In the repeat proceedings as part of the Cumhuriyet trial of the newspaper’s former columnists and staffers, the court rejected the Court of Cassation’s acquittal order for all defendants apart from Ahmet Kadri Gürsel.
Photograph: Evrensel
Following the quashing by the Court of Cassation’s Penal Chamber No 16 of the judgment the local court passed on the paper’s former columnists and staffers in the Cumhuriyet trial, the case was reheard today at Istanbul Serious Crime Court No 27.
In rejection of the Court of Cassation’s judgment ordering acquittal, Serious Crime Court No 27 reaffirmed its decision for all parties apart from Ahmet Kadri Gürsel. The Court of Cassation Joint Penal Chambers will pass the absolute and final ruling.
Speaking to Evrensel following the announcement of the ruling by the court, attorney Tora Pekin filled us in as to the course of the proceedings. Taking questions from Meltem Akyol, Pekin indicated that the judgment issued would initially go to Penal Chamber No 16 of the Court of Cassation and Penal Chamber No 16 would review its own decision. Pekin declared, “If Penal Chamber No 16 of the Court of Cassation believes its own decision to be correct, the case will then go to the Court of Cassation Joint Penal Chambers. As to the ruling the Court of Cassation Joint Penal Chambers passes, this will be the final ruling. If the Court of Cassation Joint Penal Chambers upholds the acquittal order, this will disqualify the court from ruling to the contrary, but if it quashes the acquittal, we will do battle once more. It is hard to predict how long the proceedings will last, but it is apparent that they will conform to Turkey’s political structure.”
Imparting his views on the hearing, Pekin said, “I think it is apparent that what a court presiding judge who says, “Cheerio” to the accused does is not a trial. Even this simple word summarizes the situation. I was most distressed as one who happens to be practising as a lawyer in this country. I am most sad to have been tried by such a bench. There is unfortunately not much to discuss as to content.”
The former Cumhuriyet staffers who are on trial attended the hearing that started around noon.
The court bench reportedly instructed the illustrators who had depicted the hearings through illustrations at the previous hearings to be denied admission to the courtroom.
At the hearing monitored by representatives of RSF, Article 19, the press affiliate of the Confederation of Progressive Trade Unions, HRW and the Federation of Journalists of Turkey, members of parliament along with representatives of many journalistic rights organisations, the presiding judge initially summed up the Court of Cassation’s reversal ruling.
The presiding judge then consulted the prosecutor for his opinion on the Court of Cassation’s reversal judgment.
Reiterating the charges that were contained in the indictment and the recommendations on the merits presented during the local court’s proceedings, the prosecutor sought the rejection of the ruling by the Court of Cassation’s Penal Chamber No 16 and the punishing of the former Cumhuriyet staffers.
Giving the floor to the parties on trial and their lawyers, they were asked for their opinions on the Court of Cassation judgment. Kadri Gürsel sought compliance with the Court of Cassation’s reversal ruling.
Gürsel's lawyers Köksal Bayraktar and İlkan Koyuncu addressed the court and sought compliance with the reversal ruling. For his part, Koyuncu sought the lifting of the ban on Gürsel leaving the country in the event the judgment was rejected.
The presiding judge summoned Akın Atalay to give testimony saying, “Yes, captain; who’s the captain?” These words provoked uproar in the courtroom and the presiding judge responded to the reactions saying, “I made a joke.” Atalay sought compliance with the Court of Cassation’s reversal ruling.
Atalay said the claim, “The Court of Cassation ruling is unlawful” in the recommendation the prosecutor submitted in opposition to the judgment made no mention of the respect in which it was unlawful. Subsequently addressing the court, Atalay’s lawyer Bahri Belen said that the recommendation was political. Belen said, “We were awaiting a legal recommendation, not an enemy recommendation. I set no store by this recommendation. I regard it as being an exercise in futility. There is no legal basis to the application for rejection.”
Saying, “The Cumhuriyet trial is a political plot,” Ahmet Şık for his part spoke as follows: “The ruling you pass will show whether you, too, are included in this plot.”
The next to take the floor, Bülent Utku, also said that the operation conducted against Cumhuriyet had been an operation conducted for political aims from the very outset. Utku commented, “This has not changed at any stage of the proceedings. This is what I have to say in opposition to the prosecutor’s recommendation.”
Utku’s lawyer Ergin Cinmen in turn spoke of the flouting of imperative principles of the law. Cinmen said, “This trial is a nail driven into history. Deliver Turkey from this shame at last.”
Güray Öz and Hakan Karasinir sought compliance with the Court of Cassation’s reversal ruling.
Muse Kart and Hikmet Çetinkaya sought compliance with the Court of Cassation’s reversal ruling. Çetinkaya also applied for acquittal.
Seeking compliance with the Court of Cassation’s reversal ruling, Murat Sabuncu said about the prosecutor’s recommendation, “It appears that the prosecutor is not satisfied with having spent three years prosecuting journalism. We entered this courtroom with our heads held high and this is how we will depart. We will continue to engage in journalism.”
Seeking compliance with the Court of Cassation’s reversal ruling, Mustafa Kemal Güngör and Önder Çelik indicated that they rejected the prosecutor’s opinion.
With the court soliciting final comments, the lawyers objected. At this, a five-minute recess was taken in the hearing.
Following the recess, the presiding judge announced that it had been decided for the compliance or setting aside decision to be deliberated on along with the judgment following the taking of final comments. The lawyers objected to the court’s decision. With the court once more soliciting final comments, this caused outrage in the courtroom. The court claimed that the lawyers’ application for final comments to be taken following the ruling was made “for the purpose of prolonging the hearing.”
Asked for his final comment, Kadri Gürsel said, “I need to make my final comment in light of your ruling. I do not know your ruling just now so I do not know what to say, either. I mean, my comment would be different depending on whether you rule to set aside or comply. But, at your insistence, let me say things that accord with both situations. I apply for you to comply with the reversal ruling of Penal Chamber No 16 of the Court of Cassation and for my acquittal.”
Akın Atalay was then consulted for his final comment. Atalay said, “Your court has essentially ruled to comply with or reject the reversal. It recognized the Court of Cassation’s knock-on effect and service was made on the defendants. This is an effective de facto compliance decision. I am not going to reiterate my former defences here. But I want it to enter the records once more that they wanted to convict us, Cumhuriyet newspaper’s managers, and they did everything to this end. Tampering with the evidence is something that cannot be done, even if wished for. Freedom of expression and journalism was put on trial and punished through our persons in this trial. The prime aim here was the changing of the newspaper’s management and this was accomplished. It was a Pyrrhic victory. As to the second aim, this was a message to other press institutions through us and this was accomplished if we exclude a few outlets. This was another Pyrrhic victory.”
Atalay continued, “The pitiful state of the media in Turkey today is the result of this trial. This investigation was launched by Murat İnam on 18 July 2016. This prosecutor who launched an investigation into aiding FETO against us is still undergoing prosecution for FETO membership. Precisely one week before 18 July 2016 on which the investigation was commenced, Cumhuriyet newspaper ran a serialized article titled ‘FETO and its servants’.”
Noting he had defended freedom of the press and expression for the extent the proceedings, Atalay said, “We tried to make a drawing on the walls of history by means of this trial so that freedom of the press and expression would not be forfeited. We will see the degree to which we succeeded in this.”
Taking the floor next, journalist Ahmet Şık, noting that the Court of Cassation ruling reflected the truth but fell short, said, “This Court of Cassation ruling is a revelation that those who served at the investigation and prosecution stages were not jurists. It is clear that those who served in this plot should be brought before the judiciary. Let the political rulership that ordered this plot and the judiciary and media that carried out its order know that we will not be afraid and kneel down!”
Addressing the court after Ahmet Şık, Aydın Engin, noting that he had previously gone to jail many times, remarked, “If you rule against compliance with the Court of Cassation ruling and to punish us, I will not be greatly affected by this. I will continue my profession from where I left off on leaving jail. If the reverse happens, this will not matter to me, either, and I will then continue without breaking off. But it matters to you. In a period in which there are very serious allegations about the politicization of the judiciary, you will rule in our trial, a trial like the Cumhuriyet trial, that is symbolic in this sense. This is your ordeal, not mine. And so I wish you an easy time of it.”
Recalling that his lawyer Ergin Cinmen had rejected the court bench, Bülent Utku noted, “I have been a lawyer for 35 years. In my 35-year life as a lawyer I have never seen a practice as implemented by your bench. So, I do not know what I am going to say by way of final comment.”
Addressing the charges laid against him, Güray Öz in turn said, “It is impossible to accept the prosecutor’s recommendation. I seek compliance with the Court of Cassation ruling.”
The next to take the floor, Hakan Kara said they had rebutted the charges laid against them one by one over the course of the trial. Kara said, “The odd thing is that the court acts as if it has not heard these comments of ours. This trial has become a very curious trial in a legal sense.”
Recalling that he and the other figures who were being prosecuted as part of the trial served time in jail, Kara, noting that the trial would pass into press history, said in summation, “Justice that comes late is not justice. The ruling the Court of Cassation has passed is a step forward as far as press freedom in Turkey goes. In view of this, I apply for the ordering of acquittal.”
Taking the floor next, Musa Kart said they had witnessed a period far in excess of a humourist’s power of imagination. Recalling that he had spent nine months in Silivri over the course of the trial, Kart inquired, “With the Court of Cassation ruling that what we did was journalism should we not expect an apology?”
For his part, Hikmet Çetinkaya stressed that he had committed no crime and repeated his application for acquittal.
Addressing the court after Çetinkaya, Murat Sabuncu, stating that all the figures undergoing prosecution had had their entire lives investigated, also stressed that the newspaper’s entire records had been examined over the course of the trial. Sabuncu said, “They set out to create crimes out of pitta vendors and parquet installers. We, the prosecuted, explained from behind bars and outside that journalism is not a crime. This trial will find no end in consciences.” Stating that he had witnessed Ahmet Şık's journalism, Sabuncu commented, “If you are to acquit, acquit him, too, or let us be prosecuted together. I must add that I and we will continue to do journalism whatever the price.”
Seeking compliance with the Court of Cassation ruling, Orhan Erinç also sought the lifting of the ban on leaving the country.
Saying the Cumhuriyet newspaper trial was a political, not legal, trial, Mustafa Kemal Güngör had the following to say: “By means of this trial, it was wished to intimidate all journalists and opposition circles. We see this mindset in the prosecutor’s recommendation. Freedom of the press and expression have been treated with contempt in this trial. Let me conclude with an extract from Montesquieu: ‘An injustice perpetrated against one is a threat made to the whole of society.’ End this injustice that has continued for years. There is nothing in a place where there is no justice.”
Following Önder Çelik’s testimony, the court bench took a recess to deliberate.
Announcing its ruling following the recess, the court bench rejected the Court of Cassation’s acquittal order and reaffirmed its conviction of all the Cumhuriyet staffers on trial apart from Ahmet Kadri Gürsel. The absolute and final ruling will be passed by the Joint Penal Chambers of the Court of Cassation.
Reaching judgment 57 days following the Court of Cassation Chief Prosecutor’s Office’s written opinion of 16 July, Penal Chamber 16 of the Court of Cassation passed judgement in line with the opinion. Ordering a stay of execution and release for the jailed journalists, the Chamber quashed the convictions of Akın Atalay, Orhan Erinç, Murat Sabuncu, Aydın Engin, Hikmet Çetinkaya and Ahmet Şık, who had sought cassation review.
Penal Chamber 16 of the Court of Cassation ruled that the quashment ruling be extended pursuant to Article 306 of the Code of Criminal Procedure which provides that, “Quashment of the judgment will also be applied to other defendants who have not applied for cassation review” to Önder Çelik, Bülent Utku, Güray Tekinöz, Hacı Musa Kart, Hakan Karasinir, Mustafa Kemal Güngör and Ahmet Kadri Gürsel, who had been prosecuted on the same charges but whose convictions had attained finality at the appeal court.
It was stated in the ruling that a stay was ordered of the execution of these persons’ sentences so as not to give rise to a future loss of rights due to the judgment having become final and execution having commenced.
The chamber sent a writ for the immediate release of those incarcerated and the withdrawal was ordered of the apprehension writ against Bülent Utku against whom an apprehension warrant was outstanding.
The chamber ordered the imposition of a ban on leaving the country on Güray Tekinöz, Hacı Musa Kart, Hakan Karasinir, Mustafa Kemal Güngör, Önder Çelik and Bülent Utku.
The chamber upheld the appeal court’s dismissive ruling on Emre İper, who had been handed down a three year, one month and fifteen day sentence on the count of aiding FETO, as the conditions for extension had not been fulfilled. Cumhuriyet newspaper accounting employee Emre İper had been released from Kandıra prison following the making of an appeal application with the coming into effect of the Judicial Reform Package
The chamber also ruled to uphold the ten-year jail term imposed for “FETO membership” on Ahmet Kemal Aydoğdu, holder of the account “jeansbiri”.
The chamber sought the prosecution of Ahmet Şık, who had been sentenced to seven and a half years imprisonment for aiding the organization, under Article 6 of the Counterterrorism Law governing the portrayal of the organization’s acts as being legitimate and Article 301 of the Turkish Penal Code titled belittling the organs of the state. (EVRENSEL DAILY)
Bülent Falakaoğlu
Hakkı Özdal
