The court is expected to issue its verdict at the end of the five-day hearing on February 12-16. Lawyers say free speech is on trial 

Novelist, journalist and former editor-in-chief of the shuttered Taraf newspaper Ahmet Altan, his brother, economist and columnist Mehmet Altan, and veteran journalist-writer Nazlı Ilıcak will appear again before the Istanbul 26^th High Criminal Court on February 12-16 for the fifth hearing of a case where they are on trial for “attempting to overthrow the constitutional order through use of force and violence.”

Ahmet and Mehmet Altan were both arrested during police raids on their homes on September 10, 2016. Mehmet Altan was sent to prison pending trial on September 22, while Ahmet Altan, initially released after 12 days in police custody before being re-arrested, was imprisoned on September 23. Ilıcak was arrested on July 30, 2016 and later sent to Bakırköy Prison, where she has been held in pre-trial detention since. The Altan brothers and Ilıcak are on trial along with four other co-defendants; two former employees of the shuttered Zaman newspaper, Yakup Şimşek and Fevzi Yazıcı, former Police Academy lecturer Şükrü Tuğrul Özşengül and an advertisement company manager Tibet Murat Sanlıman.

The seven defendants will present their final defense statements during the five-day hearing, at the end of which the Istanbul 26^th High Criminal Court is widely expected to announce its verdict.

The case, which has been followed closely by international rights groups since its start, has become a central topic in Turkey and internationally after the Constitutional Court ruled on January 11 that Mehmet Altan’s constitutional rights have been violated as a result of his pre-trial detention but the Istanbul 26^th and 27^th high criminal courts refused to implement the decision.

In comments before the hearing, Ahmet and Mehmet Altan’s lawyers Ergin Cinmen, Figen Albuga Çalıkuşu, Ferat Çağıl and Melike Polat maintained that it is the freedom of thought that is put on trial in the case, calling for an end to “the juridical fallacy embodied in the case that leads to the violation of the freedom of expression, freedom of thought and freedom of press.”

About the case

The first hearing in the case, which originally involved 17 defendants, was held on June 19-23, where the Altan brothers, Ilıcak, Yazıcı, Şimşek, Özşengül and Sanlıman presented their defense statements to the court.

At the end of the five-day hearing, the court ruled to keep all imprisoned defendants behind bars, citing “the current state of evidence, evidence indicating presence of strong suspicion of crime and the fact that judicial control measures will remain insufficient.”

The Altans were initially arrested for “sending subliminal messages” during a television program they attended on the night of July 14, 2016 along with Ilıcak. But that accusation disappeared after an international outcry and instead they were accused of “making statements that are evocative of coup.”

At the end of the second hearing in the case, held on September 19, 2017, the Istanbul 26^th High Criminal Court ruled to separate the files of 10 defendants who remained at large -- Ekrem Dumanlı, Osman Özsoy, Emre Uslu, Tuncay Opçin, Abdulkerim Balcı, Bülent Keneş, Faruk Kardıç, Mehmet Kamış, Şemsettin Efe and Ali Çolak -- from that of the seven defendants.

From three aggravated life sentences to one 

At the fourth hearing in the case, the prosecutor presented his final opinion on the case, demanding aggravated life sentences for each of the six defendants held in pre-trial detention for “attempting to overthrow the constitutional order” under Article 309/1 of the Turkish Criminal Code. The indictment originally sought three aggravated life sentences for the Altan brothers, Ilıcak, Yazıcı, Şimşek and Özşengül for attempting to “overthrow the constitutional order, the government and Parliament.”

In his final opinion, the prosecutor demanded that Sanlıman, the only defendant in the case who is not imprisoned, be punished for “knowingly and willingly aiding a terrorist organization without being its member.”

Altans’ lawyers filed separate applications with the Constitutional Court on behalf of Ahmet and Mehmet Altan on November 8, 2016. They also applied to the European Court of Human Rights on January 12, 2017 as the Constitutional Court failed to respond by then.

On January 11, 2018, the Constitutional Court announced its long-awaited rulings on individual applications filed on behalf of Mehmet Altan and two other journalists who were imprisoned during the state of emergency, declared weeks after the failed coup attempt of July 15, 2016. In its rulings issued in response to individual applications of Altan, former Zaman columnist Şahin Alpay and Turhan Günay, who spent months in pre-trial detention before being released as part of the Cumhuriyet trial, the top court said that the constitutional rights of the three journalists were violated as a result of their pre-trial detention.

But the Istanbul 26^th High Criminal Court, which oversaw the trial, rejected requests from Altan’s lawyers for his release based on the Constitutional Court ruling, first on the ground that the court’s reasoned judgment has not been formally communicated and then declaring that it would not follow the ruling because the Constitutional Court “usurped the trial court’s authority” by reviewing the evidence in the case file. Requests filed by lawyers of Ahmet Altan and Nazlı Ilıcak for release of their clients on the ground that the Constitutional Court’s rulings set precedent were rejected unanimously.

Lawyers for Mehmet Altan then filed a new individual application at the Constitutional Court on January 30, after their objection to the decisions of the 26th High Criminal Court was rejected by the Istanbul 27th High Criminal Court as well. The application said that the lower courts’ refusal to release Altan based on the Constitutional Court ruling resulted in violation of their clients’ rights to fair trial and personal liberty and security. The lawyers also maintained that the pre-trial detention of their client was politically motivated, as per Article 18 of the European Convention on Human Rights.

On February 2, the Constitutional Court informed Mehmet Altan’s lawyers that the new application would be given priority treatment.

The applications filed on behalf of the Altan brothers and Ilıcak with the European Court of Human Rights, on the other hand, are yet to be concluded. But the Strasbourg court has completed gathering documents and correspondence with the parties in regard to the applications.

“End this grave juridical fallacy”

In a joint statement on the eve of what could be the final hearing in the case, the Altan brothers’ lawyers said that the Constitutional Court had ascertained that “Mehmet Altan’s actions consist only of two articles and remarks during a television program.” The lawyers pointed out that the top Court, after examining all documents of the case via the National Judiciary Informatics System (UYAP), had concluded that “the strong indication of guilt could not be sufficiently demonstrated in the present case” and that “the applicant’s being detained on remand without relying on any concrete fact, other than the articles and remarks, may have a deterrent effect on the freedoms of expression and press.”

The lawyers also recalled recent rulings issued by the 16^th Criminal Chamber of the Supreme Court of Appeals in regard to the July 15 coup attempt trials, which underlined that “use of force and violence” constitute the elements of the crime of coup and that the term “immaterial violence” was unacceptable under the current Turkish laws. “Concluding otherwise would put us on a path leading to the Yassıada Court,” they said, referring to the infamous military tribunal where former Prime Minister Adnan Menderes and two of his ministers were tried and sentenced to death following a coup in 1960.

In the joint statement, Ergin Cinmen, Figen Albuga Çalıkuşu, Ferat Çağıl and Melike Polat said the following:

“We have been seen that the government is working on the remaining criteria for visa liberalization with the European Union and, in this respect, has determined to make changes to the Anti-Terror Law in an effort to safeguard the freedom of expression and thought, as prescribed by the EU.

In our case, too, it is the freedom of thought that is on trial; this is the conclusion of the Constitutional Court decision as well. Taking these developments into consideration together, we expect an end to the severe, grave juridical fallacy embodied in the case, which is completely unsubstantiated; the fallacy that leads to violation of the freedom of expression, freedom of thought and freedom of press.