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The appellate court’s decision to overturn convictions in trial of ex-Taraf journalists has shattered the claim that the subject of the 6-year trial was the "Balyoz" case
FİGEN ALBUGA ÇALIKUŞU*
With an indictment prepared in 2016, a lawsuit was filed against former editors of now-defunct Taraf journalists Ahmet Altan, Yasemin Çongar, Yıldıray Oğur, reporter Mehmet Baransu and defendant Tuncay Opçin, who is at large, with the İstanbul 13th High Criminal Court.
The indictment stated that the subject of this case was not related to the "Balyoz" (Sledgehammer) which concerned an alleged coup plot against the Justice and Development Party (AKP) government and was ongoing at the İstanbul Anadolu 4th High Criminal Court, and made clear that documents and news items concerning the Balyoz case, which were published in Taraf newspaper in 2010, did not constitute the subject of this trial.
According to the indictment, the subject of the case were the allegations of acquisition from the "cosmic room" of the 1st Army Headquarters of the Egemen (Sovereign) Operation Plan, a confidential, out-of-date war plan, and its transfer, elimination and publication. The case concerned the identification of the status of actions and defendants, as per article 326/1 and 327/1 of the Turkish Penal Code (TCK), which respectively read, “obtaining documents related to the security and domestic and foreign political interests of the state by theft or deception” and “obtaining, disclosing and publishing confidential information related to the security and domestic or foreign political interests of the state,” in accordance with Article 329/1 of the TCK.
The trial continued for six years. At the end of the trial, the court ruled to acquit Ahmet Altan, Yasemin Çongar, Mehmet Baransu and Yıldıray Oğur of “stealing by deception and publishing” as per TCK 326/1 and 329/1. However, Altan, Çongar and Oğur were sentenced to imprisonment of 4 years on charges of “obtaining documents related to the state,” (TCK 327/1) which is an increased penalty from the minimum duration established by the law. The court ruled for an imprisonment sentence of 40 months after reducing the sentence by one sixth.
Mehmet Baransu was sentenced to imprisonment of a total of 13 years; 6 years as per TCK 327/1 with the sentence above the minimum duration established by the law and 7 years as per TCK 329/1. The court did not reduce Baransu’s sentence due to to lack of remorse, and that his sentence would not negatively affect his future and ordered that his pre-trial detention continue.
The court ruled that Tuncay Opçin’s file be separated and execution of the order for his arrest be awaited.
Although the indictment clearly stated what the subject of the trial was, it was perceived as the “Balyoz trial” for a long time and during the initial stage of the trial the court accepted some complainant military personnel involved in the trial into the Balyoz coup plot allegations to join as co-plaintiffs.
Unfortunately, the merits of the case could not be discussed for an extended period and witnesses whom defendant Mehmet Baransu wanted to have summoned could not be heard due to frequent changes in the members of panel of judges, the president of the court and the prosecutor; as well as allegations that the trial was about the publication of Balyoz documents made by co-plaintiffs and military personnel, who appeared before the court to reiterate their request to join the trial as co-plaintiffs.
Even after the trial was established to be not related to the Balyoz case, the Balyoz plan and Balyoz coup plan published in Taraf newspaper were frequent subjects of contention and debate during the trial.
Although the indictment was rendered void with the evidence present in the file, the court ruled to issue sentences at the end of the trial.
The Egemen Operation Plan was destroyed in 2008
An examination of the evidence shows the following points:
To repeat, the General Staff stated, “the Egemen Operation Plan was destroyed,” and that the General Staff had “destroyed it.” It did not claim “it was stolen from the cosmic room.”
Is the destroyed Egemen Operation Plan the same document as the Egemen Operation Plan, which was neither published nor disclosed and no copy of which was included in the case file?
The case file contains investigations and an expert’s reports on this matter.
For a plan to be acknowledged as a secret document, “the authenticity of the document” should be verified.
The expert’s reports in the case file could not verify the authenticity of the documents on DVD/CDs that were claimed to be the Egemen Operation Plan, and for which no original exists.
When examining the matter, experts focused on whether the documents in CDs and DVDs were the originals. However, examinations concluded that the “scientific authenticity” of the documents could not be verified as the originals of the document, which were kept in the cosmic room, were destroyed in 2008.
Was the Egemen Operation Plan been leaked to the press?
There were allegations that the Egemen Operation Plan was stolen and furthermore, a part of it was leaked to the Greek press.
Upon these allegations, the İstanbul Chief Public Prosecutor’s Office has written official notices to the General Staff on 6 March 2015 and requested an investigation to be launched into the subject and to identify who had taken the “top-secret” document of the Egemen Operation Plan from 1st Army Headquarters. The notices cited the reporting in the Greek press and links to the news items.
Of course, once again the person who took the Egemen Operation Plan could not be identified.
The plan in question was destroyed in 2008 and neither the original or copies nor a corresponding document on the computers of the 1st Army Headquarters exist.
An expert’s investigation was carried out by the General Staff regarding the news items published in the Greek press.
The report that was published on 19 June 2015 stated the following:
The maps disclosed in articles in the Greek press were not the maps included in the Egemen Operation Plan, which was revoked in 2008.
The matters published on Greek websites and in the Greek press were not similar to the ones included in the Egemen (Ertuğrul) Operation Plan of the 1st Army Headquarters, which was revoked in 2008.
Constitutional Court ruling: The Egemen Operation Plan was not published in the Taraf newspaper
As per Article 153 of the Constitution, the decisions of the Constitutional Court are binding and final. In its decision 2015/7231, the Second Section of the Constitutional Court concluded that:
It has been ascertained that the clients have reported on the “Balyoz Coup Plan;” that the applicant/defendant Baransu was not arrested due to the story published in Taraf newspaper and therefore the investigation concerning him was not launched over an incident being published in the press or over Baransu’s possession of the mentioned documents; that paragraph 158 contained allegations as the grounds of the charges against Mehmet Baransu of obtaining confidential documents under the Egemen Operation Plan, damaging or destroying some parts of these documents (including copies) and leaking certain information in the documents to a foreign country; and that the Egemen Operation Plan which forms the basis of the charges and the justification for arrest in paragraph was not published in the news item published by the Taraf newspaper.
The appeals ruling
The 27th Criminal Chamber of the İstanbul Regional Court of Justice overturned the sentencing of former Taraf newspaper managers Ahmet Altan, Yasemin Çongar, Yıldıray Oğur and reporter Mehmet Baransu on grounds of unlawfulness (Criminal Procedure Code art. 289).
The appellate court ruling first rejected the appeal requests of co-plaintiffs, who persistently claimed that this trial which was going on for six years, was the Balyoz Case and of all military personnel and the Ministry of National Defense, whose request to join the trial as co-plaintiff were rejected. The court ruled that they did not have the right to refer to the legal remedy of launching an appeal as “they were not harmed parties.”
This means that the subject of trial, which had become a subject for conflict and debate in almost every hearing of this trial for six years, was not the Balyoz case.
Another ground to overturn was that the court had ruled referring to various dates such as 2013 and 2015 as the date of the crime, while the date of the crime was 2010.
The appellate court has requested that the file be evaluated along with other cases against Mehmet Baransu and the defendant’s legal situation be re-examined according to the scope of the overall file and ruled for Baransu’s release on judicial control measures due to legal necessity as the maximum duration of detention has been exceeded.
In its decision that the investigation was incomplete, the court ruled that Kurtuluş Tayiz be summoned to the court as a witness and the legal situation of the defendants be re-examined.
In the next stage, the court of first instance will carry out a retrial as the initial sentencing has been overturned.
*Lawyer, representing Ahmet Altan and Yasemin Çongar