The case in which actor agent Ayşe Barım was released on house arrest only to have an arrest warrant issued against her the next day following an appeal raises questions about the shrinking boundaries of freedom of expression

SEMRA PELEK

“I have been asking myself the same question for days,” said Ayşe Barım, speaking at her second hearing at the İstanbul 26th Heavy Penal Court. “Why was I targeted? Why was my right to life taken away? I want to trust in the existence of justice, but this process frightens me.”

Barım, who began her trial 12 years after the Gezi Park protests, was released on house arrest after spending 248 days in prison, due to her health condition. During this time, she lost 32 kilograms, and her brain aneurysm and heart muscle disorder worsened to a life-threatening level. She fainted repeatedly in her solitary cell. Barım was released on 1 October; however, the next day, upon the prosecutor's appeal, the İstanbul 27th High Criminal Court, the higher court, issued a new arrest warrant. Yet, the İstanbul 26th High Criminal Court had insisted on the release decision.

Although she appeared to be released, Barım was given the punishment of house arrest. There was no possibility of her fleeing or going into hiding; yet she was effectively deprived of her freedom. Moreover, the arrest warrant was issued while she was undergoing treatment in the hospital.

The necessary explanation for inaction and silence

Speaking at the second hearing, her lawyer Sedat Özyurt said, “A perception has been created in the public that Ayşe Barım should be released solely for health reasons. This is a great injustice,” he said, presenting a defense on the merits of the case and explaining why his client could not be tried under Article 312 of the Turkish Penal Code. “Freedom of thought and expression is protected by the constitution. Even if we were in a hypothetical country where thought was a crime, Ayşe Barım would not have committed a crime,” he said and asked the following question: ”Which of Ayşe Barım's actions or words fall within the scope of aiding the overthrow of the government? We could not find the answer to this in the case file!"

In the indictment, Barım is drawn into the political arena precisely because of what she did not do and did not say; her inaction and aloof stance are used as grounds for the accusation of “aiding in the overthrow of the government.”

Because the accusation attributed a political stance to her, Barım repeatedly stated that she was “apolitical” in her statements at every stage and in her interview with the press from prison.

The court, however, asked the 11 witnesses it heard—the actors she managed: Bergüzar Korel, Ceyda Düvenci, Dolunay Soysert, Halit Ergenç, Mehmet Günsür, Nejat İşler, Nehir Erdoğan, Rıza Kocaoğlu, Selma Ergeç, Sevil Demirci, Şükran Ovalı, and Zafer Algöz—questions aimed at proving she was political: “Does Ayşe Barım have political views?”

All witnesses said, “Ayşe is apolitical.” Other responses included: “Ayşe is not interested in politics,” and “Ayşe does not want us to comment on politics, religion, or football.”

Neither being apolitical nor being political is a crime

It is understandable for an agent to keep their actors away from commenting on controversial areas such as politics, religion, and football. But according to the Turkish Constitution, the European Convention on Human Rights (ECHR), to which the country is a party, and national and international precedents, having opinions and expressing them is not a crime.

A person can be apolitical or political... If Barım were a political figure, would this be considered a crime? Article 26, paragraph 1 of the Constitution is clear: “Everyone has the right to express and disseminate their thoughts and opinions.”

Article 10 of the ECHR states that “Everyone has the right to freedom of expression,” and guarantees that this right shall be exercised “without interference by public authorities and regardless of frontiers.”

If the right to freedom of expression were truly respected, Ayşe Barım would never have been in the dock.

This is because the case is based on words and actions by her and the actors she manages that fall within the limits of freedom of expression. The charge against Barım can be summarized in one sentence: “Aiding an attempt to overthrow or obstruct the government by force or violence.”

This crime is regulated in Article 312 of the Turkish Penal Code (TCK); the minimum sentence prescribed by law is 22 years and 6 months, and the maximum is 30 years.

The indictment lists the following “evidence” to support this serious charge:

● The allegation that she directed the actors she managed

● The statement read by artists in Gezi Park

● Barım's photo taken in Gezi

● “Help Turkey” social media posts

● A single image found by chance on his computer

● Her phone conversations with Osman Kavala, Çiğdem Mater, and Mehmet Ali Alabora

In addition to these, there is also a report that has been determined by a record to contain no criminal elements. This report came to light when the whistleblower, Sedat Gül, was heard at the second hearing.

The actors had to prove their individual will

Pages 65 to 116 of the indictment contain photographs taken at Gezi of the actors managed by Barım. This section also forms the main body of the charges. The actors' social media accounts were also examined. The indictment clearly states that 10 of the 16 actors affiliated with ID İletişim, who were identified through open-source research as having participated in the Gezi protests, did not make any posts related to the protests; in other words, there is no “crime sought” in the case file.

Nevertheless, a few social media posts made by six actors are considered evidence of the crime. However, the same indictment states that approximately 500,000 tweets were posted under the #occupygezi hashtag, which was only opened on 28 May 2013. There is no evidence that Barım and his actors started this campaign or directed the masses. Among a total of half a million tweets, only a few posts by six actors are being used as the basis for the accusation of “helping to overthrow the government at Barım's instruction.”

Among the allegations is that Barım gathered actors from the set of the Muhteşem Yüzyıl (Magnificent Century) series and took them collectively to Gezi Park, instructing them to participate en masse in the protests. Barım denied this allegation at every stage of her testimony. Looking at the indictment, one might think that Turkey's most famous actors are not adults who make their own decisions, but puppets controlled by someone else. Because of this assumption, the actors had to testify in court to prove that they were “adults capable of making their own decisions.”

The following questions were asked to the actors who testified at the second hearing: “Did Ayşe Barım instruct you to participate in the Gezi protests?”, “What kind of instructions did you receive from her?”, “Do you choose the projects you participate in, or Ayşe Barım does it for you?”, “Does Ayşe Barım decide where you go in your social life, who you meet with?”

All the actors who testified responded, “Ayşe Barım does not give us instructions,” “we have a say in the projects,” “she is responsible for finding suitable projects that we want to be part of,” “we do not listen to her in our social lives,” and “we participated in Gezi of our own free will.” In fact, when repeatedly asked, “Does Ayşe Barım interfere in your social life?” witness and actor Selma Ergeç answered with a single sentence: “No way!”

Indeed, no way!

On the other hand, participating in any action, individually or collectively, is not a crime. Article 34 of the Constitution is clear: “Everyone has the right to organize meetings and demonstrations without prior permission, provided they are unarmed and non-violent.”

The statement in question calls for peace

Barım is also accused because of the statement read out in turn by actors, including those from ID İletişim, in Gezi Park. The prosecutor's assumption is that the actors read this statement not of their own free will, but on Barım's instructions. According to the indictment, this statement aims to “disrupt the country and plunge it into chaos;” the allegation of “coercion and violence” is also linked to this text.

The actors who were questioned stated that they did not read the statement under Barım's direction. Barım's lawyer, Sedat Özyurt, also emphasized that the statement did not call for violence or coercion and that no causal link could be established in this regard in the behavior of her client or the artists.

The section of the statement read by Halit Ergenç, which is included in its entirety in the indictment, did not call for violence but emphasized the need for violence to end. That section read: “We are here because we want all violence to stop immediately, for everyone to try to understand each other, and for the necessary steps to be taken immediately to consider what can be done for a peaceful environment from today onwards.”

Moreover, making a press statement is protected under the Constitution and the European Convention on Human Rights as “freedom of expression.” Beyond that, there is no evidence in the file that Barım or the actors incited the public to use violence or coercion on any date, through any statement or words.

The basis of the allegation: A photo with Halit Ergenç

Among the evidence are photographs taken from different angles on the single day Barım went to Gezi Park. It is unknown when the photograph was taken or how long Barım stayed in the park; the indictment makes no mention of this. The photographs only show Barım standing next to actor Halit Ergenç.

Barım stated in court that she went to Gezi only once, alongside her actors. Her lawyers stated that, apart from this one occasion, Barım was not even in İstanbul during the entire protest period and that this could be proven with Historical Traffic Search (HTS) records. However, the prosecution did not request these HTS records during the investigation phase, nor did the court during the trial.

The “influence agent” allegation remains unproven

The indictment also cites as evidence social media posts of actors working with Ayşe Barım's agency during the fires that began in Antalya in the summer of 2021 and quickly spread to many cities in Turkey, using the hashtag #HelpTurkey. However, the connection between these posts and the Gezi protests is not explained.

In the request for Barım's arrest, the prosecutor’s office claimed that these posts “portrayed Turkey as inadequate on the international stage,” linking them to the charge of “influence agent.” But the charge of “influence agent” was not included in the indictment. This is because it is not a crime directly defined in Turkish law.

According to a fundamental principle of law, an act must be clearly defined in the law to be considered a crime. Article 38 of the Constitution clearly states this: “No one shall be punished for an act that was not defined as a crime under the law in force at the time it was committed.” Article 2 of the Turkish Criminal Code also reiterates the same principle: “There shall be no crime or punishment without a law.”

A single image was found on the 37 digital devices seized

During searches of Ayşe Barım's home and workplace, three desktop computers, seven laptops, two storage units, eight external hard drives, two tablets, two flash drives, and 13 SIM cards were seized.

The indictment stated that, as a result of examining these digital materials, a single image with the hashtag #OccupyGezi was “found” on a laptop at her workplace. The image depicts a drawing of a woman wearing a mask. In her statement to the prosecutor, Barım said that the image was probably sent by a friend and that she may have saved it for that reason. The indictment did not explain the connection between this image and the charges of “coercion and violence” or “aiding an attempt to overthrow the government.”

“Illegal evidence” was also included in this file

The indictment states that Ayşe Barım met with Mehmet Ali Alabora, a defendant in the main Gezi case, Osman Kavala, who was sentenced to life imprisonment in the main case, and Çiğdem Mater, who received an 18-year prison sentence.

There is no direct record of a meeting with Kavala and Mater in the indictment. Furthermore, the claim of “intensive communication” contradicts the HTS records in the indictment. According to the file, Barım met with Mehmet Ali Alabora three times, Osman Kavala 39 times, and Çiğdem Mater 14 times.

The transcripts of Barım's two meetings with Alabora are included in the indictment. In the first meeting, Barım tells Alabora, who was the president of the Actors' Union at the time, about a statement that was to be published, “When I saw this text, I panicked for you; do not publish it.” In the second meeting, she uses the phrase “the tone is not right” for the same text.

In her statement to the prosecutor, Barım explained the purpose of these conversations as follows: “Since I am responsible for protecting the actors, I expressed my opinion so that the content of the statement would not harm them.” In other words, there is no statement made or instructed to be made by Barım. On the contrary, her attempt to prevent the publication of a statement is presented as evidence of a crime.

Barım and her lawyers also stated that the meeting with Kavala took place not during the Gezi protests, but a year later. They stated that the meeting took place after the Turkish premiere of the film Kesik, directed by Fatih Akın, whom Barım manages, because the film's party was held in Algeria. Barım said she did not remember whether she had a meeting with Çiğdem Mater.

Furthermore, it had been ruled during the main Gezi trial that these wiretaps were not legally valid. These wiretaps, which were included in the indictment of the main Gezi trial, consist of illegal wiretaps from 2013. Prosecutor Yakup Ali Kahveci included these recordings in the indictment in 2019 after “re-evaluating” them.

In its reasoned decision announced on 7 June 2022, the İstanbul 13th High Criminal Court clearly stated: “Considering the established precedent of the Court of Cassation and the principle that ‘the fruit of a poisonous tree is also poisonous,’ it has been accepted that the wiretaps in the indictment constitute illegal evidence.” Judge Kürşad Bektaş, a member of the court, was even more explicit in his dissenting opinion, stating that there was no evidence in the case file other than the wiretaps and that these recordings were also unlawful.

In criminal proceedings, the lawful acquisition of evidence is a fundamental requirement for a fair trial. “Illegal evidence” means evidence obtained unlawfully and, as a rule, cannot be used in court.

Barım's lawyer, Deniz Ketenci, also asked the following question during the second hearing: “If these conversations constitute a crime, why were they not brought up during the main Gezi trial?”

No answer was given to this question either.

Detention based on a report lacking criminal elements

During the second hearing, the whistleblower, Sedat Gül, was also heard. On 13 January 2025, Gül reported Barım by sending an email titled “Request for legal and social measures against structures and activities threatening the welfare of our country” from his personal email account to the Grand National Assembly of Turkey, the General Directorate of Security, and the Presidency Communications Directorate. He attached screenshots of five separate social media posts to his email.

According to the defense submitted to the court by lawyer Deniz Ketenci, the report was sent to the Branch Directorate by the Anti-Smuggling and Organized Crime Department (KOM) on 15 January. As a result of the investigation, a report dated 22 January at 2:50 p.m. stated that “there is no concrete evidence, information, document, or proof in the content of the report and its attachments regarding the nature and identification of a crime or criminal elements, and therefore the investigation cannot be pursued.” Barım was taken into custody 36 hours after this report was filed.

During the hearing, when questioned by the presiding judge, witness Gül stated, “I do not remember making a report directly accusing Ayşe Barım.” When the judge read the content of the report, he said, “I saw it on social media and wrote my opinion as a citizen.” When asked, “With what sensitivity did you make this report?” he replied, “With sense of civic duty, I suppose.” Thus, during the hearing, the reporter's own statement revealed that the report was unfounded.

This is all that is included and not included in the indictment. In this case, opened 12 years after Gezi, a photo taken in the park one day, illegal wiretaps, a peaceful statement, and other people's posts are considered evidence of a crime. However, neither the indictment nor the hearings answer many questions. Barım asks the simplest of these questions: “Why was I targeted?”