Top court publishes Özgür Gündem judgment; prosecutor demands acquittal of Meşale Tolu, who spent 7.5 months behind bars; prosecutors seek sentence for Buse Söğütlü and Roza Metina
Constitutional Court’s Özgür Gündem judgment published
The Constitutional Court has published its judgment concerning the application filed against the Istanbul 8th Criminal Judgeship of Peace decision rendered on 16 August 2016 to temporarily close Özgür Gündem newspaper. Ruling on the application on 30 June 2021, the top court held unanimously that the temporary closure decision violated freedom of expression and freedom of the press, safeguarded in Articles 26 and 28 of the Constitution.
In its reasoned judgment in writing, the Constitutional Court stressed that failure to apply the closure measure in a temporary manner violated the provision in the Constitution which strictly stipulates periodical publications can only be closed for a temporary period.
The Özgür Gündem application was filed on 26 September 2016, before the pro-Kurdish newspaper was permanently closed under a statutory decree issued on 29 October 2016 under the state of emergency the government declared following the failed coup attempt of 15 July 2016.
The top court wrote: “The newspaper was permanently closed on 29/10/2016, pursuant to Paragraph 5 of Statutory Decree No. 675 … therefore, the newspaper remained temporarily closed under Article 28 of the Constitution throughout the 2 months and 13 days that elapsed from the court’s temporary closure decision until the issuing of the statutory decree. This period … is longer than the one-month maximum period stipulated in the Law.”
Furthermore, according to the top court’s judgment, had the newspaper not been closed under a statutory decree, it could remain closed for an indefinite period, since the judgeship failed to specify the period for temporary closure in its decision:
“In the present case, the court of first instance ordered the closure of the newspaper, but it did not set a period for the implementation of the measure. The [judgeship’s] decision and other developments that occurred during the application of the measure show that the decision was not meant to close the newspaper temporarily. Despite the provision in paragraph 8 of Article 28 of the Constitution that periodicals can only be closed 'temporarily,' the failure to implement the measure temporarily contradicted the wording of the Constitution.”
The top court concluded that “the interference with the applicants' freedom of expression and press was not in accordance with the wording of the Constitution and was not prescribed by law.”
COE Committee of Ministers issues Demirtaş and Kavala decisions
The Committee of Ministers of the Council of Europe, which oversees the implementation of judgments by the European Court of Human Rights (ECtHR), announced its latest decisions regarding the cases of businessperson Osman Kavala and Kurdish politician Selahattin Demirtaş, who are still jailed despite the respective ECtHR judgments finding multiple violations in their cases. The Committee of Ministers’ latest regular meeting was held in Strasbourg from 14-16 September 2021.
The Deputies once again called for Demirtaş’s immediate release, the quashing of his conviction by the Istanbul Assize Court, and termination of the criminal proceedings pending before the 22nd Ankara Assize Court, together with the removal of all other negative consequences of the constitutional amendment. Also noting that the deadline to submit an action plan expired on 22 June 2021, the deputies called upon the authorities to provide information on general measures regarding the case of Demirtaş before 30 September for their next examination of the case.
In the case of Osman Kavala, the Deputies decided that it was necessary, in order to ensure the implementation of the judgment, to make use of proceedings under Article 46 § 4 of the Convention, and expressed their resolve to serve formal notice on Turkey of their intention to commence these proceedings in accordance with Article 46 § 4 of the Convention at their 1419th meeting, scheduled for 30 November-2 December 2021, in the event that Kavala is not released before then.
Prosecutor demands acquittal for Meşale Tolu
The 15th hearing of the trial against journalist Meşale Tolu and 22 other defendants on charges of “membership in a terrorist organization” under Article 314/2 of the Turkish Penal Code (TCK) and “terrorism propaganda” under Article 7/2 of the Anti-Terror Law (TMK) was held on 16 September 2021 at the Istanbul 29th High Criminal Court.
The prosecutor, who submitted their final opinion on the case on 15 September 2021, one day ahead of the hearing, demanded Tolu’s acquittal of all charges due to lack of concrete and conclusive evidence. Also asking the court to acquit 10 other defendants of all charges, the prosecutor sought conviction for 10 other defendants on the charge of “terrorism propaganda” while seeking their acquittal of the “membership in a terrorist organization” charge. The prosecutor demanded that the court convict the remaining two defendants of “terrorism propaganda” and “committing a crime on behalf of a terrorist organization without being its member” (TCK 220/6).
Granting the defendants time to prepare their statements in response to the final opinion, the court adjourned the trial until 24 December 2021.
A report about the hearing, monitored by P24, can be accessed here.
Investigation launched against TKP’s Kemal Okuyan
An investigation was launched against Kemal Okuyan, the general secretary of the Communist Party of Turkey (TKP), on the allegation of “threat with the intention of causing fear and panic among the public” under Article 213 of the Turkish Penal Code (TCK) over his televised comments during a program that aired on Tele 1 TV in July. Okuyan was called in to the Izmir Police Department this week for questioning as part of the investigation.
On 7 July 2021, Tele1 was imposed an administrative fine by the Radio and Television Supreme Council (RTÜK) due to Okuyan’s televised comments.
Trial against Adil Demirci adjourned until April 2022
The 11th hearing of a trial in which Etkin news agency (ETHA) staff member Adil Demirci and 22 other people, including members of the Socialist Party of the Oppressed (ESP) and the Federation of Socialist Youth Associations (SGDF), are charged with “membership in a terrorist organization” and "terrorism propaganda” was held at the Istanbul 25th High Criminal Court on 15 September 2021.
P24 monitored the hearing. Demirci, who lives in Germany, did not attend the hearing. Gönül Gören, one of Demirci’s co-defendants, and defense lawyers were in attendance.
A secret witness who addressed the court via the judicial videoconferencing network SEGBİS during the hearing said he did not remember the defendants on trial by name and refused to give further testimony.
Addressing the court next, Gören said she is a law school graduate but although she applied for a lawyer's license, the Ministry of Justice did not approve her application due to the ongoing trial. Stating that her license from the Istanbul Bar Association has also been canceled, Gören demanded that the court separate her file so that the trial can be concluded without further delay.
Demirci’s lawyer Keleş Öztürk requested that the court ignore the secret witness, who has been giving contradictory statements. Other defense lawyers requested that the court lift their clients’ international travel ban.
In its interim ruling, the court accepted Gönül Gören’s request for her file to be separated. The number of defendants in the case thus became 21. Ruling for the continuation of the judicial control measures imposed on the defendants, the court adjourned the trial until 8 April 2022.
Demirci, a Turkish and German citizen, was arrested in Istanbul in April 2018. He was released pending trial at the second hearing in February 2019 after spending 10 months in pre-trial detention. In the indictment, Demirci is accused of “being a member of a terrorist organization” and “terrorism propaganda” for allegedly attending the funerals or commemorations for three people, including those who died fighting in the ranks of YPG against ISIS in Syria’s Kobani between 2013 and 2015.
İHD’s Ataş faces investigation for 24 April statement
An investigation was launched against lawyer Yakup Ataş, the Human Rights Association’s (İHD) Adana branch chairperson, over a statement he made on 24 April 2021 concerning the Armenian genocide. Ataş is facing the allegation of “inciting hatred and enmity” in the investigation. Ataş gave his statement to the prosecutor conducting the investigation on 15 September 2021.
Journalist Tunahan Turhan released under judicial control measures
Etkin news agency (ETHA) reporter Tunahan Turhan was taken into custody in Istanbul on 10 September 2021 within the scope of an investigation launched by the Ankara Chief Public Prosecutor’s Office. Turhan was transferred to Ankara. Along with Turhan, 17 other people, including members of the Socialist Party of the Oppressed (ESP), the Federation of Socialist Youth Associations and two signatories of 2016’s Academics for Peace declaration, were arrested.
On 14 September, Turhan and 10 others were brought to the courthouse, where the prosecutor referred them to court, seeking their imprisonment without taking their statements. The Ankara 1st Criminal Judgeship of Peace released all 11 under various judicial control measures.
Prosecutor demands sentence for Buse Söğütlü over Twitter post
Gazete Yolculuk reporter Buse Söğütlü appeared before the Istanbul 23rd High Criminal Court on 14 September 2021 for the fifth hearing of her trial on the charge of “marking an official involved in the fight against terrorism as a target” under Article 6/1 of the Anti-Terror Law (TMK). Söğütlü is on trial for a Twitter post in which she commented on a trial overseen by judge Akın Gürlek.
The prosecutor submitted their final opinion, asking the court to convict Söğütlü as charged. Granting Söğütlü and her lawyers time for their final defense statement, the court adjourned the trial until 27 January 2022.
Our report about the hearing can be accessed here.
Prosecutor seeks sentence for Roza Metina
The second hearing of journalist Roza Metina’s trial on the charge of “membership in a terrorist organization” was held at the Diyarbakır 5th High Criminal Court on 14 September 2021. Metina is on trial due to her alleged ties with the Democratic Society Congress (DTK).
Metina, who did not attend the hearing, was represented in court by her lawyer Resul Temur. The prosecutor presented his final opinion, demanding that the court convict Metina as charged. The prosecutor claimed that Metina had “participated in organized activities within the DTK; together with other DTK members, disrupted the unity and integrity of the state in order to ensure the so-called Kurdish national unity on territories of four different countries; and that she was a DTK delegate based on documents seized during a search of her home.”
Granting Metina’s lawyer additional time for his statement in response to the allegations in the prosecutor’s final opinion, the court adjourned the trial until 12 October 2021.
Court issues new arrest warrant for Ferhat Tunç
The 11th hearing of a trial in which self-exiled musician Ferhat Tunç is charged with “insulting the president” (TCK 299) for his social media posts from 2016 was held on 14 September 2021.
The Büyükçekmece 14th Criminal Court of First Instance lifted the two arrest warrants it had issued for Tunç in 2019 and 2020 and issued a new arrest warrant for Tunç’s statement to be taken. The court adjourned the trial until 25 January 2022.
Investigation launched against journalist Faruk Arhan
Journalist Faruk Arhan announced on 14 September 2021 that he gave his statement at the police department as part of an investigation launched against him on the allegation of “inciting the public to hatred and enmity” (TCK 216) due to a post he shared on Twitter on 31 July 2021.
Trial against writer Gökhan Yavuzel gets underway
A trial in which Kurdish writer Gökhan Yavuzel, a PEN International member, is charged with “insulting the president” (TCK 299) got underway on 14 September 2021 at the Şanlıurfa 4th Criminal Court of First Instance.
Yavuzel, who lives in Wales, was not in attendance. The court decided to issue an arrest warrant for Yavuzel and adjourned the trial until 22 February 2022, awaiting the execution of the arrest warrant.
Yavuzel is on trial for arguing that the AKP government “will fall” in a video he posted online on 6 June 2020 in response to a death threat he received on social media.
Investigation against Özgür Boğatekin dismissed
The Gerger Chief Public Prosecutor’s Office has dismissed an investigation launched against Gerger Fırat newspaper managing editor Özgür Boğatekin on the allegation of “inciting hatred and enmity” over his social media posts concerning the recent murder of seven members from a single family in Konya. Completing the investigation on 9 September 2021, the Chief Public Prosecutor’s Office concluded that Boğatekin’s post did not constitute a danger to public safety and that the legal elements of the alleged crime did not occur.
Local newspaper publisher Rifat Söylemez sent to prison
Rifat Söylemez, the former publisher of Adana Haber newspaper, whose prison sentence was upheld by the Supreme Court of appeals, was arrested and sent to prison on 18 August 2021 in Adana.
The files against some of the defendants including Söylemez had been separated from a trial in which 13 local journalists and newspaper publishers in Adana were charged with “membership in a terrorist organization” for their alleged ties with what the government calls the Fetullahist Terrorist Organization (FETÖ). The trial was launched following the 15 July 2016 coup attempt. At the final hearing held on 16 February 2018, the Adana 11th High Criminal Court acquitted the defendants whose files had been separated, including Söylemez.
The prosecutor appealed against the acquittal judgments at the Adana Regional Court of Justice, which reversed the acquittals and sentenced Söylemez and others to 2 years and 1 month in prison for “aiding a terrorist organization without being its member” under TCK Article 220/7.
Adana Haber publisher Söylemez, Ekspres newspaper publisher Hakan Bülent Yardımcı, Adana Medya newspaper publisher Taner Talaş and Osman Palamut and Abdurrahim Haklıkul, who were sentenced for their social media posts, appealed the convictions at the Supreme Court of Appeals, which rejected the appeals and upheld the sentences.
Söylemez will have to remain in prison for 6 months and 21 days to complete his sentence.
At least 61 journalists and media workers in prison
As of 17 September 2021, at least 61 journalists and media workers are in prison in Turkey, either in pre-trial detention or serving a sentence.
The full list can be accessed here.