Prominent rights defender Şebnem Korur Fincancı will appear before the court again on 29 December 2022 for “terrorism propaganda”
The first hearing in the trial of Turkish Medical Association Central Council President Prof. Dr. Şebnem Korur Fincancı on charges of “terrorism propaganda” was held at the İstanbul 24th High Criminal Court on 23 December 2022. Fincancı has been in pre-trial detention since 27 October 2022 over her televised remarks calling for an investigation into allegations of use of chemical weapons by the Turkish military against the PKK targets.
Korur Fincancı, who was brought in after a journey of a five and a half hours from the Ankara Sincan Closed Prison where she was being held, and her lawyers attended the hearing which P24 monitored. The hearing was observed by the presidents of bar associations of Diyarbakır, Van and İzmir, representatives of the boards of directors of bar associations of Ankara and Yalova, the representative of the Union of Bar Associations of Turkey (TBB), CHP, HDP and TİP MPs and representatives of national and international human rights organizations. Many observers could not enter the court room due to the lack of space. Şebnem Korur Fincancı’s lawyer Meriç Eyüboğlu’s request that the hearing be held in a larger courtroom so that observers could be admitted was turned down by the court.
Lawyer and former president of the İzmir Bar Association Özkan Yücel requested the court to reverse its decision to allow defenses from only three lawyers before delivering his defense and said “You cannot limit the number of lawyers for the impugned crime. The law cannot be implemented with the logic of ‘Because I say so.’ Please reverse this decision which you have taken through unlawful imposition.” The court turned down Yücel’s request.
Speaking again, lawyer Eyüboğlu requested the names of the lawyers present to defend Korur Fincancı to be added to the hearing minutes. The presiding judge then started reading out the names of approximately 800 lawyers who handed in authorization certificates to defend Korur Fincancı. The names of presidents and representatives of bar associations were also entered into the minutes.
“I’m not a gentle person”
While summarizing the indictment after deciding on objections and requests, the presiding judge addressed Şebnem Korur Fincancı in the second person singular, as “sen.” The presiding judge responded to objections by lawyers and observers by saying “I am not a gentle person.”
Requesting to speak upon the attitude of the presiding judge, Korur Fincancı said “You cannot address me in the second person singular, as sen, due to my age, my position and as a person who has taught at law school while you were a student. Yout opinion of me is transparent.”
“I have a responsibility to defend the freedom of expression and society’s right to be informed”
Changing his manner of address upon Korur Fincancı’s speech, the presiding judge asked Korur Fincancı for her defense. Korur Fincancı said that she would like to speak about how she was transported from the Ankara Sincan Closed Prison to İstanbul, before starting her defense. Stating that the journey constituted a violation of the right to a fair trial, Korur Fincancı said “I have an advanced hernia. Also, the pen is my only weapon. What justification could there be for me to travel without moving for five and a half hours, in handcuffs, accompanied by seven gendarmeries? This is a violation of human dignity.”
Beginning her defense against the indictment by thanking her lawyers and observers, Korur Fincancı said that she practiced her profession with an effort to make all people visible, regardless of their identities. Fincancı said the following: “As you may appreciate, I have better knowledge of forensic medicine, to which I devoted years, than the prosecutor who wrote the indictment and claims to know about forensic medicine. The medical assessment of the symptoms shown on the video is a pre-diagnosis. To reach a diagnosis, effective and independent investigation and documentation are required. At least the Ministry of National Defense said in parliament that an investigation would take place. But was it independent? No.”
Stating that crimes against humanity fall within her field of study, Korur Fincancı said it was unacceptable for this situation to be criminalized. Korur Fincancı said “As a human rights advocate, I am responsible for defending the freedom of expression and society’s right to be informed. My request to ask questions and inform the public of the truth as a public intellectual arises from my responsibility as a scientist, as well as a citizen.”
Fincancı said “Medicine is the name given to the opposition to and the lifestyle in an effort to protect and cleanse humanity of all forms of harmful effects, including opposing crimes against humanity and protecting human dignity from being harmed by violations, stopping factories that spew poison, trying to protect our olives, our bees and our flora and fauna and opposition all forms of situations that are detrimental to public health such as wars, climate change and cholera outbreaks that are frequently observed today and are easily stoppable” and added “Attempts at criminalizing this lifestyle are in vain. As Nazım Hikmet said ‘Living is serious business’” in completing her defense.
Observers in the courtroom applauded Fincancı after she finished her defense.
MoND’s lawyers’ request to join as co-plaintiff turned down
Speaking after Korur Fincancı, the lawyer for the Ministry of National Defense requested to join the case as co-plaintiff on behalf of the MoND. The prosecutor demanded that the request be turned down as the Ministry had not “suffered harm from the crime.” Lawyer Meriç Eyüboğlu spoke against the request to join as co-plaintiff, saying it could not be accepted, it was not appropriate and they agreed with the prosecutor’s opinion.
The presiding judge turned down the MoND lawyer’s request to join the case as co-plaintiff and asked the lawyer to move to the observers’ section. However, the ministry’s lawyer wanted to explain their grounds for request. Observers and Fincancı’s lawyers said that a decision was issued and that the lawyer was no longer a party. Not allowed to continue speaking by the presiding judge, the MoND lawyer left the courtroom.
Attorneys defend against the indictment
Speaking first among Prof. Dr. Korur Fincancı’s lawyers, Gulan Çağın Kaleli described the indictment as “sentimentalist poetry.” Kaleli said “A perception operation is being run against my client by the government” and added “The prosecution has placed five words in the indictment from the TV program that lasted for seven minutes. One cannot speak of a fair trial. You are trying someone based on an indictment prepared by a prosecutor who is not objective, who has conducted a careless investigation and who has not fulfilled any lawful requirement.”
Kaleli also stated that the examination of digital materials was unlawfully carried out and said “All these unprocedural undertakings aside, my client has refused safety in ordinariness throughout her life and has always acted with courage. Today it is for the court to act courageously” and requested Fincancı’s acquittal.
Lawyer Meriç Eyüboğlu requested the acquittal of his client in his defense which referred to the judgements of the European Court of Human Rights (ECtHR) and rulings of the Constitutional Court. Eyüboğlu said “All of us read about new arrests almost daily. We are forced to live in an environment where the smallest objection is not tolerated, is forced to face arrest in which we are forced to suffocate. The main accusation in the indictment is the program on which my client appeared and the broadcaster of the program. Just as these are not crimes, they are not criteria for someone advocating for human rights. The medical profession offers this impartiality. A case would not have been filed had she appeared on the [state-run] TRT 1 channel and said the same things. Discussing whether the elements of the crime existed is in itself unnecessary.”
Eyüboğlu said that the arrest was unfounded and was an attempt at delivering a message to society at large over Korur Fincancı. “I request that you realise this and issue a decision that will allow us to leave this place with our client,” stated Eyüboğlu.
Lawyer Hülya Yıldırım said that the indictment provided assessments instead of crimes, that the elements of the offense of “terrorism propaganda” had not existed and that judicial harassment of Korur Fincancı as a human rights advocate was the case, before requesting the release of her client.
Prosecution presents opinion as to the accusations at the first hearing
Speaking after the defendant’s lawyers, the prosecutor said that they did not request examination or additional time and would announce their final opinion on the case.
The prosecutor claimed that by appearing on the TV program subject to the trial via video call, Korur Fincancı “had actively participated in the propaganda activity of the PKK/KCK terrorist organization during the program” and requested sentencing for the impugned crime. The prosecutor requested sentencing for Korur Fincancı at the upper limit of 7 years and 6 months of imprisonment foreseen for the impugned crime and requested that Korur Fincancı remain behind bars due to presenting a “flight risk.”
Objections to decision sustaining pre-trial detention
Fincancı’s lawyers, who requested additional time to prepare their defenses against the prosecutor’s final opinion, said they would defend against the request for the pre-trial detention to be sustained.
Asked about her final say regarding the opinion, Prof. Dr. Korur Fincancı said “Of course it is very difficult to be imprisoned, but it is also quite a boon for a human rights advocate. We are always requesting permission to examine prisons and it is always denied. So, it is quite significant that the state has placed me in prison of its own accord.” Fincancı added “On the other hand, listing ‘flight risk’ as justification of continuing to keep me in pre-trial detention is beyond all reason. Yes, I have had to retire in this country, but I may lecture anywhere in the world on forensic medicine. I do not do this because I owe a debt first to the peoples of this country and second to the institutions where I have duties. Therefore, it is out of the question that I would flee anywhere.”
In response to the request, lawyer Öztürk Türkdoğan said “Could crime and punishment change because the conjecture has changed? Can a state set up a trap for any of its citizens? If political office holders place people before the judiciary as targets and if the judiciary then acts accordingly, we have a problem.” Lawyer Türkdoğan said that a decision to continue imprisonment could have no lawful justification and requested it be ended.
Lawyer Veli Küçük repeated the same point and said “Our client’s right to a good reputation, presumption of innocence and right to a fair trial have been violated. We are talking about a human rights advocate who loves her country and its people, who returned from abroad upon learning she was facing an investigation.”
Speaking last at the hearing, lawyer Meriç Eyüboğlu said that on 12 December 2022, a file signed by the Directorate of Prisons and Correction Houses had been included in the case file. Reading the document aloud, lawyer Eyüboğlu said “It is clear from this that my client would not be acquitted at the first hearing and the date for the second hearing would be set for within 10 days.”
Lawyer Eyüboğlu added that the prosecutor had come to the hearing with a fully prepared opinion as to the accusations, despite hearing the defense for the first time and that this constituted a crime according to the Council of Judges and Prosecutors (HSK). Eyüboğlu said “In this political climate, one does not need to be a detractor, these cases target anyone with the slightest objection to the government. If you rule to continue imprisonment with the aim of punishment, this will go down in history.”
The court decided to keep Prof. Dr. Korur Fincancı behind bars and adjourned the trial until Thursday, 29 December 2022. Fincancı will not be returning to the Ankara Sincan Closed Prison. She will be kept in Bakırköy Prison during this period as per the document communicated to her by the Directorate of Prisons and Correction Houses on 12 December 2022.
Background of the case
Speaking to the broadcasting organization called Medya Haber in October 2022, Şebnem Korur Fincancı said she had examined the footage of allegations of the use of chemical weapons by the Turkish Armed Forces in its military operations and said “It is clear that a toxic-poisonous gas that directly affects the nervous system was used. Although their use is banned, we see them used in conflicts.”
Prof. Dr. Korur Fincancı said that international conventions necessitated an investigation by independent delegations in the region and said, “International conventions must be implemented, and the principles of the Minnesota Protocol must apply on what sort of an investigation needs to be carried out regarding such claims arising under the Geneva Convention which bans the use of chemical weapons.”
Following these statements, Prof. Dr. Korur Fincancı was targeted by pro-government media organizations while President Recep Tayyip Erdoğan and Minister of National Defense Hulusi Akar released statements denying the use of chemical weapons.
The Ankara Chief Prosecutor’s Office then launched an investigation into Prof. Dr. Korur Fincancı on charges of “terrorism propaganda” and “denigrating the state of the Republic of Turkey, the institutions and organs of state.”
Korur Fincancı, who was expected to provide a statement as part of the investigation was detained in a police raid on her home on 26 October and taken to Ankara, where she was imprisoned pending trial for “terrorism propaganda” on 27 October.