Ruling that Türköne, Alpay, and Bulaç should have been charged with "aiding a terrorist organization,” the Supreme Court of Appeals says that Mehmet Özdemir, who was acquitted, should have been convicted of "membership of a terrorist organization”
The Supreme Court of Appeals upheld the sentences of Ahmet Turan Alkan, Mustafa Ünal, and İbrahim Karayeğen on charges of "being a member of a terrorist organization" within the scope of the trial of 11 former writers and editors of the shut-down Zaman newspaper.
The Court overturned the sentences of columnists Mümtazer Türköne, Şahin Alpay, and Ali Bulaç who were convicted of "membership in a terrorist organization" at the final hearing of the case held in July 2018, by ruling that their actions should be considered under the charge of "aiding without being included in the hierarchical structure of the organization.” The Supreme Court also overturned the acquittal decision of editor Mehmet Özdemir by deciding that he should be convicted of "membership in a terrorist organization."
The files of Türköne, Alpay, Bulaç, and Özdemir were sent to the Istanbul 13th High Criminal Court for a retrial.
Columnist Ahmet Turan Alkan, who was sentenced to 8 years and nine months in prison, and night editor İbrahim Karayeğen, who were sentenced to 9 years in jail at the final hearing of the case, had been released with the sentence. As a result of the Supreme Court judgment, Alkan and Karayeğen will have to return to prison to serve the remainder of their sentences.
The Chamber upheld the acquittals of Lale Sarıibrahimoğlu, Nuriye Akman, İhsan Dağı and Orhan Kemal Cengiz.
The 16th Criminal Chamber of the Supreme Court of Appeals reviewed the case on 24 September 2020 but the judgment became official two months later, when it was uploaded to UYAP (national judiciary informatics system) in December.
On 24 September, Türköne was released from prison as per the judgment, on the grounds that the classification of the accusation against him could change.
“Abuse of the right to freedom of the press”
In the judgment, it was stated that the journalists who were punished for “membership in a terrorist organization" "served as the loyal stratum on the second level of the 7-level pyramid structure of the FETÖ terrorist organization." The judgment stated as follows:
“There is no need for ‘a terrorist organization decision’ before the crime date for those who know the organization's subtly concealed purpose and those who work in the organization for this purpose. The argument that these perpetrators did not know that it was ‘a terrorist organization’ cannot be credited. The legal status of those who participate in the organization unknowingly should be determined within the framework of the "fault principle." The fact that the perpetrator avoids behavior that he knows is clearly prohibited does not mean he has fulfilled this obligation. The perpetrator is also obliged to question whether his behavior is compatible with the requirements of the legal order. The perpetrator has to clear up his suspicion on this matter by contemplating or consulting an expert. In addition, the perpetrator must do a conscientious calculation. In terms of the crimes of ‘terrorist organization membership’ and ‘helping the terrorist organization,’ which are the subject of the discussion, it is beyond any debate that the acts punished by the norm are thought and expressions, but abuses of the right to freedom of the press and methods of realization of ideas.”
"Judgments of the Constitutional Court are binding"
Evaluating the decisions of the Constitutional Court and the European Court of Human Rights (ECtHR) regarding Şahin Alpay, the Chamber emphasized that even though there are “review of expediency” discussions, it is imperative to comply with the decisions. In the verdict, “Considering the guarantees stipulated in the Constitution, any examination regarding whether the fundamental rights and freedoms within the scope of the individual application are violated or not, can be qualified as ‘review of expediency.’ If the contrary is accepted, the power and duty of the Constitutional Court to decide on individual applications will become dysfunctional, and it is clear that this is incompatible with the aim of the individual application being envisaged as an effective remedy,” the Chamber wrote.
Implicitly criticizing the judgments of the Constitutional Court to be issued before the end of the trial, the Supreme Court stated, however, that the Constitutional Court’s judgments were binding:
"As a rule, in individual application examinations conducted before the trial and ordinary legal remedies process is completed, it is clear that the Constitutional Court’s assessment of evidence will result in a conflict of authority with the main judicial authorities, even in the context of violation of rights. However, it is unthinkable for judicial authorities to ignore the findings that would result in violations during the trial. Since the main thing is the immediate delivery of the fundamental right, which has been subjected to unfair, disproportionate intervention, the principle of uniqueness of the legal order does not allow other conflicts and arguments to override this value.”