Recusal motion filed by Mehmet Baransu and his lawyers rejected. Lawyers representing Altan, Çongar and Oğur make final defense statements; court sets 4 March 2022 as the date for the 39th hearing

 

CANSU PİŞKİN, ISTANBUL

 

The 38th hearing of the “Taraf trial,” in which the former executives of the shuttered newspaper, Ahmet Altan, Yasemin Çongar and Yıldıray Oğur, reporter Mehmet Baransu and journalist Tuncay Opçin are on trial for allegedly “publishing” a confidential military document called “Egemen” (sovereign) operation plan, was held at the Istanbul 13th High Criminal Court on 21 January 2022.

 

P24 monitored the hearing. A representative from the Swedish Consulate General in Istanbul was also among spectators.

 

Baransu, who has been in pre-trial detention as part of the case since 2 March 2015, did not attend the hearing, citing the Covid-19 cases in Silivri Prison. His lawyers and lawyers representing his co-defendants were present in court.

 

The motion filed by Baransu’s lawyers seeking the recusal of the judges for lack of impartiality and a fair trial has been rejected, the presiding judge told those in attendance.

 

The prosecutor reiterated their final opinion, submitted to the court in June 2021. In the final opinion, the prosecutor is demanding conviction for Baransu on three charges: “Systematically destroying or damaging documents relating to the security, or domestic or foreign political interests of the State” under Article 326 of the Turkish Penal Code (TCK); “Obtaining information that, due to its nature, is to be kept confidential for reasons relating to the security, or domestic or foreign political interests of the State” (TCK 327); and “Disclosing information that, due to its nature, must be kept confidential for reasons relating to the security, or domestic or foreign political interests of the State” (TCK 329). The prosecutor is also demanding that Altan, Çongar and Oğur be sentenced for “Disclosing confidential information” (TCK 329), and that the file against Opçin, who faces an arrest warrant as part of the case, be separated.

 

The court then went on to hear statements in response to the prosecutor’s final opinion by lawyers representing Ahmet Altan, Yasemin Çongar and Yıldıray Oğur.

 

“It would be a legal scandal”

 

Çongar and Altan’s lawyer Figen Albuga Çalıkuşu addressed the court first. Reminding Çongar and Altan’s final defense statements in writing, submitted to the court during the 36th hearing of the case, held on 18 October 2021, Çalıkuşu said, “Both my clients say they have never seen or heard of a military plan called Egemen.”

 

Asserting that there was no evidence in the case file that the document had been published in the newspaper, Çalıkuşu continued: “The General Staff confirmed that it had destroyed the document, but the prosecutor’s final opinion is based on a claim that has long been refuted. It is both a legal duty and responsibility for the prosecutor to demand the acquittal of my clients. The duty of a prosecutor is to establish and prove the relationship between evidence and crime; not to construct imaginary scenarios. The indictment attempts to establish a connection between the ‘Balyoz’ [Sledgehammer] case and the Egemen operation plan. But there is no such connection. My clients did not see, hear or disclose the Egemen operation plan.”

 

Çalıkuşu continued: “The Constitutional Court held in its Mehmet Baransu judgment that the operation plan had not been published in Taraf. Constitutional Court judgments are final and binding. The prosecutor is ignoring the top court’s judgment. The General Staff says that it destroyed the Egemen operation plan in 2008. The military prosecutor’s office ruled for non-prosecution as it would be impossible for a document previously destroyed to be revealed in 2010. The General Staff also launched an investigation on allegations that the Greek press had reported on the operation plan. In their report at the end of the investigation, the General Staff concluded that the articles in the Greek press were not related to the Egemen operation plan. Not even a single article about the operation plan was published in Taraf newspaper. The prosecutor is asking the court to sentence my clients for allegedly publishing the document, but he does not present any evidence proving his claim. How could a military plan said to have been destroyed in 2008 be stolen in 2010?”

 

“The prosecutor is demanding conviction for a crime for which there is no evidence. It would be a legal scandal for you to accept the prosecutor’s final opinion, which ignores the evidence in the file, and for you to also ignore the evidence,” Çalıkuşu said, demanding acquittal for Altan and Çongar.

 

“There was no evidence in the first hearing, there is no evidence now”

 

In her defense statement, submitted to court in October, Çongar drew attention to the fact that the subject of the case could not be understood by the court panels throughout the five-year trial. Noting that the judges of the court changed many times throughout the proceedings, Çongar said: “Normally, in a case that has lasted so long, in the first thirty-five hearings of such a case, at least a consensus on the subject matter of the case should have been reached. However, the prosecutor’s final opinion showed us once again that the court overseeing this case, which is based on an illogical, unfair and unlawful indictment -- an indictment that has already refuted its own claim through documents it contained -- could not even reach a minimum consensus.

 

“Nobody knows the main subject of this case, and those who are required to know because of their duties act as though they do not know. The case is persistently being called the ‘Balyoz [Sledgehammer] case’ in the press. Both the fact that the various judges of this court have accepted various Balyoz defendants as complainants in the case, and the prosecutor’s final opinion make us think that instead of reading and understanding the indictment, the court trusted those news reports and acted with motives other than the law.”

 

Stressing that the subject of the case is Egemen operation plan, not the Balyoz coup plan, Çongar explained that Taraf did not publish the Egemen operation plan, which was destroyed in 2008: “It is truly bewildering and embarrassing that the prosecutor could still accuse us of disclosing the operation plan at the thirty-fifth hearing of the case. Let alone any evidence against us, not even a slight bit of evidence has been put forward in this case that this military plan, destroyed in 2008 as is clearly stated in the General Staff statement included in the indictment, was disclosed by anyone, at any time, anywhere. There was no such evidence in the first hearing, and there is still no such evidence in the thirty-sixth hearing, which took place five years, one month, and 16 days later.”

 

“A judgment cannot be based on lies”

 

Altan stressed in his written statement that a person accused of a crime should first understand what they are accused of. Altan said: “In this case, we have seen that there is another condition that is more important: that the court clearly understands the crime for which the accused is on trial.”

 

Reminding that the complainants who joined the case were defendants of the “Balyoz” coup case, Altan said: “Apparently this court has not fully understood on which charge they are prosecuting us. If they did, the complainants who were allowed to join the case should not have been involved in the case. This case has nothing to do with the Balyoz seminar or the Balyoz case.”

 

Asserting that despite claiming that Taraf had published the military document called Egemen operation plan, the prosecutor has failed to present any evidence proving his claim, Altan said: “The case file contains a judgment by the Constitutional Court and a statement by the Ministry of Justice, both of which conclude that the military plan had not been published. They cannot say otherwise because we did not publish such a document. The prosecutor, who claims that we had published it and that the Constitutional Court and the Ministry of Justice lied on this matter, should submit a copy of the newspaper containing this military plan to the court. If the prosecutor fails to submit it, the court should request it. But there is no such newspaper copy. Because it has never been published.”

 

Altan continued: “The prosecutor is not the only liar in this case. There is also a lying army general among the complainants. He claims that we obtained the Egemen operation plan -- which had been destroyed -- and gave it to the Greeks, who in turn published it in their newspapers. And the prosecutor reiterates this lie. But there is another document by the General Staff in the case file. The General Staff says in that document that the operation plan published in Greek newspapers was an old military plan from the last century. A trial or a judgment cannot be based on lies, on nonsense, [a court] cannot proceed by ignoring official documents. If there is one person who must stand trial, it is this prosecutor. He is the one committing a crime, not me. You’re putting the wrong person in the dock.”

 

“Where was the operation plan published?”

 

Yıldıray Oğur’s lawyer Gülçin Avşar addressed the court next. Asserting that the accusation in the prosecutor’s final opinion is baseless, Avşar recalled that two separate indictments had been sent to her and another lawyer when the trial got under way: “One of the indictments erroneously mentioned Can Dündar as one of the defendants, because it was simply copy-pasted from another indictment. When we notified the court of this mistake, we thought they would send the indictment back to the prosecutor’s office. However, the court went on with the proceedings by simply choosing one of the indictments.”

 

"My client is on trial for allegedly publishing a document that the General Staff destroyed in 2008. When and where did my client find this document, and where was it published? There are no answers to these questions,” Avşar said, and demanded Oğur’s acquittal.

 

Suat Aytın, who is a participant in the case, told the court: “I cannot accept that the Egemen operation plan was destroyed in 2008. The General Staff judge who signed the report that the document had been destroyed is jailed on ‘FETÖ’ charges.”

 

In response to Aytın, lawyer Çalıkuşu said: “In a state of law, an argument such as this is unacceptable. I have presented to the court 10 different expert reports. We need to look at legal, material and concrete evidence.”

 

Mehmet Baransu's lawyer Çiğdem Koç addressed the court next: “The court’s interim ruling regarding the continuation of my client's detention mentions the charges ‘establishing a criminal organization’ and ‘terrorism propaganda.’ Baransu is not charged with these offenses. I ask you to pay a little more attention.” The lawyer said Baransu did not have any requests regarding his release pending trial.

 

In its interim decision, the court ruled for the continuation of Mehmet Baransu's detention. Also ruling that Baransu be brought before the court for the next hearing and to wait for the execution of the arrest warrant for Opçin, the court adjourned the case until 4 March 2022.