Baransu and his lawyers demanded that the judges recuse themselves from the case on the grounds that the court has lost its impartiality. Court rejected the request and adjourned the trial until 12 November

CANSU PİŞKİN, ISTANBUL

The long running “Taraf trial,” in which the shuttered newspaper's former executives Ahmet Altan, Yasemin Çongar, 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 18 October 2021. This was the 36th hearing in the case, which has been dragging on since 2016.

P24 monitored the hearing. Mehmet Baransu, who has been in pre-trial detention since 2 March 2015 as part of this case, was present in the courtroom. Lawyers representing the defendants were also in attendance as well as retired military officers Suat Aytın and Hüseyin Hançer, and a lawyer representing Çetin Doğan, whose requests to join the case have been accepted by the court.

The prosecutor reiterated their final opinion, submitted to the court in June. The prosecutor sought 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); while also demanding conviction for Altan, Çongar and Oğur on the charge of “Disclosing confidential information” (TCK 329) and the separation of the file against Opçin, who is at large.

Before making their defense statements in response to the prosecutor’s final opinion, Baransu’s lawyers addressed the court regarding procedure.

Noting that the panel of judges overseeing the case has changed 25 times throughout the course of the proceedings, lawyer Çiğdem Koç reminded the court that contradictory decisions have been rendered in the 35 hearings held so far in the case, including initially rejecting the request by retired military officers to join the case and later accepting it. Koç said: “The prosecutor asserts in his opinion that this case has nothing to do with the ‘Balyoz’ [Sledgehammer] case. I would like to thank them for that. This fact has also been established by the Constitutional Court. This case is about the allegation that a confidential military document was published. If retired military officers are going to join this case, they cannot be the intervening party, but defendants. I request the court to lift their status as intervening party. The continuation of their intervening party status shows that either your court has not paid attention to the case file, or that the panel is biased.”

Koç also demanded that the evidence they requested be submitted to the file: “Footage of the search in my client’s home is not in the case file despite our previous requests, which have been rejected by the court. How can a prosecutor issue their final opinion without watching that footage? A CD allegedly found in the house during that search allegedly contained confidential documents belonging to the state. Well, where is it? The court previously rejected this request, saying it was ‘not about the merits of the case.’ A tape allegedly [containing a sermon] by Fetullah Gülen was found in the search. The indictment mentions the tape, but the tape is not in the case file. Again, the court rejected the request for the tape to be submitted, just like it rejected the request for the police officers who conducted the search to testify in court as witness; or the request for the submission of the Mersin High Criminal Court’s reasoned judgment in writing in the case against my client. But the prosecutor argues that my client ‘is a member of FETÖ’ based on that case. Your court has been preventing us from discussing the evidence that is right at the heart of the accusations in this case file.”

Koç asserted that the submission of the prosecutor’s final opinion and the court proceeding with its judgment without examining all the evidence requested by the defendants was a violation of the right to a fair trial.

The prosecutor requested that the court reject Koç’s requests. Issuing an interim decision, the court unanimously rejected the lawyer’s requests on the grounds that “requests previously examined and rejected by the court would not contribute to the case file.”

Upon the interim decision, Koç asked to speak again. The presiding judge told the lawyer to “keep it short,” upon which Koç said: That is up to me. I will exercise my right to defense,” to which the presiding judge responded: “Of course you have the right to defense, but it cannot last forever. We decide how long it will take.”

Çiğdem Koç then told the court that she requested the recusal of the judges from the case on the grounds that the panel has lost its impartiality: “You are not conducting a fair trial. My client is on trial based on his name and identity, not based on his acts. … I request the recusal of your panel based on the Criminal Procedure Code [CMK]. And the court should also provide the grounds for its decision. According to CMK, following this request, the court cannot proceed with defense statements in response to the final opinion.”

Baransu: “The prosecutor destroyed evidence”

Following his lawyer, Mehmet Baransu addressed the court. Noting that he has been in pre-trial detention for six-and-a-half years as part of this case, Baransu said: “I have been trying to understand why I’m in detention. ‘Balyoz’ case defendants gave the prosecutor three pieces of evidence and said: ‘Baransu is guilty.’ Those three pieces were three articles written by Barış Pehlivan and Barış Terkoğlu and published on Odatv and Gazeteport news portals. And the prosecutor took these three articles and issued an indictment. He is calling those three reports containing fake news evidence. But I sent a correction to Gazeteport the day they ran the report and they published an apology.”

Reiterating that despite numerous requests by his lawyers, the police report on the search conducted on his home and the evidence allegedly collected during the search have not been submitted to the case file, Baransu said: “The evidence we requested has not been submitted to the case file because the prosecutor who is accusing me of ‘destroying’ a confidential document has destroyed evidence in the case file. I have been asking to see the search warrant and the police report on the search for the past six years. Finally, during the 32nd hearing, the court accepted my request. But the Criminal Judgeship of Peace submitted irrelevant documents. The court requested the documents once again at the next hearing, but they were never submitted to the court. Then the panel overseeing the case changed and your panel rejected our request on the grounds that it was ‘not about the merits of the case.’ I request the recusal of your panel.”

Baransu also told the court that the police department’s transcription of the Fetullah Gülen tape allegedly found during the search in his home did not match the original recording on the tape. “The police fabricated evidence. I asked the court to hear those officers, but my request was denied. The evidence I have been requesting to prove to the court that the evidence in the indictment is false is not being submitted to the case,” Baransu added.

Dilara Yılmaz, another lawyer representing Baransu, also requested the recusal of the judges. Yılmaz said: “You have shown that you have no patience to listen by intervening since my client started to speak. Under Article 149 of the CMK, a lawyer can provide legal assistance to their client in every stage of the investigation and the prosecution. But your court has prevented this during the hearing and violated the CMK.”

Asserting that the court should revoke its decision granting military officers intervening party status, Yılmaz said: “Why do you allow people who were not harmed by the alleged act to join the case? On what grounds do you allow these persons to be in the trial on a matter unrelated to the subject of the case? This attitude of yours prevents the emergence of material truth. This attitude of yours causes a false perception in the public. This attitude of the court causes the defendant to be deprived of the right to a fair trial.”

Arguing that the fact that the evidence was not collected and not given to the defendant's lawyers was aimed at covering up the unlawfulness in the investigation, Yılmaz continued: “By refusing to present the evidence, the court is pursuing a different purpose than to reveal the material truth. Either you want to conclude the case as soon as possible or you don't want these scandals to come to light. The copy of the CD on which the accusations are based has not been given to my client so far. The court has been assigned to this file and is trying to conclude the trial as soon as possible without examining the case file. I refuse to believe that you are impartial and independent. I demand the recusal of the court.”

The prosecutor said the decision concerning the requests for the recusal of the judges was “at the discretion of the court.” The prosecutor demanded the continuation of Baransu’s detention.

In its interim ruling, the court ordered the continuation of Baransu’s detention. Canceling the hearing scheduled for 19 October, the court set 12 November 2021 as the date for the next hearing, granting Baransu and his lawyers time to file their objection against the rejection of their request for the recusal of the panel.