In case the trial court refuses to comply with the Supreme Court of Appeals ruling, the case will ultimately be referred to the Supreme Court’s Assembly of Criminal Chambers

CANSU PİŞKİN, ISTANBUL

The retrial of the “coup” case against jailed journalist and novelist Ahmet Altan, his brother, professor of economics and journalist Mehmet Altan, jailed journalist Nazlı Ilıcak and their three co-defendants who have also been jailed for over three years, will get under way next week at the 26th High Criminal Court of Istanbul — the court that sentenced all but one of the seven defendants in the case to aggravated life imprisonment in February 2018 on the charge of “attempting to overthrow the constitutional order.”

The retrial, set for 1:30 p.m. on 8 October, follows on the heels of the Supreme Court of Appeals’ ruling on 5 July 2019, which held that Mehmet Altan should be acquitted, Ahmet Altan and Nazlı Ilıcak should face the lesser charge of “aiding a terrorist organization without being its member,” and their co-defendants Fevzi Yazıcı, Yakup Şimşek and Şükrü Tuğrul Özşengül should be charged with “membership in a terrorist organization.”

Commenting about the probable outcome of the upcoming retrial, Ahmet Altan and Mehmet Altan’s lawyer Figen Albuga Çalıkuşu said that the trial court should normally comply with the decision rendered by the 16th Criminal Chamber of the Supreme Court of Appeals.

Noting, however, that the court panel that will be overseeing the retrial is the same panel that has come under fire throughout the original trial for preventing the defendants’ rights to a fair trial, Çalıkuşu said that in the event the court opts not to comply with the Supreme Court’s ruling, the Assembly of Criminal Chambers of the Supreme Court of Appeals would ultimately adjudicate on the file.

“Aggravated life imprisonment for political commentary”

Çalıkuşu explained: “The Istanbul 26th High Criminal Court has refused to abide by the Constitution in various instances. This court panel has made the expression of thoughts an element of the ‘coup’ charge in spite of Article 309 of the Turkish Penal Code, which stipulates that ‘force and violence’ are the elements of the ‘coup’ offense. This court has treated political commentary on a TV show and/or in a newspaper column the same way as firing rockets at the Parliament building or riding over people on tanks; this court refused to implement the Constitutional Court ruling in favor of Mehmet Altan despite the binding provision in Article 153 of the Constitution. We are facing a court panel that has managed to sentence political commentary with aggravated life imprisonment — a panel that sees itself above the law.”

Noting that she has been filing motions with the Council of Judges and Prosecutors (HSK) for the past month, asking the council to remove the court panel on the grounds that its judges have not been impartial since the beginning of the proceedings, Çalıkuşu added that she would be seeking the removal of the panel until the day of the retrial.

As for how the trial court might proceed at Tuesday’s hearing, Çalıkuşu said: “The trial court should comply with the Supreme Court of Appeals ruling, ordering Ahmet Altan’s release pending trial and acquittal of Mehmet Altan of the charges against him — based on judgments rendered by not only the Supreme Court of Appeals but also the Constitutional Court and the European Court of Human Rights. However, the trial court might insist on its previous stance and opt not to comply with the Supreme Court’s ruling, in which case the file would ultimately be referred to the Supreme Court of Appeals’ Assembly of Criminal Law Chambers.”

Investigation, arrest and indictment

Immediately after the failed coup attempt of 15 July 2016, Istanbul Chief Public Prosecutor’s Office launched a criminal investigation against a number of journalists on the allegation that they were linked to the movement led by exiled cleric Fethullah Gülen, which the government accuses of maintaining a terrorist organization — “the Fetullahist Terrorist Organization (FETÖ/PDY)” — and staging the failed coup.

Journalist Nazlı Ilıcak, who was among suspects in the investigation file, was arrested on 26 July 2016. After three days in custody, she was jailed pending trial and sent to the Bakırköy Women’s Prison on 29 July 2016.

Ahmet Altan and his brother, Mehmet Altan, were both taken into custody on 10 September 2016 as part of another investigation also targeting journalists, led by public prosecutor Can Tuncay. The Altans were arrested based on the allegation that their political commentary on a TV show that aired the night before the failed coup attempt included “subliminal messages implying the impending coup.”

After remaining in custody for over 10 days, Mehmet Altan was jailed pending trial on 22 September 2016 and Ahmet Altan on 23 September. They were both sent to the Silivri Prison.

The prosecutor overseeing the investigation against the Altans later merged the file against Nazlı Ilıcak with the investigation file against the Altans and 14 other journalists, bringing the number of suspects in the file to 17.

The indictment against the Altans and 15 others, a 247-page document titled “The role of FETÖ’s media components in the coup attempt,” was completed on 11 April 2017. In the indictment, public prosecutor Can Tuncay claimed that the 17 suspects he investigated “manipulated public opinion through the media and sought to justify a coup aiming to overthrow the government.”

The indictment sought three aggravated life sentences for Altan and his brother Mehmet Altan, as well as Nazlı Ilıcak, who co-hosted the program on Can Erzincan TV on the night of 14 July 2016, on charges of “Attempting to overthrow the constitutional order,” “Attempting to overthrow the Parliament,” and “Attempting to overthrow the government.” They also faced additional prison terms of up to 15 years for “aiding a terrorist organization without being its member.”

The trial

The indictment against 17 defendants was accepted on 15 April 2017 by the 26th High Criminal Court of Istanbul.

The trial of 17 defendants (six of whom were in pre-trial detention with 10 others facing arrest warrants and one other not detained) got under way on 19 June 2017. At the end of the five-day hearing, which concluded on 23 June 2017, the Istanbul 26th High Criminal Court ruled to keep all six jailed defendants in the case (Ahmet Altan, Mehmet Altan, Nazlı Ilıcak, Fevzi Yazıcı, Yakup Şimşek and Şükrü Tuğrul Özşengül) in pre-trial detention on the grounds of “current evidence, evidence indicating strong indication of crime, and the fact that judicial control measures would be inadequate.”

At the end of the second hearing, on 19 September 2017, the court ruled to separate the files of 10 defendants in the case who faced arrest warrants and were still at large (Ekrem Dumanlı, Emre Uslu, Tuncay Opçin, Kerim Balcı, Bülent Keneş, Faruk Kardıç, Mehmet Kamış, Şemsettin Efe, Ali Çolak and Osman Özsoy). As for the remaining seven defendants, the court again ruled to keep all six jailed defendants behind bars, citing the gravity of the charges, the length of the prison term the charges carry, and flight risk.

The third hearing in the trial was held on 13 November 2017. At the end of the hearing, during which the presiding judge expelled all four of the Altan brothers’ lawyers from the courtroom for trying to speak on procedural issues, the court again decided to keep all imprisoned defendants behind bars. Additionally, the court granted the Grand National Assembly of Turkey leave to intervene in the case as a co-plaintiff. The court rejected defense lawyers’ demand for the removal of restrictions on access to lawyers.

The fourth hearing of the trial took place on 11 December 2017. The prosecution submitted their final opinion of the case during the hearing, asking the court to convict the six jailed defendants of “Attempting to overthrow the constitutional order” as per Article 309/1 of the Turkish Penal Code (TCK) and sentence all six to aggravated life imprisonment. The prosecutor also asked the court to convict the only defendant not in detention, Tibet Murat Sanlıman, of “aiding a terrorist organization without being its member.” In its interim decision, the court ordered the continuation of the detention of all jailed defendants and adjourned the trial until February 2018. The court lifted the restriction on the jailed defendants’ access to a lawyer.

The final hearing in the case was held on 12-16 February 2018. The first day of the five-day hearing took place at the Istanbul Courthouse but the rest of the hearing was moved to Silivri at the decision of the presiding judge. Announcing its verdict at the end of the five-day hearing on 16 February, the court sentenced all six jailed defendants to aggravated life imprisonment on the charge of “Attempting to overthrow the constitutional order.”

Constitutional Court and European Court of Human Rights applications

The team of lawyers representing Ahmet Altan and Mehmet Altan filed separate individual applications on behalf of Ahmet and Mehmet Altan with the Constitutional Court on 8 November 2016.

On 12 January 2017, the lawyers took their case to the European Court of Human Rights, citing lack of action from the Constitutional Court. The European Court of Human Rights responded in February 2017 that although it did not give the applications formal “priority” treatment under its Rule 41, it would take up the applications as soon as possible.

The Constitutional Court ruled on Mehmet Altan’s individual application on 11 January 2018. In its judgment, the top court ruled that Mehmet Altan’s arrest and pretrial detention violated his rights to liberty and security and freedom of expression and freedom of the press. However, both the trial court and the next court of first instance refused to implement the Constitutional Court’s judgment and release Mehmet Altan from pre-trial detention. The lawyers representing Ahmet Altan and Nazlı Ilıcak requested their clients’ release because the Constitutional Court’s ruling in favor of Mehmet Altan constituted a precedent, but both the trial court and the next court of first instance rejected these requests too.

On 30 January 2018, Mehmet Altan’s lawyers filed a second individual application with the Constitutional Court, asserting that Altan’s continued pre-trial detention violated his rights to a fair trial as well as his rights to liberty and security, and that his arrest was politically motivated. The top court ruled on 2 February 2018 to assign priority status to this application.

On 20 March 2018, the European Court of Human Rights (ECtHR) rendered its judgment on the application filed on behalf of Mehmet Altan. The Strasbourg court found that there had been a violation of Altan’s rights to liberty and security under Article 5/1 of the European Convention on Human Rights and his right to freedom of expression under Article 10.

In September 2018, the Constitutional Court’s First Section rejected the individual application filed on behalf Fevzi Yazıcı, the former design director of the shuttered newspaper Zaman, who is one of the five jailed defendants in the case. In its unanimous judgment, the Constitutional Court’s First Section found Yazıcı’s application to be “inadmissible.”

The Constitutional Court ruled on the applications filed on behalf of Ahmet Altan and Nazlı Ilıcak on 3 May 2019. The top court, which held in January 2018 that Mehmet Altan’s pre-trial detention violated his rights to liberty and security and freedom of expression and freedom of the press, found no rights violations in the applications of Ahmet Altan and Nazlı Ilıcak.

The Constitutional Court’s Plenary issued the judgments concerning its 3 May 2019 decisions on 26 June 2019 on its official website. The court said “the assessments made by the investigation authorities and the decisions rendered by the courts that ruled for [the journalists’] arrests could not be deemed as ‘arbitrary and baseless’.”

Appellate court phase

The 2nd Criminal Chamber of the Istanbul Regional Court of Justice, acting as an appellate court, formally accepted the Altans case on 27 June 2018. With that decision, the court ruled to release Mehmet Altan based on the Constitutional Court’s ruling but decided to keep the rest of the jailed defendants behind bars.

The first appeal hearing took take place on 21 September 2018. After the completion of the defense statements, the prosecutor submitted his final opinion of the case, insisting on the original charge and requesting that the defendants be given aggravated life sentences for “attempting to overthrow the constitutional order.”

Issuing its verdict at the second appellate hearing on 2 October 2018, the 2nd Criminal Chamber of the Istanbul Regional Court of Justice rejected the appeals against the aggravated life sentences given by the trial court and ruled for the continuation of detention of all imprisoned defendants in the case.

Supreme Court of Appeals ruling and retrial

On 8 January 2019, the Office of the General Prosecutor of the Supreme Court of Appeals requested the reversal of the trial court’s verdict. The Office of the General Prosecutor said in their judicial opinion submitted to the 16th Criminal Chamber of the Supreme Court of Appeals that Ahmet Altan, Mehmet Altan and Nazlı Ilıcak should have been charged with “aiding a terrorist organization without being its member” instead of the much serious charge of “attempting to overthrow the constitutional order.”

The judicial opinion asserted that “force and violence” were the essential elements of the charge of “attempting to overthrow the constitutional order” as described in TCK 309, adding that the concepts of “immaterial force” or “threat” were unacceptable in proving this charge in respect of the principle of legality.

Ruling in line with the Office of the General Prosecutor’s judicial opinion, the 16th Criminal Chamber of the Supreme Court of Appeals overturned the convictions in the Altans trial on 5 July 2019.

The Chamber ruled that Mehmet Altan should be acquitted while Ahmet Altan and Nazlı Ilıcak should face the lesser charge of “aiding a terrorist organization without being its member” and Fevzi Yazıcı, Yakup Şimşek and Şükrü Tuğrul Özşengül should be charged with “membership in a terrorist organization.” The Supreme Court rejected requests for the release of the jailed defendants and sent the case file back to the trial court for retrial, which is set for 8 October.

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