Lawyers for Altan brothers give an account of their case ahead of the third hearing on November 13
Ahmet Altan, a renowned novelist and journalist, and his brother Mehmet Altan, an academic and columnist, will appear before judges on Monday, November 13, at the third hearing of a case where they, along with five other defendants, face charges of coup and terrorism.
In a note prepared ahead of the hearing, lawyers for the Altan brothers gave an account of the case since its beginning and the charges their clients face. The case is currently before both the Constitutional Court and the European Court of Human Rights.
The brief prepared by the lawyers is as follows:
A Note from the Lawyers on the Altan Brothers trial
The legal investigation process into the Altan brothers, which began with their detention by the police on 10 September 2016 continued until 11 April 2017 — when the İstanbul 26th High Criminal Court accepted an indictment against them as case no:2017/127. This marked the beginning of the proceedings.
The first hearing was held over five days, beginning 19 June 2017. In this first court appearance, the defendants submitted their defense statements and their legal counsel requested their release. The court rejected these requests and adjourned the trial until 19 September 2017.
In that second hearing, the court decided not to hear two witnesses –one of whom was a secret witness— who were set to testify in the case. The court also failed to remove restrictions imposed on the visiting hours of lawyers with the defendants, and it once again rejected requests for release of the defendants. Defying legal requirements, the court also asked the prosecutor to prepare and submit his final opinion, without asking the defendants whether they have any requests to expand the investigation. The court adjourned the trial until 13 November 2017.
The Altan brothers are accused of committing a crime on behalf of a terror organization while not being a member, attempting to overthrow the Constitutional order, the Turkish Parliament and the Government of the Republic of Turkey or stop these institutions’ from performing their duties.
Under articles 309, 311 and 312 of the Turkish Penal Code, which deal with “crimes against the state,” it is a requirement that there must be “force and violence” involved to establish any act as such a crime. The indictment into the Altans claims that journalistic activity, which is all about “writing and statements on TV” is a predecessor to and an inseparable part of the concept of “force.” It alleges that the defendants participated in the crime of attempting a coup through their writings and statements within a hierarchical commitment, and under the organization’s orders and command chain. According to the indictment, it is such that if it wasn’t for these articles and statements, it wouldn’t be possible for the forceful action to occur. Evidence presented for these accusations is a few articles, dating from a much earlier date, and statements of the defendants made on air one day before the coup attempt.
However, in its decisions regarding trials where the subject is similar crimes, the 16th Criminal Chamber of the Supreme Court of Appeals has consistently concluded that for the crime of participating in an attempt to stage a coup; a coup should be perpetrated via force and violence and for participation, the perpetrator must known the ultimate purpose of the organization; carry out the convenient and grave acts acting with the purpose of serving that ultimate aim, and that there should be concrete orders given by the organization. Finally, the crime of attempting a coup must be the “work of the perpetrator.” None of the evidence and occurrences required for the criteria set for attempting a coup as defined in the rulings of the Supreme Court of Appeals is present in the Altans’ case.
In the hearing that will be held on 13 November 2017, the defense will insist that its demands to expand the investigation – a question denied to the defense in the previous hearing – are met and repeat its previously rejected request to lift lawyer visiting restrictions which were removed in all of the other similar trials, and also repeat its earlier request that the defendants are given computers to prepare for the hearings in prison. The list of requests might change depending on whether the prosecutor submits his final opinion.
Defense has applied to the European Court of Human Rights (ECtHR) on 12 January 2017. Our application was accepted on 23 February 2017. The court said it will review the applications “in the shortest possible time,” although the case falls outside the scope of Court Rules 40 and 41. The Court then posed eight questions to the Turkish government, demanding a response by 4 October 2017. The questions also sought to clarify whether the detentions of the applicants is politically motivated. The Government asked for more time on its deadline for a response, and was given time until 25 October 2017, after which it asked for and was granted additional time again until 8 November 2017. The Court said there would be no more additional time granted after this date.
As the case file has now been referred to the prosecutor for a final opinion, it appears that the case is fast moving towards a verdict; yet the defendants remain in detention. Although the case of the Altans was granted “priority” status by the Court, it is likely that the ECtHR decision will come in belatedly, given that the end of the proceedings is nearing, and this indicates that there will be adversities and challenges in the implementation of a ruling by the Court. For this reason, it would be more fitting for the purpose for the Court to issue a ruling before the domestic court reaches a verdict.