On 8 October, the retrial of journalists, writers and media workers Ahmet Altan, Mehmet Altan, Nazlı Ilıcak, Yakup Şimşek, Fevzi Yazıcı and Şükrü Tuğrul Özşengül on terrorism charges began at the High Penal Court No. 26 in Istanbul. The retrial on these charges was ordered by the Supreme Court of Appeals in July 2019. ARTICLE 19 and Reporters Without Borders (RSF) observed the opening hearing of the retrial. The court issued an interim decision ordering the continued detention of all defendants apart from Mehmet Altan, who had previously been released following decisions by the Constitutional Court and the European Court of Human Rights that his rights had been violated. The cases of Ahmet Altan and Nazlı Ilıcak have been prioritised by the European Court of Human Rights, but are still pending.
The undersigned organisations call for all defendants to be released, for the trial to be halted and all charges dropped given the lack of credible evidence presented in the indictment or referred to in the Supreme Court of Appeals decision.
No prima facie case
In July 2019, the Supreme Court of Appeals quashed the defendants’ convictions for ‘attempting to overthrow the constitutional order through violence and force’. The decision stated there could be no causal link established between the evidence presented and the crime, an argument also made by ARTICLE 19 in an expert opinion presented to the trial court. The Supreme Court of Appeals did not issue any new charges against Mehmet Altan but held that Ahmet Altan and Nazlı Ilıcak should be charged with ‘aiding a terrorist organisation’ and the other defendants, Yakup Şimşek, Fevzi Yazıcı, Şükrü Tuğrul Özşengül should be charged with ‘membership of a terrorist organisation’.
The undersigned organisations believe that these new terrorism charges violate the defendants’ right to freedom of expression and that the evidence which has been relied upon to pursue them is as unrelated to terrorism as it was to the sedition charges. We are concerned that the retrial forms yet another phase of the systematic judicial harassment of journalists in Turkey.
Concerns of bias at the trial
Concerns about the appearance of bias were raised by defence lawyers during the hearing. The panel of judges was the same as those who had refused to implement the earlier judgment of the Constitutional Court: that Mehmet Altan’s rights had been violated due to his pre-trial detention. The defence lawyers for Mehmet Altan have also been filing motions with the Council of Judges and Prosecutors for the removal of the panel of judges on the grounds that they were not impartial during the previous trial.
ARTICLE 19 and RSF monitored all hearings in that trial and believe the case to have been politically-motivated and that the defendants’ rights to a fair trial were violated before and during proceedings.
Inconsistent Judgments at the Constitutional Court
In January 2018, the Constitutional Court ruled that there had been a violation of the right to liberty and security, and the right to freedom of expression in the case of Mehmet Altan, but in July 2019 the court ruled that there had been no violation of these rights in the case of Ahmet Altan. While the evidence presented against Ahmet and Mehmet Altan is not strictly identical, it is hard to see how the evidence presented against Ahmet Altan, which consists mainly of his articles and speeches, could justify any criminal charges let alone terrorism-related charges. Indeed, five Constitutional Court judges dissented on the case of Ahmet Altan, including the presiding judge.
While the European Court of Human Rights has considered the Constitutional Court capable of being an effective remedy to human rights violations, we believe that in this case the Constitutional Court has not provided an effective remedy due to the inconsistency of decision making. We are also concerned about the lack of implementation of its decision regarding Mehmet Altan by the trial court.
Impact of European Court of Human Rights’ ruling on the trial
The European Court of Human Rights issued a decision in Mehmet Altan’s case in March 2018. The Court found that the applicant’s rights to liberty and security and to freedom of expression had been violated. In so doing, it endorsed the decision of the Constitutional Court that Mehmet Altan’s pre-trial detention had been unjustified.
This decision has had a clear impact on the outcome of the trial of Mehmet Altan: the Supreme Court of Appeals referred to the rulings of both the Constitutional Court and the European Court of Human Rights in support of its decision to quash Mehmet Altan’s conviction on charges of ‘attempting to overthrow the constitutional order through violence and force’.
The European Court has yet to rule on the applications of Ahmet Altan and other journalists and members of civil society, such as Osman Kavala, who has been in pre-trial detention for over 700 days detained on politically motivated charges. We believe that a ruling from the European Court could have a decisive impact on the current criminal proceedings against them.
Head of Europe and Central Asia at ARTICLE 19, Sarah Clarke said:
“We are increasingly seeing disturbingly inconsistent decisions issued by the Constitutional Court, raising the spectre of political interference. At the same time, the rights of Ahmet Altan and others continue to be flagrantly violated.
We believe the role of the ECtHR in identifying rights violations in these cases is critical and we hope to see the court review these cases as a matter of urgency, especially in light of the dissenting opinions at the Constitutional level in the case of Ahmet Altan”
We, the undersigned organisations call on the Turkish authorities to release, halt the trial and drop these baseless charges against the defendants immediately.
Amnesty International
ARTICLE 19
Articulo 21
Cartoonists Rights Network International (CRNI)
Civic Space Studies Association
Danish PEN
European Centre for Press and Media Freedom (ECPMF)
English PEN
Freedom House
German PEN
Global Editors Network (GEN)
Human Rights Watch
International Federation of Journalists (IFJ)
International Press Institute (IPI)
Norwegian PEN
Osservatorio Balcani e Caucaso Transeuropa (OBCT)
P24 (Platform for Independent Journalism)
PEN America
PEN International
Reporters Without Borders (RSF)
South East Europe Media Organisation (SEEMO)
Swedish PEN
Background
Timeline of the cases of Ahmet and Mehmet Altan
– 22/23 September 2016: Mehmet and Ahmet Altan taken into pretrial detention.
– 8 November 2016: Applications challenging their detention are made to the Constitutional Court.
– 12 January 2017: After the Constitutional Court had failed to rule on any cases for many months in the state of emergency period, applications are also made to the European Court of Human Rights regarding the pre-trial detention.
– 11 January 2018: The Constitutional Court rules on the case of Mehmet Altan, stating that there was insufficient evidence presented to justify holding him in pre-trial detention and that his right to freedom of expression had been violated. The 26th Istanbul Assize Court refuses to implement the decision and does not release Mehmet Altan, in flagrant violation of the rule of law.
– 16 February 2018: All six defendants in the case are convicted at the 26th Istanbul Assize Court of ‘attempting to overthrow the constitutional order through violence and force’ and sentenced to life in prison.
– 20 March 2018: The European Court of Human Rights issues a decision in the case of Mehmet Altan, stating that there had been a violation of the rights to liberty and security and to freedom of expression, in line with the Constitutional Court ruling.
– 27 June 2018: The cases are accepted by the 2nd Criminal Chamber of the Istanbul Regional Court of Justice, acting as an appellate court, and Mehmet Altan is released based on the Constitutional Court ruling.
– 8 January 2019: Office of the General Prosecutor of the Supreme Court of Appeals issues a judicial opinion stating the Ahmet Altan, Mehmet Altan and Nazlı Ilıcak should have been charged with ‘aiding a terrorist organisation’ rather than ‘attempting to overthrow the constitutional order’.
– 3 May 2019: The Constitutional Court rules on the case of Ahmet Altan, deciding that his rights had not been violated. Five judges dissent, notably including the head judge, who argues in his dissenting opinion that Ahmet Altan’s right to freedom of expression had been violated.
– 5 July 2019: The Supreme Court of Appeals issues a judgment overturning the convictions. Referring to the Constitutional Court and European Court of Human Rights, they rule to acquit Mehmet Altan, while Ahmet Altan receives the charge of ‘aiding a terrorist organisation’.
– 8 October 2019: At the opening hearing of the retrial, the judge does not release Ahmet Altan on bail, despite the lower charges and amount of time already served.
What evidence was referred to in the Supreme Court of Appeals decision?
Alleged evidence against Mehmet Altan
– Witness statements of ex-directors of the [armed terrorist] organization [FETÖ/PYD]
– His speech on a TV program entitled “Free Thinking” along with the other defendants Nazlı Ilıcak and Ahmet Altan
– His articles entitled “the Meaning of Sledgehammer” (17/12/10) and “Turbulence” (20/07/16)
The Supreme Court of Appeals also referred to the Constitutional Court ruling, which stated that the detention order was based on his allegedly having a bank account in Bank Asya and possessing an ‘F-series’ US dollar bill.
Alleged evidence against Ahmet Altan
– That he was the founder and editor-in-chief of the shuttered Taraf newspaper, which the prosecutor alleges was used by the armed terrorist organisation [FETÖ/PYD]
– That he was a writer on “haber.com” which the prosecutor alleges was the publication of the armed terrorist organisation [FETÖ/PYD]
– His articles entitled “I Am Here Talk to Me” (03/03/2015), “Absolute Fear” (12/05/2016), “Sweep over” (14/06/2016) and “Mont Montezuma” (10/07/2016)
– Phone records allegedly demonstrating that he communicated with senior executives of the armed terrorist organization
– His speech on July 14, 2016 on Can Erzincan TV at the program “Free Thought” with other defendants Nazlı Ilıcak and Mehmet Altan.
Alleged evidence against Nazlı Ilıcak:
– That she was a writer in the terrorist organization’s various publications
– Her articles in the book titled “Is there ‘The Cemaat’ under every stone?”(2012), which are considered to be intended to maintain the visible legitimacy of this organization,
– Using her personal twitter account for the purpose of creating public opinion in favor of the terrorist organization, including on the day of the coup attempt,
– According to witness statements of ex-senior managers of this organization, she communicated with the media structure of the FETÖ/PYD armed terrorist organization and, according to the HTS records, she communicated with the with the senior executives of this aforementioned organization.
– Her notes seized at her residence written about the members of the organization.
Alleged evidence against Yakup Şimşek:
– Having served in high-level positions such as brand marketing director and various departments of Zaman Newspaper,
– That he opened a bank account in Bank Asya upon instructions of the leader of the alleged terrorist organization,
– That he opened a bank account on behalf of his children at Bank Asya,
– His alleged contact with the top executives of the terrorist organization,
– That he contributed to the preparation of an advertisement entitled “The Scream of Silence” published in October 2015 which included the speculative subliminal messages.
– That books of the leader of the terrorist organisation were seized at his residence
Alleged evidence against Fevzi Yazıcı:
– That he served as senior director and graphic design officer of Zaman Newspaper,
– Attended the meetings of the leader of the alleged terrorist organization during his stay in United States of America between the years of 1999-2003,
– That he opened a bank account in the Bank Asya upon instructions of the leader of the organization,
– That he was a member of the Trade Union Pak Medya-İş, closed down by the Decree Law no 667,
– That he contributed to the preparation of the advertising titled “The Scream of Silence” published in October 2015 which included the speculative subliminal messages.
Alleged evidence against Şükrü Tuğrul Özşengül
– That he was a columnist on ”samanyoluhaber.com” website, allegedly a media organ of the terrorist organization,
– That he was a presenter on the program “Bağzı (some) Things” on TV channel “Samanyolu News“,
– His alleged contact with the senior executives of the terrorist organization and with the user of the “fuat avni” twitter account, intended to make propaganda for the purposes of the terrorist organization.
– His article entitled ”Don’t get angry, I’ll say something” dated on 07/03/2016, intended to support the aforementioned organization,
– A post on his twitter account dated on 30/12/2014 which said the following: ”there is a very serious smell of military coup in the air”,
– His speech in the program “Freedom Time” broadcasted on STV channel, on the day of the coup attempt, where he allegedly praised the military coup during the coup attempt and allegedly intended to prevent the people from going to the streets against the coup d’état through his speeches,
– His alleged attempt to mask the members of the coup d’état and legitimize the coup attempt by saying that the coup was carried out by other groups within the armed forces.
Note: In the first trial no witness statements were heard and no cross examination of the defendants took place. The content of the articles referred to in evidence was not discussed in court, except in the oral defence statements by the defendants. The phone records were not presented in court. The dollar bill in the case of Mehmet Altan was presented, however the meaning of this and how it proves a link to the terrorist organisation was not established. As such, the evidence presented in the Supreme Court of Appeals decision, similar to the evidence in the first trial, appears to consist entirely of conduct which is not itself criminal, or, on its face, evidence of a link with a terrorist organisation.