First we will be making a demand for an immediate acquittal of the client. We will be naming our other demands once you issue a decision on this. Since it directly relates to our plea for an immediate acquittal, it is important to know the backstory to the investigation in this case. This is why I would like to talk about the investigation that led to this trial.
The client, Deniz Yücel, found out that an investigation was being conducted into him from news reports in the media. Through his legal counsel, he applied to the investigation office announcing that he would like to testify in case that the news reports about an investigation are true.
It was confirmed that there indeed was is an investigation being conducted by the prosecutor's office. The prosecutor’s office informed that the client should go to the relevant police station and give a statement there.
On the basis of this, the client went to the Istanbul Police Department in the presence of legal counsel on 14.02.2017, where he was taken into police custody and gave a statement.
The client was interrogated as a suspect for the crimes of “membership in a terrorist organization membership, illegally logging into an information system and staying there, illegally obtaining personal data and spreading such data.” The questions he was asked included inquiries on his identity and contact details as well as whether he knew any of the other journalists who were subject to legal action in the same investigation.
The investigation file was dubbed the “Redhack” probe by the press The subject of the investigation was the illegal acquisition and dissemination of emails of Minister of Energy Berat Albayrak. In this context, testimony was taken from six journalists and three of them were put under arrest. These journalists were later released in hearings that took place in the trial.
My client was kept in custody for 13 days after which he was faced with accusations based on news reports he had previously published, in other words with accusations that had nothing to do with the investigation “into Redhack and the Minister of Energy Berat Albayrak” and he was referred to a court with the prosecutor demanding his arrest on charges of “spreading propaganda of a terrorist organization” and “inciting the public to hatred and hostility.”
Following his interrogation by the Istanbul 9th Criminal Judgeship of Peace, Deniz was arrested and he remained in detention for about a year after this decision.
At the police department where Deniz went to testify as a suspect in an investigation that had been launched previously; he was not asked any questions about the said investigation, nor was he shown any evidence. He was only asked about his identity and contact information and asked whether he knew about the other suspect journalists in the investigation. He was later kept in custody for 13 days. Later, his file was separated from that of the other journalists in Redhack investigation. He remained in detention for one year, spending 10 months of that period in solitary confinement.
Your Honor, ;
When we read the indictment, we see that the indictment and the case file itself is clear evidence that this arrest has not been lawful.
When we read the news in the pro-government media about Deniz and when we read statements from politicians who targeted Deniz, it looks as if he was under major surveillance. Every action he took was investigated and every article he wrote was read. They claimed that Deniz was an important terrorist, even a spy.
Of course, it was natural for such a dangerous person to be detained for one year, to be kept in solitary confinement, to be targeted, to be denied the presumption of innocence and the right to a fair trial.
Such was the perception they tried to create.
If the media, politicians, government authorities, and the president have said so much about Deniz, accusing and targeting him, they had to be right.
If that’s what the media and politicians is saying, then it must be true.
Once the indictment was accepted by your court, and once we examined it and its addenda, we noticed the following: After a full year of detention, ten months of which was spent in isolation, after all the attacks, accusations and targeting, we saw a 2.5-page long indictment.
However, the public, based on comments from politicians, held the expectation that the prosecutor was conducting this investigation meticulously and that he was going to present some very serious evidence.
Mr. Prosecutor did not even make mention of the Redhack investigation, which launched this investigation and led him to be detained. Apparently, he didn’t see the need for it.
Quite obviously, the prosecutor wanted to create the impression that the client -- whom the people in the highest levels of the state claimed aided a terror organization, that he is a spy, that he was writing “articles under orders” -- was being monitored for months. He wanted to create the impression that archives of his articles and phone records were followed over a decade and investigated and that he was conducting a solid investigation that will be worth a year of imprisonment.
But this indictment and its addenda have been a big disappointment for us and the public. This very important investigation only included incorrectly translated articles, news reports and an ambiguous police report which is hard to even describe as a piece of text.
In other words, the prosecutor opened an investigation based on a tip-off about the client, and the client was detained under the Redhack investigation, but when the prosecutor saw that he could not do anything within the scope of that investigation, he kept him in custody for 13 days during which he started to look for evidence. Eventually, he failed to submit anything to the file other than his news reports and articles. Additionally, apparently, the prosecutor could not even find a translator who knew German well. If this was not the case, the articles were bad translations as the result of a deliberate attempt to do so.
In other words, the prosecutor did not even properly translate the articles he presented as evidence.
However, in spite of all these errors and intentional negligence, it was quite a daring move on the prosecutor’s part to write that the client “prepared articles and news reports in line with the discourse of a terrorist organization.” When one reads such an audacious sentence one necessarily thinks that the public prosecutor opened this investigation and prepared the indictment on the basis of a serious doubt.
The prosecution has kept the client under detention for a full year without putting any further effort than the evidence provided by the police -- without even bothering to conduct a new investigation, or presenting new evidence to the file that might be in favor or against the client -- for a full year and has claimed that the client spread propaganda of a terrorist organization on the basis of this indictment.
This indictment is 3 pages long. We can even say it is only 2.5 pages long. The introduction of it consists of the client's personal information, On the second page, it continues with senseless accusations against the client by making mention of headlines he used for news reports -- not even the full content of the news stories are included . The final half a page demands a prison sentence.
In other words Your Honor; please don’t take the prosecutor’s claim that the client wrote in keeping with the terrorist organization’s discourse.
This is the quality of this indictment.
This indictment is not a legal text.
This indictment was not prepared according to the principle that evidence should lead to the suspect -- which is one of the fundamental principles of criminal law. An investigation was initiated on the basis of a false tip-off, and later the police tried to fabricate evidence.
The police officers, who are completely unaware of the Press Law, the Constitution, the European Convention on Human Rights, haven’t been able to produce anything but news reports and articles as evidence to bring to prosecutor's office. Additionally, these reports and articles were translated incorrectly, either by mistake or on purpose. We will discuss these translation mistakes in the future hearings, so I do not want to get into the substance of the investigation right now.
However, even though the prosecutor, who has completed law school, knew about all of these legal texts, he brought this document, which the prosecutor claims to be an indictment, before you.
Your Honor; Due to the fact that it is the document that starts litigation, the indictment is the most important process in criminal proceedings. The healthy execution of the trial depends on the writing of the indictment. The indictment must be prepared in accordance with the conditions outlined in the law.
Your Honor ;
In addition to the news reports in the indictment, there is a police report, whose author is not known yet whose purpose is obvious.
The prosecutor asserts the following statement in the last page of his indictment : "The examination of the suspect’s phone records has shown that he has had conversations with 59 people registered with law enforcement agencies as being a member of or being affiliated with the PKK/KCK terror organization between the years 2014-2017, and it was determined that the suspect has ties with armed organizations FETÖ/PYD and PKK/KCK”
First of all, even the figure cited by the prosecutor's office is wrong. There are 67 people in the report about Deniz, not 59. The main purpose of me sharing this information with you is to demonstrate how sloppily this indictment was prepared.
In the indictment, the prosecutor further speaks of “records kept by law enforcement.” What provisions are there in the Constitution or in other legislation about law enforcement keeping records about individuals? None. This then means that the law enforcement unit kept these records -- or this blacklist, to call it what it really is -- on the basis of an unlawful authority. But can a document which is not lawful be presented as evidence in a file? Certainly not. This document does not have the quality of evidence.
And in this police log, it further says, these individuals are either members of or are affiliated with the organization.
And yet who are these people? I will not be naming them one by one. And we will come to that in future hearings. But these individuals include journalists, civil society representatives, lawyers, heads of bar associations, news sources, MPs and local administrators.
How is the police, by which authority or power, assuming these individuals of membership in a terrorist organization or being affiliated with it?
Where does the police find the audacity? Howe can these individuals, who have not been convicted, and or have never been tried at all in some cases, and who are important people for Turkey, be branded as terrorists?
You will remember the trial of Cumhuriyet journalists. The prosecutor in that trial was tried on membership in FETÖ/PYD and attempting to stage a coup, and a life sentence was demanded for him. This prosecutor is still at the Courthouse and he wrote the indictment for the Cumhuriyet trial and the journalists were given jail sentences on the basis of that indictment.
Since the start of the trial, the lawyers stated that the prosecutor is not impartial, but these statements were unheeded. I would like to highlight that no one called the prosecutor a terrorist. Because us, lawyers are very well aware of the importance of presumption of innocence.
You have a prosecutor who is still on duty. Although he is a FETÖ suspect, he accuses others of aiding FETÖ. But journalists, lawyers, activists and others who are only doing their jobs are being called terrorists, although there is not a single court ruling about them.
There is no logical or rational explanation to this.
Trying to prove that the client is affiliated with a terrorist organization for talking to these individuals, the prosecutor -- who is a graduate of a Law School -- has submitted this document as evidence in the indictment.
The transcripts of these phone calls are not in the case file. How does the prosecutor present phone records he knows nothing about in terms of their content, as evidence?
What is this, if it is not terrorizing and criminalizing people?
There are so far no court rulings about these people whom we have mentioned. Even if such a court ruling existed, talking to them would not be a crime. It can not be a crime.
In continuation, the sources of journalists are confidential. Your Honor.. Article 12 of the Press Law says: “The owner of the periodical, responsible editor, and owner of the publication cannot be forced to either disclose their news sources or to legally testify on this issue.”
The most significant illegal method that the prosecutor has applied in his indictment is to cast the news sources of Deniz as criminal evidence. We have stated that this situation is contrary to Article 12 of the Press Law. It is clear that essentially news sources of journalists are confidential and that they should be protected and phone records with sources cannot be presented as evidence of crime.
Additionally, the principal regarding journalists’ right to not disclose their sources is an international legal norm accepted by Turkey.
The prosecution has completely upended all principles by considering the news reports and sources and the records of conversations Deniz has had with his colleagues. As such, the prosecutor has left a huge stain in the history of journalism.
Interception orders or actions concerning communication or correspondence of journalists or their employers, surveillance orders or actions concerning journalists, their contacts cannot be presented as evidence.
To state once again for you to understand clearly: as this police report was created unlawfully, it cannot be used as evidence in a court of law.
In its ruling on the Hans Martin Tillack v. Belgium case ECtHR held that a journalist's right to protect his sources could not be considered a mere privilege, but was an integral part of the right to information and should be treated with the utmost caution. The decision is significant as it identifies the protection of journalistic sources as a basic condition for press freedom.
The prosecutor has put forth news reports by Deniz and conversations with sources as evidence.
Your Honor; we see that when your Court accepted this indictment, you somehow missed these facts and did not voice any demands to the prosecutor regarding the indictment.
I want to emphasize that this text being accepted as an indictment is a violation of the principles of objectivity and impartiality in proceedings.
Your Honor, some sentences are used frequently in this document you have accepted For example, it says: “It is understood that is that the article by the defendant from such and such date incited the public to hatred and hostility”
On days when the prosecutor felt more assertive, we see that he used the word "ESTABLISHED" instead of “understood.”
`It has been established that the defendant incited the public to hatred and hostility in this article dated such and such.”
However, remarks as to what it was that was established, or understood, is not worded in the language of law, but rather in a language that would be used by a self-proclaimed terror expert.
The prosecution office is neither a terrorism expert nor the police department.
This indictment and these sentences in it clearly point to the end of the law and clearly show that freedom of expression is only reserved for the prosecutor.
What is on trial here is Deniz’s view of the world, his profession and journalism .
Deniz, who is being tried in this case, is being judged for reporting the facts.
But we should know that no prosecutor or judge can question how a journalist works on a particular story, in which way he works on it, in what way he writes it, where he publishes his report and where he has been or with whom he has talked with while preparing that news report.
There have been some who have questioned this in the past, and they are not remembered kindly in the public’s memory.
This text, which is described as an indictment, which the prosecutor tried to strengthen using unlawful evidence law, seeks to restrict freedom of the press and freedom of expression and to terrorize news making and the news itself.
In democracies, the right of people to obtain information can not be restricted. Violation of the public’s right to be informed about every part of society, jailing a journalist and demanding a prison sentence for him are the products of an unacceptable mentality.
As it is well known, according to Article 90 of the Constitution, international law supercedes domestic law. Of course, for this to happen, the Convention must have been ratified in accordance with domestic laws.
In Turkey, the Convention entered into force with Law No. 6266 dated 10.03.1954.
The right to file individual applications to the Court has been recognized since 29.01.1987.
Which means that final judicial decisions have entered under review of the ECtHR.
In the 31-years that have passed since 1987, Turkey has become one of the most frequent offenders of violations of the Convention and we see that grave violations will continue to occur.
If, in this trial, the principles of freedom of wxpression and freedom of hte press -- in other words, if Article 10 of the ECHR and the case-law of ECtHR -- are not taken into consideration, serious injustices and human rights violations will continue to be committed.
We, as lawyers, have taken this case to the European Court of Human Rights. Finding our application important in terms of the subject matter, the Court has given it priority of review.
That means that this application is now before the European Court. In the near future, the Court will reach a conclusion and it will most likely issue a ruling that will find this arrest which was made on the bases of expressions/articles and news reports to be in violation of the Convention.
A few months ago, the Court ruled on applications from journalists Altan and Alpay and found that their detention on the basis of their expressions and news articles to bea violation of freedom of expression.
For this reason, you the judges on the panel of this court, should treat this trial in accordance with the criteria of freedom of the press, which is a right protected under law. Let us not be party to the mistake, or the crime even, of the prosecutor's office.
Statute of limitations regarding press crimes are clearly stated in Article 26 of the Press Law.
"– It is essential that cases of crimes entailing the use of printed matter or other crimes mentioned in this law should be opened within a period of two months for daily periodicals and six months for other printed matter. ".
Accordingly, the prosecutor's office must file a lawsuit within four months from the date of publication of the news reports, in order for criminal liability to be established for all the news reports published in the Die Welt newspaper. It is unacceptable for my client to be tr’ed on the basis of articles and news reports published in the Die Welt newspaper after the time dictated in the Press Law had expired. As a result, this trial against the client and the indictment prepared in this context are clearly against the law and therefore he must be acquitted immediately.
The State of Emergency has not changed the provisions of the Turkish Penal Code TCK ,the Constitution, or Turkey's international obligations. Certainly, some freedoms can be derogated from under a State of Emergency. However, there are some fundamental rights and freedoms that can not be restricted, not only in a regime of the State of Emergency, but even in times of war, military mobilization and under martial law.
These are listed in Article 15 of the Constitution.
However, when one reads the indictment it is clear that the rights protected in the article are violated.
The criminal proceedings, including the criminal investigation, must be concrete and clear.
In this scope;
It is not clear with which article he wrote the client has conducted propaganda for a terror organization and invited the public to hatred and hostility. There is no evidence of material truth in this regard, there is not a single piece of evidence beyond any reasonable doubt, there is not even a flicker of any evidence.
As it can be clearly seen from the above decisions, according to the Constitutional Court and ECHR, it is contrary to the law to demand a prison sentence for the client.
Judge Criminal Prosecution Law 223/9 of the Criminal Code has a prompt acquittal clause.
In this case, there are only interviews with journalists and news sources that do not have any legal quality. What’s more the content of these phone records have not been presented. There is no evidence. I briefly explained that according to the Constitutional Court and the ECtHR and according to the laws by which your a bound, news reports and journalism cannot be a crime. In this sense, it is not a crime to publish journalism, to publish news, to publish offensive news. None of these can be subject for a trial.
For all these reasons, I believe that the proceedings must be completed before even taking the statement of Deniz Yücel. I demand the immediate acquittal rule to be applied immediately in order not to become an accomplice in this crime.
My client Deniz Yücel is an employee of the Die Welt newspaper and he resides in Germany. There is a bilateral agreement between Germany and Turkey. The nature of the accusation and the lower limit of the sentence for it are appropriate for allowing a statement from the client through requesting it from German authorities. For this reason, we would like to offer the client's statement to the court in due time and to request that it be taken via the SEGBİS system.