Uğur Koç, Mustafa Kömüş - “Publicy Insulting the Public Official” Trial

The article “Berat Albayrak - Özge Ulusoy topic was removed from Ekşi Sözlük” was published in BirGün Daily’s edition of June 22, 2019.

According to the article, a new topic was opened in Ekşi Sözlük with the title “relationship rumours between Berat Albayrak and Özge Ulusoy” regarding the Minister of Treasury and Finance Berat Albayrak and model Özge Ulusoy. However this title was restricted to public access, due to the request of Albayrak.

Ekşi Sözlük is a blog that contains comments of registered users on any topic or concept.

Albayrak’s attorneys, after the article was published in the paper and its webpage, made a denunciation to the Istanbul Chief Public Prosecutor’s Office on June 24, 2019.

The denunciation claimed that “unrealistic information was shared” about Albayrak. It was claimed that Albayrak “was insulted through press” and Albayrak’s “personal rights were openly attacked”.

The indictment against the former editor in charge of paper’s website Mustafa Kömüz and concessionaire of the paper İbrahim Aydın, along with BirGün Daily’s former chief clerk Koç, was prepared by Istanbul Chief Public Prosecutor’s Office’s Grand Investigation Bureau on September 18, 2019.

Minister of Treasury and Finance Berat Albayrak was the “complainant” of the indictment.

The indictment cited that the complaint which denounced the article had stated that the allegations in the article “were baseless and unrealistic”. It was claimed that, even if it was with through indirect speech, the topic was reawakened and the photos of the persons involved were used. The indictment claimed that all these “were not possible to consider within the scope of freedom of press as a criticism, harsh criticism or news or freedom of expression”.

The indictment, prepared against the journalists, claimed that the news regarding Berat Albayrak “was made for reasons based on his ministerial duty and title”. It was claimed that with the article Albayrak’s “pride and reputation were damaged”

Journalists Uğur Koç, Mustafa Kömüş, and the concessionaire of the paper İbrahim Aydın were accused of committing the crime of “publicly insulting a public official due the the performance of his public duty”, regulated by the article 125 of the Turkish Penal Code.

Uğur Koç was requested to be sentenced to, from 1 year 2 months to 2 years 4 months of imprisonment. Mustafa Köüş was accused of “committing the crime of insulting a public official twice and publicly. Therefore Kömüş, in total, was requested to be sentence to from 2 years 4 months to 4 years 8 months of imprisonment. All of the suspects were also requested to be “bereaved of specific rights” according to the article 53 Turkish Penal Code.

The trial started with the first hearing held at Istanbul 2nd Criminal Court of First Instance on December 5, 2019. Second hearing of the case was held on February 27, 2020.

The trial was set to continue with on May 7, 2020. However the hearing was postponed due to the measures taken against the “coronavirus” pandemic.

Fourth hearing of the case was held on September 8, 2020. Uğur Koç and Mustafa Kömüş were not present at the hearing. Journalists were represented by their attorney Tolgay Güvercin at the hearing. It was seen that the court board was changed.

An old practice, which was previously cancelled, was brought back to the courtroom as 2020-2021 Court Year started. According to that, prosecutors could now take part in the trials at criminal courts of first instance. This practice to have a prosecutor at the hearings in Criminal Courts of First Instance was cancelled in 2011. Trial of Koç and Kömüş was held in the presence of the case prosecutor.

Prosecutor stated that there was no subject that they wanted to be investigated in the files. Prosecutor requested the case files to be sent to the prosecution in order to prepare an opinion as to the accusations.

Attorney Tolgay Güvercin, stated that an appeal to overturn the subject matter decision of restriction access was made to the Constitutional Court and requested to attend the higher court’s decision. Güvercin said “If a violation of rights is detected by the Constitutional Court, it would nullify this trial”. The request was denied on the grounds that “it would not help enlighten the events”. It was ruled that the case files were to be sent to the prosecution in order to prepare an opinion as to the accusations.

The fifth hearing took place on November 19th, 2020. The panel of judges had not changed. The journalists standing trial, Mustafa Kömiş and Uğur Koç, did not attend. They were represented at the hearing by lawyer Tolgay Güvercin.

The hearing prosecutor presented his judicial opinion as to the accusations at this hearing. The prosecutor requested the acquittal of the journalists, stating that “there was not sufficient and uncontestable evidence for conviction”.

Lawyer Kevser Güner, representing Berat Albayrak who had filed a complaint about the journalists, stated that they did not accept the judicial opinion, and requested that the journalists be sentenced.

Berat Albayrak was the Minister of Treasury and Finance during the time he filed the complaint about the journalists, the indictment was drafted against them, and the trial began. However, he resigned from the said post on November 8th, 2020, that is, prior to this hearing.

Tolgay Güvercin, the lawyer of the defendant journalists, presented his defense statement as to the accusations, stating that he agreed with the judicial opinion. He remarked that a verdict of acquittal ought to be reached, not because of “lack of tangible evidence” but rather because “the elements of crime are not present”:

“My clients reported on the verdict reached by a court. How can covering a court verdict constitute an insult against Berat Albayrak? The news story corresponds to reality and falls within the freedom of expression. The subject matter of the news story is not Berat Albayrak. I demand acquittal as the elements of crime are not present”.

As the journalists did not attend, the court demanded the last words of the journalists from their lawyer. Lawyer Güvercin remarked the following:

“In criminal law, there is no crime of ‘insulting someone by placing an issue back on the agenda’. However, that’s how the act was defined in the indictment. The elements of the crime of ‘insulting a state official’ are not present, and we thereby demand acquittal.”

The court acquitted journalists Uğur Koç and Mustafa Kömiş, and the newspaper executive. The acquittal verdict was based on the justification “the act attributed to the journalists is not defined as a crime by law”, in line with the arguments of lawyer Tolgay Güvercin.

Documents

Indictment

Journalists
Mustafa Kömüş Uğur Koç

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