In February 2020, social media posts were made saying there was a member of National Intelligence Agency among Turkish soldiers who lost their lives in Libya. These posts were reported by various media outlets.
The article titled “Oda Tv reached the footage of the funeral of MIT member who was Martyred in Libya and buried quietly” published by Hülya Kılınç at Odatv webpage on March 3, 2020 was one of the articles. The article was about “the funeral service of MIT member who was killed in Libya.*
Istanbul Chief Public Prosecutor’s Office launched an investigation following National Intelligence Agency’s official complaint about the article. It was claimed that the article “revealed the identity of the MIT member”.
Within the scope of the Hülya Kılınç, who prepared the article, was taken into custody in Manisa and was brought to Istanbul on March 4th, 2020. Within the scope of the same investigation Odatv Editor in Charge of News Barış Terkoğlu was taken into custody in Istanbul.
fter the arrest of the journalists, Information and Communication Technologies Authority (BTK), issued a restriction order against Odatv webpage. Odatv, against the restriction order, made a statement and said, “We would like to announce that we will execute all our judicial rights against this situation that happened for the first time since we started airing.”
Minister of Interior Affairs Süleyman Soylu, on a tv show while the journalists were under custody, said; “there are things called a state secret and national security secret”.
Attorneys could find out the grounds of the accusation and the accusations against the journalists, 13 hours after the decision.
Following the process at the Police Headquarters, Kılınç and Terkoğlu were sent to the courthouse on March 5, 2020. Terkoğlu, after his statement at the prosecutor’s office was sent to the Criminal Court of Peace on Duty with a request for her arrest.
Arrest decision against the journalists was based on the accusations of “causing the capture of the information and documents regarding intelligence actions”, “disclosing the information and documents regarding intelligence actions” and “capturing the information and documents regarding the intelligence actions”. *
Arrest decisions were issued against different journalists, following Kılınç and Terkoğlu’s arrests. Ferhat Çelik, Editor-in-Chief at Yeni Yaşam Daily, Aydın Keser, editor in charge, Barış Pehlivan, Odatv Editor-in-Chief and Murat Ağırel, Yeni Çağ writer, were taken into custody within the scope of the same investigation.Pehlivan on March 6, 2020, Çelik, Ağırel and Keser on March 8, 2020, were arrested.
Following the arrestss of the journalists, Istanbul Chief Public Prosecutor’s Office released a written statement. The statements claimed that the journalists were arrested for “revealing the identity of MIT personnel and endangering the safety of their families”
The statement referred to the “MIT Trucks” investigation where journalists were tried on similar grounds for making news about the stopped trucks, which were then allegedly carrying weaponry to Syria and said:
“The subject of the investigation, as it was in the example of stopping the MIT Trucks on January 1-19, 2014, is deliberately, and intentionally violating article 27 of MIT Law, revealing the identities of National Intelligence Agency Staff, endangering the safety of their families and coworkers and by doing so, attempting to weaken the intelligence activities of the state, as a counterintelligence activity in a planned manner.”.
As the journalists were detained, a regulation of executions, which was on the agenda for a long time, was brought to the Parliament. The bill regulation that was prepared by AK Party and MHP, was considered “amnesty”, as prisons were considered risky against the “coronavirus” outbreak, which was declared a pandemic.
The regulation opened the route for the release of approximately 90 thousand inmates.
However journalists were exclusively excluded from the regulation. An edit made at midnight, as the regulation was being discussed in the Parliament, included the MIT Law violations in the list of crimes excluded from the bill. Therefore Terkoğlu and other 5 journalists that were arrested within the scope of the same investigation, were not able to take advantage of the regulation.
After the bill passed from the Parliament, attorneys of Keser and other journalists made an appeal to their detainment, on April 15, 2020, reasoning the regulation. The appeal was denied a day later. Courthouse, denied the appeal with the claims that “the detainment status was appropriate” and “there was no reason to end their detainment”.
Meanwhile, attorneys made an individual application to the Constitutional Court. Attorneys claimed that Terkoğlu and other journalists’ “press freedoms and freedoms of thought and expression were violated”.
It was found out on April 24, 2020, that an indictment was prepared against the journalists. Press outlets that are close to the government shared the news first. However, attorneys of the journalists could not reach the indictment as there was a “restriction” decision in the case. Attorneys, on April 27, requested the return of the indictment, reasoning that it was published on Sabah Daily, despite the “restriction” decision.
Inspection of the detention of Terkoğlu and other journalists was made on May 4, 2020. However, the court, by requesting an attorney from the bar and without notifying the attorneys of the journalists, made the inspection over the weekend and ruled for the “continuation of their detention”.
The indictment against 7 journalists along with Terkoğlu, 6 of whom were detained, was approved by Istanbul 34th Assize Court on May 7, 2020.
The indictment against 8 people, 7 of whom were journalists, along with Odatv web-page news director Barış Terkoğlu, was completed on April 23, 2020. The indictment was 50 pages long. Details of the indictment were not given to the attorneys as there was a “restriction” decision, while the content of the indictment was published in Sabah Daily, which is known to be close to the government, as news on April 24, 2020.
The indictment stated that the investigation was launched on March 4, 2020, following the official complaints of the National Intelligence Agency Directorate.
The indictment stated that the Presidential Missive which enabled sending troop so Libya, was approved by the Parliament on January 2nd, 2020 and continued with the missive’s details. It was claimed that within the scope of the missive; National Intelligence Agency’s activity in Libya and identity of the MIT personnel who lost their lives in February 2020 were kept from the public by the authorities.
Journalists were accused of publishing the identities and photos of MIT personnel “according to a plan, systematically and in a coordinated manner”.
Within this scope, it was stated that Yeni Çağ writer Murat Ağırel had made news on February 22, 2020 that read “Names of our Case Officer hero martyrs who lost their lives in Libya and buried, just by announcing as ‘we have a few martyrs without an official ceremony are S.. C.. and O.. A..”.
The information regarding the deaths of Turkish soldiers in Libya was already in circulation, even before Ağırel’s publication. The indictment claimed that “these informations of those who lost their lives were published without knowing or announcing they were MIT members”.
However, it was claimed that Ağırel in his publication “had knowingly and willingly used the photos and the identities of the MIT member martyrs”. It was claimed that “the technical term ‘case officer’ was used in order to expose the MIT members’ activities abroad“.
The indictment claimed that the information that MIT personnel had lost their lives was “exposed” in social media by Ağırel for the first time and the term “case officer” was used so the foreign intelligence authorities could understand the activities of MIT personnel in Libya.
Details of social media publications of BirGün Daily writer Erk Acarer, who has a capture warrant against him, were included. It was claimed that these publications were made “simultaneously” with Ağırel.
Publications Acarer made on February 22, “Erdoğan said today we have a few martyrs in Libya. Our sources claim that the attack was much more shocking and said 2 very important MIT personnel and a senior officer from Turkish Armed Forces (TSK) had lost their lives and an MIT personnel was injured. We hope the office of commander in chief will give a more detailed statement.” and “for instance who is O.. A… Who is he? Vice Head of the MIT…”, “How is the status of MIT personnel B.Z.?” and “Are you going to announce the name of the Brigadier General?” were included in the indictment. Acarer was accused of acting “in a manner to expose” the activities of MIT members.
Then the indictment continued by giving the information that this matter was made news by Yeni Yaşam Daily for the first time in the press. The prosecutor’s office claimed that “it was tried to be popularised by announcing it on written media simultaneously”.
It was claimed that the news titled “A Colonel Dead in Libya” on February 23 and “Death of Soldiers Covered, A Few in Libya!” on February 24, published in Yeni Yaşam Daily where Ferhat Çelik worked as Editor-in-Chief and Aydın Keser was the editor in charge, were the base of the accusations.
The indictment then covered the rest of the statement of İyi Party MP Ümit Özdağ gave at the Parliament on February 26, 2020. It was also mentioned that because of these statements, a police enquiry report was prepared by Ankara Chief Public Prosecutor’s Office and sent to the Parliament against Özdağ to lift his parliament immunity.
However, even though journalists, who made news or publications by using the same information were accused for violating both MIT Law and Turkish Penal Code, MP Özdağ was accused of “only the MIT Law”.
Then it was stated that the article titled “Oda Tv reached the footage of the funeral of MIT member who was Martyred in Libya and buried quietly, here is what the black garland says” published bu Hülya Kılınç at Odatv webpage on March 3rd, 2020.
It was stated that the funeral footage was “recorded secretly”. However the information that the footage was taken by Akhisar Municipality Press Employee E.E., who was another subject in the indictment and Kılınç had acquired the footage from him. It was stated that Kılınç had gone to Akhisar, a day before the news was published and talked to E.E. and the local authorities regarding the matter. Statements of E.E. and elected neighbourhood representative C.M. were included.
The funeral ceremony was held in Akhisar Province of Manisa on February 19. Province Mayor, various bureaucrats and state officials were present at the ceremony.
It was claimed that the news that showed the pictures of the ceremony had exposed the MIT members task term, place, his age, place of birth and information about his family and revealed and endangered the safety of his coworkers during his term at the task and their families.
It was claimed that the Kılınç’s allegation that she did not know the deceased was a MIT member was “inaccurate”. It was stated that Kılınç had “knowingly exposed the MIT members that participated in the funeral, made the news and persistently tried to obtain photos from the neighbourhood that the funeral was held”.
The indictment, regarding the statements of the journalists, claimed that “defence statements saying news of an already exposed information” were made, however the information and photos in the news and the publications “were not already exposed”. It was also claimed that by sharing the photos from the ceremony, other MIT members who took part were exposed as well.
The news and publications in the indictment were described as “exposing the actions of National Intelligence Agency, and its members simultaneously according to a plan, disclosing, publishing, dispersion of information of the state that must be kept confidential regarding MIT’s duties and actions and by exposing the identities, duties and rankings of MIT members, endangering securities of MIT members as well as their families.
The indictment then included 2 official complaints made by the National Intelligence Agency Directorate on March 4. First complaint was made against journalists Aydın Keser, Ferhat Çelik, Murat Ağırel and Erk Acarer. Second complaint was against Odatv staff Hülya Kılınç, Barış Terkoğlu and Barış Pehlivan.
In the indictment seven journalists were accused violating Law No. 2937, the Law on the State Intelligence Services and the Turkish National Intelligence Organisation. According to that, journalists were requested to be tried and sentenced for violating the article 27/3 of the Law.
This article regulates the crime of “disclosing, publishing and revealing identities of MIT members and their families, ranks, duties and activities; through radio, TV, internet, social media, magazines, newspapers or any sort of written, visual, auditory and electronic communication mediums.” However this regulation referred to the first and second paragraphs of the article. These paragraphs stated that the aforementioned information and documents were “information and documents concerning duties and activity of National Intelligence Agency,” and “identities of MIT members and their families, their ranks, duties and activities.”
According to that “journalists, including Kılınç, were accused of violating the MIT law by committing the crime of “disclosing, publishing and revealing information and documents concerning the duties and activities of the National Intelligence Agency through radio, TV, internet, social media, magazines, newspapers or any sort of written, visual, auditory and electronic communication mediums.”
Within the scope of this law, journalist were requested to be sentenced to from three years to nine years.
Journalists including Terkoğlu were also accused of “disclosing the information that must be kept confidential concerning the security and internal or external political interests of the state” according to the article 329 of the Turkish Penal Code. According to that they were requested to be sentenced to from five years to 10 years of imprisonment.
Therefore, in total, journalists were facing from eight to 19 years of imprisonment.
Court, set the start of the trials to June 24, 2020.
Detained journalists Murat Ağırel, Aydın Keser, Mehmet Ferhat Çelik, Hülya Kılınç, Parış Pehlivan and Barış Terkoğlu presented their defence arguments. Following the journalists’ defences, Semiha Alankuş, editor at Yeni Yaşam Daily and C.M., elected neighbourhood representative of the town where the MIT member was buried were heard as witnesses.
Court board, due to the “corona virus” pandemic, allowed only one attorney to present defence arguments per journalist.
Prosecutor of the case, requested the continuation of the journalists detention and for additional time to prepare his opinion as to the accusations. Prosecutor, requested that requests, if any, regarding the expansion of the case were to be taken and he could present his opinion as to the accusations before the next hearing as well.
Court board ruled to release detained journalists Barış Terkoğlu, Aydın Keser and Ferhat Çelik to pend trial. Detained journalists Murat Ağırel, Hülya Kılınç and Barış Pehlivan were ruled to continue their detainment.
Three journalists who were released pending trial were issued a ban on leaving the country. Ferhat Çelik and Aydın Keser were also issued a judicial control condition as “not to leave the city territories”.
Capture warrant issued against Erk Acarer was ruled to continue and it was ruled that as he was living abroad, having his statement taken where he lives, was to be considered between two hearings.
It was ruled that the case files were to be sent to the prosecutor’s office, to prepare the opinion as to the accusations and if prepared, to be sent to the parties in order to prepare their defences against the opinion by the next hearing.
The prosecutor’s office submitted its judicial opinion as to the accusations to court a day before the second hearing. In the judicial opinion, the journalists were charged with “publishing, disseminating and revealing the identities of martyrs who were members of the National Intelligence Organization (MİT) and therefore those of their families, as well as information on their duties and activities”. Furthermore, in the indictment, it was claimed that the crime in question was committed in a continuous manner. As such, as per Turkish Penal Code Article 43, the prosecutor demanded that the sentence be aggravated by one fourth to three fourths. In the judicial opinion, the journalists were also charged with “revealing information concerning the state’s security and its political interests”.
In the indictment, the prosecutor had demanded a prison sentence of eight to nineteen years for the journalists. In the judicial opinion, however, this was increased to eight years nine months to 25 years nine months, as the crime was allegedly “committed in a continuous manner”.
The prosecutor demanded the separation of the file of Erk Acarer from the main case file. In the judicial opinion, he demanded that Barış Pehlivan, Murat Ağırel and Hülya Kılınç remain in prison.
In the judicial opinion, the prosecutor stated that the journalists’ defense speeches during the legal proceedings were “designed to save them from the attributed charge”.
The second hearing of the trial was held on September 9th, 2020. The journalists Hülya Kılınç, Barış Pehlivan and Murat Ağırel were brought to the hearing from Istanbul Silivri Prison. The municipality worker E. E. attended the hearing from Manisa Prison through the Audio and Video Information System (SEGBİS). Barış Terkoğlu and Ferhat Çelik, standing trial without arrest, were also present in the courtroom. Aydın Keser did not attend. It was announced that Keser was in quarantine since he had been in contact with an individual whose coronavirus test turned out to be positive.
In the beginning of the hearing, the president of the court summarized the judicial opinion presented by the prosecutor’s office the day before the hearing, and gave the floor to the journalists for their defense speeches against the judicial opinion.
Afterwards, it was the turn of their lawyers to make their speeches. Lawyer Serkan Günel’s following words were remarkable:
“Our case should focus on two things in essence: Is it possible to reveal what has already been revealed? The defendants and lawyers have frequently underlined this issue: It is not possible. Can a martyred MİT officer be protected by this law? We were not that clear about the latter issue. In this regard, I want to say the following. In the cemetery for martyrs in Edirnekapı, there are tombstones, which read ‘Martyred MİT officer’. So, even our state has not concealed this fact.”
After the lawyers’ speeches, the court asked the journalists for their final remarks.
Hülya Kılınç demanded her acquittal, saying “What I have done is sheer journalism; I do not accept the charges.”
Barış Pehlivan stated, “This trial was the prosecution of Odatv and my books. I do not know how else to engage in journalism, and will continue on my path.”
Murat Ağırel demanded his acquittal, saying “I have simply practiced journalism”.
Ferhat Çelik said, “Whatever verdict the court may reach, we shall continue to uphold the people’s right to receive news”.
Barış Terkoğlu stated the following:
“The silence of the prosecutor’s office from February 19th to March 3rd shows that this investigation has been tailored specially for us. With your verdict, you can prevent those who have taken over the judiciary system from using the law as an instrument of revenge. I ask you to reach a verdict to that end.”
Barış Terkoğlu was acquitted from all charges. The court stated that the charge leveled against Terkoğlu was not defined as a crime in the legislation, and annulled the probation measures against him.
It was further stated that Terkoğlu had the right to file a lawsuit demanding compensation, as he was detained and released during the investigation stage, and finally acquitted.
Aydın Keser, Barış Pehlivan, Hülya Kılınç, Ferhat Çelik, Murat Ağırel and the municipal worker E.E. were acquitted from the charge of “revealing information concerning the state’s security and political interests” pursuant to Turkish Penal Code, Article 329. The court stated that the charge in question was not defined as such by the law.
Aydın Keser, Ferhat Çelik and Murat Ağırel were handed down prison sentences of four years six months as per MİT Law, Article 27/3 for “revealing information concerning intelligence services”. The verdict stated that they had “committed the crime in a continuous manner”. As such the sentence was aggravated by one fourth as per Turkish Penal Code, Article 43, bringing it up to five years, seven months, 15 days. Finally, the sentence was reduced by one sixth in consideration of their “conduct during the legal proceedings”.
As a result, Keser, Çelik and Ağırel have been condemned to four years, eight months and seven days in prison for “revealing information concerning intelligence services in a continuous manner”.
The court ruled to lift the probation measures against Keser and Çelik, namely “ban on leaving the province” and “giving signature at the designated police stations”.
Barış Pehlivan and Hülya Kılınç were sentenced to four years six months in prison as per MİT Law Article 27/3, for “revealing information and documents about the intelligence services”. In the judicial opinion as to the accusations, it was claimed that -just as in the case with Aydın Keser, Ferhat Çelik and Murat Ağırel- they had “committed the crime in a continuous manner”, with a demand for the aggravation of their prison sentences. However, in the verdict concerning Pehlivan and Kılınç, the court did not bring up the Article 43 of the Turkish Penal Code. Pehlivan’s and Kılınç’s sentence was reduced by one sixth in consideration of their “conduct during the legal proceedings”.
As a result, Pehlivan and Kılınç have been condemned to three years, nine months in prison for “revealing information and documents concerning intelligence services.”
Pehlivan and Kılınç, as well as Murat Ağırel were released.
The court also ruled to separate the file of Erk Acarer who lives abroad, since his statement has not been received whereas the procedures concerning the other journalists have been completed. In the verdict, the court stated, “Awaiting the completion of procedures for this defendant risks prolonging the procedures of the other defendants”.
Municipal worker E.E. has been acquitted of all charges, and the court ruled that the charge leveled against him is not defined in the law. It was further stated that E.E. had the right to file a lawsuit demanding compensation, as he was detained and released during the investigation stage, before being acquitted.
Barış Pehlivan, Hülya Kılınç and Murat Ağırel have been released from the prisons where they were held since March 5th, 2020.
The lawyers have appealed against the prison sentences handed down by the district court.
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