On November 13th, 2019, the Ankara Chief Public Prosecutor’s Office received a tip-off from a certain D.Ö. The text allegedly read, “… Non-Commissioned Officer E.B. is committing a crime against the state. I think he is leaking information over the phone about confidential operations.’‘
Upon this tip-off, the Ankara Chief Public Prosecutor’s Office launched an investigation concerning the non-commissioned officer E.B. on November 19th, 2019. E.B. was duly charged with “political and military espionage.”
Within the scope of the investigation, on December 2nd, 2019, the Ankara Police Department requested permission to tap the mobile phone line registered in the name of E.B.’s wife. This phone, allegedly used by E.B. himself, started being tapped upon the permission dated December 3rd, 2019 by Ankara 4th Criminal Court of Peace. As a result of the tapping, it was alleged that “E.B. shared with journalists information considered to be state secrets, that could endanger the state’s war preparations, war operations or military actions.”
It was claimed that Non-Commissioned Officer E.B. “passed on information to Müyesser Yıldız, the Ankara News Manager and columnist for Oda TV’s news website and to İsmail Dukel, a producer for Tele 1 TV, and that the said information was quickly published by them.” It was alleged that E.B. gave Yıldız and Dükel information about the Turkish Armed Forces’ operations in Libya and the northern Syrian province of Idlib.
The communication records created as a result of the tapping of the phone allegedly used by E.B. were sent by the police to Ankara Chief Public Prosecutor’s Office. Upon the request of the latter, on January 9th, 2020, Ankara 7. Criminal Court of Peace authorized the tapping of Yıldız’s and Dükel’s mobile phones for three months.
Separately, a series of developments took place in the meantime. On April 30th, 2020, Minister of Interior Süleyman Soylu gave information about a military operation via his social media account. He explained that an operation carried out in Kars had “destroyed PKK’s Çemçe group”. However, later, a soldier was killed in the armed clashes that broke out in Kars. Thereupon, Müyesser Yıldız posted the following message on her social media account: “Apparently, despite what Minister Soylu said, the Çemçe group has not indeed been completely destroyed.” In response Soylu wrote the following to Yıldız on his social media account: “Only you and PKK are upset about the annihilation of the Çemçe group. Our heroes today prevented a new infiltration into that area, with clashes as close as 10 meters… What saddens me is not your admiration of PKK, but the fact that you collaborate with worthless people who used to be state officials in the past”. In reaction, on May 19th, 2020, Yıldız published an article on Oda TV’s web site, stating, “If the person who is supposed to be responsible for my safety directly targets me, to which authority shall I entrust my safety?” Yıldız also filed a lawsuit against Soylu demanding 1 TL in non-pecuniary damages. Yıldız claimed that Soylu had insulted her.
On June 5th 2020, Ankara 7th Criminal Court of Peace and Ankara Chief Public Prosecutor’s Office released an arrest warrant for journalists Müyesser Yıldız and İsmail Dükel and non-commissioned officer E.B. Upon this decision, journalists Müyesser Yıldız, İsmail Dükel and non-commissioned officer E.B. were detained in Ankara on June 8th, 2020.
The arrest warrant against Yıldız and Dükel was issued on June 5th, 2020, the very day that Yıldız filed the aforementioned lawsuit against Soylu. The journalists were detained three days after the said lawsuit was filed.
Within the scope of the investigation, Yıldız and Dükel were accused of “obtaining confidential information concerning the state’s security and domestic or foreign political interests, for the purposes of political and military espionage” as per Turkish Penal Code, Article 328.
A gag order was placed on the investigation file. The lawyers of the journalists stated that their request to access information and documents regarding the file was rejected due to the gag order.
However, Sabah Newspaper’s website published many details about the investigation on June 11th, 2020.
On June 18th, 2020 and July 2nd, 2020, Ankara Chief Public Prosecutor’s Office asked the Ministry of National Defense whether the information allegedly passed on to journalists by E.B. was confidential or not. The Ministry of National Defense responded on September 11th, 2020 that the information disclosed by E.B. was indeed confidential.
The detention procedures of the journalists at the Ankara Police Department lasted three days. On June 11th, 2020, they testified at the Ankara Provincial Police Department and Ankara Chief Public Prosecutor’s Office.
Ankara Chief Public Prosecutor’s Office, conducting the investigation for the charge of “obtaining confidential information for the purpose of espionage” as per Article 328 of Turkish Penal Code, referred the journalists to court on June 11th, 2020, requesting their detention. However, in the order of referral, the journalists were not charged as per Article 328 of the Turkish Penal Code. Their imprisonment was requested as per Article 329 of the same code, with the charge of “disclosing confidential information concerning the state’s security and domestic or foreign political interests”.
Journalists testified at Ankara 3. Criminal Court of Peace and rejected the accusations. They pointed out that the allegedly confidential information was accessible in open sources. The lawyers of the journalists underlined the fact that the investigation was based on one article and the request for arrest on another article of the law.
On the other hand, during the judge’s interrogation of E.B., his lawyer Sahir Yılmaz stated the following: “My client is undergoing treatment for bipolar disorder. Probably this ailment will emerge during the legal proceedings as a reason for impunity.”
Ankara 3rd Criminal Court of Peace ruled to arrest Yıldız on June 11th, 2020. She was placed in Sincan Women’s Closed Prison.
The court ruled to release İsmail Dükel pending trial. Dükel was banned from going abroad. Also, he was put on probation, that is, he had to give a signature at the nearest police station every Monday.
Yıldız stayed in prison for about three and a half months before the indictment against her was completed. The indictment was finally completed on September 23rd, 2020.
The indictment consisted of 180 pages. Many of the pages were filled by the alleged tapped phone conversations between non-commissioned officer E.B. and the journalists. The conversations concerned the operations by Turkish Armed Forces in Syria and Libya.
It was claimed that Müyesser Yıldız “compiled the information she obtained from E.B. and published it on the website Oda TV”. It was further alleged that Yıldız used her press ID in an illicit manner and did not hesitate to obtain and disclose confidential information of the state, even though she knew that the information she received from E.B. was “confidential”. Furthermore, it was claimed that Yıldız “penned some columns targeting the decision makers in military operations”. It was also alleged that “She obtained information that should not be known to anyone except the intelligence and operations units of the General Staff, published and revealed some of these, and urged E.B. to obtain more information through new research.” It was added that Yıldız, “breaching the legal limits of the freedom of the press as a journalist, received from E.B. information on the brigade dispatched to Libya, its commander’s name and other details, and she openly shared this information in her column although it is obvious at the first glance that the said information concerns national security”.
On the other hand, İsmail Dükel was accused of “sharing this information received from E.B. in the program he anchors on Tele 1 TV”. In the indictment, it was alleged that Dükel, “breaching the legal limits of the freedom of press, obtained and published the state’s confidential information although it is obvious at the first glance that the said information concerns national security.”
In the indictment, the prosecutor charged the journalists with “disclosing confidential information concerning the state’s security and domestic and foreign interests as per Turkish Penal Code, Article 329/1 and requested a prison sentence between five to ten years for them. The prosecutor also claimed that they committed this crime “in a continuous manner”, demanding that the sentence be increased by one fourth to one third as per Turkish Penal Code, Article 43. As a result, the journalists face a prison sentence of six years, three months to 17 years, six months.
On September 28th, 2020, the indictment was accepted by Ankara 26th High Criminal Court.
The trial was scheduled to start with the first hearing at Ankara 26th High Criminal Court on November 9th, 2020. Before the first hearing, the court decided that Yıldız would attend the hearing from prison, via Audio and Video Information System (SEGBİS). A member of the panel of judges, which had accepted the indictment and set the date of the hearing, did not attend the hearing, and was replaced by another judge.
Before the first hearing, Yıldız’s lawyer Erhan Tokatlı submitted to the court an expert report drafted by the retired police chief Hanifi Avcı. Avcı’s report suggested that the information allegedly communicated by E.B. to journalist Yıldız had already been covered by the press.
E.B. said, “I have been receiving treatment for bipolar disorder for over 10 years. I take medication normally used for treating bipolar disorder and schizophrenia. Because of my ailment, I sometimes speak as if I have attended meetings or gone to various places without actually having done so.” In response to questions about the contents of the tapped conversations, E.B. said, “I’m mentally ill. I exaggerate events in order to make them more credible.” As to some of his words in the tapped recordings, he said, “There, I try to aggrandize myself through lies, I make things up.” He stated that he either “guessed” or “made up” most of the information. The judge also asked E.B. about a conversation with another person cited in the indictment, where E.B. said “We are writing the articles together with Müyesser”. In response to the judge, E.B. said “I am simply showing off, stealing Müyesser Yıldız’s role. I don’t have the capacity to write those articles, your honor.”
Later on, the imprisoned journalist Müyesser Yıldız presented her defense statement.
Yıldız remarked, “I have been brought before you because of not charges, but vengeance,” Yıldız stated that she will not defend herself against vengeance, but she had things to say to make a note in history. “I do not want to present a defense statement now as if law and justice would actually be served, so as to join in and legitimize this fraudulent game, which has been organized since the beginning without any respect for law and morality,” she said. Stating that she has been studying cannibals in order to understand what happened to herself, Yıldız said, “Believe me, even cannibals have rules and principles. It is clear which part of whom they will eat.”
Yıldız indicated that she was described in the indictment as “an old journalist”. Yıldız said, “If they had said this as regards my experience in the profession, that would be fine. But I think this is not their intention. I consider it as the confession of their intention to bring me down and push me out of this profession”. Yıldız stated that in the lawsuit filed against her by the Minister of National Defense Hulusi Akar, the latter demanded that she be banned from the profession of journalism. Yıldız added, “In that lawsuit concluded in March, the court did not reach a decision banning me from exercising journalism. Apparently, they want to finish what they started with this document of vengeance.” Here are some highlights from Yıldız’s defense:
“I am under arrest, but the articles where I supposedly threaten the security of the state are out there. Even this fact proves that the criminal element here is not those articles, but me. No one saw a problem in allowing millions of Syrians to live among us. We have all been witnessing it for days: ISIS leaders have been caught in Yozgat, Kırşehir, Konya and Samsun. They came to Turkey from Iraq and Syria, illegally. What did those so worried about this state’s security do to stop them? I guess they were too busy prosecuting me and others like me. Is the state’s security under such a threat that I have been brought here?”
The judge stated that he wanted to ask Yıldız a series of questions about the tapped phone conversations presented in the indictment. He asked her if she would like to answer such questions. However, Yıldız refused to be questioned about those conversations.
Later on, journalist İsmail Dükel who is not under arrest, presented his defense statement. Expressing that a country’s democracy is only as powerful as its press, Dükel said, “I have worked as a journalist for 40 years. I have written thousands of news stories. Not one of my news stories has been refuted. I get at least two confirmations before I publish a news story. Otherwise I do not write a single word.” Stating that he is a journalist, he has news sources, he has to get information, and it is his duty to share the information he received, Dükel told the judge; “You are going to ask me questions; can I ask you why you ask them? No, because that’s your duty. It cannot be questioned. That’s why, I think that I’m on trial for being a journalist. You cannot make a spy or a traitor out of me, I am a patriot.” Dükel added, “I have contacts with high-ranking officers. If I needed information, why would I get it from a non-commissioned officer form the logistics branch? If he made comments, you would listen and get the information. But you would not necessarily cover everything he said”.
After the defense statements, the hearing prosecutor presented his judicial opinion, and demanded that a criminal complaint be filed against the defendants on the charge of “obtaining the state’s confidential documents”, as per Article 327 of the Turkish Penal Code. The prosecutor also requested the continuation of the detention of journalist Müyesser Yıldız, and the officer E.B.
Later, the journalists, as well as E.B. delivered their defense speeches against the prosecutor’s judicial opinion. Müyesser Yıldız said, “I did not come here to save myself. I came to save the honor of the law. Your verdict will not mean anything to me, unless you file a criminal complaint against those who drafted this indictment and those who set up this plot.”
In line with the request of the hearing prosecutor, the court demanded that Ankara Chief Public Prosecutor’s Office investigate the journalists and E.B. for “obtaining confidential information about the state’s security” as per Article 327 of the Turkish Penal Code.
The court decided to abolish the probation measures imposed upon İsmail Dükel, which consisted of giving a signature at the closest police station. However, the court did not lift his ban on going abroad.
The court also ruled to release Müyesser Yıldız from prison. The verdict was based on the argument that “the charge might change, and probation measures will suffice”. The court prohibited Yıldız from going abroad, however.
The court decided to continue the detention of officer E.B.
The trial will continue with the second hearing on January 6th, 2021.
One day after the hearing, the hearing prosecutor objected to the release of Yıldız. The prosecutor claimed that the probation measures would be insufficient. In his appeal, the prosecutor requested that Yıldız’s release order be revoked, and that a warrant be issued for her arrest, and indicated that in case the court did not reach such a decision, he would request that the file be sent to Ankara 27th High Criminal Court to examine his objection.
Ankara 26th High Criminal Court, in charge of the trial, forwarded the prosecutor’s objection to Ankara 27th High Criminal Court. Ankara 27th High Criminal Court rejected the prosecutor’s appeal and his request for Yıldız’s arrest with a decision dated November 18th, 2020, stating that the release order was “in keeping with the procedures and principles of the law”.
Proceedings at the Constitutional Court
While in detention on remand, journalist Müyesser Yıldız filed an individual application with the Constitutional Court in July 2020, claiming that her rights were violated.
In her application, she stated that her detention was against the law, arguing that she had been detained in violation of the Constitution, and the European Convention on Human Rights, and that “her right to liberty, freedom of expression and freedom of press were violated”.
Yıldız was released on November 9th, 2020, while the Constitutional Court’s review of her application still continued.
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