Can Dündar, İnan Kızılkaya - “Insulting of Public Officials” Trial

The Istanbul 8th Criminal Court of Peace “temporarily” shut down the newspaper Özgür Gündem on August 16, 2016. Previously, in order to support the newspaper in the face of mounting pressure, the “Editor-in-chief on Watch” campaign had been launched on May 3, 2016, whereby prominent individuals took turns as the editor-in-chief of the newspaper. The campaign had become necessary after lawsuits were filed against the newspaper’s co-editors-in-chief Eren Keskin and Hüseyin Aykol, and its managing editor İnan Kızılkaya.

The campaign ended on August 7, 2016. Özgür Gündem was permanently shut down by Decree Law no. 675 on October 29, 2016.

Can Dündar was one of the journalists who supported the campaign “Editors-in-Chief on Watch”. News reports with the headlines, “Yolsuzluğun Hakimi” [The Judge of Corruption] and “Saray Rejiminin En Kullanışlı Hakimi” [The Most Useful Judge of the Palace Regime] were published in Özgür Gündem newspaper on 22 June 2016 when Dündar acted as the newspaper’s editor-in-chief.

The news item emphasised the rulings issued by the judge who served at the 1st Criminal Court of Peace of the Istanbul Courthouse at the time.

Following the publication of the article, the Press Bureau of the Chief Public Prosecutor’s Office of Istanbul launched an investigation concerning Can Dündar, acting editor-in-chief and İnan Kızılkaya, managing editor-in-chief of the newspaper.

It was asserted that Dündar and Kızılkaya had “defamed the judge”.

Can Dündar was not detained due to being abroad. His testimony was not received.

İnan Kızılkaya was being tried in remand as part of another trial when the investigation concerning him was launched. Kızılkaya’s testimony during the investigation was received from the prison where he was being held in remand through the Audio-Visual Information System. Kızılkaya denied the “defamation” charge. He stated that the subject of the reporting “had become public knowledge”.

The indictment concerning Dündar and Kızılkaya was completed on 25 August 2016.

The indictment listed the judge, who was mentioned in the news item which formed the basis of the accusations, as the “complainant”. However, the indictment did not quote from the news item.

It was stated that the news item used the following expressions about the judge: “the judge who vindicated the AKP government during the 17-25 December corruption investigation” and “the judge who was responsible for the YouTube restrictions”.

Three ministers in the Justice and Development Party government cabinet and their children were involved in allegations of corruption and bribery within the operation publicly known as the “17-25 December bribery and corruption operation” launched at the end of 2013.

The Terrorism and Organised Crime Investigation Bureau of the Chief Public Prosecutor’s Office of Istanbul requested access to be restricted to multinational social media platforms Facebook, Twitter and YouTube in April 2015. The request was accepted by a court ruling. The ruling for the restriction of access was grounded on the circulation of photographs and images on social media of the killing of prosecutor Mehmet Selim Kiraz at the Çağlayan Courthouse in Istanbul. After the photographs and images were removed, the restriction of access was lifted.

The indictment asserted that these statements “exceeded the limits of freedom of the press and thought, and harmed people’s honour and dignity”.

The indictment charged Dündar and Kızılkaya with “defamation of a public officer due to his duties”. The prosecution demanded that Dündar be sentenced to imprisonment of between one year and two years. It was asserted that the “defamation was carried out publicly”. The prosecution therefore demanded that Dündar’s sentence be increased by one-sixth in accordance with Article 125/4 of the Turkish Penal Code. In total, the prosecution demanded that the journalists be sentenced to imprisonment of between 14 months and 28 months on the charge of “public defamation of a public official”.

The indictment was accepted by the 2nd Criminal Court of First Instance of Istanbul. The trial commenced at the 2nd Criminal Court of First Instance of Istanbul on 20 December 2016.

Dündar did not attend the first hearing. It was stated that the court understood Dündar was abroad through publicly available information. Dündar’s attorney Abbas Yalçın stated that they could submit Dündar’s address abroad.

The court ruled that Kızılkaya’s defensive statement be received through the Audio-Visual Information System in the afternoon on the day of the hearing due to security and technical reasons.

Kızılkaya stated that he wanted to examine the original or the copy of the newspaper issue that was cited as evidence for the accusations concerning him.

Kızılkaya stated that he wanted to give his defensive statement before the judge at the hearing room at the next hearing. His demand was accepted. Kızılkaya accepted the deferment of the pronouncement of a possible judgment concerning him.

The second hearing of the trial took place on 18 January 2017. The panel of judges had not changed at this hearing. Kızılkaya was brought before the court from the Silivri Prison in Istanbul where he was held in remand. Dündar did not attend the hearing due to being abroad.

It was stated that the judge, who was mentioned in the article published in Özgür Gündem newspaper on the day when Can Dündar acted as the editor-in-chief of the newspaper, and who was listed as the “complainant” in the indictment, demanded to attend the trial. The demand was accepted.

In his defensive statement, Kızılkaya stated that the article was written within the scope of freedom of speech. He said, “Journalists work on behalf of the public. They ask questions and inquire. Criticism can be of a harsh character. However, public officials are obligated to tolerate such criticism”.

Kızılkaya’s attorney Özcan Kılıç demanded that Kızılkaya’s mandatory attendance to the hearings be lifted. The demand was accepted.

Ahmet Akif Demir, attorney of the judge who was mentioned in the news item that formed the basis of the accusations, stated regarding his client, “He was exposed to statements that went beyond his duties and the limits of criticism while performing his duty as a public official.” He demanded sentencing for the journalists.

The court issued an arrest warrant concerning Can Dündar who was abroad at the time. At the fifth hearing of the trial on 23 November 2017, Dündar’s attorney Abbas Yalçın submitted Dündar’s address abroad. At the sixth hearing of the trial on 29 March 2018, the president of the court ruled that a directive be written to receive Dündar’s defensive statement abroad.

The thirteenth hearing of the trial was planned to take place on 2 June 2020. However, the hearing was postponed due to the precautionary measures for the coronavirus pandemic.

The fourteenth hearing of the trial took place on 22 September 2020. The president of the court had changed once again.

Following the onset of the 2020-2021 legal year, a practice, which was previously terminated, was reinstated at courthouses. With this practice, prosecutors were allowed to attend trials carried out at the criminal courts of first instance. The practice of allowing the presence of the prosecutor for the hearing at the Criminal Courts of First Instance had been suspended in 2011.

The hearings of the trial concerning Dündar and Kızılkaya were thus carried out with the participation of the prosecutor.

Neither the judge mentioned in the article that formed the basis of the accusations against Dündar and Kızılkaya, nor his attorney attended the hearing, although their demand to attend had been accepted.

The hearing was adjourned to wait for Dündar’s defensive statement to be submitted abroad.

The fifteenth hearing of the trial took place on 15 December 2020. The president of the court had not changed. The court ruled to wait for Dündar’s defensive statement to be submitted abroad and for the arrest warrant to be fulfilled.

The court ruled that the trial will proceed with the sixteenth hearing on 4 March 2021.


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