Photos of trucks belonging to National Intelligence Organization (MİT) transporting ammunition to the north of Syria were published by Cumhuriyet newspaper with the signature of Can Dündar, the editor-in-chief. On May 29, 2015, the headline of the newspaper read “İşte Erdoğan’ın Yok Dediği Silahlar” (“Here are the weapons whose existence Erdoğan denied”). On the same day, the newspaper’s website published photos from the search conducted in the trucks.
The very same day, the Istanbul Chief Public Prosecutor’s Office launched an investigation against Can Dündar, on charges of “obtaining documents regarding the security of the state”, “political and military espionage”, “disclosing confidential information” and “spreading propaganda for a terrorist organization”
President Tayyip Erdoğan personally filed a complaint against Can Dündar, and during a live broadcast dated June 1, 2015, on a TV channel, he targeted Dündar directly:
“He will pay a heavy price, I will not let him go.”
On June 12, 2015, Cumhuriyet newspaper’s Ankara Representative Erdem Gül published a news story about the criminal report concerning the ammunition found inside the trucks, under the title “Jandarma Var Dedi” (“The Gendarmerie Confirms the Ammunition”).
The launch of an investigation against Dündar was announced on May 29, 2015 by Istanbul Chief Public Prosecutor’s Office. However, Dündar and Gül were called to testify at the Çağlayan Courthouse in Istanbul about 6 months after the launch of the investigation.
Prosecutor in charge of the investigation referred Dündar and Gül to the Criminal Court of Peace for arrest. Dündar and Gül were charged with “knowingly and willingly aiding a terrorist organization without being a member”, “political and military espionage” and “disclosing confidential information.”
Judge of the Criminal Court of Peace stated that the images of MIT trucks were first published by Can Dündar. In actual fact, Aydınlık newspaper had published the images on January 21, 2014, under the title “İşte TIR’daki Cephane” (“Here is the ammunition in the truck”).
Dündar and Gül were arrested on November 26, 2015. Istanbul Chief Public Prosecutor’s Office stated the following after the arrest order was issued:
“The investigation has nothing to do with the ‘freedom of press’, which is under constitutional protection, and we have taken no action in violation of individual rights and freedoms.”
President Tayyip Erdoğan had previously indicated in his statement concerning Dündar that “This action by the suspect, who is targeting the interests of the state by publishing fabricated images and information, can in no way be considered as journalism.”
Constitutional Court Proceedings
Can Dündar and Erdem Gül applied to the Constitutional Court on December 6, 2015 following their arrest. When they filed their application, the indictment against them had not yet been drafted.
The Constitutional Court ruled that the rights of Dündar and Gül had been violated, on February 25 -shortly before March 25, when the indictment would be completed and the trial would begin. Dündar and Gül were duly released.
President Tayyip Erdoğan made the following remark about the Constitutional Court’s ruling:
“I will remain silent on the ruling by the Constitutional Court, but I don’t have to accept it. I don’t respect this ruling. In fact, the first instance court could have insisted on its own ruling.”
President Tayyip Erdoğan and National Intelligence Organization figured as complainants in the indictment drafted by Istanbul Chief Public Prosecutor’s Office.
55 news stories and articles were presented as evidence for the charges against Can Dündar. However, none of these articles and news had been investigated before. Only one investigation had been initiated about an article, ending in a decision of non-prosecution.
The indictment’s section concerning Erdem Gül featured only his testimony at the prosecutor’s office and the titles of three news stories. In fact, one of these news stories belonged to not him, but another Cumhuriyet reporter.
It was claimed that Dündar and Gül made publications “attempting to link the state and government to terrorist activities.” According to the prosecutor Dündar and Gül were “in union of action and thought with the terror group FETÖ/PDY.”
The indictment requested that Can Dündar and Erdem Gül be sentenced to one count of aggravated life sentence, one count of life sentence and an additional prison sentence of up to 30 years. Dündar and Gül were charged with “Obtaining confidential information of the state for the purpose of political or military espionage” (Turkish Penal Code 328/1), “Disclosing confidential information about state security for purposes of espionage” (Turkish Penal Code 330/1), “Employing coercion and violence to destroy the government of the Republic of Turkey, or to keep it from performing some or all of its tasks” (Turkish Penal Code 312/1) and “knowingly and willingly aiding a terrorist organization without being a member” (Turkish Penal Code 220/7).
The indictment against Dündar and Gül was accepted by İstanbul 14th High Criminal Court on February 5, 2016. The trial began on March 25, 2016. The hearing was closed to the public.
However, the defenses presented during the hearings and the prosecutor’s questions were shared on the social media via the Twitter accounts of various lawyers’ associations.
At the fourth hearing of the trial on May 6, 2016, the prosecutor announced his opinion as to the accusation concerning Dündar and Gül.
The prosecutor requested up to 25 years in prison for Dündar. In his opinion, the prosecutor pressed charges for “Obtaining and disclosing confidential information about state security or domestic and foreign politics, and complicity in this crime.” The prosecutor requested up to 10 years in prison for Gül. In his opinion, the prosecutor accused Gül of “Disclosing confidential information about state security or domestic and foreign politics.”
The prosecutor requested that the case for charges of “knowingly and willingly aiding an armed terrorist organization without being a member, and attempting a coup” leveled against Dündar and Gül be separated. Accordingly, the final verdict in the trial against the soldiers and prosecutors who had stopped and searched the trucks in question, taking place at Court of Cassation’s 16. Criminal Chamber, had to be awaited.
The trial was temporarily adjourned before the announcement of the verdict on Dündar and Gül. In the meanwhile, Dündar was attacked by an assailant named Murat Şahin in the square in front of the courthouse. Şahin shouted “traitor” during his attack. Dündar escaped unscathed, while the NTV reporter Yağız Şenkal received an injury in his leg. The trial continued after the attack.
The court sentenced Dündar to 5 years, 10 months in prison on charges of “disclosing confidential state documents” (Turkish Penal Code 329/1). Gül was likewise sentenced to 5 years in prison on charges of “disclosing confidential state documents.”
Dündar and Gül were acquitted of charges of “attempting a coup.”
As the proceedings continued, Court of Cassation overturned the verdict about Dündar and Gül. Court of Cassation ruled that Dündar should stand trail not for “disclosing confidential state documents” but for “obtaining the state’s confidential information for purposes of espionage” (Turkish Penal Code 328/1). The new charged to be leveled against Dündar according the Court of Cassation ruling could result in to 15 to 20 years in prison pursuant to Turkish Penal Code, Article 328/1.
Court of Cassation Process
Court of Cassation ordered the acquittal of Erdem Gül. After the Court of Cassation overturned the first verdict, Erdem Gül stood trial for “disclosing confidential state documents” and was acquitted.
It was ruled that Dündar and Gül should stand trial for “knowingly and willingly aiding an armed terrorist organization without being a member, and attempting a coup” in a separate trial. The first hearing for this trial took place on September 21, 2016. This trial against Dündar continued in his absence, since he was abroad. CHP MP Enis Berberoğlu was also added to this file as defendant. Berberoğlu was charged with “obtaining the state’s confidential information for the purpose of political and military espionage, and knowingly and willingly aiding the armed organization FETÖ / PDY.” The Prosecutor’s Office claimed that Berberoğlu was the person who gave Can Dündar the information and documents in the news story published in Cumhuriyet.
At the third hearing of this trial on March 11, 2017, the prosecutor expressed his opinion as to the accusations. Prison sentences of up to 10 years were requested for Can Dündar and Erdem Gül on charges of “knowingly and willingly aiding an armed terrorist organization without being a member.” At the 8th hearing of the trial on June 14, 2017, CHP MP Enis Berberoğlu was sentenced to 25 years in prison. The execution of the sentence against Berberoğlu was suspended since he was an MP.
It was ruled that the trial for charges of “knowingly and willingly aiding an armed terrorist organization without being a member, and attempting a coup” against Dündar and Gül should continue in yet another file. So for the third time, a trial began with a separate case number and its first hearing took place on October 4, 2017. In his opinion as to the accusations, the prosecutor requested prison sentences of 7.5 to 15 years for Can Dündar and Erdem Gül. He claimed that Dündar and Gül “knowingly and willingly aided an armed terrorist organization without being a member.” At the ninth hearing of this trial, it was ruled that Gül’s case be dropped, since the lawsuit had not been filed within the 4-month statute of limitations stipulated in the Press Law.
At this hearing, a decision was reached to consolidate all the files of Dündar that were separated during the trial process.
Court of Cassation’s decision to overrule, had claimed that Syria had made an application for complaint to United Nations against Turkey. This complaint was claimed to be about the transportation of the weaponry inside MIT Trucks. The Court, in the previous hearings, had requested to summon this complaint and its translation from the Ministry of Foreign Affairs. At this hearing it was stated that this request from the ministry was not responded yet.
At this hearing, it was decided to wait for the result of the extradition request made to the German authorities regarding Dündar who, previously had a capture warrant issued against him.
5th hearing of case made through the consolidated cases of Dündar, was held at October 31st, 2019. It was stated that the request made to the Ministry of Foreign Affairs in order to summon the complaint letter which showed that Syria had made an application to the United Nations against Turkey, was responded. The response, gave the web address of the Ministry of Foreign Affairs’ Department of Legal Services for the English version of the letter.
At this hearing, it was decided to wait for the result of the extradition request made to the German authorities regarding Dündar who previously had a capture warrant issued against him. Next hearing was set to March 19th, 2020. Hearing is adjourned to June 9th, 2020 due to the measures taken in Turkey against “corona virus” outbreak declared as pandemic.
The seventh hearing of the trial was held on July 9th, 2020. At the hearing, Dündar was represented by his lawyer Halil Kocabaş. The court stated that the request for the extradition of Dündar sent to the German judicial authorities had not been fulfilled. The hearing prosecutor requested that the missing documents in the file be completed.
The court ruled to await the result of the extradition request sent to German judicial authorities. In addition, the court ruled to send the case file to the prosecutor’s office for drafting of the opinion as to the accusations.
The trial was adjourned until the eighth hearing scheduled for February 18th, 2021. The trial was supposed to continue with the eighth hearing on February 18th, 2021. However, the eighth hearing was brought forward to September 17th. The panel of judges had changed, with the exception of the president of the court.
Can Dündar, who now resides abroad, did not attend the hearing. Dündar was represented at the hearing by his lawyer Abbas Yalçın. The lawyer of the National Intelligence Organization (MİT), Ümit Ulvi Canik, presented an excuse and did not attend the hearing. The panel of judges stated that the German judiciary authorities did not execute the demand for the extradition of Can Dündar.
It was stated that Istanbul Chief Public Prosecutor’s Office had submitted a petition to the court on September 8th, 2020.
Accordingly the petition read, “Can Dündar left the country in May 2016 and did not attend any hearing after that date; the court issued an arrest warrant in absentia against him on April 10th, 2018 and a red notice was issued on April 17th, 2018.”
The petition continued, “considering the conduct of the defendant after his release, we request that the court declare him a fugitive and move to confiscate his property”.
The prosecutor’s requests were based on Criminal Procedure Code, Article 247/1. The article defines a “fugitive” as follows: “An individual who hides himself within the country in order to invalidate a pending prosecution against him, or is in a foreign country and for this reason the court cannot reach him, shall be called fugitive.”
The hearing prosecutor reiterated the request in the petition by the Chief Public Prosecutor’s Office. Dündar’s lawyer, Abbas Yalçın said that Dündar could not be branded a “fugitive” as he attended the hearings regularly from the beginning of the investigation, and even attended the hearing for the verdict. Yalçın added, “He suffered an armed assault after that hearing, and had to go abroad due to this lethal threat”.
Stating that declaring Dündar a fugitive would not contribute to the trial, lawyer Yalçın demanded that the court reject the prosecutor’s request and await the process for Dündar’s extradition. In its verdict, the court stated that “Dündar was in a foreign country in order to invalidate a pending prosecution against him.”
The court ruled the initiation of the procedures for declaring Dündar a fugitive and seizing his property.
The court ruled to issue a call for Dündar, in the form of a newspaper announcement or an advertisement to be posted on the door of his residence, stating that if he did not appear in court within 15 days, his property would be confiscated since he would be deemed a fugitive.
Accordingly, in case Dündar does not appear in court within 15 days despite the announcement, he will be deemed a fugitive and “the court will issue an order to confiscate his movable, immovable property and bank deposits as well as receivables from third parties.”
The ninth hearing took place on October 14th, 2020. The hearing was closed to the media and observers owing to the previously issued “confidentiality order”. Dündar was represented by his lawyer Abbas Yalçın, and Tayyip Erdoğan by his lawyer Kevser Güner. Dündar’s lawyer, Abbas Yalçın stated their objection to the decision to seize Dündar’s property and declare him a fugitive. The prosecutor’s office submitted the judicial opinion as to the accusations in writing.
In the judicial opinion, the prosecutor charged Dündar with “obtaining confidential information for the purposes of political and military espionage” and “knowingly and willingly aiding an armed terror organization without being part of its hierarchical structure”, requesting 22 years six months to 35 years in prison. Lawyer Abbas Yalçın requested the court to evaluate his objection to the decision to seize Dündar’s property and declare him a fugitive. Yalçın also demanded additional time for drafting a defense statement against the judicial opinion. The court decided to forward the lawyer’s objection to Istanbul 15th High Criminal Court. The panel of judges granted additional time for the defense against the judicial opinion.
The 10th hearing of the trial was scheduled for December 4th, 2020. The hearing was closed to the press and observers due to the “gag order”. No audience or observers were allowed to the courtroom. At the hearing, Dündar was represented by his lawyers, Bahri Bayram Belen, Tora Pekin and Abbas Yalçın. The lawyers of President Tayyip Erdoğan and the National Intelligence Organization were also present in the courtroom.
The president of the court announced that the decision declaring Can Dündar a “fugitive” and ordering the “confiscation of his assets” was appealed at Istanbul 15th High Criminal Court, which later rejected the appeal on October 20th, 2020.
The lawyers first indicated that owing to the Court of Cassation’s previous decision to overturn the verdict, Dündar’s defense ought to be received again and that otherwise the legal proceedings could not continue.
In response, the court stated that in the indictment Dündar was charged with “obtaining the state’s secret information for the purposes of political or military espionage”, that he had already presented a defense statement against this charge at the first phase of the trial, and that the decision of the Court of Cassation pointed out that Dündar ought to be tried with this charge. Arguing that Dündar had thus already submitted his defense at the first phase of the trial, the court rejected the lawyers’ demand and stated that a second defense statement was not necessary after the decision of the Court of Cassation.
Dündar’s lawyers later requested the recusal of the entire panel of judges. The panel of judges rejected the request, “owing to the current stage of the trial”. The rejection decision was based on the argument that “the request of recusal is intended to prolong the trial”. The panel of judges unanimously rejected the said request.
The lawyers said they would appeal the rejection of their request of recusal.
The court gave Dündar’s lawyers seven days to appeal against the said decision, stating that they had to file an appeal with the court of appeal in charge, namely, İstanbul 15. High Criminal Court.
The trial was adjourned until the 11th hearing on December 23rd, 2020.
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