Orhan Kemal Cengiz is a lawyer and a columnist.
He wrote columns in the Radikal newspaper, as well as the now-closed Bugün, Today’s Zaman, Zaman and Özgür Düşünce newspapers.
The newspaper Bugün, where Cengiz worked as a columnist, was later closed down by a Statutory Decree (KHK) issued as part of the State of Emergency (OHAL) declared following the coup attempt on 15 July 2016. Following the coup attempt, the government shut down many media outlets with statutory decrees issued without the approval of parliament.
Cengiz was detained on 21 July 2016 as part of the investigation on the columnists and managers of Zaman newspaper despite being a columnist for the newspaper Bugün. He was released after the custody procedures, which lasted for three days.
The indictment dated 10 April 2017 charged Cengiz with “attempting to destroy the constitutional order”, “attempting to destroy the Grand National Assembly of Turkey” and “attempting to destroy the Government of the Republic of Turkey” by means of coercion and violence and “membership of an armed terrorist organisation”. The prosecution demanded that Cengiz be sentenced to three aggravated life sentences and imprisonment of between seven years and six months and 15 years.
At the end of the trial process, Cengiz was acquitted of all charges on 6 July 2018.
Following the Chief Public Prosecutor’s Office of Istanbul’s objection, the court of appeals approved Cengiz’s acquittal. The Chief Public Prosecutor’s Office of Istanbul then filed an objection with the Court of Cassation, while the Court of Cassation Prosecutor’s Office demanded Cengiz’s acquittal be approved. The examination of the Court of Cassation concerning his acquittal is underway.
The Republic of Turkey held the structure known as the Fethullah Gülen Congregation responsible for the military coup attempt of 15 July 2016. On 20 July 2016, the National Security Council determined that the military coup attempt “was initiated by FETÖ through its members within the Turkish Armed Forces”.
The structure, which was stated to have secretly organised within government agencies for years, was first described as a “terrorist organisation” by a court in 2014, and later in the recommendations of the National Security Council of 27 May 2016. The National Security Council, which formerly described the structure as an “illegal parallel structure”, named it the “Fethullah Terrorist Organisation and Parallel State Structure – FETÖ-PDY” in its July memorandum.
Following the attempted coup, investigations and trials were launched and orders for arrest and detention were issued for many individuals who were claimed to be “affiliated” with this structure. As part of these investigations, a large number of journalists and writers were placed in custody and/or detained in many provinces of Turkey due to allegations of “membership of Fethullah Terrorist Organisation (FETÖ)” and “knowingly or willingly aiding the organisation despite not being a member of FETÖ”. Investigations and prosecutions were carried out during the State of Emergency (OHAL) declared soon after the attempted coup.
Zaman newspaper, Samanyolu TV, Cihan News Agency and many other newspapers, television and radio channels and internet news portals were shut down on similar allegations by Statutory Decrees (KHK) that were put into effect without parliament’s approval.
The Chief Public Prosecutor’s Office of Istanbul commenced an investigation on columnists and managers of the now-closed Zaman newspaper. As part of the investigation, lawyer Orhan Kemal Cengiz, a columnist for the Bugün newspaper, was detained on 21 July 2016. He was charged with “membership of an armed terrorist organisation”.
Orhan Kemal Cengiz was about to leave for the United Kingdom when he was detained at Istanbul Atatürk Airport. It was stated that Cengiz wanted to visit the United Kingdom to attend a conference organised by the Tahir Elçi Foundation which was established after the murder of Tahir Elçi Chairperson of the Diyarbakır Bar Association.
Cengiz was detained at the airport for three hours. Cengiz was then brought to the Istanbul Directorate of Security from the airport to give a statement.
In his statement at the Directorate of Security, Cengiz was only asked about two outputs he posted from his social media account.
While he was being transferred to the prosecution office to be questioned, Cengiz was handcuffed behind the back. He stated that when he objected to this treatment, the police had replied “these are our instructions from above”.
Cengiz was released pending trial on 24 July 2016 after the custody procedures which lasted for four days. He was prohibited from travelling abroad.
The indictment concerning Cengiz and the managers and writers of Zaman newspaper was completed on 10 April 2018.
The indictment concerning the managers and columnists of Zaman newspaper was completed by the Terrorism and Organised Crimes Investigation Office of the Istanbul Chief Public Prosecutor’s Office on 10 April 2017. Lawyer Orhan Kemal Cengiz, a columnist at Bugün newspaper, not Zaman, was also included in the indictment.
Similar to many other indictments prepared for individuals who were allegedly “affiliated with FETÖ”, approximately 20 pages of the indictment listed allegations such as “FETÖ’s establishment, its purpose, methods and strategy, hierarchical structure, intelligence network, financial structure and income sources, armed strength” as well as “FETÖ’s organisation in the media and the effects of media on investigations”. The indictment also included names of other journalists who were not listed as suspects.
In the section on “the explanation of the crimes attributed to suspects”, the prosecution tried to prove the alleged affiliation between FETÖ and the media outlets where suspects had worked in various positions rather than the affiliation between FETÖ and suspects themselves. In addition, the indictment included the names of the people who were not direct defendants of the case but were on trial in other cases, such as Ekrem Dumanlı and Abdülhamit Bilici, former executive editors of Zaman newspaper, Hidayet Karaca, a manager of the now-closed Samanyolu TV, Emre Uslu, a writer for the now-closed Taraf newspaper, Mehmet Baransu, and Can Dündar, former editor-in-chief of Cumhuriyet newspaper.
The indictment turned to the allegations concerning the defendants many pages in and asserted that Orhan Kemal Cengiz “was a part of the media power of FETÖ and fulfilled his role within the organisation’s strategy and hierarchy in order to destroy the constitutional order, the National Assembly and the government in line with the general purpose of the organisation”.
The indictment included Cengiz’s name only twice, one of them being in the identification of individuals section.
The indictment asserted that Cengiz had “overstepped the boundaries of the liberty of press and freedom of expression even in those articles without any obvious criminal elements and used expressions meant to violate the rights of state officials and institutions or wrote articles as a form of preliminary preparation.” However, none of his articles or social media outputs were cited as evidence.
The indictment asserted that Cengiz “was serving the goals of the organisation”, “made statements that might threaten national security; cause societal unrest, or disrupt societal peace and order” and “did not refrain from calling for a military coup”.
The indictment also asserted that Cengiz “was a part of the armed media power of FETÖ/PDY armed terrorist organisation” and “fulfilled a role within the organisation’s strategy and hierarchy in order to destroy the constitutional order, the GNAT and the government in line with the general purpose of FETÖ/PDY armed terrorist organisation”.
The indictment charged Orhan Kemal Cengiz with “attempting to destroy the order stipulated by the Constitution of the Republic of Turkey by means of coercion and violence”, “attempting to destroy the Grand National Assembly of Turkey or prevent it from fulfilling its responsibilities partially or entirely by means of coercion and violence” and “attempting to destroy the government of the Republic of Turkey or to prevent it from fulfilling its responsibilities by means of coercion and violence” according to Articles 309/1, 311/1 and 312/1 of the Turkish Penal Code.
In addition, the indictment also charged Cengiz with “membership of an armed terrorist organisation” in accordance with Article 314/2 of the Turkish Penal Code and Article 5 of the Law on Anti-Terrorism.
The prosecution demanded that Cengiz be sentenced to three aggravated life sentences and imprisonment of between seven years and six months and 15 years.
It was also demanded that Cengiz “be deprived of the enjoyment of certain rights” in accordance with Article 53 of the Turkish Penal Code.
The indictment was filed with the Istanbul High Criminal court on 11 April 2017. The indictment was accepted by the Istanbul 13th High Criminal Court on 24 April 2017.
The trial concerning lawyer Orhan Kemal Cengiz, a journalist for the now-closed Bugün newspaper, and the journalists and managers of Zaman newspaper started on 18-19 September 2017 with the first hearing of the Istanbul 13th High Criminal Court at the courthouse set up in Silivri Closed High Security Prison. At the first hearing, only the remanded defendants made defensive statements.
The second hearing of the trial took place on 8 December 2017. Cengiz made his first defensive statement at this hearing. Cengiz stated the following:
“For the last two hearings, we have been trying to understand why I am here. The indictment does not explain why. I have been included in the indictment as one of the columnists, but there are no articles of which I am accused.”
The third hearing of the trial took place on 5 April 2018. At this hearing, the prosecutor presented the opinion of the prosecution as to the accusations.. The opinion of the prosecution accused Orhan Kemal Cengiz of his columns at Bugün newspaper despite no column being cited as evidence in the indictment.
Cengiz was charged with “voicing his loyalty to the Fetullah Terrorist Organisation” and “fulfilling the task assigned to him within the organisation by praising the so-called corruption operations concocted by security and judicial personnel affiliated with the organisation” over his articles.
The indictment asserted that Cengiz “had gone beyond being an ordinary member” and “tried to convince society that objective conditions had come about for the coup to take place by presenting the government as a state power that is incapable of fulfilling its functions and claiming that members of the organisations were treated as prisoners of war”.
With the opinion of the prosecution as to the accusations, the prosecutor demanded an aggravated life sentence for Cengiz on charges of “attempting to destroy the constitutional order”. However, in the indictment, Cengiz was not only accused of “attempting to destroy the order stipulated by the Constitution of the Republic of Turkey by means of coercion and violence”, but also of “attempting to destroy the Grand National Assembly of Turkey or prevent it from fulfilling its responsibilities partially or entirely by means of coercion and violence” and “attempting to destroy the government of the Republic of Turkey or to prevent it from fulfilling its responsibilities by means of coercion and violence”. The opinion of the prosecution as to the accusations did not include the latter two charges.
Cengiz was also accused of “membership of an armed terrorist organisation” and an imprisonment sentence of up to 15 years was demanded.
The prosecution changed its first opinion after 20 days concerning four defendants, including Orhan Kemal Cengiz. Three social media outputs that were not included in the indictment were added to the opinion of the prosecution as evidence.
This time, the charge of “attempting to destroy the constitutional order” was dropped for Cengiz. The charge “membership of an armed terrorist organisation” was also dropped and changed to “consecutive terrorist organisation propaganda”.
The fourth hearing of the trial took place on 10-11 May. At this hearing, Orhan Kemal Cengiz made his final defensive statement against the opinion of the prosecution as to the accusations. Cengiz stated the following:
“I am not on trial here for my activities as a columnist, but as a lawyer. Mr. Prosecutor showed me the greater evil in the first opinion of the prosecution and then tried to have me accept the lesser evil that was in the revised opinion. But I am not willing to accept the lesser evils. The indictment specifies no action. My name was only added there because I appealed to the Constitutional Court regarding the decision to appoint a state administrator to Zaman newspaper. I also brought the cases of Ahmet Altan and Mehmet Altan before the Constitutional Court. It is unacceptable that I should be criminalised over these. If I am standing trial because I wrote for the Bugün newspaper, why are there no other Bugün columnists included in the case except for me?”
Cengiz stated that he had published almost 10,000 tweets and only three were used to accuse him.
Meanwhile, Orhan Kemal Cengiz’s attorney Ali Koç stated the following: “Orhan Kemal Cengiz is lawyer who is a leading expert in his field and a rights advocate. In one of his articles, my client called this congregation a “tyrant”. He has dozens of articles and tweets in which he criticised the practices of the judicial and police personnel affiliated with the congregation. We demand Orhan Kemal Cengiz’s release, or otherwise for the case to be dropped due to statute of limitations in line with Article 26 of the Law on the Press.”
The sixth hearing of the trial took place on 5-6 July 2018. Orhan Kemal Cengiz was acquitted of all charges. Judicial supervision measures placed on Cengiz during the proceedings were also lifted.
The Appeals Process
The Chief Public Prosecutor’s Office of Istanbul launched an appeal at the court of appeals regarding Orhan Kemal Cengiz’s acquittal. The 2nd Penal Chamber of the Istanbul Circuit Courts of Appeals approved the ruling regarding Cengiz’s acquittal on 25 June 2019.
Justification of the decision stated that the grounds for the prosecution’s objection were not found appropriate.
The Court of Cassation Process
The Chief Public Prosecutor’s Office of Istanbul launched an appeal at the Court of Cassation after the court of appeals’ approval of the ruling regarding Cengiz’s acquittal.
The Court of Cassation Chief Public Prosecutor’s Office presented its letter of notification regarding the bill of review on 23 December 2019. The letter of notification presented to the 16th Penal Chamber, which processed the appeal proceedings, demanded the approval of the ruling concerning Cengiz’s acquittal.
On the other hand, the letter of notification also demanded the approval of rulings concerning the acquittal of columnists Lale Sarıibrahimoğlu, Nuriye Ural and Orhan Kemal Cengiz. It was demanded that the ruling concerning the acquittal of Mehmet Özdemir be overturned.
The letter of notification demanded the approval of imprisonment sentences for to İbrahim Karayeğen, Ahmet Turan Alkan, Mümtazer Türköne and Mustafa Ünal on charges of “membership of an armed terrorist organisation”. Demanding the decision concerning Şahin Alpay and Ali Bulaç on charges of “membership of an armed terrorist organisation” to be overturned, the Office of the Chief Public Prosecutor stated that Alpay and Bulaç should be put on trial on charges of “knowingly and willingly aiding the FETÖ/PDY armed terrorist organisation despite not being members of its hierarchical structure”.
The Court of Cassation 16th Penal Department overturned the prison sentence given to Bulaç, Alpay and Türköne. The Court of Cassation’s decision stated that the proceedings concerning Bulaç, Albay and Türköne should be based on the allegation “knowingly and willingly aiding the FETÖ/PDY armed terrorist organisation despite not being members of its hierarchical structure. It was stated that the examination of the local court of the case was lacking in this respect.
Mümtaz Türköne, who had been remanded in custody, was released pending trial with the Court of Cassation’s ruling.
The Court of Cassation’s reasoned decision has not been disclosed.
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