Press In Arrest November 2020 Press Freedom Report

'Publicity of Trial' Principle Violated Under the Pretext of the Pandemic

Dec. 3, 2020

In November in Turkey, in at least 30 press-related trials in 8 provinces, at least 40 journalists were prosecuted. 8 of them were women.

In the trials concerning these 40 journalists, the prosecutor’s offices demanded 2 counts of aggravated life sentence, and a total of 201 years 4 months to 497 years 2 months in prison.

Press in Arrest has observed that, in the press trials held in Turkey since the onset of the coronavirus pandemic in Turkey, hearings are closed to observers and the public in an arbitrary manner, under the pretext of ‘protection measures’.

In the period from March to the beginning of December, in 38 hearings concerning 73 journalists, observers were not admitted to the courtroom or a restriction was imposed on the number of observers attending the hearings, under the pretext of the coronavirus outbreak.

Introduction and Methodology

Press in Arrest is an initiative founded to monitor, document, and commit to memory the prosecution of journalists in Turkey. Its objective is helping to restore the freedoms of press, thought and expression, and the people’s right to receive news.

Our monitoring efforts cover the entirety of legal proceedings, from the investigation stage to the conclusion of the trial.

We collect information on indictments, decisions reached in hearings, demands by the prosecutors and defense lawyers, district courts’ verdicts, and the appeal procedures at the courts of appeal and Court of Cassation (Yargıtay).

We gather this information through the analysis of the indictments, first-hand observation of hearings, direct interviews with the journalists on trial and their lawyers, as well as media monitoring.

Press in Arrest also issues “Hearing Observation Reports” concerning the hearings that it follows.

These hearing observation reports about the trials against journalists feature information on the circumstances prior to the hearing, procedures in the courtroom and during the hearing, demands by the prosecutors and lawyers; general observations about the hearings; as well as an evaluation of compliance with the criteria for “the right to a fair trial”.

Press in Arrest has gathered all the information it has collected during 2 years of monitoring efforts in its “Journalist Trials Database”.

Press in Arrest shares this information with the domestic and international community via the “Press Freedom Reports” issued on a monthly basis.

These reports are based on the information accessed by Press in Arrest, and do not claim to be exhaustive of all the information across Turkey.

Executive Summary

Press in Arrest has observed that, in the press trials held in Turkey since the onset of the coronavirus pandemic in Turkey, hearings are closed to observers and the public in an arbitrary manner, under the pretext of ‘protection measures’.

Since March 2020, under the pretext of the Covid-19 outbreak, but without complying with a specific criterion or a legal regulation shared with the public, the courts prevent observers, journalists and public from attending various hearings. This compromises the principle of the “publicity of the trial”, an important component of the right to a fair trial, which is secured by national legislation and human rights conventions.

In the period from March to the beginning of December, in 38 hearings concerning 73 journalists, observers were not admitted to the courtroom or a restriction was imposed on the number of observers attending the hearings, under the pretext of the coronavirus outbreak.

In this context, we have received the opinion of a jurist specializing in human rights Kerem Altıparmak, who stated that the publicity of trial principle can be restricted only if a legal amendment is passed to this effect: “Since there is no legal amendment in the issue (of closing hearings to the public and observers), such a restriction goes against the law. When such an amendment is passed, arbitrary decisions will become unacceptable. Such a restriction can be possible only after it is determined how the problems associated with that restriction will be compensated for. Here, the principle of measure will be key: Is closing the trial to the public obligatory, favorable and proportional?”

Altıparmak also stated that trials are held publicly to show that “the fair trial principle is upheld” and added, “As such, closing the hearing to the public can be possible only in exceptional situations clearly stipulated by the law.”

Altıparmak remarked that in this respect, the physical conditions in the courtrooms must be regulated by the ministry of justice and that the judge cannot assume the entire responsibility: “The legislative organ must provide the legal infrastructure, and the ministry must provide the physical conditions. Only then can the judge take the appropriate measures. Therefore, this must be viewed as a collective responsibility, not an individual one.”

A lawyer who defends journalists in press trials in Turkey, Tora Pekin stated that not allowing journalists and observers to the courtrooms is a violation of the Constitution and the Convention, indicating, “The admission of only lawyers to the hearing does not show that the principle of the publicity of trial is upheld. Lawyers are already there as ‘parties’. It should also be indicated that such closed trials harm not only the sense of justice of the parties and the society at large. The impression that the judiciary wants to ‘conceal certain things’ does great harm to the judiciary as well. Since there are immense violations of law even in public, we are under no obligation to trust trials and verdicts behind closed doors.”

In November, Turkey’s press and freedom of expression agenda was marked by police raids, detentions and arrests concerning the Mesopotamia Agency based in Diyarbakır (MA). Many of its reporters were investigated and detained.

In October, Mesopotamia Agency’s reporters Adnan Bilen and Cemil Uğur, and Jinnews reporters Şehriban Abi and Nazan Sala, were arrested for alleged “membership of an armed terror organization”, after reporting on how two citizens were detained and thrown out of a helicopter by security forces in the Çatak district of Van province.

On November 24th, the MA reporter in Van, Dindar Karataş was detained at a police raid on his home. Karataş’s camera and cell phone were seized by the police. As the investigations were launched by Erzurum Prosecutor’s Office, Karataş was duly taken to Erzurum. Following his interrogation, Karataş was arrested and placed in Erzurum H-Type Prison. Karataş was interrogated about his news stories, interviews with certain politicians, as well as phone conversations with his news sources as regards the armed clashes in Erzurum and Ağrı.

In November in Turkey, in at least 30 press-related trials in 8 provinces, at least 40 journalists were prosecuted. 8 of them were women.

In the trials concerning these 40 journalists, the prosecutor’s offices demanded 2 counts of aggravated life sentence, and a total of 201 years 4 months to 497 years 2 months in prison.

The full report:

In November in Turkey,

Suppression of the freedoms of press and expression in Turkey continued with ongoing trials and new investigations in November, while detentions and arrests concerning the Mesopotamia Agency (MA) were of particular importance.

In October, Mesopotamia Agency’s reporters Adnan Bilen and Cemil Uğur, and Jinnews reporters Şehriban Abi and Nazan Sala, were arrested for alleged “membership of an armed terror organization”, after reporting on how two citizens were detained and thrown out of a helicopter by security forces in the Çatak district of Van province. In November, numerous MA reporters faced investigations and detentions, while another of its Van reporters, Dindar Karataş was arrested.

  • In November in Turkey, in at least 30 press-related trials in 8 provinces, at least 40 journalists were prosecuted. 8 of them were women.

In the trials concerning these 40 journalists, the prosecutor’s offices, demanded 2 counts of aggravated life sentence, and a total of 201 years 4 months to 497 years 2 months in prison.

A total of 1 million 470 thousand TL was requested in non-pecuniary damages in claims for damages against 3 journalists and 3 media outlets.

Women journalists appearing before a judge faced 33 years 7 months 15 days to 86 years 1 month 15 days in prison.

Two female journalists presented their defense in lawsuits where they faced 1 million 270 thousand TL in claims for damages.

In November, journalist Hazal Ocak faced a total of 1 million 220 thousand TL in non-pecuniary damages in three separate claims for damages in November.

  • 28 journalists were prosecuted in high criminal courts, and 11 in criminal courts of first instance:

At least 28 journalists appeared before a judge in high criminal courts.

Trials against at least 11 journalists continued at criminal courts of first instance.

Under the scope of lawsuits for damages, 3 journalists and 3 media outlets appeared in civil courts of first instance.

  • 22 journalists were charged as per “Anti-Terror Law”:

At least 22 journalists had to present their defense statements against charges of terrorism offenses

At least 8 journalists were charged with “membership of an armed terror organization,”

7 journalists with “spreading propaganda for a terror organization,” and

3 journalists with “targeting a state official who took part in anti-terrorism efforts.”

On the other hand, at least 6 journalists were charged with “knowingly and willing aiding a terror organization without being part of its hierarchical structure”.

  • 9 journalists were accused of “insult”:
    A total of 9 journalists appeared before a judge for alleged “insult”.

At least 6 journalists continued to stand trial for “insulting the President.” In this scope, two journalists were sentenced to prison.

3 journalists charged with “insulting a state official” were acquitted.

  • “Publicly inciting the population to hatred and enmity”, “slander”, “disclosing confidential information concerning the state’s security and domestic and foreign interests” etc.

At least 3 journalists continued to face the charge of “publicly inciting the population to hatred and enmity” in ongoing trials.

One journalist was charged with “intentionally damaging the reputation or assets of a bank, or disseminating groundless news stories,”

One journalist with “slander,”

One journalist with “showing resistance to prevent an official from performing their duty,”

One journalist with “attempting to overthrow the Turkish government through force and violence” and “attempting to overthrow the constitutional order through force and violence,” and

Four journalists with “disclosing confidential information concerning the state’s security and domestic and foreign interests”…

  • 10 journalists in total started being retried:

10 journalists appealed the verdicts of the district courts in courts of appeal and Court of Cassation, which overturned the previous verdicts.

District courts complied with the decisions of the courts of appeal and Court of Cassation, and as a result 10 journalists started being retried in district courts.

In November, the first hearings were held in these retrials against a total of 10 journalists.

  • 4 journalists were handed down prison sentences:
    In November, at least 4 journalists were sentenced to a total of 19 years, 11 months in prison.

Journalist Ali Ergin Demirhan was sentenced to 1 year, 2 months and 17 days in prison for “publicly insulting the President.”

Journalist Onur Emre Yağan was sentenced to 1 year, 2 months, 17 days in prison for “publicly insulting the President in a continuous manner” even though President Tayyip Erdoğan had withdrawn his complaint. The court deferred the announcement of the verdict.

Journalist Mehmet Baransu was sentenced to a total of 17 years, 1 months in prison on the charges of “obtaining confidential information”, “disclosing this information in a continuous manner” and “obtaining and publishing information and documents regarding the activities of the National Intelligence Organization (MİT)”

Journalist Yılmaz Özdil was sentenced to 5 months in prison under a trial for “violating the Military Penal Code”. The court deferred the announcement of the verdict.

  • 4 journalists were acquitted:

On trial for allegedly “insulting a state official on duty” due to a news story from the time when he served as editor-in-chief, journalist Uğur Güç was acquitted.

The court acquitted journalists Uğur Koç and Mustafa Kömüş from the charge of “publicly insulting a state official on duty” in the lawsuit filed upon a criminal complaint by the ex-Minister of Treasury and Finance, Berat Albayrak.

In a trial where he was prosecuted alongside Mehmet Baransu since 2014, journalist Murat Şevki Çoban was acquitted of the charges.

  • Trials of 33 journalists were adjourned:

The trials of 33 journalists appearing before a judge in November were adjourned. The trial of two journalists in İzmir was postponed since an earthquake damaged the courthouse.

The Press in Arrest team reported the following in the trials that it monitored:

  • 3 journalists on remand presented their defense speeches via SEGBİS:

Journalists Aziz Oruç, Mehmet Baransu and İsmail Çoban attended the trials from prison, via the Audio and Video Information System (SEGBİS).
İsmail Çoban attended a hearing via SEGBİS from prison, where he is held due to another investigation against him.
Mehmet Baransu attended via SEGBİS the verdict hearing of a trial ongoing since 2014.

  • Panel of judges were changed in 10 journalists’ trials:

In the November hearings of the trials against at least 10 journalists, it was observed that the panel of judges had changed.

These 10 journalists had to submit their defense statements against the charges before a new panel of judges/new judges.

  • “Presumption of innocence” was violated and the independence of the court was compromised in 3 hearings concerning 4 journalists:

In November, the hearings in 3 ongoing press trials against journalists Müyesser Yıldız, İsmail Dükel, Kenan Kırkaya and Özgür Boğatekin were held in the presence of law enforcement officers / private security guards. As such, the “presumption of innocence” principle was violated in trials in high criminal courts, and the independence of courts was compromised.

  • “Publicity of trial” principle was violated 6 times:

In the hearings of at least 6 trials concerning 8 journalists in November, the judges either closed the hearing to the public, or limited the number of observers in the courtroom, citing the measures taken against the coronavirus epidemic. In one case, even the journalist supposed to appear before the judge was not allowed in the courtroom, and he was represented by his lawyer.

'Publicity of Trial' violated under the pretext of the pandemic…

Press in Arrest has observed that, in the press trials held in Turkey since the onset of the coronavirus pandemic in Turkey, hearings are closed to observers and the public in an arbitrary manner, under the pretext of ‘protection measures’.

Since March 2020, under the pretext of the Covid-19 outbreak, but without complying with a specific criterion or a legal regulation shared with the public, the courts prevent observers, journalists and public from attending various hearings. This compromises the principle of the “publicity of the trial”, an important component of the right to a fair trial, which is secured by national legislation and human rights conventions.

In the period from March to the beginning of December, in 38 hearings concerning 73 journalists, observers were not admitted to the courtroom or a restriction was imposed on the number of observers attending the hearings, under the pretext of the coronavirus outbreak.

On this matter, we have received the opinion of a jurist specializing in human rights Kerem Altıparmak, who stated, “Trials are held publicly to show that the fair trial principle is upheld. As such, closing the hearing to the public can be possible only in exceptional situations clearly stipulated by the law. Since no such legal amendment has been passed, this restriction goes against the law.”

‘The judge cannot organize this alone; the Ministry must provide the physical conditions’

Altıparmak made the following assessment on the closure of hearings to the public and similar limitations: “A legal amendment must first be passed to this effect. When such an amendment is passed, arbitrary decisions will become unacceptable. Such a restriction can be possible only after it is determined how the problems associated with that restriction will be compensated for. Here, the principle of measure will be key: Is closing the trial to the public obligatory, favorable and proportional? This is not something that the judge can organize alone. The legislative organ must provide the legal infrastructure, and the ministry must provide the physical conditions. Only then can the judge take the appropriate measures. Therefore, this must be viewed as a collective responsibility, not an individual one.”

‘This is a clear violation of the Constitution and the Convention’

A lawyer who defends journalists in press trials in Turkey, Tora Pekin remarked “The recent practice of not allowing journalists and observers to the courtrooms is a violation of the Constitution and the Convention”, and provided the following details to Press in Arrest:

“Publicity or openness of trial is one of the main principles in legal proceedings. Such that, it is clearly stipulated in both the Constitution (Art. 141) and the European Convention on Human Rights (Art. 6). Safeguarded by these regulations, the principle is a crucial part of our right to a fair trial, and non-compliance with this principle suggests that the trial in question is not fair.

A short description of the reason for the existence of the principle of publicity will suffice to explain why it is of vital importance in today’s Turkey. In brief, the reason for the openness of trials to the public is to ensure the independent and impartial functioning of the judiciary. Thanks to the openness of trials, the public has the opportunity to control the judiciary. Trials organized behind closed doors cannot be monitored by the public/society/people.

Today, journalists and independent observers attend hearings as monitors and carry out this monitoring on behalf of the public. By independent observers, I mean human rights organizations and advocates, professional organizations, and parliamentarians, that is, people and institutions who have the power to make their voices heard.

In the highly politicized trials in today’s Turkey, such an activity can reduce the arbitrariness of the courts and align the judiciary with the law to a certain extent. In other words, the principle of publicity has gained much more importance in our day and age.

The areas where the principle of publicity may be restricted are also stipulated by law. Closing hearings to the public partially or entirely is possible only if necessitated by general morality, or public safety concerns. On the other hand, courts may of course adopt some measures and enforce social distancing rules to prevent the spread of Covid-19. For example, a measure such as using only half of the courtroom’s seating capacity may be acceptable.

However, it goes without saying that such measures cannot be implemented in a way which brings about the complete elimination of the principle of publicity. The recent practice of not allowing journalists and observers to the courtrooms is a violation of the Constitution and the Convention. The admission of only lawyers to the hearing does not show that the principle of the publicity of trial is upheld. Lawyers are already there as ‘parties’. It should also be indicated that such closed trials harm not only the sense of justice of the parties and the society at large. The impression that the judiciary wants to ‘conceal certain things’ does great harm to the judiciary as well. Since there are immense violations of law even in public, we are under no obligation to trust trials and verdicts behind closed doors.”

International Day for the Elimination of Violence against Women…

November 25th was the International Day for the Elimination of Violence against Women.

Istanbul Convention describes violence against women as ‘violation of human rights’ and ‘discrimination’.

Violence against women comprises threats, coercion, or arbitrary deprivation of liberty.

Violence against women results in “physical, sexual, psychological or economic harm or suffering to women”.

It is unacceptable for journalists to be tried for simply doing their job, and prosecution of women journalists for practicing their profession is another form of “violence against women”.

According to Press in Arrest’s database,
In the last two years, at least 89 women journalists have faced 84 press trials in Turkey.

As of today, at least 64 women journalists still face at least one press trial, without arrest.

In the last two years, the district courts have handed down one aggravated life imprisonment and at least 71 years, 7 months and 18 days in prison for at least 21 women journalists.

In the last two years in Turkey, women journalists

have been tried as per 26 articles of the Turkish Penal Code, and 3 articles of the Anti-Terror Law.

In the last two years in Turkey, 78 out of at least 89 women journalists have been tried as per the Anti-Terror Law.

42 of them stand trial for “spreading propaganda for a terror organization” pursuant to Anti-Terror Law, Article 7. 11 women journalists have been sentenced to prison as per Article 7.

In November, female journalists appeared before a judge, facing a total of 33 years 7 months 15 days to 86 years 1 month 15 days in prison. Two female journalists faced non-pecuniary damages of 1 million 270 thousand TL in total.

Aside from the trials, in November,

  • At least 11 journalists were detained, summoned to testify or faced an investigation and/or criminal complaint:

Mesopotamia Agency’s Van reporter Dindar Karataş was detained in a police raid on his home. Karataş’s phone and his camera’s memory card were seized by the police. On the other hand, the Van office of the said agency was raided by the police on the grounds that Karataş worked there, and the police searched the premises. Under the investigation conducted by Erzurum Chief Public Prosecutor’s Office, Karataş was taken from Van to Erzurum and a gag order was issued for the file.

Journalist Cihan Ölmez was detained in a police raid on his home in Şırnak. Ölmez was released after 4 days in custody.
Mesopotamia Agency’s intern reporter Hakan Yalçın was detained in a police raid on his house in Ankara. He was released on probation after his statement was taken by the police.

Under an investigation launched by Diyarbakır Chief Public Prosecutor’s Office 75 people were detained, including Jinnews’ Kurdish-language news editor Roza Metina, also a member of PEN. Metina was released on probation after giving her statement.

Journalists Davut Uçar and Kesire Önel were detained under an investigation by Istanbul Chief Public Prosecutor’s Office for allegedly “organizing activities in the city for PKK/KCK”. An arrest warrant was issued for journalist Davut Uçar for alleged “membership of an armed terror organization”, and he was then released on probation after giving his statement. Kesire Önel was still under custody as this report was being drafted.

Journalist Çağlar Tekin announced that he was taken into custody in a courthouse where he arrived for a hearing. Tekin stated that the reason for his detention was “sharing a news story which the Anadolu Agency first published and then deleted, concerning the ISIS militants’ use of Turkish Armed Forces vehicles in Syria”. Tekin was released after his statement was taken by the police.

Journalist Melis Alphan announced in her social media account that she had given a statement under an investigation against her. Alphan wrote, “An investigation has been launched against me for ‘spreading propaganda for a terror organization’ due to a photograph which I shared six years ago, from the 2015 Nevruz celebrations in Diyarbakır, when the Peace Process was still in place. I testified as a suspect. However, the said images were broadcast by all TV channels; the state was there”. Alphan was released after interrogation.

The prosecutor’s office launched an investigation against retired journalist Mehmet Yüksel Özbek for sharing in his social media account a news story by Cumhuriyet Newspaper in April 2020. The story was about how the Presidential Communications Director Fahrettin Altun rented a plot of land from General Directorate of Foundations for 10 years for 258 TL per month, and carried out landscaping and construction in this area, and how the İstanbul Metropolitan Municipality demolished the structures built.

Journalist Cengizhan Çelik announced in his social media account that he was summoned to testify. At the police station, Çelik was interrogated about some of his social media posts. Çelik stated that the investigation launched upon a criminal complaint by Boğaziçi Center for Global Relations (Bosphorus Global).

An investigation was initiated against journalist Ahmet Kanbal for reporting on the arrest of nine individuals, including the commander of the 2. Border Brigade in Nusaybin, on charges of ‘migrant smuggling’ and ‘bribery’. The investigation was launched upon a complaint which stated that ‘the news story revealed all the details of the investigation’ and thus ‘breached the confidentiality of the investigation’. In his statement, Kanbal rejected the accusations, stating that the news story was designed to inform the general public and that it did not violate the confidentiality of the investigation.

  • 2 journalists were released from prison:

Imprisoned pending trial for “disclosing confidential information concerning the state’s security and political interests,” journalist Müyesser Yıldız was released in the first hearing of the trial. Yıldız spent 5 months in prison on remand.

On trial for “membership of an armed terror organization” and “spreading propaganda for a terror organization”, journalist Aziz Oruç was released at the third hearing of the trial. Oruç spent 11 months in prison, pending trial.

  • 1 journalist was arrested:

Journalist Dindar Karataş was interrogated under an investigation into his news stories, interviews and phone conversations with news sources. Karataş was then arrested for alleged “membership of an armed terror organization.” The court issued a gag order for the case.

  • European Court of Human Rights (ECHR) reached a verdict in the Cumhuriyet Newspaper Trial:

European Court of Human Rights (ECHR) announced its verdict for the Cumhuriyet Newspaper Trial.

ECHR ruled that the journalists’ “rights to liberty and security” and “right of freedom of expression” were violated.

ECHR stated that the journalists’ detention and imprisonment pending trial were not based on reasonable ground.

According to the verdict, Turkey will have to pay 16 thousand euros in compensation to the then employees of the newspaper: Murat Sabuncu, Musa Kart, Hakan Kara, Güray Öz and Akın Atalay, as well as 3 newspaper executives.

ECHR ruled that journalist Ahmet Şık’s rights of “freedom of expression and press” and “personal security and liberty” were violated when he was imprisoned pending trial for 14 months under the Cumhuriyet Newspaper Trial.

The court refused to rule that the trial was politically motivated.

9 years ago, ECHR had ruled that Ahmet Şık’s detention pending trial under the “Oda TV Trial” was also a violation of his rights.

Press in Arrest is a database, monitoring, documentation and collective memory study of Press Research Association.
+90 (312) 945 15 56 | pressinarrest@gmail.com

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