“Copy-paste” justice versus the facts

1- Taraf newspaper published a series of news reports based on written records and voice recordings between 20-29 January 2010 suggesting that a group of army officers led by the First Army Commander at the time Çetin Doğan had been plotting to overthrow the Justice and Development Party (AK Party) government. Taraf’s coverage led to widespread discussion and debate in the country; and a group of intellectuals took it upon themselves to file a criminal complaint against the alleged plotters with the İstanbul Prosecutor’s Office. Following the complaint, the prosecutor’s office asked that the journalist who reported the initial leaks, Mehmet Baransu, provide the documents that formed the basis of Taraf’s story. Baransu, in turn, submitted a suitcase full of the documents’ originals to the prosecutor’s office. All of this was formally put on the prosecutor’s official records. The prosecutor later expanded the investigation into the coup plot, launching a criminal case against the alleged plotters with the Istanbul 10th High Criminal Court. 

2 -On Sept. 2, 2012, the Istanbul 10th High Criminal Court handed down harsh prison sentences to a group of military officers who allegedly devised the “Balyoz (Sledgehammer) Coup Plan,” ruling that the officers had “plotted to overthrow an elected government.” The higher court, the Supreme Court of Appeals, upheld the court’s decision. The convicted officers applied to the Constitutional Court, demanding a retrial; maintaining that their right to defense and right to a fair trial had been violated. The Constitutional Court ruled for a retrial on the grounds that there had been procedural flaws in the court process and that the right of defense of the convicted officers had been violated. The court that heard the second trial ruled for the acquittal of the alleged plotters on March 31, 2015. This coincided with a turning of the political tide in Turkey in favour of the military. 

However, the Istanbul Anatolia Deputy Prosecutor appealed the decision on June 8, 2015, maintaining that there was solid evidence clearly indicating that Çetin Doğan, the number one suspect in the case, and seven other retired officers, had in fact plotted to overthrow the government. The documents regarding the case, which has come to be known as the Balyoz trial, are still being examined by the Supreme Court of Appeals and a final ruling has yet to be made. 

3- Journalist Mehmet Baransu was detained on March 1, 2015, five years after Taraf’s series of news reports titled “Sledgehammer Coup Plans” were published. The prosecutor, without taking Baransu’s defense statement, referred him to a court demanding that he be arrested on charges of “Establishing an organization with the intent of committing a crime”, punishable under the first paragraph of the Turkish Penal Code (TCK) Article 220; “Using documents concerning state security outside their purpose, damaging documents concerning state security, and stealing or acquiring such documents by deception and damaging them(TCK Article 326, Para. 1); “Acquiring confidential information regarding the security of the state (TCK 327/1); and  “Revealing crucial information on state security and political interests that should remain confidential (TCK 329/1).”

4- On March 2, 2015, the İstanbul Fifth Criminal Court of Peace turned down the prosecutor’s demand for arresting Baransu under TCK 220/1 (Membership of a [criminal] organization) and under TCK 329/1 (Revealing information regarding state security and its political interests), but ruled to arrest Baransu under TCK 326/1 (Using documents concerning state security outside their purpose, damaging documents concerning state security, and stealing or acquiring such documents by deception and damaging) and 327/1 (Acquiring confidential information regarding the security of the state by deceit).

5 – Months later, we learned from the press that my clients Yasemin Çongar and Ahmet Altan, who were Taraf newspaper executives at the time, and journalists Yıldıray Oğur and Tuncay Opçin were among the suspects in the same investigation. Due to a confidentiality ruling on the case, we were unable to find out the exact accusations directed at the four journalists until the indictment was formally accepted by a court. 

6- My client Yasemin Çongar testified to the prosecutor on March 25, 2015, and my other client, Ahmet Altan, on May 11, 2016. During the interrogation by the prosecutor, the two journalists were essentially directed questions regarding the “Egemen (Sovereign) Operation Plan”; documents of war plans classified as “strictly confidential.” In their statements, both journalists said that in their capacity as Taraf editors at the time, they examined and published information, documents and voice recordings indicating that a group of officers led by First Army Commander Çetin Doğan had plotted to overthrow the AK Party government. They also stated that the information and documents published by the newspaper do not fall under the category of “documents that need to remain undisclosed for the security of the state or for its internal or external political interests.” They also maintained that apart from the said documents, they did not review or publish information regarding any military war plan. 

7- The indictment was finally prepared by Prosecutor Faruk Söker, nearly 16 months after the start of the investigation and Baransu’s arrest. It makes allegations against journalists Ahmet Altan, Yasemin Çongar, Mehmet Baransu, Yıldıray Oğur and Tuncay Opçin, and was accepted on June 20, 2016 by the İstanbul High Criminal Court. 

8 The accusations leveled against journalists Yasemin Çongar, Ahmet Altan and Yıldıray Oğur are listed on the second and third pages of the indictment as follows:

A-) Damaging, using outside the intended purpose of and stealing documents concerning the security of the state (TCK 326/1, punishable by between 8 – 12 years in prison).  

B-) Acquisition of documents regarding the security of the state (TCK 327/1, punishable by 3-8 years of imprisonment)

C-) Revealing information concerning the security of the state and its political interests (TCK 329/1, 5 to 10 years of imprisonment)

9- Based on the rules stipulated by the Law of Criminal Procedures (CMK) Article 170 – which clearly states that courts can issue sentences only based on the allegations listed in the Offenses and Conclusion sections – the prosecutor demands:

A total of 50 years each for journalists Ahmet Altan, Yasemin Çongar and Yıldıray Oğur under TCK 326/1, 327/1 and 329/1, and 72 years for Mehmet Baransu and Tuncay Opçin; accusing them of the same charges as the other three as well as with membership and administration of a terrorist organization.

10 – The indictment is 276 pages long. The first 46 pages are dedicated to the background and history of the Fethullah Gülen movement in Turkey and another six pages detail the concept of state secret. The rest of the indictment comprises a 150-page expert report prepared by the Military Prosecutor’s Office of the General Command of the Turkish Armed Forces – which has nothing to do with “strictly confidential” war plans, and the testimonies of the suspects. There is no reference to any evidence against my clients Yasemin Çongar and Ahmet Altan. 

11 The first 46 pages of the indictment detailing the Fethullah Gülen movement have been taken from the indictment against Cumhuriyet journalists Can Dündar and Erdem Gül; while the section on state secrets is taken from the prosecutor’s statement on the Dündar-Gül trial. The extent of “borrowing” from another indictment is such that Prosecutor Faruk Söker has left a paragraph that starts with the words “The Defendant Can Dündar” in the indictment. We will be questioning the legal basis of an indictment directly copied from another indictment and an opinion statement prepared by another prosecutor without citing any sources. 

12-  The accusations in the indictment, contrary to what news reports in the mainstream media suggest, are not about producing and publishing manufactured documents, or not, as stated in the words of some press organizations, “devising a conspiracy against military officers.” We can summarize the accusations leveled against Yasemin Çongar, Ahmet Altan and Yıldıray Oğur as “coming into possession of classified security documents crucial to state interests and exposing, using outside the intended purpose of and damaging the said documents.”

No document that should remain undisclosed to protect the security of the state, or its internal or external political interests, was published in Taraf daily’s issues printed on Jan 20 – Jan 29, 2010. The information and documents published are documents regarding a coup attempt against the elected government and transcripts of voice recordings, none of which have been denied by those featured in the recordings. 

These facts were expressed several times in the Constitutional Court ruling on the case of Mehmet Baransu dated May 17, 2016. The Constitutional Court ruling numbered 2015/7231 states: “..Classified information within the scope of the Egemen Operation Plan have not been printed in Taraf newspaper.”

It further states: “That the Egemen Operation Plan, the main basis for the accusations that led to the applicant’s arrest, was not published in any of the reports printed by Taraf has been stated both by the applicant and the ministry’s opinion statement.”

The newspaper’s administration at the time decided to publish the documents after reviewing three CDs and a DVD leaked to Taraf and finding their content – plans for staging a coup d’état — to be authentic, in keeping with the realities of the day, and up-to-date, arriving at the opinion that their publication would serve the common good and public interest. 

13- Since there is no accusation regarding manufacturing fake documents, such allegations will not be directed at the journalists during the trial. The main question in the trial, which will start in September, will be about whether the information and documents printed by Taraf under the headline “Balyoz Coup Plans”, is really a secret document regarding the security of the state. If the published plans are treated as “strictly confidential” documents regarding state security by the court, this will have grave consequences. The emerging picture will be one where information regarding a coup plot is protected by law, and where journalists writing about it are put on trial facing hefty prison sentences. 

However, when we examine the Constitutional Court ruling on Baransu announced three days prior, we see a completely different picture. The Constitutional Court has made mention of the fact that the Taraf daily did not publish any documents regarding state security and political interests of the state several times. This is what the accused journalists have said in their statements. Furthermore, this is what the prosecutor has stated in the indictment. 

This means that the accused journalists will be put on trial for coming into the possession of an obsolete war plan, for exposing its content and to top it all, for damaging it. Yet my clients have never seen such a plan, were never aware of such a plan, let alone publish it — and were certainly unable to damage something which was never in their possession.