Semra Pelek
In the case where journalist Fatoş Erdoğan and 20 people are tried over social media posts about the appointment of a trustee to the CHP, the prosecutor revised the "copy-paste" indictment with a supplementary indictment prepared between sessions. Because of the new indictment, the defendants' defense statements were taken again. The defendants reiterated that their constitutionally protected rights to expression and assembly had been violated. The court lifted the judicial control measures imposed on all defendants.
The third hearing in the case of 20 people — among them journalist Fatoş Erdoğan — tried over social media posts made in response to claims that a trustee would be appointed to the Istanbul provincial chair of the CHP was held at the Istanbul 9th Criminal Court of First Instance. The CHP is the Republican People's Party, Turkey's main opposition; a "trustee" (kayyım) is a state-appointed administrator who takes over from elected officeholders.
Fourteen non-detained defendants and their lawyers attended the hearing. Because of the high turnout, the hearing was held in the courtroom of the Istanbul 14th High Criminal Court rather than that of the Istanbul 9th Criminal Court of First Instance. The hearing began about 40 minutes after its scheduled time.
The presiding judge said a supplementary indictment had been prepared between sessions and that the defendants' defense statements would be taken again.
The chief prosecutor corrected the contradiction in the indictment with a supplementary indictment
The prosecutor who prepared the first indictment had sought to have the defendants punished for "publicly inciting the commission of a crime." However, the conclusion section of the indictment had additionally included the charge of "inciting the public to hatred and enmity or denigration" set out in Article 216 of the Turkish Penal Code (TCK). It had also emerged that the prosecutor had used, verbatim, another indictment prepared about the YouTube program "Soğuk Savaş" (Cold War).
The chief public prosecutor who prepared the first indictment corrected this contradiction with a supplementary indictment prepared before the third hearing. In the supplementary indictment, the defendants were charged only with "inciting the commission of a crime."
Because of the supplementary indictment, the court took the defense statements of all defendants again.
"A trial cannot be conducted by attributing intent"
Academic Emrah Gülsunar said that in his post he had stated that the appointment of a trustee was unconstitutional and that this gave rise to a "legitimate right of resistance" for the public.
Saying his post contained no element of crime, Gülsunar said: "I am a political scientist. I do not understand how a crime has been derived from the words 'legitimate' and 'resistance.' Here an intent is being attributed to me; I am told, 'This is what you meant.' In democratic countries, trials are not conducted by attributing intent. That only happens in Stalin's courts in the Soviet Union. Conducting trials by attributing intent does not befit our country."
The other defendants also said their posts contained no element of crime, that they had not encouraged anyone to commit a crime, and that freedom of expression and the right to assembly and demonstration are protected by the Constitution.
Fatoş Erdoğan: "Where in this is the incitement to crime?"
In her defense statement, journalist Fatoş Erdoğan said she did not understand why she was on trial.
Stating that her news-related social media posts contained no element of incitement to commit a crime, Erdoğan recalled that some people tried on similar charges had been acquitted.
"I looked into who has been tried for inciting the commission of a crime. Sedat Peker was tried for saying, 'We will shower in the blood of academics,' and was acquitted. Sevda Noyan was tried for saying, 'My list is ready, we can take out 50 people from our neighborhood,' and was acquitted. As for me, I wrote, 'CHP Istanbul provincial chair Özgür Çelik rolled up his sleeves.' How is this a crime? As a journalist, I reported something that happened — Özgür Çelik rolled up his shirtsleeves. Where in this is the incitement to crime? I am a journalist; I write what I see," she said.
Erdoğan recounted that she had been targeted and hit with plastic bullets during a police intervention while following a news story.
Saying that she had a camera around her neck and that pepper spray had been fired in her face even though she shouted, "I'm a journalist, stop," Erdoğan said: "I have been a journalist for years. For the first time in my life, I said, 'I won't be able to get out of here.' We were targeted and hit with plastic bullets."
Stating that the marks of three plastic bullets that struck her legs are still visible, Erdoğan argued that she was being tried because of her journalistic activities and demanded her acquittal.
Lawyer: "She is on trial for doing journalism"
Erdoğan's lawyer, Elif Ergin, said her client was being tried over posts she made and footage she shot in front of the CHP Istanbul provincial headquarters.
"My client conveyed the slogans chanted in front of the provincial headquarters by writing them in quotation marks; she reported the news. Moreover, the slogans in question do not carry any element of crime either. But my client is being tried because she reported them," she said.
Ergin stated that her client was being tried over a post reading, "Provincial chair Özgür Çelik arrived, took off his jacket, rolled up his sleeves," and over footage she shot in front of the CHP provincial headquarters, and said the right to impart news and the freedom of expression guaranteed by the Constitution and international conventions had been violated.
Ergin requested that Erdoğan be acquitted immediately.
Lawyers: "The prosecution's mistake turned into torture for the defendants"
The defendants' lawyers said the error that led to the preparation of a supplementary indictment could not be regarded as a simple material mistake.
The lawyers stated that while the first indictment sought punishment for one offense, its conclusion section included a different charge, and that before the third hearing the same prosecutor had been forced to issue a supplementary indictment to correct this contradiction. Stating that this showed the file had been prepared without sufficient care and attention, the lawyers said the defendants had been forced to give defense statements again because of the prosecution's carelessness.
Hakan Bozyurt, the lawyer for defendant Ebru Erbaş, also said that the rewriting of the indictment because of the prosecutor's error and the retaking of defense statements had turned into a form of torture for the defendants.
Bozyurt said his client's child, who has special needs, was studying abroad, but that she had been unable to see her child for about a year because of the overseas travel ban imposed on her.
Stating that his client had also been unable to attend meetings and fairs she needed to attend as part of her publishing activities, Bozyurt emphasized that in this process not only her freedom of expression but also her freedom of travel had been violated.
Bozyurt requested that his client be acquitted immediately and that the judicial control measures be lifted.
Judicial controls lifted
The court ruled to lift the judicial control measures imposed on all defendants. It also ruled that defendants whose statements had been taken would be excused from attending the hearings.
The court adjourned the hearing to Oct. 21 at 9:30 a.m. to take the statements of defendants whose defense statements had not yet been taken.
Bacground on the case
After Gürsel Tekin, appointed as trustee to the CHP's Istanbul provincial chair, announced on Sept. 8 that he would go to the provincial building, tense hours unfolded in front of the provincial headquarters. The Istanbul Governor's Office imposed a four-day ban on meetings, demonstrations and events in six districts. Heavy police measures were taken around the provincial building, and members of parliament and party members kept watch in front of the building throughout the night.
The General Directorate of Security (EGM) announced that proceedings had been launched against 39 people on allegations of making "provocative posts" during the process. A case was opened against 20 of them on a charge of "publicly inciting the commission of a crime." Prison sentences of six months to five years were sought for the defendants.
Among the defendants were journalist Fatoş Erdoğan, academic Emrah Gülsunar, publisher Ebru Oruç and Boğaziçi University master's student Abdullah Esin. Social media posts and news content were made the subject of accusations in the indictment.
Journalist Fatoş Erdoğan's news posts in front of the CHP provincial headquarters were also presented as evidence in the indictment. Erdoğan's posts conveying developments in front of the provincial building, as well as her posts relating to footage shot during the watch kept by CHP Istanbul provincial chair Özgür Çelik in front of the building, were made the subject of accusations.
Academic Emrah Gülsunar's post containing the statements, "The judiciary has come under the control of the ruling party and the decision it took is clearly unconstitutional. In this situation, a legitimate right of resistance arises for the public," was also included in the indictment.
Meanwhile, the defendants and their lawyers determined that the conclusion section of the first indictment had been copied from another indictment prepared earlier about the YouTube program "Soğuk Savaş" (Cold War). The supplementary indictment prepared before the case's third hearing also became a subject of debate for this reason.
