- An Istanbul court heard the complainant in a closed interim session without notifying the defendants or their lawyers in a trial against five journalists, preventing the defense from questioning him and prompting a motion to recuse the judge on grounds of violating fair trial principles.
- The case stems from the publication of a phone call with court-appointed expert Satılmış Büyükcanayakın, whose name had been publicly disclosed by Istanbul Mayor Ekrem İmamoğlu.
- Journalists Barış Pehlivan, Seda Selek, Serhan Asker, Suat Toktaş and Kürşad Oğuz are charged with “recording and publishing non-public conversations between individuals.”
Semra Pelek
The sixth hearing was held at Istanbul’s 54th Criminal Court of First Instance. Only defendant Kürşad Oğuz attended, while lawyers for the other journalists were present.
The presiding judge said a previous decision lifting judicial control measures against the journalists had been appealed by the prosecutor and that the file had circulated among three High Criminal Courts during the interim, creating what he described as a “shadow file.” However, the case file later showed no documentation of such circulation. It indicated that the objection had been rejected on Feb. 3 by the Istanbul 41st High Criminal Court.
The judge also said transcripts of defense statements previously taken via the court’s video system (SEGBİS) had not yet been prepared.
Complainant heard in interim session without notifying defense
It emerged during the hearing that Büyükcanayakın — who had failed to attend four previous hearings and for whom a compulsory appearance order had been issued — had appeared at court on Jan. 21. The court opened an interim session and took his statement as the complainant.
The interim session was held without notifying the defendants or their lawyers. As a result, the complainant and the journalists did not face each other in court, and defense lawyers were unable to put questions to him.
Lawyers argued that this violated the “principle of confrontation,” a cornerstone of criminal procedure requiring that defendants and those testifying against them appear face to face in court, allowing for direct questioning.
Barış Pehlivan’s lawyer, Hüseyin Ersöz, said they had filed a motion to recuse the judge about an hour earlier.
“We believe you have lost your objective impartiality,” Ersöz told the court. “This case was opened because of journalistic activity, and journalists have been deprived of their freedom. They are being accused over an interview with the complainant.”
He described the decision to hear Büyükcanayakın in an interim session without informing the defense as a violation of the right to a fair trial.
“The defendants and their lawyers are not brought face to face with the complainant. Our right to ask questions is being obstructed. This shows that the complainant is deliberately not being confronted with the defendants and their counsel. This practice casts doubt on your impartiality. We request your recusal and withdrawal from the case,” Ersöz said.
Another defense lawyer, Enes Ermaner, recalled that the court had previously deemed it mandatory to hear the complainant and had issued a compulsory appearance order. “However, the complainant was heard in an interim session and we were not notified. Our right to question him was blocked. This is also a violation of fair trial principles,” he said.
The presiding judge responded, “Of course it is your right to seek my recusal — I am being recused for the first time,” before rejecting the motion and ruling that the request be sent to the Istanbul duty High Criminal Court for review.
The next hearing is scheduled for June 12 at 2:30 p.m.
What did Büyükcanayakın say?
According to the Jan. 21 interim session minutes, Büyükcanayakın told the court:
“Although I was unable to attend the hearings in your court, I could not attend due to health reasons. Also, on those dates I had more than one funeral and was dealing with them.”
“I saw online news reports about the compulsory appearance order issued by your court. Because of my health issues and the possibility that I might be out of town for the Feb. 13 hearing, I want to give my statement now.”
“I am a registered expert with the regional board of experts. I have expertise in tax, public tenders and commercial financial matters. I have served as an expert in many cases on these subjects and continue to do so.”
“After Ekrem İmamoğlu’s press conference on the date of the incident, I received a call from an unknown number. I answered, and he said he was Barış Pehlivan.”
“I told him I did not want to speak. He persistently wanted to ask me questions about the incident and invited me to Halk TV. I responded that I would not be involved.”
The court ruled, “based on the possibility that he may have suffered harm from the alleged offense, and pursuant to Article 237 and following of the Criminal Procedure Code, that the complainant be admitted to the hearings as an intervening party.”
Background of the case
The journalists are on trial for publishing a phone conversation with Büyükcanayakın after his name was disclosed to the public by Mayor İmamoğlu. The case has been ongoing for more than a year.
For four hearings, the complainant did not appear in court. Law enforcement officers were reportedly unable to locate him at his registered address, and no one in the vicinity was found who knew him. A compulsory appearance order was therefore issued.
Due to the complainant’s absence, the trial had stalled. A travel ban imposed on the journalists effectively became punitive, with the defendants saying they were unable to see their children or continue their professional activities.
Why the principle of confrontation matters
In criminal proceedings, the principle of confrontation requires that defendants and those testifying against them face each other in court and that the defense be able to exercise the right to direct questioning.
This principle is considered vital for several reasons:
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Right to cross-examination: The defense must be able to directly question the complainant to test the accuracy of statements.
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Direct observation by the judge: The judge should base the decision not only on written case files but also on evidence debated and heard face to face in court.
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Equality of arms: The prosecution and defense must be able to challenge evidence under equal conditions.
Hearing the complainant in an interim session without notifying the defendants and their lawyers removes the defense’s right to question him, effectively sidelining the defense and rendering the proceedings one-sided.
For this reason, the lawyers argued that the deliberate avoidance of confronting the complainant with the defendants violated fair trial guarantees and undermined the appearance of judicial impartiality.
