Deniz Tekin
Former Diyarbakır Bar Association President Cihan Aydın and 10 board members were acquitted in a trial under Article 301 of the Turkish Penal Code (TCK) for commemorating the Armenian Genocide.
A legal opinion jointly prepared by MLSA and Lawyers for Lawyers was presented in the final hearing, where Aydın stated, "The term genocide is an opinion, a thought. It's a call for confrontation. The state's job is not to prosecute those who speak, but to protect different opinions."
The trial of Cihan Aydın, the 2018-2020 president of the Diyarbakır Bar Association, and board members Muhlis Oğurgül, Ahmet Dağ, Erhan Aytekin, Fırat Üger, Gazal Bayram Koluman, Mehmet Akbaş, Serdar Çelebi, Tevfik Karahan, Ömer Şeran, and Özgür Yılmaz Biçen for "publicly degrading the Turkish Nation, the State of the Turkish Republic, the Grand National Assembly of Turkey, the Government of the Republic of Turkey and the judicial organs of the State" was held at the Diyarbakır 9th High Criminal Court.
While Teyfik Karahan, Ahmet Dağ, and Serdar Çelebi were absent due to excuses, other Bar executives and their attorneys were present. The hearing was attended by Diyarbakır Bar President Nahit Eren, Bar executives, MLSA Legal Unit attorney Fatih Aydın, representatives from the Association of Lawyers for Freedom (ÖHD), MLSA Case Monitoring Unit, and numerous lawyers. Extensive security measures were taken by riot police both outside and inside the courtroom.
The presiding judge warned that audio and video recording in the courtroom is a "crime" and that legal actions would be taken against violators.
The prosecution reiterated its previous opinion, seeking punishment for the bar executives under Article 301 of TCK.
Aydın: ‘Armenian Genocide, Kurdish issue not to be discussed in courts but in Parliament’
Cihan Aydın, the former president of the Diyarbakır Bar, first stated his disagreement with the prosecutor's opinion, mentioning that the Diyarbakır Bar has been repeatedly targeted by the judiciary and politics, leading to multiple lawsuits and investigations. He reminded the court of Hrant Dink and Tahir Elçi, who were targeted and then killed. The presiding judge, interrupting Aydın, asked him to focus on the charge under TCK 301.
Aydın continued, emphasizing that the Armenian Genocide and the Kurdish issue should be discussed in Parliament and political institutions, not in courts. "We are here because our politics constantly creates crises and refers them to the judiciary," he said.
‘How can we trust a judiciary that does not recognize the Constitutional Court's decision?’
Aydın highlighted that despite several acquittals in similar cases at the same courthouse, they are again on trial for the same accusation. Questioning the predictability of the law, he criticized the judiciary for not protecting them from being targeted by the Interior Minister. In response to the presiding judge's caution about deviating from the defense, Aydın replied, "It's the judiciary system that brings us here. We are a shame for Turkish justice. There's no more judiciary left when a judicial body does not recognize the Constitutional Court's decision. This trial is about freedom of expression. I won't ask for acquittal because I don't think we've committed a crime. We stand by our words."
Tension between the presiding judge and attorneys
Attorney Mehmet Akbaş expressed hope for a decision that would remove the barrier to freedom of expression, reminding the court of the precedents set by the European Court of Human Rights (ECtHR) and the Constitutional Court on cases involving Article 301 of TCK. Akbaş noted that Turkey had told the Council of Europe's Committee of Ministers that Article 301 was interpreted broadly and had been revised. "Despite these rulings from the ECtHR and the Constitutional Court, I am forced to stand trial here. This is the absence of legal predictability," he said.
During Akbaş's defense, police attempted to forcibly remove lawyers sitting in the front row of the audience section, leading to a dispute between the lawyers, police, and the presiding judge. Bar President Nahit Eren mentioned their request for a different courtroom for this multi-defendant trial was denied. The presiding judge advised against provocation, leading to a brief tension.
‘This trial was launched to silence the Diyarbakır Bar Association’
Muhlis Oğurgül, defending next, stated that the purpose of this trial is to prevent future generations from making such statements, asserting, "We won't be silenced by these trials. Our statement is not excessive." Other defendants agreed with their colleagues' statements and requested acquittal.
Attorney Mehmet Emin Aktar questioned where the crime was in the statement, "I respectfully remember the victims of the genocide who suffered great tragedies in 1915." Aktar argued, "This case was opened to silence the Diyarbakır Bar Association, the most outspoken institution in this city. We want this to end today." Diyarbakır Bar President Nahit Eren criticized the security measures in the courtroom, stating, "Normally, security measures are taken in murder or organized crime cases. Today, we're not dealing with such a case. Those uncomfortable with our ideas have caused these measures. We've been demanding to confront the truth for years. Do you consider the Union and Progress Committee that made the decision in 1915 a part of the Republic of Turkey? What does the 1915 event have to do with the Grand National Assembly of Turkey? We don't even need to discuss freedom of expression here."
On behalf of all defendants, attorney Fatih Aydın from the MLSA Legal Unit presented a 15-page scientific opinion jointly prepared by MLSA and Netherlands-based Lawyers for Lawyers. Aydın stated in the hearing:
"The opinion aims to guide the legality of the criminal prosecution against the defendants in the context of international and European law. Lawyers for Lawyers and MLSA conclude that the criminal provisions of TCK Article 301(1) and Article 53, attributed to the defendants, are incompatible with international and European standards regarding freedom of expression and the role and protection of lawyers. It has been concluded that not only the conviction but also the prosecution of the defendants under these allegations constitutes an unlawful interference with the right to freedom of expression. Additionally, the current indictment violates international and European documents regarding the role and protection of lawyers."
After the attorneys' defenses, when asked for his final word, Cihan Aydın expressed hope that the panel would not be the first to convict on this matter, inviting them to comply with the Constitutional Court and ECtHR rulings. Other defendants requested acquittal as their final word.
The panel adjourned the hearing to deliberate and announced the verdict after about 20 minutes, acquitting all 11 bar executives, finding no legal elements of the alleged crime.
After announcing the verdict, the presiding judge addressed the attorneys, saying, "I disagree with your criticisms that Turkish justice is unpredictable. Even if we disagree with some ideas and opinions, we make decisions according to the law."
