PEN Norway: Turkey Indictment Project Final Report 2020 The study of 12 Indictments in Freedom of Expression Cases in Turkey, with Articles on the Rule of Law. PEN Norway Turkey Indictment Project Final Report, 2020 © PEN Norway, 2021 Authors of this report: Akbaş, Kasım Akkızal, Berna Beck, Hannah Dent, Kevin Ertekin, Orhan Gazi Fondi, Clarissa Fujita, Aska Heggdal, Heidi Lila-Mehta, Sarah Stockford, Caroline Uysal, Şerife Ceren List of Abbreviations AKP - Justice and Development Party BHRC - Bar Human Rights Committee (of England and Wales) CCPE - Consultative Council of European Prosecutors CEPEJ - Council of European Commission for the Efficiency of Justice in Europe CoE - Council of Europe DHKP/C - Revolutionary People’s Liberation Party/Front DİHA - Dicle News Agency ECHR - European Convention on Human Rights ECtHR - European Court of Human Rights FETÖ/PDY - Fetullah Gülen Terror Organisation/Parallel State Structure HDP - People’s Democratic Party HPG - People’s Defence Force HRC - Human Rights Committeee HSK - Council of Judges and Prosecutors HSYK - High Council of Judges and Prosecutors ICCPR - International Covenant on Civil and Political Rights ICIJ - International Consortium of Investigative Journalists ICJ - International Commission for Jurists ICTA - Information and Communication Technologies Authority KCK/KCU - Kurdistan Communities Union METU - Middle Eastern Technical University MIT - National Intelligence Organisation NGO - non-governmental organisation PKK - Kurdistan Workers’ Party RSF - Reporters Without Borders TCPC - Turkish Criminal Procedure Code TPC - Turkish Penal Code TSK - Turkish Armed Forces YPS - Civil Defense Unit (Kurdish) UN - United Nations UTBA - Union of Turkish Bars Associations (UN) WGAD - Working Group on Arbitrary Detention PEN Norway: Turkey Indictment Project Final Report 2020 Study of 12 Indictments in Freedom of Expression Cases in Turkey, with Articles on the Rule of Law. Index Page FOREWORD TO THE FINAL REPORT Page 1 01 INDICTMENT INTRODUCTION Pages 2-7 02 TURKEY V BERZAN GÜNEŞ Pages 8-14 03 TURKEY V OSMAN KAVALA & OTHERS Pages 15-34 04 TURKEY V NEDIM TÜRFENT Pages 35-45 05 TURKEY V PELIN ÜNKER Pages 46-54 06 TURKEY V DENIZ YÜCEL Pages 55-68 07 MIT NEWS TRIAL Pages 69-80 08 THE BÜYÜKADA TRIAL Pages 81-92 09 CUMHURIYET INDICTMENT Pages 93-113 ŞEBNEM KORUR FINCANCI, EROL Pages 114-122 10 ÖNDEROĞLU, AHMET NESIN TURKEY V. OSMAN KAVALA AND HENRI Pages 123-136 11 JAK BARKEY. ‘THE ESPIONAGE CASE’ 12 TURKEY V AHMET ALTAN & OTHERS Pages 137-148 REYHAN ÇAPAN, HÜSEYIN AYKOL, Pages 149-158 13 EMIRE EREN KESKIN 14 JUDICIAL ADMINISTRATION Pages 159-168 15 IS THIS JUSTICE IN YOUR WORLD? Pages 169-175 LEGAL PRACTICE AND BAR Pages 176-185 16 ASSOCIATIONS – WHERE TO NOW? WHAT IS THE COUNCIL OF JUDGES AND Pages 186-191 PROSECUTORS IN TURKEY (HSK) POINT ZERO OF A TRIAL: Pages 192-201 17 THE INDICTMENT CONCLUSION AND Pages 202-207 18 RECOMMENDATIONS PEN Norway Turkey Indictment Project 2020 Foreword to the Final Report “As President of PEN Norway I am pleased with the performance of the Turkey Indictment Project. It combines both our main objective of monitoring and supporting human rights, especially the rights of freedom of expression and freedom of the press with the vitally important right of every citizen in Turkey to receive a fair trial. We are proud to be working with outstanding lawyers and hope that our efforts will demonstrate to the global community our determined support of the human rights of our colleagues and friends in Turkey.” Kjersti Løken Stavrum President, PEN Norway PEN Norway is an independent and non-profit membership organisation founded in 1922, dedicated to defending international rights of freedom of expression, linguistic rights and to supporting writers at risk and writers in prison. PEN Norway is the Norwegian branch of PEN International - the world’s largest writer and freedom of expression organisation. PEN Norway’s goal is that everyone should have the right to express themselves freely. PEN Norway has been monitoring trials in Turkey for 30 years. The trial monitoring side of the work increased significantly following the attempted-coup of 2016 and ensuing lengthy State of Emergency, during which time 185 media organisations were shuttered by decree and great numbers of journalists were imprisoned and subsequently put on trial. PEN Norway monitored a large number of trials at Çağlayan courthouse and at Silivri prison and from this work the indictment project was designed, to record the apparent injustices befalling our colleagues working in the field of journalism, the media and civil society in a practical way that could lead to supporting their right to a fair trial. Twelve indictments in cases involving freedom of expression, the media and civil society were studied in 2020 by a team of legal experts from Norway, Austria, Turkey and the United Kingdom. The methodology, of determining whether the indictments met with the Turkish standards laid out in Law 170 of the Turkish Procedural Code and Article 6 of the European Convention on Human Rights, to which Turkey has been a signatory since 1954, was developed by the team as a whole. In addition to the twelve indictment reports herein, three academic legal articles and one opinion piece were commissioned. In addition, in order to elucidate aspects of the judicial system and legal defence profession that underwent drastic changes in 2020, a series of infographics were produced to present clearly the judicial process in Turkey, the makeup of the body charged with selecting and appointing prosecutors and judges, the HSK, and to demonstrate the wide-reaching changes made to the selection of representatives of bar associations in Turkey for the Union of Turkish Bar Associations. The project was launched to a global audience, online, on September 30, 2020. The aim of the project is to study the potential shortcomings in indictments in cases involving freedom of expression in Turkey and to make recommendations for the improvement of standards in their writing. We are proud that our reports are already being cited in cases at High Criminal Court level in Turkey and in applications to the Turkey’s Constitutional Court and the European Court of Human Rights. The project was sponsored in 2020 by the Norwegian Ministry of Foreign Affairs, the Consulate of Sweden in Istanbul and the Heinrich Böll Foundation. PEN Norway expresses its gratitude to the team working on the Indictment Project; to all the legal experts involved in 2020; to the Bar Human Rights Committee of England and Wales, the Clooney Foundation for Justice at Columbia University, to our Turkey Coordinator and to the authors of the articles and infographics presented in this report. The project continues in 2021. Caroline Stockford Turkey Adviser PEN Norway February, 2021 1 01 PEN Norway Indictment Project Introduction by Sarah Mehta, Columbia Law School Human Rights Clinic & Institute, TrialWatch 01 PEN Norway Indictment Project Introduction by Sarah Mehta, Columbia Law School Human Rights Clinic & Institute, TrialWatch1 The right to a fair trial is often thought of as protection for the accused but it also guards the justice system against government abuse. Courts and their officials—in particular, judges and prosecutors— play an essential role in upholding the rule of law, serving as a bulwark against excessive or arbitrary executive power. Nevertheless, governments around the world have upended this traditional role of courts, instead employing them to punish critics and consolidate power. Journalists, activists, academics, and others have increasingly been the target of arrest and prosecution, with governments creating new laws to censor speech and using the criminal justice system to punish dissent. Using the legal system (both figuratively and literally) allows states to perform to the public and other states an outward showing of respect for legal process and norms. In fact, this manipulation has a corrosive impact on the rule of law, undermining the integrity of courts and the laws they enforce as well as public confidence in the justice system. In recent years, the judicial system in Turkey has faced numerous assaults on its independence, with the executive expanding its control of the judicial and prosecutorial institutions.2 After the failed coup attempt in 2016, approximately 20 percent of judges and numerous prosecutors were removed from office and replaced with pro-government appointees,3 and the independence of the judiciary was further corroded by a 2017 law that put the Council of Judges and Prosecutors (which appoints and removes judges and prosecutors in Turkey) more firmly under the authority of the President.4 In the years since the failed coup, hundreds of lawyers have been arbitrarily detained and prosecuted, often facing charges ostensibly for their representation of government critics and other clients facing pretextual terrorism charges.5 More recently, the government has moved to undercut attorney bar associations, which, beyond licensing attorneys, have played a critical role in documenting fair trial and other human rights violations in Turkey.6 In July 2020, the Turkish Parliament passed a controversial law changing the bar association system to allow for multiple new associations, thereby diluting the voices of existing and active bar associations and, as the Venice Commission warned, threatening to further politicize the legal profession and so endanger the independence of lawyers.7 Beyond these structural and institutional