Our judiciary has made such a leap in time!

For years, I have been writing about other people's cases. With your permission, today I would like to talk about a case that, on the surface, concerns me, but in the long run, will serve as a new shackle for all journalists.

Those who follow will remember; in 2018, while I was at Odatv, I reported on one of the coup trials held in Ankara. The significance of this report was that the state's credible secret witness, codenamed Abdullah—whose testimony led to the arrest and conviction of hundreds of soldiers—had also made allegations of being a "FETÖ member" against the then-Chief of General Staff, Hulusi Akar.

Akar applied to the court on the same day and had an access ban placed on our article. Furthermore, he filed both a criminal complaint and a 250,000 lira compensation lawsuit against Odatv and me.

Akar, who complained not only about the statements of codenamed Abdullah but also about almost all the news I wrote about him, not only claimed that we aimed to "direct the hatred and animosity of society toward him" with these articles, which he described as "imaginary, unrealistic, and slanderous," but also implied that we were "serving FETÖ."

Upon this, I filed a counter-lawsuit for 5 lira against Akar. Naturally, the two cases were merged, and I became both the defendant and the plaintiff.

Coincidentally, while the case was ongoing, I was detained in June 2020 on charges of "political and military espionage." While in custody, this charge was changed, and I was arrested for "obtaining secret information and documents of the state."

The case in question concluded on September 10, 2020, while I was in prison, and a compensation penalty of 20,000 lira was ordered. My 5 lira counter-lawsuit was rejected.

A REMARKABLE DECISION FROM THE APPELLATE COURT

Let us come to what happened during the mutual appeal process regarding this decision.

The relevant chamber of the Ankara Regional Court of Justice (Appellate Court) unanimously overturned the local court's decision on April 6, 2022, with the following findings and evaluations:

"It has been observed that the plaintiff was the Chief of General Staff at the time of the incident... in the news report; it was stated that it was alleged the plaintiff was a FETÖ member based on the testimony of the secret witness heard in the trial of some defendants, and it was seen that the defendant author did not make a concrete accusation that the plaintiff was a FETÖ member, but rather that the secret witness's statements regarding the plaintiff were announced to the readers. Although the plaintiff's attorney claimed that the secret witness did not explicitly make such a statement about his client, an examination of the transcript of the hearing where the secret witness Abdullah's testimony was taken shows that he explicitly alleged the plaintiff was a FETÖ member, and these statements were conveyed to the readers in the news subject to the lawsuit. The defendant journalist did not make an accusation against the plaintiff, a false accusation, or a statement constituting an attack on personal rights in the article subject to the lawsuit. Considering the position the plaintiff held, it is clear that the secret witness's allegations were newsworthy. There is public interest in the news. Considering that the headline and expressions used in the news subject to the lawsuit were intended to attract the reader's attention as required by journalistic style and were lawful, and that the news was produced in accordance with the law within the framework of society's right to information and other constitutional rights, it has been concluded that the balance between substance and form was maintained in the article, that there was no social need in a democratic society requiring a limitation on the defendant's freedom of expression and press due to the news in question, that the limits of press and freedom of expression were not exceeded, and therefore, the conditions for awarding non-pecuniary damages in favor of the plaintiff were not met, and it was not deemed appropriate for the court of first instance to rule for non-pecuniary damages in favor of the plaintiff with an erroneous evaluation."

THE CHAMBER PRESIDENT WAS DEMOTED TO A REGULAR JUDGE

Before moving to the Supreme Court (Yargıtay) stage of the case, let us note this.

While Hulusi Akar was the Minister of National Defense, he filed a 500,000 lira compensation lawsuit against the then-CHP Group Deputy Chairman, and current CHP Chairman, Özgür Özel, due to a speech he made during budget negotiations in the Turkish Grand National Assembly. This case, which resulted in a 15,000 lira compensation penalty for Özel, was also rejected by the same panel at the Appellate Court 14 days after the decision regarding me.

Whether there is a connection or not, who knows; following these decisions, the president of the relevant chamber was appointed as a regular judge in Ankara with the HSK (Council of Judges and Prosecutors) summer decree published in June!..

I WAS SUPPOSED TO VERIFY THE WITNESS'S STATEMENT

The Supreme Court stage of the 20,000 lira compensation lawsuit concluded on March 7. The 4th Civil Chamber, which overturned the Appellate Court's decision by a majority of three to two, made the following incredible evaluation in the name of journalism after accepting that "the essence of the publications was based on secret witness statements":

"Although the essence of the publications was based on secret witness statements, it is understood that there is no concrete information or evidence regarding the accuracy of the witness statements, that there is no criminal investigation or prosecution initiated regarding the issues attributed to the plaintiff, that it cannot be accepted that the public has a right to be informed about the dissemination of unverified and/or false information, that there is no public interest or social concern in the publications, and that it is not possible to evaluate the words and expressions used within the scope of freedom of expression and the press."

After this decision by the Supreme Court, the file returned to the relevant chamber of the Appellate Court.

Am I the one who will verify who is a "FETÖ member" and who is not?

That was the hearing for this the other day.

Hulusi Akar's lawyer requested compliance with the Supreme Court's reversal decision, while my lawyers requested that the chamber insist on its previous decision.

After the chamber unanimously decided to abandon its decision from two years ago and comply with the Supreme Court's reversal, it asked for our statements.

What did we say?

Akar's lawyer said, "My client's personal rights have been attacked. The limits of freedom of expression and criticism have been exceeded. We want our lawsuit to be accepted in its entirety."

I stated that I reported on statements made in a case, that I have done thousands of similar news reports, but that this is the first time I have faced such a lawsuit, and I explained the following:

"The owner of the allegation against Hulusi Akar is the state's secret witness, codenamed Abdullah. I did not make any commentary in the news. As a result of the statements made by codenamed Abdullah, especially regarding July 15, hundreds of officers were sentenced to aggravated life imprisonment. In other words, the courts gave credence to this witness's statements. Now, the Supreme Court has taken our law to a new level with this decision. It has decided that I should have verified codenamed Abdullah's allegations about Hulusi Akar and then written about them. The ones who will do this are the investigation and prosecution authorities, as in other trials. I am obligated to convey what is said. I wish our courts had investigated codenamed Abdullah's allegations about Hulusi Akar, as they did with other soldiers, reached a conclusion, and I could have reported that result. However, Hulusi Akar has avoided being held accountable not only to Parliament but also to the courts. It is understood that this decision by the Supreme Court is extremely forced and likely political. Since I know what happens to panels that act in accordance with the law in all the trials I follow, I will not make any requests from you. But I would have liked you to insist on your old decision just to think that there are still crumbs of law left."

THE DECISION CHANGED ALONG WITH THE PANEL

My lawyer, Erhan Tokatlı, also emphasized that the Appellate Court's previous decision was correct and the Supreme Court's decision was political, and spoke as follows:

"My client's act is in the form of conveying a lived event that is newsworthy within the scope of the journalism profession to the public. She reported what codenamed Abdullah said at the hearing without adding commentary. If there is a crime, the perpetrator is not my client, but the secret witness codenamed Abdullah who gave this statement. The partial inspiration for the Supreme Court's reversal justification is the understanding stated by Hulusi Akar when filing the lawsuit: 'I am the Chief of General Staff. I am exempt from all kinds of ideas and criticism.' Such a thought should not be accepted in a modern legal system. It is not my client who is being tried here, but the journalism profession. My client has no obligation to investigate the accuracy or reality of codenamed Abdullah's statements."

Upon Attorney Tokatlı's reminder that "nothing against us has entered the file since your chamber's decision," it was noteworthy that the President said, "The panel was different." Attorney Tokatlı replied, "How can such a thing be? The court is not the judge's property. The chamber has continuity."

As for my other lawyer, Serdar Öztürk; first, let me convey his statements that went into the records.

"There is a price for writing the truth. My client is currently paying this price. The decision to be made against us will be overturned by the Constitutional Court and the ECHR. We also do not believe that the Chief of General Staff was taken captive on the night of July 15." he said.

Apart from this, he made various evaluations regarding Hulusi Akar and July 15. Just in case, I will not write them down. You never know, I might get sued for reporting those too. I will only share this: He reminded that Serdar Atasoy, who was appointed as the Intelligence Chief of the Land Forces Command in 2020 when Hulusi Akar was the Chief of General Staff, turned out to be a "FETÖ member" and was arrested.

RESULT?

The chamber that rejected the 20,000 lira compensation penalty 2 years ago, this time ordered me to pay 20,000 lira to Hulusi Akar with legal interest since 2018, while rejecting the 5 lira lawsuit I filed.

After this decision by the Supreme Court, it is understood that reporting on what is said in hearings or, for example, the allegations of opposition parties without verifying their accuracy will be considered a "crime."

If this isn't called a "leap in time," what is?!

Patience!.. It won't be long before we are asked to prove that someone has eyebrows above their eyes just to write, "He has eyebrows above his eyes"!..

Müyesser YILDIZ

October 18, 2024