Who Lost; Tolga or the Judiciary?!

We have witnessed a striking event that reveals the state of justice, which is the foundation of the state, or the 'mülk'.

We are talking about the incident where journalist Tolga Şardan was arrested on charges of “publicly disseminating misleading information” following his article regarding a judicial report allegedly submitted by the MIT (National Intelligence Organization) to the Presidency, and his subsequent release 6 days later under judicial control measures, including a travel ban.

Of course, like the saying, “God makes his beloved servant lose his donkey, then makes him find it,” we were happy about Şardan's release; but are there not things that need to be asked and questioned?

Let us first recall why Şardan was arrested and held in prison for 6 days on a charge that does not even carry a prison sentence.

The grounds for arrest by the Criminal Judgeship of Peace were as follows:

“..... when evaluated together with other information and documents in the file, there is concrete evidence indicating the existence of strong suspicion that the suspect committed the alleged crime, and due to the amount of punishment foreseen in the law for the alleged crime, the importance of the alleged crime, and the fact that it is among the serious 'catalog crimes'... and since the investigation has not yet been completed, there is a suspicion that the suspect may destroy or hide evidence, or exert pressure on witnesses and victims... and having reached the conclusion that a lighter protection measure, namely judicial control, would be 'insufficient' and would not serve the purpose at this stage, it is decided that he be arrested...”

We asked the following regarding these grounds:

“It is just a news report. What other documents could there be in the file? The alleged crime is not within the scope of 'catalog crimes'; is this ignorance, or was it a copy-paste job? What evidence could Şardan destroy or hide? Who are the witnesses and victims that Şardan could exert pressure on? Is he going to pressure the Presidency or the MIT?”

Now let's go back a little.

Upon the request of the Istanbul Chief Public Prosecutor's Office, while Tolga Şardan was being detained at his home in Ankara on November 1, his digital devices were seized without their images being taken. Brought to the Ankara Courthouse, Şardan first gave his statement to the prosecutor in Istanbul via SEGBİS (Audio and Video Information System).

After the interrogation was completed, the Prosecutor did not feel the need to inform what kind of request he had made regarding Şardan. Şardan and his lawyers learned that he had been “referred to the criminal judgeship of peace with a request for arrest” from the clerk on the SEGBİS system.

Then, Şardan and his lawyers appeared before the duty criminal judge again via a SEGBİS connection. Ultimately, for the reasons we summarized above, Şardan was arrested and taken to Sincan Prison. The next day, he was transferred to Silivri Prison without even notifying his family or lawyers.

This time we said;

“Hey, you should have waited for a week. The arrest decision hasn't even been appealed yet. There is a 7-day period; let this appeal be made, let the appeal be rejected, and then you can take him.”

Let us also underline the statements made by Minister of Justice Yılmaz Tunç, who was a guest on Hürriyet on the second day of Şardan's detention, regarding the incident. In summary, he said:

“Journalist Tolga Şardan wrote an article saying, ‘A MIT report regarding corruption in the judiciary has been submitted to the Presidency.’ An investigation was opened, he was detained and referred for arrest. It is not possible for us to interfere with the decisions made by the judiciary here. A MIT report is mentioned here. However, it was announced by the Directorate of Communications that there is no such report [The Directorate of Communications made this statement 10 minutes after Şardan was arrested - MY]. Since there is no such report, this is disinformation and fake news. The investigation is being conducted according to Article 217/a of the Turkish Penal Code (the crime of publicly disseminating misleading information), which foresees a prison sentence of 1 to 3 years. We will all wait for the result of the investigation together. Our hearts would not agree to the arrest of any journalist. Everyone can write what they want. But this also has a limit... Is it right to say 'There is' to a non-existent MIT report?”

In the continuation of his words, Minister Tunç noted that they are “striving to further increase trust in the judiciary.”

Both Decisions Belong to the Same Judge

The result? Upon the objection of his lawyers, Tolga Şardan was released last night and returned to Ankara from Istanbul. Let's look at the grounds for his release.

“When the entire scope of the investigation file, the nature of the alleged crime, and the fact that all evidence has been collected are evaluated together, it is understood that the application of judicial control measures regarding the suspect will be sufficient; therefore, with the acceptance of the objection of the suspect's defense attorneys, it is decided that the suspect Tolga Şardan be released under judicial control by not leaving the country...” it was stated.

What happened to “the investigation has not yet been completed,” meaning not all evidence had been collected?.. Was there a suspicion that Şardan would destroy or hide evidence, or exert pressure on witnesses and victims?.. And furthermore, was the alleged crime among the “catalog crimes” and would the application of judicial control measures be “insufficient” at this stage?

The absurdity is here: the same judge made both decisions. In this case, shouldn't one ask, “What changed in 6 days? Or did the prosecutor and the judge not know the laws?”

It is probably impossible for them not to know. And if they didn't know, they should have learned that night; because Şardan's lawyers explained everything one by one during both the prosecutor's and the judge's interrogations.

For example, Attorney Naci Uğur said, “When we look at the reasons for arrest considered as crimes in CMK (Criminal Procedure Code) 100, we see that the article we were referred under is not among the catalog crimes.” However, the Prosecutor requested “a decision for arrest in accordance with CMK 100 and other articles.”

During the judge's interrogation, Attorney Yasin Gökberk Çınar also said the following:

“As of the point reached, the legal consequences of the crime have not occurred. The relevant crime article foresees a sentence between 1 and 3 years. When the execution phase is reached, even if 3 years are given, there will be no execution, and probation provisions will be applied. A possible arrest decision will violate his constitutional rights. We request that the client be released directly, otherwise, judicial control provisions should be applied.”

Ankara Bar Association President Attorney Mustafa Köroğlu gave the following warning:

“Mr. Tolga's presence here was perhaps a 'mistake', but I think this mistake will be corrected. Justice should not tie a knot it cannot untie.”

But they either didn't hear or didn't listen, and they arrested Şardan.

Who gained and who lost with this decision?

Yes; 6 days, perhaps worth 6 years, were stolen from Şardan's life. The crime of “deprivation of liberty” was openly committed.

Clearly, some forces within the judiciary attempted to “show their strength”!..

But, before Şardan, it was the Turkish judiciary that lost once again.

At least this time, will those responsible be held accountable, and will the intentions behind the incident be investigated?

If not; won't Minister of Justice Yılmaz Tunç's words, “We are striving to further increase trust in the judiciary,” remain empty again?!

Müyesser YILDIZ

November 7, 2023