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Concerning the investigation process

There is a prosecutor’s record in binder number 30; its name is EX OFFICIO INVESTIGATION COMMENCEMENT RECORD. According to this record, which is undersigned by Republic Prosecutor Murat İnam and clerk Sevgi Karadeniz, the process that has lasted until we were brought before the court today and caused us to be detained for nearly nine months started on 18 August 2016. The following is entered in the record:
Yayınlanma tarihi: 12 Ağustos 2017 Cumartesi, 17:52

[Haber görseli]

‘Since there was mention in columns and news reports appearing in certain press and publishing outlets that Cumhuriyet newspaper had been taken over by the PKK and FETO/PDY terrorist organisations and the newspaper was working in accordance with these organisations’ interests, a coup attempt was staged on 15 July 2016 in which there was a bid by a group in military attire to overthrow the government, the group that attempted the coup named itself the peace at home council, an article entitled ‘Peace in the world, so at home what?’ was published in Aydın Engin’s column in Cumhuriyet newspaper’s 13 July 2016 edition, there exists suspicion that Cumhuriyet newspaper’s managers have connections with the PKK and FETO/PDY armed terrorist organisations and the opinion was reached that there was adequate suspicion to launch this investigation, an ex officio investigation was commenced. 18 August 2016.’

The first thing that Republic Prosecutor Murat İnam did on 18 August 2016 on which he launched the ex officio investigation was to send a letter to the Financial Crimes Investigation Board (FCIB). In this instruction letter, request was made for a financial report starting from 1 January 2013 showing the financial relationships between natural and juristic persons under investigation in relation to the PKK and FETO/PDY and a total of eleven people, being the board of directors’ members (five people) and second-degree authorised signatories (four people) of Yenigün Haber Ajansı Basın ve Yayıncılık AŞ which publishes Cumhuriyet newspaper, two editors-in-chief who had served over this period (one of them was at the same time a board of directors’ member) and a person named as an editor. The next investigatory procedure saw him take a witness statement on 22 August 2016, the first Monday following the weekend. The witness’s name was Cem Küçük. Two days after this, the Istanbul Police Directorate Anti-Terrorism Branch, serving as the judicial police, was notified in writing of the investigation. It is curious and noteworthy that according to the file a hasty witness statement was procured as soon as the investigation had been launched. The launching of the investigation by the prosecutor relying on the said person’s testimony gives an adequate idea of the seriousness, quality and subsequent fate of the investigation. There will be a general assessment of mine regarding witness statements in later sections of my comments. But the need arises just now to point out the difference in formal terms of this witness statement from the others, because, until 31 October on which the search, seizure, apprehension and arrest operations were carried out, no need was felt to hear any other witnesses following this person whose statement was obtained on the fifth day after the investigation was launched. This means that Cem Küçük was deemed to be an acceptable and sufficient witness. All his statements conflict with the material truth and facts. An investigation stage that started with just such a witness is proceeding with such a lack of merit, seriousness and quality. How? Let me explain. But, first, I wish to point to an important consideration. The aim in penal proceedings is to investigate the truth to reach the truth. If we seek the truth in fact and not in fiction we have a chance of reaching it. If we take personal interpretations and analyses, rumour, speculation and guesses as data in place of facts, there is no chance of reaching the truth. Consequently, I will endeavour to base my own answers to an assertion that has entirely been dreamt up on concrete documents, corroborated information and actually occurring facts.

The investigating prosecutor

The name of the prosecutor who is conducting the terrorism investigation targeting the newspaper through the person of Cumhuriyet newspaper’s managers is Murat İnam. We learnt on the day following that on which the paper’s managers had been arrested at his behest that the prosecutor himself was standing trial at Penal Chamber No 16 of the Court of Cassation for committing a good many terrorism-related crimes, not least the charge of FETO membership. Apart from one aggravated life and one life sentence, custodial sentences running into the tens of years for other crimes are sought against him. Moreover, given the opinion as to the existence of strong suspicion of guilt that he committed these crimes and grounds for detention, he has been subjected to pre-trial release conditions.

Can you imagine a venerable newspaper having the defence of the principle of secularism at the heart of its editorial policy being imputed with having acted on behalf of FETO, which sprang up as a religious-based brotherhood formation, gradually infiltrated the state and turned into a terrorist organisation? And also the person making this imputation as prosecutor himself being charged with FETO membership and facing the most serious penalty under our law?

According to Article 8 of the Judges and Prosecutors Law, numbering among the reasons barring a person from being a candidate judge or prosecutor is the opening of an investigation into that person for terrorism-related crimes. In the event of, not even prosecution, but an investigation being opened against you for these crimes, far from being a judge or prosecutor, you cannot even be a candidate. The same circumstance has been enumerated among the situations that act as a bar to serving as a lawyer in Article 5 of the Attorneyship Law. Under a decree with the force of law promulgated last month, being attached or adjunctive to an armed terrorist organisation now serves as a bar to both undergoing training as a notary and also acting as a mediator and expert witness.

As has been seen, we find ourselves defendants here on the strength of an indictment drafted at the conclusion of an investigation conducted by a prosecutor who cannot even be a candidate prosecutor due to the proceedings against him. It is not a procedure that a balanced, reasonable person in possession of their senses can easily perform to accuse a newspaper whose entire past and established practice is replete with proclamations and elucidations to the public and relevant persons about the danger and threat in relation to the democratic, secular, law-based state posed by this terrorist organisation of aiding the same organisation. It may well have been precisely for this reason that such an investigation could be commissioned from a prosecutor who stands charged of and is being prosecuted for membership of this terrorist organisation.

Taking stock as a whole of the witnesses he has heard and the identity, capacity and merit of the expert he has selected, I wish to say that the bringing before a court of such an indictment that has been manufactured out of such material and can only serve as an ironic text does disrespect to both the law and the court.

One is really left wondering at how so much irrationality, illogicality, irresponsibility and lack of seriousness could arise at the same instant. The assessment that I have managed to elicit from this entire process is as follows:

As you know, in the European Court of Human Rights’ (ECHR) case law on the fair trial principle, there is an expression that it forever repeats: ‘Not only must justice be done; it must also be seen to be done.’ The proprietors of the Cumhuriyet newspaper investigation have, inspired by this expression of the European Court of Human Rights, lent their signature to a new expression. They say, when Cumhuriyet is involved, ‘It does not suffice for injustice to be done; injustice must also be seen to be done’ so that it may be a warning to others.

II. What does the indictment charge us with?

As far as I can comprehend, given that they appear in the indictment in a pretty jumbled, dispersed and careless manner, we are accused of the following acts:

1- The ‘taking over’ of the Cumhuriyet Foundation Management Board,

2- The changing of Cumhuriyet newspaper’s editorial policy,

3- The publishing of news and articles in Cumhuriyet newspaper that serve the purpose of the FETO, PKK and DHKP/C armed terrorist organisations, and

4- The selling below reasonably equivalent value of one immovable property each of Cumhuriyet Foundation and Yeni Gün Haber AŞ, which publishes Cumhuriyet newspaper, the transferring of funds from Cumhuriyet Foundation to Cumhuriyet newspaper, and the non-convening of a company general meeting in accordance with Article 376 of the Commercial Code even though more than half of Yeni Gün Haber AŞ’s capital was uncovered.

The indictment claims that, through taking over Cumhuriyet Foundation and changing editorial policy, news and articles serving the purpose of armed terrorist organisations were published, and asserts that these acts fall within the definition and scope of the offence of ‘aiding a terrorist organisation’ in Article 220/7 of the Turkish Penal Code.

The first charge

What is the event that the indictment is from the very outset phrased and worded to criminalise with its resort to the term ‘take over?’ What happened at the foundation, when did it happen and who took over the foundation and from whom? How did the takeover happen; with coercion or threat, or using intimidation or even violence? The affair calculated to leave a psychological influence on the judicial authorities with it described as the Cumhuriyet Foundation being ‘taken over’ and through the application of perception management, stacks up as follows:

According to Cumhuriyet Foundation’s official deed, there are twelve people on the management board and they are elected to serve for a period of two years. When management board members’ terms of service expire, the old management board members whose terms have expired elect the new management board members. Should a place on the management board be vacated for reasons such as death or resignation prior to the expiry of the term of service, a management board election is held for the place that has been vacated. Prof. Aydın Aybay, one of the twelve foundation managing board members, passed away in March 2013. An election was held for the one vacant place in April 2013. Then, as the terms of service of all the management board members expired six months later, fresh management board elections were held in October 2013. Three or four days after this election held in October 2013 for all places on the management board, application was made to the General Directorate of Foundations in an anonymous and unsigned tip-off letter. It was asserted retrospectively in the application that the election held in April 2013 for the vacant place on the management board was contrary to the provisions in the foundation’s official deed and should be deemed invalid. Since the election held in April for one place affected the elections for membership of the new management board, the declaration that those elections were invalid was also sought. An investigator appointed to investigate the matter by the General Directorate of Foundations’ Istanbul Regional Directorate compiled a report to the effect that the elections should be repeated. This report was forwarded by the Regional Directorate to our foundation with a request for the necessary action to be taken. The Cumhuriyet Foundation Management Board discussed the matter and summoned the eleven management board members who had voting rights in April 2013 to a meeting with repeat elections on the agenda, in compliance with the Regional Directorate’s letter, to avoid giving rise to any controversy in the future, even though there was no obligation to comply with this legal opinion. The date of the meeting was set for 18 February 2014 and service was made on the eleven management board members prior to the day of the meeting along with the agenda. On 17 February 2014, one day prior to the meeting, a management board member submitted his resignation in writing and indicated that he was not standing for management board membership. Hours before the meeting, another member submitted his resignation in writing and intimated that he was not standing for membership of the management board that was to be elected, either. Following the vacancies ensuing from the death of one member and the resignation of two members, six of the nine remaining members of the twelve-person management board attended the meeting, while three did not attend.

This is precisely where the whole storm broke out and the legal dispute had its inception in this meeting. Viz:

Two of the three management board members who did not attend the meeting held on 18 February 2014 brought legal proceedings over the meeting a full two years after the date of the meeting. Their claims took the form that the meeting held on 18/02/2014 was conducted without the meeting quorum in the foundation official deed being attained; to constitute a meeting one more than half of the full number of management board members had to be present at the meeting and this amounted to seven people, while six people attended the said meeting, and so the meeting and the election held at the meeting was invalid and should be annulled.

Conversely, the legal argument and view asserted by the foundation takes the form:

No provision is made in the founation deed for any meeting quorum for meetings at which elections are to be held; this point is expressly stressed in the foundation official deed; indeed, even were it for a moment to be presumed that the meeting quorum required for non-electoral meetings had to be imposed for electoral meetings, the meeting quorum was met because the meeting quorum had to be calculated based not on the total number of members but the existing number of members; it would neither comply with reason and logic for people whose membership has ended due to death or resignation to be included in meeting quorum calculations nor would this be a manner of interpretation that was fit for purpose, either; a contrary manner of interpretation would amount to enabling a few members who remained in the minority to frustrate the foundation’s business, bring it to a standstill and leave it without an organ; there was no wording in the foundation official deed that the meeting quorum was to be calculated based on the full number of members; it is envisaged in the Civil Code, in Article 78 concerning juristic persons which includes provisions concerning associations and foundations, that in determining meeting quorums the number of members entitled to attend the meeting be adopted as the base; and, for these reasons, at the meeting attended by six of the existing nine members, the quorum was not seven members but six members, being one more than half of the nine members.

As has been seen, the legal dispute and controversy between the juristic person of the foundation and the two former management board mambers who did not attend the 18/02/2014 meeting is based entirely on a difference of legal interpretation and opinion. Indeed, the legal dispute over this matter was brought as a claim before the civil courts by the said persons some six months prior to the present investigation and, moreover, fifteen months before the indictment, and, on the other hand, was also subjected to administrative examination at the General Directorate of Foundations.

This is the affair that has, thanks to the use of terms such as ‘take over’ and ‘purge,’ intentionally been brought onto another plane, into the criminal and penal arena. There was no takeover but an election; no purge but an inability to be elected. Thus, even if it makes sense as a description in political terms for somebody to speak of being purged following an election in which they were unable to be elected, in the legal arena this situation is referred to not as a ‘purge’ but an ‘inability to be elected.’

Let me add that had it been the intent and wish of the foundation founder for certain management board members to be elected every time they stand or to be unchanging and unchangeable members of the management board until they die, he would have been able to expressly state this in the foundation official deed. In fact, in temporary Article 1 of the foundation official deed, it is laid down expressly and clearly that three people from among the first management board members would have no time limits on their term of service and these three people would be management board members until they died. With the demise of the last of these three people, İlhan Selçuk, in 2010, there remained no unchanging and unchangeable members of the management board. There is no guarantee that any management board member whose term of service has expired will be reelected to the management board. This is what makes sense and is logical, too.

It must be noted that the bringing of a civil dispute that relates to the sphere of private law and falls to the jurisdiction of the civil court of first instance before the serious crime court and bringing charges over it is a bad-faith endeavour to exert influence, guidance and pressure. The aim is to procure a judgment along certain lines in the civil court of first instance. Although the prosecution is aware that civil proceedings are pending over this civil dispute, experts’ reports have been obtained within these civil proceedings from specialists in the area and there are also detailed reports of General Directorate of Foundations’ inspectors into the same matter, it speaks volumes that he has commissioned a fresh expert examination into the meeting quorum as if the matter fell to his own subject-matter and territorial jurisdiction. Moreover, the expert he has chosen is somebody who is not included on the list of judicial experts but who has been nominated from outside the list in flagrant breach of the law with no reason adduced. There is also no information as to his specialisation, competence, capacity, experience and accumulated knowledge.

Basically, it is obvious that which of two candidates is elected to a place that has been vacated on a foundation management board and whether the meeting at which the election was held was conducted in accordance with the quorum in the official deed has no relation to or connection with the public prosecution, probes, crime and penal law. It is clear that the prosecution is also aware of this from the following comment in the introduction to the section on the matter in the indictment:

‘While a portion of the procedures concerning the Cumhuriyet Foundation are of the nature of a civil dispute and are external to our concerns, on account of the change that the foundation underwent after 2013 such that the newspaper carried manipulative content detrimental to national security, there was a need for an examination of the penal law aspects of the matter so as to shed light on the penal responsibility of Foundation Management Board Members.’ (page 102 of the indictment)

This could be summed up by saying that the prosecution has embroiled itself and become embroiled in a private-law dispute that is absolutely unconnected with its duties and has protected and aided the proponents of one of the legal arguments against the other by waving the stick of a penal investigation. In the prevailing political and legal atmosphere and judicial climate, given the existence of prosecutors and judges who are wary of being accused of FETO allegiance, there can be no doubt that a civil court of first instance judge, aware of a terrorism trial that has been brought against the suspects for aiding FETO and in which the charges include taking over the foundation that owns the newspaper, will get the required message. I imagine that everyone who is cognisant of the worries and concerns that plague judicial offials today as to whether they may possibly be expelled from the profession and accused of FETO alliegance will acquiesce to the following truth:

In the face of claims by the chief prosecution which is conducting a FETO investigation that the foundation was taken over through the holding of an inquorate meeting and that this constitutes an offence relating to aiding FETO, a civil court of first instance judge cannot easily say, ‘The meeting was quorate and no takeover of the foundation is involved; the meeting and election were conducted as per due procedure.’ The judge, were he or she to rule along these lines, could well fear being accused at any moment of aiding FETO under the guise of judicial activity.

At this point, it will be beneficial here once more to individually mention the names of those members who attended and did not attend the meeting held on 18/02/2014. The names of the six management board members who attended the meeting are:

1- Orhan Erinç

(The year in which he first started to work as a journalist on Cumhuriyet newspaper was 1963. So, he has been a member of Cumhuriyet newspaper for a full 54 years.)

2- Hikmet Çetinkaya

(The year in which he first started to work as a journalist on Cumhuriyet newspaper was 1966. So, he has been on this newspaper for a full unbroken 51 years.)

3- Cüneyt Arcayürek

(His name was synonymous with journalism and later with Cumhuriyet newspaper and he numbered among the fabled names of journalism, and passed away in 2015.)

4- İbrahim Yıldız

(He is a journalist who has worked on the newspaper since 1981 and who served as Cumhuriyet newspaper’s editor-in-chief from 2000 until 2014.) 

5- Mustafa Ali Balbay

(He is a journalist who was on Cumhuriyet newspaper for thirty years from 1986 to 2016 and served at various managerial levels. He is currently a CHP member of parliament for Izmir.)

6- Akın Atalay

(He has filled juristic and managerial posts at Cumhuriyet newspaper for an unbroken 25 years since 1992.)

It is precisely these six people who took over Cumhuriyet Foundation. How and from whom do you say these people, the newest of whom has been on the paper for an unbroken 25 years and the mention of each of whose names conjures up Cumhuriyet newspaper, took over Cumhuriyet newspaper? To answer the question, it is necessary to list the names of the two management board members who resigned immediately prior to the meeting and the three management board members who did not attend the meeting.

The members who resigned:

1- İnan Kıraç

(He is a member of Koç Holding’s board of directors and his institutional and duty-based relationship and connection with Cumhuriyet newspaper started in 2009 as a management board member elected from outside the paper to the Cumhuriyet Foundation.)

2- Nevzat Tüfekçioğlu

(He is a member of the supervisory board of the Koç Foundation and Suna İnan Kıraç Foundation and his relationship and connection with Cumhuriyet newspaper is restricted to his having been a member of Cumhuriyet Foundation management board for two years at the recommendation of İnan Kıraç.)

The three members who did not attend the meeting:

 1- Alev Coşkun

(He first took up a post at Cumhuriyet newspaper in 1992 and continued to perform managerial duties at various levels and serve as a management board member until the end of 2013.)

2- Şevket Tokuş

(He was elected as a management board member following the demise in 2006 of his wife, the late Lale Tokuş, in her place and, given that he is the son-in-law of the paper’s founder Yunus Nadi’s granddaughter, so as to represent the family.)

3- Şükran Soner

(She has been a member of Cumhuriyet newspaper for an unbroken 51 years since 1966.)

The truth that this depiction of the affair reveals is as follows:

There were conflicting votes by the eleven management board members for the person who was to fill the vacant place and, with six of the members voting for Önder Çelik, the preferred candidate of five of them was Mustafa Pamukoğlu.

It is clear that, in the absence of unanimity or the reaching of an understanding over the electee, the person that the majority, i.e. the six people, voted for will be elected. Two of the five members who were in the minority resigned in protest one day prior to the meeting and election, while three opted not to attend the meeting.

Following the passage of two years, two former members who were in the minority, Alev Coşkun and Şevket Tokuş, who had been unable to get their candidate elected in the election conducted by majority vote, turned the matter into a civil dispute and brought it before the courts and alleged that their non-participation had been abused and the meeting was inquorate. This is the heart of the matter.

So, who is Önder Çelik, the candidate six people preferred and voted for to fill the vacated place on the management board? Is this person somebody who is a stranger to the Cumhuriyet newspaper community, having no relation or connection with journalism, and whose thoughts and chemistry do not conform to the paper’s well-established philosophy and publishing line?

Was it, as the prosecution asserts, the electing of Önder Çelik, whom the six people in the majority voted for, and not Mustafa Pamukoğlu, the preference of the five members who were in the minority, that was instrumental in the foundation and newspaper management more or less passing into the hands of FETO/PYD? Was this really so? You can get nobody who knows this newspaper and this newspaper’s make-up and memory to believe this nonsense and this absurd claim. Why? Because, in stark contradistinction to the other candidate Mustafa Pamukoğlu, who joined the paper in the 2000’s from the outside and whose name was known to hardly anybody on the paper until that date, Önder Çelik's past, employment, career and position on the paper has been as follows:

He started work on Cumhuriyet newspaper in 1984 as an administrative supervisor and then continued as operations manager and subsequently as printing and production manager. He has served this paper as an administrator since that date in an unbroken and continuous manner. With no such juristic person as the Cumhuriyet Foundation yet in existence, a company named Yenigün Haber Ajansı Basın ve Yayıncılık AŞ was established in 1992, i.e. 25 years ago, to publish this paper and this company began to publish the paper as of October 1992. They set up this company, established to publish the paper, with eleven people whose names were synonymous with Cumhuriyet newspaper as founding shareholders holding equal stakes with the aim of publishing the paper following a certain line. One of these eleven founders whose names are synonymous with Cumhuriyet newspaper, from İlhan Selçuk to Uğur Mumcu and from Cüneyt Arcayürek to Ali Sirmen and Hikmet Çetinkaya, was Önder Çelik. So, the fact is that, even before the foundation was in existence, Önder Çelik was among the eleven founding and equal shareholders of the company that published the paper. The electing to the foundation management board of a venerable Cumhuriyet newspaper member who has devoted more than half his life to this paper should not give rise to charges against those who voted for him, but, if anything, be deemed to be a correct preference and procedure. My final comments on this matter are as follow:

The first sentence of Article 38 of the Constitution and the imperative provision of Article 2 of the Turkish Penal Code emphasise a universal principle of penal law. What is this? ‘Nobody can be punished for an act that the law does not expressly deem to be a crime.’ So, what then is the act that the prosecution alleges us to have committed? To convene the foundation management board in the absence of the meeting quorum and pass invalid resolutions. Do you wonder what crime the prosecution thinks this act corresponds to? It does not set this out very cogently, or, more to the point, is incapable of doing so, but it says that this act falls within the scope of aiding FETO. That is, we have aided FETO by electing a Cumhuriyet newspaper employee of 33 years standing, a left-winger who has spent his life in revolutionary struggle and at Cumhuriyet newspaper, embracing and practising Cumhuriyet’s basic values and enlightenment, secularism, freedoms and contemporariness. The maker of this accusation is also a prosecutor who himself stands charged of FETO membership. What can I say? This is as absurd as it can get. Deeming it futile to comment any further on this comedy, I bring to a close the legend of Cumhuriyet Foundation being ‘taken over’ through an election.

VIII- Comments on the allegations over falling circulation and CUMOK’s reaction:

We are dealing with an investigation that believes Cumhuriyet newspaper to have changed its editorial policy and its readers to have reacted to this change, and that has embarked on the endeavour of proving this. The indictment has stated that, due to the editorial policy that it says changed after 2013, a marked fall in the paper’s sales was experienced as of this date. With a view to proving its assertion to this effect, it inquired with the Press Announcements Agency General Directorate as to sales made between the years of 2008-2016. Attached to its correspondence of 4 November 2016, the Press Announcements Agency sent a table showing sales volumes in the stated periods. Separate sales volumes for each month as of 1 January 2008 were included in this table. Sales volumes for each month were entered in this table in two separate forms. One of these was stated to be ‘average actual daily sales’, and the column beside it was the ‘monthly circulation’ figure. The indictment, by selecting - as if at random - the highest one or two monthly circulations and the lowest one or two monthly circulations, has based its allegation on this table. Let me state at once that the figures in the ‘average actual daily sales’ field in the table compiled and sent by the Press Announcements Agency are entirely correct, but the figures in the monthly circulation field are almost entirely wrong and erroneous.

Well, who am I to say that sales data attached to the Press Announcements Agency’s official correspondence is erroneous? What am I resting this claim on? What is there to back up the veracity of my claim? I know and make this claim because the Press Announcements Agency obtains these sales volumes that it supplied to the prosecution every month in an electronic environment from us, i.e. Cumhuriyet newspaper; that is how I know. Pursuant to the relevant legislation, all newspapers that receive official announcements from the Press Announcements Agency must compile and submit a condensed statement form every month to the agency. In the process, along with a lot of data, notification is also made of the paper’s sales volume. The agency checks and confirms this sales data with the main distributor who handles the paper’s distribution. In short, the source of the information and data the agency compiles is Cumhuriyet newspaper’s data.

Basically, there is no need to have the kind of knowledge I have of this affair and be in possession of source information to realise that the data entered in the table by way of monthly sales volumes is erroneous, either. If a little attention is devoted to the sales table, a sudden fall of one million after May 2014 is clearly visible. However, despite a sudden fall in total monthly circulation from 2.6 million to 1.6 million and figures that remain at that level for each ensuing month, it is also clear that there has been no corresponding fall in average actual daily sales. As such, either average actual daily sales have been entered correctly, or the figure in the monthly circulation field. It is impossible for both to be correct at the same time, because you find the monthly circulation by multiplying the average actual daily sales by the number of days in the month in question. Or, you obtain the average actual daily sales by dividing the monthly circulation by the number of days in the month in question.

For example, if the average actual daily sales in April are 50,000 copies, from multiplying this figure by the number of days in April of 30, you will come up with the monthly circulation. That is, the monthly circulation has to be 50,000 copies x 30 days = 1,500,000 copies.

For example, if the monthly circulation in May is 3,100,000 copies, the average actual daily sales must, from dividing this figure by 31 (the number of days in May), be 100,000 copies. It will be evident that this correspondence that must, by virtue of this simple arithmetical truth, exist between the ‘average actual daily sales’ and ‘monthly circulation’ fields in the table does not exist in the period from 1 January 2008 to 1 May 2014. When it comes to 1 June 2014 and the months that follow, it is seen that the correspondence between these two figures exists. Inspection of the sales volumes entered in the field of the table containing average actual daily sales – and the correct figures are here – clearly shows that Cumhuriyet’s average actual daily sales have constantly been in the 50,000-53,000 range starting from 2009 until November 2016. On seeing this sales table that was furnished by the Press Announcements Agency and on which the indictment was based, our paper’s lawyer applied to this very agency on 23.11.2016. He applied, pursuant to the Right to Obtain Information Law, for a table to be supplied showing the average actual daily sales and monthly circulation for the 2008-2016 period. What came was the reply correspondence and attached sales table a photocopy of which I have submitted as an exhibit. When comparison is made of the table dated 4 November 2016 that forms part of the proof for the claim in the indictment and has been annexed to the file and the table supplied to us on 15 December 2016, it will be seen that all data entered by way of average actual daily sales is precisely identical. On the other hand, there is clearly a considerable difference in the monthly circulation field in the table dated 15 December 2016 that we are now submitting and the monthly circulations contained in the table in the file. The data in the 1 January 2008 – 1 May 2014 period over which the monthly circulation has been entered incorrectly in the table dated 4 November has subsequently been corrected in the newly prepared table.

This wrong and erroneous presentation of figures provided in data relating to Cumhuriyet newspaper has been used as evidence for the charges. Had we not stepped in and made research, nonsensical charges would have been constructed on them. I thus really have no way of knowing if the mistake made was a material error or was made for manipulative purposes; if this was an incorrectly compiled official document with no intent of any kind or was forgery of an official document done knowingly and willingly simply so as to create false evidence against Cumhuriyet’s management. After all, in recent years one routinely encounters the accidental commission of gross fault to Cumhuriyet newspaper’s detriment. But, given that misleading and false figures about Cumhuriyet newspaper’s sales and effectiveness have been placed in circulation, let us see to it from here that the public is correctly informed. There appears in the table I have submitted to you as an exhibit Cumhuriyet newspaper’s average sales volumes per year for the past 30-year period. The number of average daily sales for any particular year appears in this table. The table contains data from Cumhuriyet newspaper’s sales service. As is evident, over a 25 period from 1991, apart from two years, the paper’s average actual daily sales have ranged between 40,000 and 60,000. I must add that sales volume is no longer a metric that advertisers and advertising people take account of, because there are very serious doubts over whether newspaper’s sales volumes reflect the truth. For this reason, circulation and penetration research into almost all national newspapers in Turkey is conducted by an association created by advertisers and advertising agencies. According to measurements by this body of which all newspapers are members and whose costs are shared, Cumhuriyet newspaper reaches between 350,000 and 450,000 people every day. What this amounts to is that every paper that is bought from a newsagent reaches 8-10 people. In these penetration measurements that have been conducted for very many years, Cumhuriyet newspaper has always come top in terms of readership coefficient and this has been as much as 8-12 times sales volume. Last month, Reuters Agency published research by Oxford University. This research produced results showing Cumhuriyet newspaper to be the newspaper ranked fifth in terms of the newspapers that people followed the news from in Turkey. Why did I bring this up? To show that this is the extent to which Cumhuriyet newspaper is an effective and reliable source for acquiring information. Everybody knows this is the reason, too, why the judiciary has been used as an instrument to secure the detention of all of Cumhuriyet newspaper’s management.

Let us come to the affair called the CUMOK reaction.

The indictment cites in evidence of a change in editorial policy a text that they say was sent to the newspaper’s management, contains the names of 330 people and is a readers’ statement on their behalf, and statements by a person who has given himself the title of Cumhuriyet readers’ coordinator. For a long time, there was no structure called CUMOK connected and related to Cumhuriyet newspaper’s corporate structure. This platform that at the time of its inception was created by a group of well-meaning Cumhuriyet newspaper readers split in subsequent years due to a political dispute between them and two separate CUMOK formations appeared in Istanbul. One of these groups, promoting itself with the image of supposedly representing the paper, attempted to take on unfeasible political missions and to attain a status within the paper’s corporate identity. It published announcements accusing the other CUMOK group of treason. Because of this clash and dispute between readership formations, distance has been placed and communications have been broken off for the past fifteen years between the paper and people claiming to represent these groups. It is an excess and impertinence for a person who proclaims himself to be a CUMOK coordinator to lay down the editorial line and policy to Cumhuriyet newspaper. Ludicrousness of this kind has never had any take-up at the paper. This is the extent of my comments on this point.

IX- Concerning the witness testimony:

No sooner had the investigation in connection with this case got underway than, apart from a special witness who had been heard, a full eighteen people were further consulted for testimony after the arrest procedures. At this stage, I do not propose to answer every single witness’s testimony one by one and line by line. Consequently, apart from the answers I will give to questions posed by either the prosecution and defence or the members of your bench, my overall assessment of the witness testimony is as follows.

Most of the people from whom testimony has been obtained as witnesses have raised points that do not relate to the offences and charges, are of the nature of gossip and bear no relation to the act at issue in the prosecution. As to the witnesses named Cem Küçük, Latif Erdoğan, Hüseyin Gülerce, Talat Atilla, Rıza Zelyut and Mehmet Faraç, who have imparted nonsensical and untruthful information or even made mendacious statements both related and unrelated to the issues in the trial, I wish to state as follows: This is my assessment of these witnesses’ testimony:

I conclude that the negative ideas and criticism about me of people whose styles, personalities and characters are fairly well known to the public have been put forward as very valuable evidence and opinions against me with no need for any other argument. The other witnesses’ testimony amounts to and is limited to personal views as to the election for a vacated place on the foundation and the paper’s editorial policy. I have previously made detailed comments on both matters. I wish to stress once more with reference to these witnesses’ testimony that the forum and place for discussing and talking about either the foundation’s meetings and elections or the paper’s editorial policy and line and for making determinations in these matters is not this hearing room and this trial. The matter regarding the foundation is pending in its own forum, before the Civil Court of First Instance. The making of any political determination over and intervention in the paper’s publishing policy and line by any public prosecution and court will be a move that will be unacceptable and repugnant not only to us defendants here who are on trial, but to Cumhuriyet’s true readership. The readership and public opinion will not forget those who open up such a path and thereby give rise to intervention in the paper through such means.

I wish to take this opportunity to clarify a matter that appears in certain witnesses’ testimony and that the indictment has made into an issue over which it presses charges against me.

The Issue of Executive Board Chairship

Three of our colleagues who are currently working on the paper were consulted for testimony in the capacity of witnesses. These colleagues said that a new formation that had not previously existed at the Cumhuriyet Foundation was embarked on and a new board called the Executive Board was formed. The claim and punishment sought relating to me begins as follows on page 257 of the section ‘Conclusion and Assessment’ of the indictment:

‘... the suspect Akın ATALAY (...) had a communications record and, as was also stated by witnesses Ali Açar, Miyase İlknur and Aykut Küçükkaya, with an organ named the “Executive Board” that was not included in the Foundation Deed having been created by the Management Board, was brought in to head this board and, in this way, the suspect was endowed with considerable influence in newspaper management ...’

It is false information that a new formation that had not previously existed at the Cumhuriyet Foundation was embarked on and a new board called the Executive Board, that according to the indictment was not included in the Foundation Deed, either, was formed. It is obvious that the colleagues of ours who are giving testimony as witnesses are not familiar with the Cumhuriyet Foundation and the official deed. This is also natural. These colleagues of ours have imagined the Executive Board set up within newspaper operations and Yeni Gün Haber Ajansı A.Ş to be a new structure within the Cumhuriyet Foundation. However, the Executive Board formation at the Cumhuriyet Foundation is an organ or structure that has existed for 23 years since its inception by virtue of a provision in the official deed. However much the quote I have made above from the indictment speaks of ‘an organ named the “Executive Board” that was not included in the Foundation Deed having been created’ and my being brought in to head it, the material truth is the very opposite. The Cumhuriyet Foundation’s official deed is in the binder of exhibits. It has been placed among the prosecutors’ evidence. But, they have obviously placed it there without reading it. I now read Clause 11 to you:

‘The Management Board shall elect a Fulfilment Board consisting of an adequate number of Management Board members including a Chair, Deputy Chair, General Secretary and General Accountant. (...) The Fulfilment Board shall be duty bound to implement and execute Management Board resolutions and shall report to the Management Board.’

As has been seen, at Cumhuriyet Foundation, pursuant to Clause 11 of the official deed, there has ever since its inception been a fulfilment, that is an Executive, Board. The information that a new formation was embarked on is false. At the same time, at the foundation’s recommendation, an Executive Board Chairship was created at the operating company, Yeni Gün Haber Ajansı A.Ş. The witnesses and the indictment have mixed up these two different juristic persons.

An interesting method has been resorted to by the public prosecution in view of misgivings that, far from being persuasive and convincing, the nonsense and inconsistency of the charge against Cumhuriyet newspaper of aiding the FETO-PKK and DHKP/C terrorist organisations will place those who press this charge under suspicion. Following the detentions, an instruction was drafted to the General Directorate of Foundations on 18 November 2016. The idea behind this instruction was for the foundation and companies connected to the foundation to be subjected to intense inspection so as to unearth fresh charges against the detained Cumhuriyet managers. The foundation and company, which thanks to this instruction on the part of the prosecution has undergone frequent inspection, was examined once more for a special purpose. The outcome of this inspection, as no other negative imputation presented itself, came in the form of the endeavour to invent the offence of employment-related abuse of trust with reference to the sale of two immovable properties, the giving of a loan from the foundation to the newspaper and failure to convene a company general meeting; more correctly such a crime was fabricated. The inspectorate attached to the General Directorate of Foundations, having, to put it metaphorically, understood the order to shoot emanating from the prosecution to be to kill, did not stop at fabricating a crime and, becoming carried away, issued an opinion going as far as the manner in which the paper’s impressum is to be configured.

While not comprehending why the removal of the wording ‘Executive Board Chair’ from Cumhuriyet newspaper’s impressum has been incorporated into the indictment (page 115 of the indictment), I will not let this go unanswered. What is it to you what titles and words, what posts and ranks are entered on a newspaper’s impressum? Is there really nothing else for inspectors and prosecutors to do that they have started to regulate newspapers’ impressums? Do you also have a notion as to whether or not the editor-in-chief, Ankara representative, section supervisors, advertising managers and similar functions that are indicated in newspaper impressums but are not mentioned in company articles and the Commercial Code are to be included in the impressum? I am now submitting newspaper cuttings to you containing the impressums of three newspapers apart from Cumhuriyet newspaper. The Hürriyet, Star and Yeni Şafak newspapers. The same titles and designations are included in these newspapers’ impressums. Do they also have to remove them? Or is this implementation peculiar to Cumhuriyet?

I bring this point to an end here.


Demolishing all the charges - The full text of Akın Atalay's historical defence


Her gün bir Cumhuriyet gazetesi alın, aldırın…
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