A Guide to Understand the OdaTV Case – 4: Being a lawyer in an adjudicated trial

February 14, 2012 § Leave a comment

Yiğit Günay, January 27, 2012 (translation: Ege M. Diren)

http://outforbeyond.blogspot.com/2012/01/guide-to-understand-odatv-case-4-being.html

The soL news portal published a series of articles concerning the background and the ongoings ofthe infamous OdaTV case. Signed Yiğit Günay, the articles investigate the trial’s judicial peculiaritiesas well as its political context and historical implications. Assuming the responsibility of providingEnglish information on Turkey with a political perspective that is compatible with our stance, wedecided to translate these articles for the English-speaking audience. 
This fourth and last article of the series is freely translatedfrom the Turkish original, titled “Odatv davasını anlama kılavuzu 4Bitmiş davanın avukatı olmak, published onDecember 31st, 2011.
You can reach the previous articles by following the Odatvlabel.
I had the opportunity to attend one of the hearings of the Odatv trial last Friday [December 30th]. Let me put it straight: As a juridical phenomenon, the trial is over, what’s going on is a farce.
In this article series, I tried to demonstrate how the indictment was not worth a penny as a legal document. The whole indictment is based on digital documents which are proven by 4 different expert reports to be sent through virus activities; and, in any case, it is impossible to arrest someone on the basis of digital evidence. As a matter of fact, with what is in hand it would be impossible to write such an indictment, but the police and the prosecution pushed it really hard.
There are still many absurdities in the indictment, some of which Soner Yalçın mentioned in his defense on Friday. But I wasn’t sure if they were worth writing about. On Friday, I got totally convinced.
It is an adjudicated trial. No excitement whatsoever. I couldn’t help but compare it with the movie 12 Angry Men, where 12 jury members argue about a murder case. In the first look, there is a lot of strong evidence to sentence the suspect. Hence the skepticism of one of the jury members triggers hot discussions. And you hold your breath while watching it.
There is no excitement in the Odatv trial. And not only for the audience. You’d expect the defendants to be excited, but even they look rather indifferent. The most observable emotion in Soner Yalçın was doldrums. The indictment is so absurd that Yalçın has to explain that each one of the news items cited in the indictment are actually articles published in other newspapers and that they are not written by Odatv columnists. He goes through them one by one, and gives some 60-70 examples. Neither the police officers nor the prosecutor bothered to have a look at them, what excitement would you expect in such a trial? They even put the news item that reads nothing but the declaration of the Supreme Military Council to the appendix, and they considered it as an element of crime.
There is only one issue of concern at the moment: Will the panel of judges continue this nonsense, or will they release everybody? Next Friday when these demands are talked over, we will see the answer to that. [See the follow-ups at the end of the article -translator’s note.]
Even this decision is not waited upon with “excitement”. The facts are pushing hard to one side of the scales of justice, yet Turkey has become such a country that the whole weight of facts may not affect the scale a tiny little bit. For decisions are not being taken according to the facts. The friends and relatives of the detainees do not expect the decision with excitement. There is the hope for the release, and the nausea accompanied by the thought of the continuation of this nonsense. And that nausea kicks out all the excitement from the minds.
Not only to the detainees and their family, the same mood of doldrum has gotten into the lawyers as well. When lawyer Hüseyin Ersöz was explaining international principles and examples on the ownership of digital evidence (a very well prepared presentation indeed), the chief judge interrupted him for a break; and Ersöz’s mood was exactly the same as above mentioned when he said “You didn’t find these useful, Your Honor?” The doldrum of a lawyer who thinks that despite of four expert reports on the infected digital documents claim, the panel of judges might as well not give a darn about the reports instead of providing more evidence or reasoning.
Yet the chief judge responded “No, on the contrary, I benefit from it a lot.” and added yet another “positive signal” to his friendly attitude. In this “predetermined trial” where no real arguments occur, everyone tries to deduce huge meanings from tiny little signals. When in the first hearing the judge expressed that he “will separate ascriptions from the facts” and as he has been trying to speed up the trial, some people got the expectation that releases will follow the defense statements.
We only hope that the expected releases happen. Let’s see if this already ended trial will really end.
Saying that, I should add that the lawyers’ situation is much more complicated. They not only think whether this absurdity will continue but also worry about if they will be the next target of it soon. For some of the lawyers are also “the secret accused” of this trial.
On page 61 of the indictment, the prosecutor used exactly these words: “The studies show that right after the photographs in question are published in ODATV, the lawyers of the accused in Ergenekon brought them forward in court in order to demand recusation and therefore tried to make the court inoperative.” The photos in question picture the judges, the prosecutor and the police officers involved in the Ergenekon trial dining together on a boat.
Odatv made the news of these photos. And they were sued with the charge of “identifying state officials as targets”. Soner Yalçın defended the photos by saying “This is news all around the world.” His lawyer Duygun Yarsuvat pointed out the dialectics in law, stated that the prosecution represents the thesis, the defendant antithesis and the judge synthesis, and finally exclaimed “The thesis and the synthesis are dining arm in arm on a boat on the offshore of Kandilli. Unbelievable!”
So the former judge of that trial, Resul Çakır, was engaged in a lawsuit with the Odatv News Editor Barış Terkoğlu. Hence, “the synthesis” and “the antithesis” were opponents. That’s why the Odatv lawyers demanded a recusation.
The indictment says that in doing so the lawyers “used every trick to make the court inoperative”. It’s not hard to see that this is an open threat towards the lawyers. I talked to some of them and they emphasize the fact that right before the raid towards the journalists in the KCK1 trial, there was another operation where 70 lawyers were taken. They think that that operation also had a message and that they may have to face same kinds of suppression if the lawyers don’t stand against these practices.
It’s a tough job to be a lawyer in a trial that already ended. To realize, while you do your best to defend the truth that you know is not worth a penny, that you’re also on the edge of a volcano as a secret accused.
As a matter of fact, with this trial, we are all on the edge of a volcano. Truth lost so much meaning in this regime, yet if we watch it continue in this way and do nothing, and if this brutality is inured to, then we’ll be in great trouble.
Follow-up:
January 5th, 2012: The court rejected the release demands and decided the next hearing to be on January 23rd. An Islamist TV channel (Samanyolu TV) announced the decision before the court’s declaration.
January 23rd, 2012: The court is dismissed after the defenses of Hanefi Avcı, Nedim Şener and Mümtaz İdil. The next hearing will be on Friday, January 27th.
January 27th, 2012: The court rejected the release demands unanimously. The hearing started on 11am and ended on 11pm. The next hearing will be on March 22nd.
1  KCK: Koma Civakên Kurdistan (Union of Communities in Kurdistan). The legislature body of PKK active in Turkey, Syria, Iraq and Iran.

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