Tayyar: This judicial approach may kill journalism in Turkey

    Last month Tayyar was fined for two articles he penned on the ongoing probe into Ergenekon. An İstanbul court fined Tayyar and sentenced him to prison time for violating the right to privacy of Ergenekon suspect and journalist Güler Kömürcü. The court originally handed down a sentence of one-and-a-half years in jail, but the sentence was suspended and later decreased to one year, three months for good behavior during the trial. Tayyar will have five years of probation and will be imprisoned if he commits a crime within that period. The columnist was also fined TL 2,610 for libel against Kömürcü in the media.

Speaking to Sunday's Zaman, Tayyar, who, in his column on Sept. 12, 2008, wrote about a phone call between two people, Tuğrul Türkeş and Kömürcü, which was included in the annexes to the first indictment of the Ergenekon trial, said: "These people are not ordinary people but have become recognized by the public. My article may be discussed from the point of view of media ethics, but under normal conditions, my article should not even have been subject to a fine. Güler Kömürcü is an Ergenekon defendant, and Tuğrul Türkeş is an important political figure. Their conversation should be known to the public. I performed my duty of informing the general public as I quoted from the conversation included in the indictment that was accepted by the court and that was officially documented, and I do not feel any regret for doing so. I would do the same if similar circumstances arose today."

 Noting that there are three major components to his jail sentence, Tayyar pointed out that the ruling has the potential of serving as a precedent for a number of similar cases. Arguing that the second major target of his sentence is the journalists writing about Ergenekon, Tayyar said people will attempt to suppress journalists who write about these shadowy relations through threats and intimidation. Emphasizing that the third major target of the decision is the prosecutors and judges of Ergenekon, Tayyar said: "People close to Ergenekon have gone so far as to suggest that prosecutors In the case should also face charges. This came up during debates revolving around the court decision on me. In my opinion, the prosecutors were the most important targets. They may take this issue to the HSYK [Supreme Board of Judges and Prosecutors]."

 Noting that if courts continue to hand down jail sentences for journalists just because of quoting others (and proving with documentation that the person quoted really said what s/he was quoted as saying), Turkey will turn into a country where it is impossible to work as a journalist. Tayyar reported that the pro-status quo judges who are alarmed by the prospect of losing their positions tend to render decisions that are against change. Maintaining that a young generation of prosecutors and judges who have internalized the universal principles of democracy and human rights has arrived, Tayyar, who is also the Ankara representative for the Star newspaper, responded to our questions as follows:

 Did you think you would be punished while you wrote your article on Sept. 11, 2008?

It did not cross my mind in the least because I was quoting from documents of the indictment that had been accepted by the court. Moreover, several writers who have penned articles violating other individuals' privacy in a more severe manner have not been penalized.

 We have seen decisions in the past that have expanded freedoms.

Yes, there are court decisions and interpretations that can be considered manifestos of liberty. Recently, concerning a trial in Van, the Supreme Court of Appeals ruled that a journalist cannot be held responsible for the false news stories that appeared in the paper. We can think that room to maneuver for journalists has increased with the concept of "visible reality." In this specific case, we see that the person who filed a complaint against the newspaper is accused of being a reactionary.

 Isn't it a pro-freedom decision, still?

It is, in appearance. Its different interpretations give the impression that these decisions are given for ideological reasons, not for the sake of freedom. This is because the same chamber has narrowed down the sphere of freedoms with its past decisions in different cases. For instance, Manisa deputy Şahin Mengü leveled harsh criticism against me. The lawsuit I brought against him was quashed by the same Fourth Chamber of the Supreme Court of Appeals. It argued that in calling me a "triggerman" CHP [Republican People's Party] deputy Mengü was criticizing me. It further gave the nonsensical interpretation that Mengü is the lawyer of Tuncay Özkan and was exercising the right of defense. It suggested that I had criticized Özkan in my writings, etc.

It is a disgrace to the rule of law that the identity of a plaintiff or a defendant can influence the outcome of a trial.

 True. But there are so many cases [of this]. Prosecutor Ali Çakır, who made serious accusations against me without taking my testimony and without giving me the right to a defense, is one of the prosecutors who have launched the greatest number of actions against the writings about the Ergenekon trial. CHP deputy Mengü is the first lawyer an Ergenekon suspect would call after he or she is detained in the Ergenekon investigation. When I am a plaintiff, the Supreme Court of Appeals tends to favor Mengü in its interpretations. When I am a defendant, the court tends to issue decisions along the claims voiced by Çakır.

 In another decision, the same chamber of the Supreme Court of Appeals said, "The press may not be satisfied with mere reporting of the incident but may opt to voice assessments and criticisms from different angles." The court continues, "The press may provide the general public with information in a harsh and striking manner that may create uneasiness or polemics." It says, "Essentially, freedom of the press includes the right to overestimate to a certain extent." You look at the addressees of these interpretations that are like manifestos of freedom. Then, a journalist is penalized for writing about the content of an indictment that is in the public domain and that was accepted by the court and that was written by a prosecutor. What is more, this journalist is sentenced to prison without the right to appeal the decision and with five years' probation.

Unfortunately, this is a clear indication that the decision is rendered not with the intention of expanding freedoms but according to the identity of the plaintiff or the defendant. Still, I believe that the judge was a fair one.

 How?

Prosecutor Çakır, who prepared the indictment without taking my testimony, had indicted me for breaching the secrecy of the investigation, trying to influence a fair trial and publishing the illegally obtained information, in addition to the charge for which I was sentenced. In other words, he claimed that it was me who wire-tapped the phone call between Tuğrul Türkeş and Güler Kömürcü, mentioned in the supplements to the indictment [of the Ergenekon trial]. However, it was clearly stated in these supplements that the wiretapping was conducted upon court order. It is truly a legal oddity to be accused of breaching the secrecy of the investigation while reporting about an indictment that was accepted by the court.

 If the judge had followed in the footsteps of the prosecutor, what might be the extent of this oddity?

When I read the indictment prepared by prosecutor Çakır, I first thought that I was being duped. If the judge had stuck to the prosecutor's reasoning, he should have sentenced me to up to 18 years in prison. The indictment that Çakır prepared without taking my testimony was etched in history by treating the Ergenekon indictment, which was accepted by the court, as a breach of secrecy of the investigation.

 If your prison sentence were two years, you could appeal. Do you think that your right to appeal was blocked?

Practically, it was. My right to appeal was blocked in practice since the announcement of the decision was postponed. My articles will be screened for a period of five years. This is to censor and intimidate people. "If you ever write about Ergenekon, your destination is obvious," they say. I even face the risk of being imprisoned because of the smallest offense such as a traffic infraction or a small street quarrel.

 As a journalist who has written the largest number of articles on Ergenekon, do you think you are specifically targeted by this sentence?

I believe that the decision has three basic results: It influenced many similar cases; it censored everyone who will write about this issue; and it sent a message to the prosecutors who prepared the Ergenekon indictment and the judges who accepted it. 

‘Ergenekon investigation has not touched judiciary yet’

In addition to the claims about its politicization, the judiciary is now said to be divided. Do you agree with these claims?

Unfortunately, polarization has increased to a great extent during the Ergenekon process. Everyone has drawn their cards and is playing the game.

The Italian prosecutor who conducted a similar operation in Italy had said the greatest resistance would emerge from within the judiciary. Has the reason why become clear?

The Italian prosecutor was speaking from experience. As a matter of fact, if there is such a central and deep-running network, then it is illogical to assume that it has not nested itself within the judiciary. No member of the judiciary has been implicated in the Ergenekon case so far. That is, the trial has not touched the judiciary.

Do they have better protection?

Unfortunately, in the simplest cases, judges have always been on the winning side. Obviously, they are better protected. The Ergenekon members nested within the judiciary are still active. Even if they are not connected to Ergenekon directly, some are against this process from an ideological point of view. There are some who are after personal gains. There are some who act with a sense of revenge. They may act with different intentions, but in the final analysis, there is polarization within the judiciary. Now, decisions have come to be issued not with legal but political justifications.

Can't it be that these contradictions are the result of these concerns?

 With the emergence of a new generation that is compatible with modern times, the pro-status quo people lose their position. Currently, the only institution that is not held accountable for what it does in Turkey is the judiciary. In order not to lose these privileged positions, they resist change.

Isn't the status quo the suicide of law?

Yes, but it is the most protective environment for the pro-status quo people. Their privileges resulting from the status quo give them the opportunity to exert pressure on other groups of society and empower them with considerably superior power. Now, their power is being taken away. In order to stop this process, they try to undermine Ergenekon and try to prevent the trial from affecting them.