The Verdict of Imprisonment

TURKISH REPUBLIC

32th ASSIZE COURT OF ISTANBUL

The Information Regarding the Classification of The Case File

THE JUSTIFIED JUDGMENT

 

The Information Regarding the Credentials of The Accused and The Court Members

 

Upon the hearing held in our court regarding the accused whose credentials above,

IT IS HEREBY ORDERED AND DECIDED THAT:

 

 

The part about the accusations and statements of the prosecutor are a copy-pasted version of the indictment. All the relevant information can be found in the “Summary of the Indictment”.

 

THE PLEA STATEMENT:

IN HIS/HER PLEA, THE ACCUSED HAS STATED THAT: “I hereby repeat my previous statements. I do not accept the accusation and I will submit my plea in written form. My defence is principled. First of all, I signed the mentioned declaration. As a political scientist, I have lectured in many places both in the country and abroad.  As I expressed in my written statement, I considered the solution process regarding the Kurdish question initiated by the politicians of the period in 2013 a positive step. I signed the declaration with a hope to end the armed conflicts that occurred thereafter and to help the re-establishment of the solution process. As I have expressed in my written statement, I do not accept the accusation that I made propaganda for the armed terror organisation PKK/KCK. I hereby demand my immediate acquittal. In addition, I haven’t attended the press conference and the declaration dated March 10, 2016, which also became the subject of this indictment”.

IN HIS/HER RESPONSE TO THE OPINION OF THE PROSECUTOR AND IN HER/HIS DEFENCE AGAINST THE ACCUSATIONS, THE ACCUSED HAS STATED THAT:

“I hereby repeat my previous defences. I do not agree with the opinion of the Prosecutor. In my previous defence, I said that I signed the declaration within the limits of the freedom of thought and expression. I then made a principled defence. Here I want to underline that I have signed the text as a political scientist, as a citizen of the Turkish Republic and to bring peace to all the segments of society. I hereby oppose the accusations and leave the assessment to your panel”.

THE DEFENDANT OF THE ACCUSED HAD STATED BEFORE OUR COURT THAT:

“First of all, I agree with the statements of my client. I have prepared a written defence statement. We hereby repeat our statement given at December 7, 2017 and we reject the accusations. The grounds of the facts that we rely on can be found in the appendix of our petition. In addition, I request my client to be exempted from the hearings.”

IN HIS/HER RESPONSE TO THE OPINION OF THE PROSECUTOR AND IN HER/HIS DEFENSE AS TO THE ACCUSATIONS, THE DEFENDANT OF THE ACCUSED HAS STATED THAT:

“We agree with the statements of the client. We do not agree with the opinion of the Prosecutor. We especially repeat our three pages long statement submitted on April 4, 2018 word by word”.

IN THEIR OPINION OF THE PROSECUTOR AS TO THE ACCUSATIONS, THE COUNSEL OF THE PROSECUTOR HAS STATED THAT:

“Repeating what is stated in the indictment regarding the accused, issued by the Office of the Prosecutor dated September 25, 2017 under the number 2017/4653:

It is known that, during the second half of 2015, terrorists of the illegal terrorist organisation PKK/KCK, with the ultimate aim of detaching a part of the country from the sovereignty of the state to establish an independent Kurdish state by means of coercion, violence and terror, infiltrated several town centres in the eastern and south-eastern region, that these terrorists carried out acts of occupation under the name of so-called self-governance by building barricades with bomb traps on the roads and by digging up ditches with barricades reinforced with explosives, that they took locals that were unable to leave the area as hostages and used women, children and the elderly as shields, that the security forces who tried to end these acts of occupations of the terror organisation within the authorisations and responsibilities prescribed by the law have spent the maximum effort to keep the hostage citizens free from any harm, that, in the course of the events, it became inevitable to declare curfew limited to the relevant districts, that, by using its media organs and all the available visual and textual means of communication under its control, the terrorist organisation tried to present these acts of occupation to the public not as a acts of terror but as unprovoked acts of killing and destruction by the security forces against civilians, that the terrorist organisation and its supporters tend to present the state security forces to the domestic and international public as assailant, that it has tried to render the terrorists, those responsible for the incidents, invisible and that the supporters of the terrorist organisation have used any means in this respect.

Moreover, during these events, Bese Hozat, the Co-Chairperson of the so-called Executive Council of the terrorist organization PKK/KCK had made a statement on December 22, 2015, via media under the organisation’s control, stating that “The intellectual and democratic circles should support the self-governances” which bears the nature of a directive and consequently, the declaration that is subject to this judgment was prepared and spread in order to distort public perception.

In this context, considering the facts that the accused, regarding the struggle of the security forces against the acts of terror in the eastern and south-eastern regions, had  become organized under the name of Academics for Peace and signed the declaration named “We will not be a Party to This Crime”, which is described in detail in the indictment, by sending a confirmation email to the mail address opened for this platform, to express more clearly, that, as accepted by the accused in her/his statement, the signature means here disseminating and supporting the opinion that is tried to be imposed through various means, and therefore it does not require the existence of an actual wet-ink signature, that the declaration, seeking to hide the acts of terror of the terror organisation from the public and to present the security forces as sole responsible for the events, deliberately refers to the terms and concepts of “massacre, torture, displacement, deliberate and planned massacre”, that, considering the emphasis on these terms and concepts in the text, all the elements of the crime of terrorist propaganda are present; that, while recognizing the fundamental right of the individual to sign a declaration that does not feature terrorist propaganda, when the act of signing a declaration legitimizes a terrorist organisation that seeks to abolish the sovereignty of the state over the region, accuses the state forces that struggle for the unity, peace and order of the country of “carrying out a massacre” and addresses only the state, it has been evaluated through the scope of the case file that the act has been conducted with the deliberate intention of legitimizing the coercive, violent and threatening actions of the terrorist organisation.

Thus, it is held that the accused has been proven guilty of making propaganda for the terrorist organisation PKK/KCK, which is known to have committed numerous acts of terror against public institutions, state officials and civilians and caused a big number of casualties for more than 40 years and  therefore, it is considered that the accused must be punished in accordance with the article 7/2 of the Law numbered 3713 and Article 53 of the Turkish Penal Code numbered 5237.”

LEGAL EVIDENCES

1 – The register and the criminal record of the accused,

2 – The minutes of the case,

3 – The text of the declaration as the subject of the crime,

4 – All the existing records and documents included in the case file, the correspondences made by our court, the whole scope of the case file.

THE RELEVANT ARTICLES TO BE APPLIED TO THE ACT OF THE ACCUSED

In the case that the court rules to charge the accused with the crime of carrying out terrorist propaganda, Article 7/2 of the Turkish Anti-Terror Law numbered 3713 shall be applied.

Article 7/2 of the Turkish Anti-Terror Law numbered 3713 reads as follows:

A person who makes propaganda for a terrorist organization in a way that legitimizes or promotes the methods of coercion, violence or threat used by the organization or encourages to resort to such methods, shall be punished by imprisonment from one year to five years. If this crime is committed by means of mass media, the penalty shall be increased by one half. In addition, editors-in-chief who have not participated in the perpetration of the crime shall be punished with a judicial fine from one thousand to five thousand days’ rates. The following actions and behaviours shall be punished in accordance with this paragraph’s sentences:

  1. a) (Abrogated at 27/03/2015 by the Law n0. 6638/Art. 10)
  2. b) Not limited to public meetings and demonstrations, and in ways that reveal membership or support for a terror organisation:

1 – Carrying or hanging emblems, pictures and signs belonging to the organization,

2- Shouting slogans,

3 – Broadcasting with sound equipment,

4 – Wearing uniforms that bears the emblems, pictures and signs of the terrorist organisation.

THE TERRORIST ORGANISATION PKK/KCK

According to the Anti-Terror Law numbered 3713, any criminal action conducted by one or more persons, making use of force and violence and methods of pressure, threat, terrorisation, intimidation, and belonging to an organisation that seeks to change the composition of the Republic as specified in the Constitution and the political, legal, social, secular or economic system, to damage the indivisible unity of the state’s territory and nation, to jeopardize the existence of the Turkish State and the Republic, to enfeeble, destroy or seize the State authority, to eliminate fundamental rights and freedoms, to damage the internal and external security of the State, the public order or general health, is regarded as “Terror”, and the organisations that have been formed and carry out activities in order to commit crime in accordance with these goals are defined as “Terrorist Organisations”.

The armed terrorist organisation PKK/KCK was founded in 1978, in the village Fis (Ziyaret) in the district of Lice in the province of Diyarbakir, taking the Marxist/Leninist ideology as its reference point and under the name “PKK”; following propaganda and recruitment activities, through its branch of HRK (Salvation Brigade of Kurdistan) it turned towards acts of violence with its assaults on Eruh and Semdinli on August 15, 1984; and it has sought to form a unified and independent state of Kurdistan on the territories of Turkey, Iraq, Syria and Iran.

From its emergence until today, the armed terrorist organisation PKK/KCK has carried out armed activities and operations through its various sub-organisations. In line with the changing realities of the world and in order to present itself to its members and to the international community as a non-terrorist organisation and as the so-called representative of the Kurdish people, the terrorist organisation initiated changes in its organisational structure and methods of action, and altered its name accordingly. In this regard, it had adopted the name KADEK in 2002, KONGRA-Gel in 2003 and it announced that it was organising a new structure under the name of Koma Komalen Kurdistan/Democratic Confederalism of Kurdistan (KKK) in 2005 and declared the emergence of KKK. And in 2007, it had formed the organisation KCK.

It is proven by court decisions that the aim of the terrorist organisation PKK/KCK is to “Carry out activities to detach a part of the territory of the country from state sovereignty, to distort and disturb the constitutional order and the unitary structure of the Republic of Turkey, and that, in order to achieve this goal, it has caused the death of thousands of civilians and security officers, that it keeps carrying out these activities, and is therefore categorised as a terrorist organisation that commits numerous terrorist actions of a calamitous nature. The punishment of the leader of the terrorist organisation for leading this terrorist organisation is still being enforced.

THE EVALUATION OF THE LEGAL EVIDENCES AND THE JUSTIFICATION OF THE DECISION:

During the process of adjudication, the court formed the conviction that the defence of the accused, the text of the declaration that constitutes the crime, the minutes and documents in the case file that can act as evidences and the criminal record of the accused are eligible as evidences for the crime attributed to the accused.

When the collected evidences and the scope of the case file are evaluated as a whole, it must first be scrutinized what kind of a calamitous situation our country was in on January 11, 2016, when the declaration prepared and signed by 1128 academics, including the accused, was publicized.

As described in detail above, considering that the ultimate goal of the terrorist organisation PKK/KCK is to detach a part of the territory of the country from the state’s sovereignty, to dissolve the constitutional order and the unitary structure of the Republic of Turkey and that, in order to achieve this goal, it has continuously carried out armed terror activities that have caused the death of thousands of civilians and security officers up until today, that it still engages in the activities and carries out numerous operations of a calamitous nature; it is obvious that on January 11, 2016, the time of the crime, starting in the second half of 2015, it aimed to drag the country into the chaos of violence as it carried out acts of occupation under the name of so-called self-governance by placing barricades and bomb traps on the roads via the terrorists that had infiltrated several town centres in the eastern and south-eastern regions of the country, digging up ditches with barricades reinforced with explosives, by taking locals that were unable to leave the area hostages and by using women, children and the elderly people as shields and finally, in several settlements, it sought to create zones under the control of the terrorist organisation that are independent from state sovereignty.

Several statistical data are presented below in order to demonstrate the scope and dimensions of the terrorist activities carried out by the terrorist organisation in certain town centres of the eastern and south-eastern regions during the second half of 2015 and the consequences of these actions for the country. During these terror acts that began during the second half of 2015 and lasted for about a year until the second half of 2016;

  • 532 security officers were martyred, 337 of them soldiers, 182 police officers and 13 village guards.
  • 228 civilians lost their lives.
  • 2307 barricades and ditches were dismantled and removed by the security forces,
  • 300.000 people were directly affected as a result of the curfew decisions, which were issued by the state in order to secure the lives of the citizens against the acts of terror.
  • 000 student in the mentioned town centres were deprived of the right to education as a consequence of the curfew decisions, which were issued by the state as a result of the acts of terror initiated by the terrorist organisation PKK/KCK.

It is obvious that, through these acts and through the consequences resulting from these acts, the terrorist organisation is seeking to add an international dimension to the issue and to defame our country in front of the international community and even desires a setting where international organisations would intervene.

When evaluating from the point of view of the legal regulations that apply to these incidents, it becomes necessary to scrutinize the threshold between “domestic disturbances”, which occur within the domain of state sovereignty and are subject to domestic law, and “Non-International Armed Conflicts” within international law, which is a device that can be used to intervene in domestic law by granting certain rights to hostile armed groups, and the “International Armed Conflicts” within the domain of “Armed Conflicts Law”, and the methods and tools that entail the passing of a threshold.

In situations of domestic turbulences and tensions that do not amount to a non-international armed conflict, what start with unlawful demonstrations and ranges through individual acts of violence, widespread acts of violence, revolts and similar cases of domestic disorder are legally defined as social disturbances. In cases when the police forces are insufficient to alone suppress the events and are being supported by military units, the relevant operations are called “domestic security operation” or “low-intensity conflict”.

Insofar as the mentioned operation does not contain an international element, it is regulated by the domestic law of the Republic of Turkey and international human rights law, of which it is a party. The fundamental laws that constitute the frame of such an operation are: the Law on Meetings and Demonstrations, numbered 2911; the Law for Provincial Administration, numbered 5442; the Law on the Organisation of Security Institutions, numbered 3201; in the case of a declaration, the The State of Emergency Law, numbered 2935; and the Law on Martial Law Regime, numbered 1402. Additionally, regarding the international human rights law, of which our country is a party, there exists fundamental conventions like the United Nations Universal Declaration on Human Rights, the United Nations Convention on Civic and Political Rights and the European Convention on Human Rights. Alongside these fundamental sources, The Internal Service Law for Turkish Armed Forces, numbered 211, the Law on Police Powers and Authorities, numbered 2559, the Law on the Organisation, Powers and Authorisations of Gendarmerie, numbered 2803 and the Anti-Terror Law numbered 3713 remain as domestic legal sources that include norms regarding the relevant field.

When examining the calamitous scene brought about in our country and especially in our regions that experienced social incidents and at the time when the declaration was signed,  and when examining the applicable law together with the methods used by the terrorist organisation and the dimension of the violence (placing tons of explosives in residential areas as traps, harming the civilians, damaging important social locations like schools, mosques, hospitals and historical artefacts by detonating these traps), it becomes clear that the power exercised by the security forces in order to stop / hinder the actions of the terrorist organisation are of a proportionate nature and in accordance with both domestic and international law. Otherwise a situation would arise where the state remains indifferent to terrorist activities on its soil and would not protect its citizens; it is an obvious contradiction that those people who, in that period, issue the so-called peace declarations and want the civilians not to be harmed do expect the state to not struggle against terrorism and remain indifferent to the actions of the terrorist organisation, that those people at the same time qualify the actions of the state, which are totally in accordance with domestic and international law, as massacre, as a deliberate and planned slaughter.

It is known that, during the second half of 2015, the illegal terrorist organisation PKK/KCK, whose goal is to detach a part of the country from the state’s sovereignty and to found an independent state, infiltrated several town centres in eastern and south-eastern region, that its terrorists carried out acts of occupation under the name of so-called self-governance by placing barricades and bomb traps on the roads and by digging up ditches with barricades reinforced with explosives, that they took locals that were unable to leave the area hostage and used women, children and the elderly as shields, that the security forces who tried to end these acts of occupations of the terrorist organisation within the powers and responsibilities prescribed by the law spent the greatest effort to keep the hostage citizens free from any harm, that, in the course of the events, it became inevitable to declare curfew limited to the districts affected by the events, that, by using its media organs and all the available visual and textual means of communication under its control, the terrorist organisation sought to present these acts of occupation to the public not as acts of terror but as unprovoked acts of killing and destruction by the security forces against civilians, that the terrorist organisation and its supporters tend to present the state security forces to the domestic and international public as assailant, that it has tried to render the terrorists, those responsible for the incidents, invisible and that the supporters of the terrorist organisation have used any means in this respect. And yet, it is known that on December 22, 2015, Bese Hozat, the co-chairperson of the so-called Executive Board of the terrorist organisation PKK/KCK, via media under the organisation’s control, stated that “The intellectual and democratic circles should support the self-governances” which bears the nature of a directive and consequently, the declaration that is subject to this judgment was prepared and spread in order to distort public perception. Additionally, it is obvious beyond dispute that it does not suit the identity of a so-called intellectual, pacifist, democratic, responsible and unbiased academic such as the accused, who states that s/he signed the declaration to contribute to the establishment of peace as a responsible and intellectual academic, to only address the state as if the perpetrator of the events is the state, to not think about preparing and addressing another declaration of the same nature to the terrorist organisation PKK/KCK, to not consider making a similar call, study or declaration concerned with the fact that the so-called self-governance declaration of the PKK/KCK might initiate a development that can end up in the division of the country or may have political consequences leading to a separation. Again it does not suit the identity of a so-called unbiased, pacifist, intellectual academic such as the accused to be unaware of the fact that with this declaration s/he has made terrorist propaganda in a way that legitimizes the coercive, violent and threatening methods of the terrorist organisation and encourages the application of such methods, to not consider that the mentioned declaration would be used as a propaganda tool for the armed terrorist organisation. Finally, the fact that the publicized declaration does not include any assessment, opinion or criticism regarding the responsibility of the terrorist organisation PKK/KCK in the incidents that occurred or regarding the fact that the armed terrorist organisation PKK/KCK caused the incidents and the loss of lives through the incidents, obviously lays bare that the real intention of the accused is to act to protect and guard the terrorist organisation of PKK/KCK.

In this context, considering the facts that the accused, regarding the struggle of the security forces against the acts of terror in the eastern and south-eastern regions, had  become organized under the name of Academics for Peace and signed the declaration named “We will not be a Party to This Crime”, which is described in detail in the indictment, by sending a confirmation email to the mail address opened for this platform, to express more clearly, that, as accepted by the accused in her/his statement, the signature means here disseminating and supporting the opinion that is tried to be imposed through various means, and therefore it does not require the existence of an actual wet-ink signature, that the declaration, seeking to hide the acts of terror of the terror organisation from the public and to present the security forces as sole responsible for the events, deliberately refers to the terms and concepts of “massacre, torture, displacement, deliberate and planned massacre”, that, considering the emphasis on these terms and concepts in the text, all the elements of the crime of terrorist propaganda are present;

that, while recognizing the fundamental right of the individual to sign a declaration that does not feature terrorist propaganda, when the act of signing a declaration legitimizes a terrorist organisation that seeks to abolish the sovereignty of the state over the region, accuses the state forces that struggle for the unity, peace and order of the country of “carrying out a massacre” and addresses only the state, it has been evaluated through the scope of the case file that the act has been conducted with the deliberate intention of legitimizing the coercive, violent and threatening actions of the terrorist organisation and in this regard, as the accused is proven guilty of the mentioned offences, it is hereby judged that s/he shall be punished pursuant to the Article 7/2 of the Law numbered 3713. (The verdict of the 2nd Penal Chamber of the Istanbul Regional Court of Justice dated September 27, 2017 and numbered 2017/1472-1424 E. -K. shares the same opinion.) As the accused signed the declaration on an electronical platform and was aware that the signature would consequently be published on the website called “Academics for Peace Platform” and, hence, that it would be publicized by means of media and press and as her/his responsibility is fundamental in this regard, it is proven that the offense has been committed by means of media and press and therefore, in accordance Clause 2 of the Article 7/2 of the Law numbered 3713, it has been decided that the punishment shall be increased by 1/2, and considering the behaviours of the accused after the time of the crime and during the process of judgment, this shall be accepted as a ground for remission and, in accordance with the Article 62 of the Turkish Penal Code, it has been decided the punishment shall be reduced by 1/6.

Even though the punishment issued in relation to the act of the accused is less than two years of imprisonment, the conditions for applying the clauses permitting the deferment of the announcement of the verdict, as described in the Article 231 of the Turkish Criminal Procedure Code,  have not been met as the accused has not given her/his consent for the application of these clauses; again, looking at the defence of the accused, it is seen that s/he does not exhibit any regret regarding the committed crime and taking into consideration that her/his personality has not shown any regret before our court, there exists no sign that s/he would refrain from committing a crime, therefore, upon the discretion of the court, it is decided that the clauses of suspension of the punishment as described in the Article 51 of the Turkish Penal Code shall not be applied and therefore, the following judgment has been issued.

THE JUDGMENT: As its grounding reasons have been stated above, it has been decided that;

  • As the accused has been proven guilty as charged with the crime of MAKING PROPAGANDA FOR THE TERRORIST ORGANISATION PKK/KCK, Article 7/2 of the Law numbered 3713 shall be applied; in accordance with the first clause of this Article, the way of the crime was committed, the properties of the action, the weight and the intensity of the intention have been taken into consideration, the discretionary power has been employed and given the minimum level stated in the law, the accused shall be PUNISHED WITH 1 YEAR OF IMPRISONMENT.
  • As it has been proven that the crime has been committed by means of media and press, in accordance with clause 2 of Article 7/2 of the Law numbered 3713, the penalty shall be increased by 1/2 and therefore, the accused shall be PUNISHED WITH 1 YEAR AND 6 MONTHS OF IMPRISONMENT.
  • Considering the behaviours of the accused after the time of the crime and during the process of judgment, in accordance with Article 62 of the Turkish Penal Code, her/his penalty shall be reduced by 1/6 by discretion and therefore, the accused shall be PUNISHED WITH 1 YEAR AND 3 MONTHS OF IMPRISONMENT.
  • As the accused has not given her/his consent, the clauses regarding the deferment of the announcement of the verdict, which is described in Article 231 of the Turkish Criminal Procedure Code, SHALL NOT BE APPLIED.
  • Considering the personality of the accused who shows no regret, the court has not reached the conclusion that the accused would not commit any further crimes and therefore, it has been decided that the clauses of suspension as regulated in Article 51 of the Turkish Penal Code SHALL NOT BE APPLIED.
  • Considering the punishment of imprisonment given to the accused, it has been decided that the legal options of transforming imprisonment to a pecuniary penalty, as described in the Article 50/1-a of the Turkish Penal Code, or transforming it into any of other optional penalties described in the Article 50/1 of the Turkish Penal Code SHALL NOT BE APPLIED.
  • As the consequence of the punishment of imprisonment for the deliberately committed crime, it has been decided that the accused SHALL BE KEPT DEPRIVED OF the rights foreseen in the clauses of “a, d and e” of the Article 53/1 of the Turkish Penal Code numbered 5237 until her/his imprisonment is fully executed in accordance with the 2nd Paragraph of the same Article; of the powers of custody, tutelage and guardianship over her/his descendants until her/his release on probation in accordance with the 3rd Paragraph of the same Article; of the same rights over other people until her/his imprisonment is fully executed in accordance with the 2nd Paragraph of the same Article; and regarding the deprivations from rights mentioned in the Article 53/1-b of the Turkish Penal Code, it has been decided that the annulment decision issued by the Constitutional Court dated October 8, 2005 with the Docket Number 2014/140 and Decree Number 2015/85, which has been published in the Official Gazette dated November 24, 2015 and numbered 29542 SHALL BE REGARDED.
  • The litigation expenses made through the case file and shown in the justified decision shall be collected from the accused and recorded as revenue within the public treasurry,

Before the accused, the defendant of the accused and the Public Prosecutor Caner BABAOGLU, the unanimously given decision has been clearly read and explained with the reservations that the parties are allowed to appeal to the Istanbul Regional Court of Justice, The Department of the Penal Chamber, within 7 days starting from the pronouncement of the judgement for those that attended the hearing and starting from the notification of the judgement for those that did not attend the hearing, through an application submitted to our Court or through submitting a statement to the Clerk of the Court by preparing an official minute with the approval of the judge; and that, in the case that the parties do not apply for appeal, the judgement shall be finalised. April. 2018.

SIGNATURE             SIGNATURE             SIGNATURE SIGNATURE

The Litigation Expenses:

Notification Expenses: 12,50 Turkish Liras

Total: 12,50 Turkish Liras