Mustafa Ünal (50), a jailed veteran journalist and former Ankara bureau chief for the shuttered Zaman daily, has urged the judges in his trial to comply with the decisions of the European Court of Human Rights (ECtHR) and Turkey’s Constitutional Court (AYM), saying, “My scream for justice has faded away in a bottomless pit.”
Ünal, who was arrested after a military coup attempt on July 15, 2016 and has been held in Silivri Prison in İstanbul for 615 days, defended himself in the April 5 hearing of a trial concerning Zaman in which there are 31 defendants. Stating that “the state is dying due to injustice,” Ünal underlined before the court that he was being unfairly detained and told the panel of judges that “my scream for justice has faded away in a bottomless pit.”
Ünal faces a life sentence in a decision to be handed down by the court May 10-11. The Stockholm Center for Freedom (SCF) has obtained the full text of Ünal’s defense before the court. Ünal, who was a defendant in the same trial as prominent journalists and columnists Şahin Alpay, Mümtaz’er Türköne, Ahmet Turan Alkan and Orhan Kemal Cengiz, reminded the court of a decision rendered by the ECtHR regarding the abuse of Alpay’s rights.
“I have dozens of strong reasons for my release,” Ünal said, outlining the relevant articles of the Turkish Constitution, Turkish laws, practices of the Supreme Court of Appeals and the decisions of the Constitutional Court and the ECtHR.
“I call to your attention the decisions taken by the Constitutional Court for Şahin Alpay dated January 11 and March 16 and say that our situation is exactly the same. The Constitutional Court considered the arrest of a journalist by using his columns as evidence to be a violation of his right to freedom and security as well as to freedom of expression and freedom of the press. As the local court failed to comply with the verdict of the Constitutional Court, the high court again rendered the same decision. The two decisions are not for only one person. They are both verdicts and should be complied with by the lower courts.”
“Zühtü Arslan, the chief justice of the Constitutional Court, has personally and publicly announced this fact. Arslan stated that it was not possible for them to evaluate each and every application and that they would make similar decisions for members of the same profession. This was a clear message for you. Here is the Şahin Alpay decision, which is related to the journalists and writers Arslan mentioned, a precedent for all jailed journalists and writers, so it concerns me as well. Therefore, I should be released immediately. I remind you of Article 153 of the constitution,” said Ünal.
Ünal added: “Furthermore… The ECtHR ruled on March 20 to condemn Turkey over the arrest of Şahin Alpay. The European court took the decision of the Constitutional Court one step further. It didn’t consider only the detention to be a violation of rights; it also ruled that freedom of expression was violated. And the ECtHR declared that the state of emergency [OHAL] regime could not be a reason to limit freedom of expression. You cannot be unaware that the ECtHR judgments are not in personam and that they constitute a legal standard and criterion. According to the rulings of the ECtHR and the Constitutional Court, newspaper columns cannot be evidence for either an arrest or a conviction since they are within the scope of freedom of thought and expression. Full stop. The Constitutional Court and the ECtHR have invalidated this case. You are aware of this, too. The ultimate point about this file is the ECtHR. The ECtHR has already given its decision. Taking this decision into consideration would be good for both Turkey and your career as a judge. I must be released according to the decisions given by the Constitutional Court and the ECtHR.”
At the beginning of his defense Ünal stated that “what I’m about to say in a little while is a rebellion against injustice, unlawfulness and unfairness and the scream for justice of a prisoner who has been detained for 610 days.”
“I am disappointed and angry with the state and the judiciary. You have been unable to distinguish between right and wrong for 610 days. You couldn’t see my innocence. You couldn’t dispense justice. You crucified innocence. And you made my life unendurable. It means that alarm bells are ringing for the state in a country where the judiciary is unable to distinguish between guilt and innocence, right and wrong. My harsh words are the reflection of this alarm,” added Ünal.
Stating that he has been imprisoned for 610 days as a journalist who took nothing other than a pen in his hand, Ünal continued his defense. “I came face to face with unending injustice, unfairness and persecution in my small cell where I have been subjected to a maddening lockdown. Even the tiny garden was a cage. A patch of sky is now behind the iron bars. There is nobody to whom I can express my innocence, make my voice and scream for justice heard. I have written at least three petitions every month with a plea for my release. My scream for justice has faded away in an unseen and bottomless pit. The world is silent.”
Ünal stated that he had appeared three times before a judge thus far and said “’Honorable Judges! Just three hearings in 610 days!’ I realized that the chief judge of the court had changed again. Three different chief judges in three hearings. Is this normal? I don’t think so… What kind of trial is this? We encounter surprises at every hearing. It’s not hard to predict why the chief judge does not stick with the case. Because the conscience rejects such gross injustice. No judge wants his name on this rancid, freak of nature file. They are afraid that they could appear with an unbearable file in the presence of God and history. And so they run away to other courts. I wonder how long you could last as well.”
Emphasizing that the changes in the panel of judges cannot be taken as normal during a trial in any state of law, Ünal argued that even the military courts established after the September 12, 1920 military coup were more courageous. “Today the courts are giving worse decisions than the courts in the interim period after September 12. As you can see in this example… The judiciary will emerge from this doom and gloom situation with decisions that you will give in the direction of justice. With your fair decisions justice will be more confident. I want to be hopeful.”
Reminding that his screams for justice have sounded like lullabies to the judges, Ünal said: “It did not touch your heart. It didn’t touch your conscience. Your decision has not changed.”
“You gave reasons for the continuation of my detention that were so clichééand stereotyped,” said the veteran journalist, adding: “The strong suspicion of crime, the existence of concrete evidence, a flight risk and so on… None of your reasons fit me. None of them match me. It’s never the expression of truth. So they are lies. I have not done anything that is defined as a crime in the law. My proof? The indictment. Yes, the indictment. For my nine articles that are referenced with only their titles mentioned, the prosecutor personally wrote, actually confessed, in the indictment that “no criminal element was found in the articles.” You have decided for the continuation of my detention according to these invisible criminal elements, like soothsayers.”
Ünal stated in the courtroom that “I have a request for you. … I also wrote about this in my petitions. I want a group of experts to examine the content of my articles in the indictment. I insist on this.”
Underlining that a state cannot breathe without justice, Ünal concluded as follows: “Honorable judges! The meaning of oxygen for living beings is the same the justice for a state. States require justice to breathe. In our country, the oxygen, the justice, is about to give out… The state has set off an alarm because it’s suffocating. The detention of an innocent man like me is blocking the state’s windpipe. The thing you hear is not a lullaby; it is the death throes of the state. The situation is grave and urgent…
“Give oxygen, that is, justice, to the state. Otherwise, it will be too late tomorrow. Every passing minute, every passing second, is vital… The vital organs are dying one by one. The state is dying of injustice. If you do not provide justice, you will be its murderer.
“Before deciding, think about it for a minute. Think that every signature you affix will follow you, it will not leave you for the rest of your life. As long as the world turns it will follow you, and one day it will catch up with you.
“Today I am a defendant in front of you, but think about the possibility that I will be a complainant tomorrow and you will be the defendant. No need to say too much. If Turkey adheres to the rule of law… If the constitution is still in effect… If the laws are not abrogated… If you derive your legitimacy from the constitution and the law… You have no choice other than to release me. You’re actually giving a verdict about yourselves.
“I want to be acquitted, not released pending trial.”
Turkey is the biggest jailer of journalists in the world. The most recent figures documented by SCF show that 245 journalists and media workers were in jail as of April 4, 2018, most in pretrial detention. Of those in prison 188 were under arrest pending trial while only 57 journalists have been convicted and are serving their time. Detention warrants are outstanding for 140 journalists who are living in exile or remain at large in Turkey.
Detaining tens of thousands of people over alleged links to the Gülen movement, the government also closed down about 200 media outlets after the controversial coup attempt on July 15, 2016.