09 February 2018
The second hearing of Mahmut Şen, former member of HSYK, was held on February 9, 2018 in the 9th Penal Chamber of Court of Cassation acting as a first instance court.
Resuming on his defense, Şen stated that his dissenting opinions, he lodged for the investigation orders issued for the judges and the prosecutors alleged to have a membership in Gulen Movement entered as a critical evidence in the indictment filed against him.
Defending that his dissenting statements show his legal opinion, Şen said: “It might be wrong, it does not have to be right. If I have a wrongdoing, at most it can be said that fact is this, why haven’t you written so?”
Demanding that his decisions in which he lodged dissenting opinions be entered into his file, Şen defended that “Did I make decisions which were contrary to that of ECHR and the Constitutional Court or reflected my legal opinion? This matter should be reviewed. I don’t have to go with the majority, likewise, the majority also doesn’ t have to adopt my opinion.”
Stating that the witness is only allowed to give testimony as to the happenings that s/he can perceive with his/her sense organs, Şen defended the fact that when, where and how he was affiliated to the terror organisation and also in which activities of the organisation he attended were not explained in witness statements. Şen claimed that the confessors gave their testimonies in that way because of the moral coercion arising over them and also to get themselves out of the prison.
Also rejecting the accusation as to that he was elected as a member of HSYK by means of the effort of the followers of the organisation, Şen stated that he had eligibility and he took up the position by the votes of the judges and prosecutors also having that eligibility and the Supreme Board of Election was the competent authority to supervise the election.
Şen remarked that on the date when he was accused as a member of the organisation, there was not a final court decision convicting that structure as a terrorist organisation and added “If it is said to me that I am a sympathizer of Gulen Movement, I will make a defense differently, but I am accused of being a member of an armed terror organisation. To have a membership in armed terror organisation, a specific intent is needed. That’s to say, joining in organisation in order to commit an offense and being tight-knit to a hierachcy should be required.”
Also rejecting the claim of using the encrypted communication app of the organisation Bylock, Şen defended that just downloding this app does not constitute a crime, if so, BTK (IT Institution of Turkey) would have blocked it off. The defendant Sen stated that he considered the usage of Bylock as illegal evidence and requested for the expert examining.
Saying that no doubts to flee and tamper the evidences, Şen requested his release.
After the break the panel of court ruled its interlocutory judgement. Accordingly, rejecting the release requests of the defendant, the court ruled for the continuation of pre-trial detention for Şen and postponed the trial to May 21.