The Turkish Constitutional Court recently published several decisions regarding individual appeals in the trials of some journalists. As well as being of great importance for discussions about the Constitutional Court as an effective domestic legal mechanism and as an indicator of the Court’s view of press freedom, these decisions were also something of a proclamation of the Constitutional Court’s “two steps forward one step back” approach to freedom of thought and expression.
On May 3, 2019, the Constitutional Court delivered a decision in the case of Ahmet Altan, who was sentenced to life in prison in February 2018. Declining to overturn the sentence, the court stated: “On evaluation of the appellant’s statements on TV the day before the attempted coup, his recent writings, his position in the newspaper and the secret witness statements describing the nature of this position, the matters that the investigating authorities specified as a strong indication of crimes committed in connection with the Fethullah Gülen Terrorist Organization / Parallel State Structure cannot be considered as unfounded or arbitrary.” In coming to this conclusion, the Constitutional Court agreed that the journalist may have attempted to remove the government of the Republic of Turkey or prevent it from fulfilling its duties, solely through his writings and comments and without openly calling for violence, thereby ignoring the condition of “resorting to force and violence”, one of the elements of the crime in question. Coming down firmly on the side of the state in the matters of freedom and security, the court added: “The right to personal security and freedom should not be interpreted in such a way as to excessively hamper the ability of legal bodies and security forces to effectively fight against crime and criminality – especially that of an organized nature.”
The Constitutional Court issued a similar ruling on May 2, 2019, in the case of former Cumhuriyet Editor-in-Chief Murat Sabuncu, who was sentenced to seven years and six months in April 2018 for ‘aiding a terrorist organization whilst not being a member’. The court stressed that Sabuncu’s headlines, articles and commentaries were “…activities that could be considered to be propaganda for a terrorist organization and that could influence perceptions in favour of such organizations”. As well as once more identifying elements of guilt in journalistic activities, this is also a striking revelation of the Court’s attitude to the newspaper Özgür Gündem. As is common knowledge, before the newspaper was closed numerous journalists and intellectuals took turns to assume the role of duty chief editor in response to the political crackdown on the newspaper. All of them subsequently became the subject of criminal proceedings. In its decision about Sabuncu, the Constitutional Court rejected the argument that the local court had made unfounded and arbitrary observations in relation to messages he had shared about Özgür Gündem, supporting that court’s view that he had protected a publication that spread PKK propaganda and, by doing so, aided the terrorist group.
At this point, it’s useful to recall a decision the European Court of Human Rights (ECtHR) made in 2000 concerning Özgür Gündem. Within the framework of freedom of expression, the Özgür Gündem lawsuit was one in which the positive obligations of the contracting states were explicitly and clearly defined. In relation to the decisions made in the lawsuit, the ECHR determined that “for freedom of expression to be used in its real sense, it is not sufficient for a state to merely refrain from interfering in the use of freedom of expression; it may also be necessary for a state to take positive precautionary measures”. It also said that “the publication of the views of a member of a terrorist group or the denigration of ideas expressing the state’s official policy are in themselves not sufficient to restrict a newspaper’s freedom of expression”.
Notably, in complete contrast to the decisions on Ahmet Altan and Murat Sabuncu, the Constitutional Court’s recent decision in the case of German-Turkish journalist Deniz Yücel on June 28 was completely in line with the ECtHR’s decision on the Özgür Gündem decision quoted above as well as with many other decisions related to media freedom over the years. Pointing out that the evidence presented as grounds for the arrest of Deniz Yücel basically consisted of newspaper articles, the court did not accept that measures as extreme as unlawful arrest were a necessary and measured intervention from the point of view of freedom of expression and the media in a democratic society.
In its decisions in the Yücel case, the court stated: “As no concrete evidence except for the published articles were presented as grounds for arrest, it is clear that the arrest of the appellant might have a damaging effect on freedom of expression and the media. The charging of a journalist on the grounds that they published views expressed by someone else during an interview may significantly impede the media’s contribution to discussing matters of public interest.”
In the same vein, the Constitutional Court’s decisions on the journalists Kadri Gürsel, Murat Aksoy and Ali Bulaç, also handed down on May 3, rejected the idea that views asserted in the journalists’ articles that allegedly show parallels with the views of a terrorist group could in their own right constitute a strong indication of crimes being committed. It stated that, as long as language openly encouraging violence and terrorism was not employed, use of a harsh and critical style or the alleged act of communicating with people who are the subject of investigations connected with terrorist groups cannot be used as the basis of criminal guilt in their own right.
While the above decisions regarding journalists like Ahmet Altan, Murat Sabuncu and Nazlı Ilıcak accept the rationale of claiming that journalists may topple the government with their articles, headlines and news coverage, they are contradicted by the decisions on Deniz Yücel, Kadri Gürsel and Murat Aksoy, which adopt a stance in favour of public interest, and freedom of expression and the press. These contradictory decisions concerning purely journalistic activities, and delivered in the same time period, show that the approach of the Constitutional Court is not consistently in favour of press freedom. This approach, which neither complies with the Turkish constitution nor the European Convention on Human Rights, is akin to the erratic swinging of a pendulum simultaneously under the influence of several different forces. I think it’s fair to say that the resulting picture casts a shadow over the independence of the judiciary.
The responsibility of journalists is to present the truth, enable the public to access correct information and build a pluralistic environment in which different ideas can be freely discussed. The freedom of journalists to report this truth is the guarantor of a transparent and democratic regime. It is the responsibility of the judiciary to allow this freedom and protect public interest with regards to receiving news and being informed, and if necessary, protecting it against political power. The reason that there are currently large numbers of detained journalists and thousands of investigations and prosecutions relating to them is that the political powers are opposed to journalists reporting of truth and believe it dangerous to discuss certain ideas.
Today, there is no press freedom in Turkey, but there is still a free press determined to carry on reporting and withstand the repression. In my opinion, it will continue to be that way. It seems requisite to remind the Constitutional Court of the words of Namık Kemal, written over a century ago in the newspaper İbret, ‘The light of truth is born from the conflict of ideas.’
