Turkey’s Constitutional Court published yesterday a detailed ruling on the individual applications of journalists involved in the Cumhuriyet trial, who were sentenced to prison terms varying from two to eight years after the final hearing on April 25, 2018. The court, in its ruling on May 2, 2019, found no evidence of fundamental rights violations in the case of 11 defendants. In the case of three others, however, including IPI Executive Board member Kadri Gürsel, the court found violations of the rights to liberty and security and of freedom of expression in connection with unjust long-term detention of journalists pending trial. The apparent contradictions in the court’s decision stirred controversy already at the time it announced its ruling.

The court’s ruling yesterday covers applications filed by Akın Atalay, Murat Sabuncu, Ahmet Şık, Önder Çelik, Bülent Utku, Mustafa Kemal Göngör, Musa Kart, Güray Öz and Hakan Kara – all journalists in the Cumhuriyet case – as well as journalists Ahmet Altan and Nazlı Ilıcak. The latter two had been sentenced to life in prison on February 16, 2018, for “violation of the constitution” in relation to the July 15, 2016 coup attempt.

The International Press Institute (IPI) has serious concerns over the Constitutional Court’s detailed ruling in these cases, which cites journalistic work as evidence for the charges against the Cumhuriyet defendants. This decision suggests that Turkey’s most supreme judicial body has endorsed the view that journalists can be prosecuted on the basis of their journalistic work without any concrete evidence.

The court’s ruling detailed reasons for its decision on “non-violation” of rights in the case of each applicant. The ruling cites Cumhuriyet’s published work as criminal evidence for “spreading terrorist propaganda” for both outlawed organizations FETÖ and PKK, holding all applicants from Cumhuriyet case responsible for the newspaper’s editorial policy. Interestingly, the two terrorist organizations cited in the ruling are at the opposite end of the political scale, holding contradictory ideologies.

On the other hand, the same detailed ruling explains the decision related to three journalists – Kadri Gürsel, Murat Aksoy and Ali Bulaç – in which the court found “violation of their rights to liberty, security and of their freedom of expression” for their long-term detention prior to and during trial. The justification in the ruling is based on the argument that the applicants’ articles and columns – despite their critical perspective – were written within the scope of their freedom of expression. More specifically, the ruling on Murat Aksoy’s case cites that “even though the applicant had shown parallel discourse and tendency to the terrorist organization’s ideologies, the news articles and social media posts alone do not form the offence charged.”

In Gürsel’s ruling, the court states that Gürsel’s position as consultant at the time at Cumhuriyet is not evidentially strong enough to direct or influence its editorial policy. Gürsel’s column was also not considered as criminal evidence since they did not contain language of hate or attempts to incite public to indulge in violence and terror “even though they have a harshly criticising style”.

Ruling on the application of Gürsel, the court stated that being contacted by people, who are subjected to investigations for being a member of a terrorist organization, cannot be seen as an evidence unless it’s proven that the objectives  of the “communication” had a purpose in line with the objectives of the related organization.

In its ruling on May 28, the Constitutional Court also said that German newspaper WELT correspondent Deniz Yücel’s rights to liberty, security and freedom of expression have been violated. Finding that his detention was unlawful, the court ordered Turkey to pay Yücel 25.000 Turkish Liras in damages. Yücel was held in pretrial detention in Turkey for one year between 2017 and 2018. On the day of his release on February 20, 2018, prosecutors submitted a three-page-long indictment, requesting 18 years in prison for Yücel on charges of “inciting the public to racial hatred and enmity” and “spreading the propaganda of a terrorist organization.”

IPI’s Director of Advocacy Ravi Prasad underlined the highly problematic, contradicting nature of the Court’s rulings. “All defendants in the Cumhuriyet case used their fundamental right to free speech and expression within the scope of the Turkish constitution,” Prasad said. “We welcome the decisions in the cases of Yücel and Gürsel, but it is important that the Turkish courts uphold the rights of all journalists.”