Press Release No: Individual Application 28/16
16.06.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF MEHMET BARANSU ON THE RIGHT TO PERSONAL LIBERTY AND FREEOM OF EXPRESSION AND THE PRESS

On 17/5/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by Mehmet Baransu (application no. 2015/7231) that, in respect of the applicant’s complaints that his detention had been unlawful and that his freedom of expression and freedom of the press had been breached, the applicant’s right to personal liberty and security enshrined in Article 19 of the Constitution and his freedom of expression and freedom of the press enshrined respectively in Articles 26 and 28 of the Constitution had not been violated.

The Facts

In the Taraf newspaper where the applicant was working as a reporter, the news reports entitled “The Fatih Mosque would be bombed – Name of the Coup is Sledgehammer (Balyoz)”, “Detention of two thousand persons” and “Sledgehammer Government – These teams would bomb the mosques” were published respectively on 20/1/2010, 21/1/2010 and 22/1/2010. The persons making the news reports in question were the applicant and two other journalists working in the same newspaper with the applicant.

The applicant submitted copies of three DVDs and one CD forming a basis for the news report on 21/1/2010 and a document of 2.229 pages, nineteen CDs and ten voice records on 29/1/2010 to the İstanbul Chief Public Prosecutor’s Office. The applicant informed that these documents and materials had been delivered to him by an informant.

As a result of the investigation conducted on the basis of information included in these documents and materials delivered by the applicant, the case known to the public as the “Sledgehammer Case” was initiated by the İstanbul Chief Public Prosecutor’s Office. At the end of the proceedings, many accused persons were convicted. At the end of appellate review, the conviction decision rendered in respect of 237 accused persons was upheld by the 9th Criminal Chamber of the Court of Cassation. The Constitutional Court held in individual applications lodged by certain accused persons that there had been a breach of the right to a fair trial.

Upon the Constitutional Court’s judgment finding a violation and the complaints raised by the accused persons tried in the case, the Chief Public Prosecutor’s Office initiated an investigation into the evidence on which the decision was based and mainly consisting of digital data in 2014. On the other hand, as the expert reports received during the re-trial made upon the judgment finding a violation concluded that the digital evidence predicated in the case was not reliable, these reports were also included in the investigation file. 

The applicant was taken into custody on 1/3/2015 within the scope of the above-cited investigation, and the İstanbul Chief Public Prosecutor’s Office requested the applicant be detained for the offences of “establishing an organization for committing an offence”, “destroying, misusing, obtaining by fraudulent, stealing the documents pertaining to the security of the State”, “obtaining confidential documents concerning the security of the State”, and “disclosing information concerning the security of the State and political benefit and required to be kept confidential”.

The İstanbul 5th Office of the Magistrate’s Judge rejected the request for the offence of “establishing an organization for committing an offence” as there was no strong suspicion of offence and for the offence of “disclosing information concerning the security of the State and political benefit and required to be kept confidential” as the period of filing a case which was specified in the Press Law had been time-barred. The applicant’s detention was ordered for the offences of “obtaining confidential documents concerning the security of the State” and “destroying, misusing, obtaining by fraudulent, stealing the documents pertaining to the security of the State”.

The Applicant’s Allegations

The applicant maintained that his detention had been ordered in spite of not committing the imputed offences; that the document constituting an offence and alleged to be destroyed was not an original copy but a photocopy; that he had not used copies of the documents in question for any purpose other than publishing them; that there was no risk of fleeing and no opportunity for him to tamper with evidence; that he had been detained for having obtained the documents published within the scope of the journalistic activities and subject-matter of the news reports; that although the request for his detention for publication of the documents subject-matter of the news reports had been rejected on the ground that the statutory limitation had been time-barred, his detention was ordered with the accusation of having obtained the same documents; and that provision and disclosure of the information subject-matter of the news reports was within the scope of journalistic (press) activities.

The Court’s Assessment

1. Admissibility

The Constitutional Court declared the applicant’s allegations that the Offices of Magistrate’s Judge ordering the detention on remand were in breach of the principle of legal judge and failed to provide assurance of impartial and independent court; that the documents forming a basis for the accusation were not shown to him; and that he could not effectively exercise his right to objection on the grounds that he could not examine the investigation file on which a decision of restriction was rendered and there was a vicious circle of objection mechanism which is lack of court’s assurance  inadmissible for being manifestly ill-founded.

As regards the alleged unlawfulness of the detention and the alleged violation of the freedom of expression and the freedom of the press in conjunction herewith, it was unanimously decided that the application was admissible given the fact that the available remedies had been exhausted. 

In this scope, the Court noted that the subject-matter of the application was the allegation that the applicant’s detention was in breach of the freedom of expression and the freedom of the press; and that the applicant had exhausted the available remedies by means of objecting to the decision ordering the applicant’s detention. The Court reminds, in this respect, that in its recent judgment of Erdem Gül and Can Dündar, it was concluded that there was no need to await for the conclusion of the proceedings for examination of the influence of the detention of the applicants, who were journalists, due to a news report published on their freedom of expression and the press and that the applicants’ allegations were examined in this respect under its substantive aspect.

2. As to the Allegations Declared Admissible

The Constitutional Court primarily noted that the examination as to the allegations declared admissible was restricted with the investigation and prosecution conducted against the applicant and with the lawfulness of detention independently from the possible results of the investigation and prosecution and with the influence of detention on the freedom of expression and the freedom of the press. The Court underlined that such an examination was not related to the merits of the investigation pending against the applicant or the case to be heard if a case was filed against the applicant and did not include the examination as to whether the offence or offences with which the applicant was charged had occurred or not.

a. Alleged Violation of the Right to Personal Liberty and Security

In brief, the Constitutional Court has made the following assessments within the scope of this allegation.  

In pursuance of Article 19 of the Constitution, detention of an individual is primarily based on the “strong indication” that he has committed an offence. This is a sine qua non element for the detention measure. On the other hand, detention, which is a severe protection measure, may only be deemed to be reasonable in the event that a less severe measure would not be sufficient for the protection of the individual and public interest.

The constitutional review as to whether the right to personal liberty and security has been violated must be primarily made concerning the question as to whether there was a “strong indication” for the commission of the offence, which is deemed to be one of the compulsory conditions listed in Article 19 § 3 of the Constitution for applying the detention measure.  Regard being had to the facts that the subject-matter of the application was the detention measure and that there was a pending investigation against the applicant, the Constitutional Court restricted this review with the question as to whether reasoning of the decision on detention rendered by the Office of the Magistrate’s Judge and the request letter for detention had indicated the concrete facts revealing the strong criminal suspicion.   

It has been inferred from the request letter for detention issued by the İstanbul Chief Public Prosecutor’s Office and the reasoning of the decision on detention rendered by the İstanbul 5th Office of the Magistrate’s Judge that the document forming a basis for the offence for which the applicant was decided to be detained on remand was the Egemen Operation Plan. The Egemen Operation Plan was, according to the findings of the investigating authorities, obtained from the plan room of the 1st Army Command. It has been observed that the process during which the plan was taken out of the place where it had been kept could not be clarified.

Upon the statements of one of the complainants heard in the course of the investigation in which it was stated that the CD stolen from the Plan Room of the 1st Army Command had included the Egemen Operation Plan and the annexes thereto; that the presentation concerning a land assault planned within the scope of the Egemen Operation Plan in case of a possible war had not been completely included in the documents and seminar tape recordings submitted by the applicant to the İstanbul Chief Public Prosecutor’s Office; and that very private and confidential documents (information) concerning the strategy to be applied in case of a war had been included in this presentation; it has been revealed that out of the ten tape recordings submitted by the applicant and enumerated as from “1/1” to “1/10”, the sixth tape was not enumerated as “6/10” according to the number sequence assigned but as “6”; and that the tape enumerated six did not include the presentation in question but a presentation made concerning an earthquake. 

On the other hand, it has been observed that the Presidency of the General Staff had primarily found out that among the documents submitted by the applicant, the information included in the Egemen Operation Plan had been the one required to be kept confidential for the security of the State and State’s internal and external political interests and likely to endanger the battle preparations or battle efficiency or military operations of the State in case of being disclosed; and that among the documents submitted by the applicant, there had been 118 “strictly confidential” documents within the scope of the Egemen Operation Plan, and these documents had been submitted to the İstanbul Chief Public Prosecutor’s Office. It has been observed that the documents which the applicant had obtained (according to his explanations) from a retired military officer and had subsequently submitted to the İstanbul Chief Public Prosecutor’s Office, included confidential documents pertaining to State’s security; and that these documents were published in the news reports in the Taraf Newspaper.

It has been accordingly concluded that there was strong indication for being suspicious of the fact that the applicant might have committed an offence.

On the other hand, it must be assessed whether the detention measure was “necessary” within the scope of the proportionality principle, which is one of the criteria set out in Article 13 of the Constitution. Taking into account the investigation pending against the applicant, the Constitutional Court conducted the constitutional review on these matters on the basis of only the detention process and the grounds for the applicant’s detention.  

In the decision ordering the applicant’s detention and rendered by the Office of the Magistrate’s Judge, the grounds for detention were specified by means of indicating that there was a risk of fleeing according to the amount of sentence likely to be imposed on the applicant for the offences subject-matter of the detention decision; and that the investigation had not been concluded yet and had been pending in a comprehensive and multi-directional level. It was also stated that the measure of conditional bail would be insufficient given the period of sanction set out in the Law for the imputed offences; and that the detention was a proportionate measure. Accordingly, it may be concluded that there was a ground for detention within the scope of the investigation conducted against the applicant. Moreover, given the investigation process, it has been revealed that there was no ground for reaching the conclusion that the detention was not necessary.

In this respect, it has been observed that the conditions of the incident which is subject-matter of the recent judgment of Erdem Gül and Can Dündar ([Plenary Assembly], no. 2015/18567, 25/2/2016) and the conditions of the incident which is subject-matter of the present individual application are different from each other. Such differences may be summarized as follows:

i. While concluding that there was a violation of the applicants’ rights to personal liberty and security in the judgment of Erdem Gül and Can Dündar, the following facts were relied on: the applicants had been detained on the basis of two news reports published by the applicants; that any concrete evidence other than these news reports was not specified in the detention decision; and that matters and that photo similar to the those specified and used in the news reports had been included in news reports published in another newspaper sixteen months ago. However, in the incident giving rise to the individual application, it has been revealed that although the İstanbul Chief Public Prosecutor’s Office requested the applicant’s detention for the offences of establishing an organization to commit an offence, disclosing information concerning the State’s security and the State’s political interests and required to be kept confidential, the Office of the Magistrate’s Judge rejected the request for the applicant’s detention for these offences; and that therefore, the news reports published in 2010 in the Taraf Newspaper where the applicant was serving, the content, purpose, possible effects and consequences of these news reports were not taken as a basis for the applicant’s detention. It has been revealed that the allegations that confidential documents within the scope of the Egemen Operation Plan, which was required to be kept confidential with respect to the security of the State or its internal or external political interests and which was, in case of being disclosed, likely to endanger the battle preparations or battle efficiency or military operations of the State and understood to be taken away from a military office, had been obtained; that a certain part of these documents (even their copies) had been destroyed or destructed; and that certain information included in these documents had been leaked to another country served as a basis for the accusations on the basis of which the applicant was ordered to be detained. It has been observed that the plan in question had been published in the news reports in the Taraf Newspaper.

ii. In the judgment of Erdem Gül and Can Dündar, it has been found out that during the period of six months starting from the date when it was announced to the public that an investigation had been initiated against the applicants to the date when the applicants were detained on remand, the investigating authorities failed to obtain any evidence other than the news reports in question. However, in the present individual application, the investigation against the applicant had been initiated upon the criminal complaint filed, following the Constitutional Court’s judgment finding a violation, by persons tried within the scope of the case which was subject-matter of that judgment. In the course of the period elapsing until the applicant’s detention, the investigating authorities heard the complainants’ and witnesses’ statements, conducted researches concerning the nature of the relevant documents and assessed the expert reports received during the re-trial initiated upon the Constitutional Court’s judgment finding a violation and the criminal complaint of the court conducting the trial. It has been understood that the applicant was detained on remand at the end of the above-cited processes.  

Consequently, the Constitutional Court has, by majority of votes, held that there was no violation of the right to personal liberty and security guaranteed in Article 19 of the Constitution.

b. Alleged Violation of the Freedom of Expression and Freedom of the Press

In brief, the Constitutional Court made the following assessments within the scope of this allegation:

As the request for the applicant’s detention for the offence of “disclosing information pertaining to the security of the State and its political interests and required to be kept confidential was rejected, it is out of the question that the applicant was detained on remand due to the news reports published in the Taraf Newspaper in 2010. 

It has been comprehended that the Egemen Operation Plan was not disclosed in the news reports published in the Taraf Newspaper; and that the plan in question was the basic foundation for the accusation leading to the applicant’s detention. The Presidency of the General Staff informed the investigating authorities of the fact that the “Sledgehammer” coup plan constituting the main subject-matter of the news reports, which had been prepared by the applicant and the other two journalists and published in the Taraf Newspaper, and the other plans specified to be parts of this plan had not been a document belonging to the Turkish Armed Forces.

Moreover, it may not be mentioned that the applicant was forced to disclose his news source with respect to the news published in the Taraf Newspaper and he was made subject to a sanction by the public authorities for non-disclosure of his news source.

In this respect, it has been concluded in the present incident that the applicant’s detention did not amount to an interference with the applicant’s freedom of expression and freedom of the press given the nature of the acts/offences for which the detention decision was rendered and the grounds for detention.

Consequently, the Constitutional Court has, by majority of votes, held that there was no violation of the freedom of expression and the freedom of the press respectively guaranteed in Articles 26 and 28 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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