Press Release No: Individual Application 26/17
28.09.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE FREEDOMS OF EXPRESSION AND PRESS DUE TO THE NEWS DIRECTOR’S CONVICTION TO IMPRISONMENT WITHOUT SUFFICIENT GROUNDS

On 5 July 2017, the Constitutional Court found a violation of the freedom of expression and the freedom of press, which are respectively enshrined in Articles 26 and 28 of the Constitution, in the individual application lodged by Hakan Yiğit (no. 2015/3378).

The Facts

The applicant is the news director of a web-site, namely memurlar.net. Following the 17-25 December investigations, tape recordings alleged to belong to Fetullah Gülen or persons who are in close relationship with him were broadcasted or reported as news via many web-sites. Subsequently, the news portal, memurlar.net, broadcasted these tapes with the heading “Conversation between Gülen and the top Abi (“top brother”) is now available on the Internet”.

The tape in question relates to the phone conversations held between Fetullah Gülen and a person who was defined by the web-site as “the top abi” and whose full identity information was not given. During these conversations, the unidentified person provided Fetullah Gülen with information −generally classified− about several bureaucrats, politicians and businessmen, informed Fetullah Gülen of the relations between the group which is led by Fetullah Gülen and which would be subsequently called as the FETO/PDY, as well as received instruction from Fetullah Gülen.   

Following the broadcast of the news, Fetullah Gülen filed a criminal complaint against the applicant as well as the media outlets broadcasting the impugned news for insulting his personal rights and breaching the confidentiality of communication.

Thereupon, the Ankara Chief Public Prosecutor’s Office brought a criminal case against the applicant for unlawfully disclosing the contents of the communication and insulting persons through internet. According to the prosecutor’s office, the imputed offence results from the broadcast of the relevant contents through media outlets and is a type of offence which is separate from the offences of breach of the confidentiality of communication and recording of the contents thereof. The prosecutor’s office noted that commission of the offence in question was completed by way of notifying or announcing the contents of the communication to the person or persons who is/are not a party thereto.   

During the criminal proceedings, the applicant maintained; that they had acted in line with the responsibility of the press; that the news is within the press freedom to make news and that the impugned tapes were removed from the web-site one day later upon the request of the complainant’s lawyer.

By the decision of the 24th Chamber of the Ankara Criminal Court, the applicant was acquitted of the offence of insulting but sentenced to 1 year and 8 months’ imprisonment for breaching the confidentiality of communication. However, the criminal court decided to suspend the pronouncement of the judgment and to subject the applicant to probation for a period of 5 years. According to the criminal court, publication of a phone conversation between persons –even if socially prominent ones–, which enables everyone to learn the content thereof, is sufficient for the offence to occur.  The applicant’s challenge to the criminal court’s decision was dismissed by the 6th Chamber of the Ankara Assize Court.

The Applicant’s Allegations

The applicant, who is a news director in one of the most followed news sites, stated that the impugned video and tape recordings had already been broadcasted by several video hosting sites and by hundreds of web-sites and that these tape recordings were reported as news by his team. He indicated that the chief public prosecutor’s offices rendered a decision of non-prosecution or relevant courts gave a decision of acquittal in respect of the officials of the other media outlets broadcasting the same tapes. He submitted some of these decisions to the Constitutional Court. The applicant accordingly alleged that his freedoms of expression and press were violated.   

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Failing to strike a balance between the applicant’s freedoms of expression and press and the other individuals’ right to protect their honour and dignity, the first instance court found that the latter absolutely outweigh the former when these two rights are competing. However, a conclusion reached without striking a balance between the individuals’ rights and freedoms by means of handling the case as a whole within the scope of the principles set by the Constitutional Court cannot be regarded as being compatible with the principles set out in Articles 26 and 28 of the Constitution.

First of all, the contents of the communication served for discovering and forming an opinion regarding the thoughts and attitudes of the complainant, who is undeniably a prominent person, and the political, social and economic activities of the group led by him. Therefore, there is no doubt that broadcasting of these tapes contributed to a significant public discussion.

Secondly, the complainant did not allege that the applicant had reported falsified news by altering or adding to the facts. Nor did the first instance courts make such an assessment in their decisions.

Thirdly, in its decision convicting the applicant, the criminal court did not take into consideration the fact that it was not the applicant who had for the first time broadcasted the relevant contents. As a matter of fact, at the date when the news was broadcasted, these contents had already been known to the public.

Finally, it was not also indicated that the officials of the other media outlets had been punished for broadcasting of the same contents. On the other hand, according to the documents submitted by the applicant, the Ankara Chief Public Prosecutor’s Office rendered a decision of non-prosecution in respect of at least four press officers who had broadcasted the same contents. Nor was it maintained that the other press officers publishing the same contents had been punished for broadcasting these tapes.

In light of the foregoing, it has been concluded that the inferior courts’ purpose to protect the complainant’s freedom of communication is not sufficient for the justification of the restrictions imposed on the applicant’s freedoms of expression and press set out in Articles 26 and 28 of the Constitution. The inferior courts failed to strike a fair balance between the protection of the freedom of press and protection of the freedom of communication constituting an element of the private life.

The applicant, who is the news director of a news portal, is always under the risk of execution of his sentence as long as being subject to probation. Therefore, for the fear of being subject to a sanction, he would be at risk of refraining from disclosing his thoughts or performing his press-related activities. Accordingly, the applicant’s conviction to 1 year and 8 months’ imprisonment and the suspension of his conviction on probation for a period of 5 years are disproportionate to the aim pursued, which is, in the present case, the protection of the complainant’s private life.

Consequently, the Constitutional Court found a violation of the freedoms of expression and press safeguarded by 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.

The Constitutional Court of the Republic of Turkey © 2015
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