Press Release No: Individual Application 7/17
29.03.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE FREEDOMS OF EXPRESSION AND PRESS DUE TO SENTENCING A CHIEF EDITOR OF A WEBSITE TO IMPRISONMENT

On 15 February 2017, the Second Section of the Constitutional Court found a violation of the freedoms of expression and press, which are respectively safeguarded by Articles 26 and 28 of the Constitution, in the individual application of Orhan PALA (no. 2014/2983).

The Facts

The applicant is a journalist and the chief editor of the website, www.borsagundem.com, through which live broadcasts and news concerning capital markets are made and periodic articles are published. 

On 5 November 2012, the website managed by the applicant published a piece of news concerning two persons who are shareholders and board members of some companies shares of which were traded at the Istanbul Stock Exchange and also owners of an intermediary firm (the complainants).

In the news in question, it is noted that the complainants were previously convicted of manipulation; however, the conviction decision against them did not finalize due to statute of limitations; and that they were currently prosecuted before the Istanbul Criminal Court for contravening the Capital Market Law, fraud, supplying arms for an armed terrorist organization, membership of an armed terrorist organization, membership of an organization to commit an offence and establishing an organization to commit an offence. In the remaining part of the news, information is provided about the companies the complainants have recently taken over, and it is alleged that they are living in luxury and source of their fortune is issue of concern.

The complainants filed a criminal complaint against the applicant, alleging that the information in the news was distorted and not accurate, as a result of which their reputation had been tarnished, and that shares of their companies listed in the Istanbul Stock Exchange decreased in value due to this news. In his defence submissions during the criminal proceedings against him, the applicant indicated that the information therein was accurate and submitted the indictment drawn up in the previous proceedings conducted against the complainants. He also provided the relevant court with a document which included information about the proceedings conducted against the complainants on the publication date of the news and which was alleged to be taken from the National Judiciary Informatics System (UYAP).   

At the end of the proceedings, the applicant was sentenced to 2 months and 27 days’ imprisonment for insulting; however, the court suspended the pronouncement of the judgment. The challenge against the criminal court’s decision was dismissed by the magistrate court on 24 January 2014.

 The Applicant’s Allegations

The applicant maintained that a news source delivered him the impugned news based on an UYAP document; however, the relevant court failed to check the UYAP data, which was in breach of his right to a fair trial. He further asserted that as the complainants were the managers and shareholders of publicly-held companies and intermediary firms, the proceedings conducted against them were of particular concern to the public and that publication of such news through a website providing news and information about the stock exchange and capital markets was also to the interest of the public. The applicant accordingly alleged that his freedom of expression was violated.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

The applicant’s argued before the first instance court that the source of information was a document obtained from NJNS and that this document was presented to the first instance court in good faith.The court, however, failed to take any action with a view to determining whether the document was authentic or not. Besides, although the applicant submitted a sound factual basis, the court also refused to assess this evidence. The relevant Ministry confirmed that it was indeed a copy of the original UYAP screen shot and noted that the UYAP data were updated afterwards. Although the applicant based his allegations on an official record, it could not be concluded that the content the news, which had sufficient factual basis, were falsified in bad faith or by means of altering the truth.

Expecting the journalists to act as a prosecutor to verify the accuracy of a statement imposes a heavy burden of proof on them, and such a liability may give rise to unfair consequences at the end of the proceedings where they stand as an accused or a defendant. Therefore, in the present case, it must be acknowledged that the applicant, as a journalist, had acted in an adequately responsible manner.

Besides, it is explicit that sentencing the applicant to imprisonment due to a press offence would not be compatible with the freedoms of expression and press. Such a sentence may be justified only in exceptional cases. Even if a person suffering pecuniary or non-pecuniary damage on account of a publication may be entitled to bring a civil claim for damage against the journalist publishing inaccurate information about him, it must be acknowledged that an imprisonment sentence, which is highly severe in terms of ordinary defamation cases as in the present application, inevitably has a chilling effect on the freedoms of expression and press.

In addition, the criminal court decided to suspend the pronouncement of the judgment and subjected the applicant to probation for five years. In his capacity as a chief editor, the applicant always faces the risk of execution of his sentence within this probation period. The fear of being sanctioned has a suspensive effect on the individuals, and even if an individual may complete the probation period without being further convicted, such a suspensive effect may restrain disclosure of his thoughts or his press activities.

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.

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