Press Release Nr: Individual Application 03/16
11.03.2016

JUDGEMENT ON THE RIGHT TO LIBERTY AND SECURITY OF PERSON, FREEDOM OF EXPRESSION AND THE PRESS IN ERDEM GUL AND CAN DUNDAR APPLICATION

The Constitutional Court in its plenary sitting on 25/2/2016 held in its judgment on individual application of Erdem Gül and Can Dündar (App. No: 2015/18567) regarding the alleged violation of freedom of expression and press and unlawful detention, that the applicants’ right to personal liberty and security guaranteed under article 19 of the Constitution and freedom of expression and press guaranteed under articles 26 and 28 of the Constitution were violated and also that the judgment be referred to the relevant Court for the removal of the violation.

Facts

Some trucks, alleged to have been weapon-laden, were stopped and searched in Hatay province on 1/1/2014 and in Adana on 19/1/2014. The incidents related to stopping and search of these trucks and the contents and destination of their freight were a matter of debate by the public for a long period of time. In this context, a newspaper named Aydınlık, in its issue on 21/1/2014, published a news article alleging that these trucks were carrying weapons and ammunition and a photograph related to such allegations.

Approximately sixteen months after such publication, Can Dündar, one of the applicants, published in daily newspaper Cumhuriyet’s issue on 29/5/2015 the photographs and information related to the weapons and ammunitions alleged to have been found on the trucks. Another news article on the same incident was prepared by Erdem Gül, the other applicant, and published in the same newspaper on 12/6/2015.

After the publication of the news by Can Dündar, the Chief Public Prosecutor’s Office made a press statement on 29/5/2015 and announced that a prosecution has been initiated on the charges of “providing documents regarding the security of the state, political and military espionage, unlawfully making confidential information public and making propaganda of terrorist organization”. Approximately six months after such announcement, the applicants were invited by phone on 26/11/2015 to have their statements taken and they were detained on charges of “deliberate support for organizational objectives of armed terrorist organization FETÖ/PDY (Gülenist Terror Organization/Parallel State Structure) without being a member and providing for espionage purposes the information that was confidential for the sake of the state’s security or its domestic or international political interests and disclosing such information”. The applicants objected to the said decision on their detention, however, such objections were dismissed. Upon the rejection of their objections, the applicants lodged an individual application to the Constitutional Court.

Allegations

The applicants claimed that they were deprived of their liberty in an unlawful way, that there is no justification for their detention, that the only grounds for the decision on their detention is the news that they published and that no evidences except for the news articles were adduced against them. Accordingly, they alleged that their right to liberty and security of person and freedom of expression and the press have been violated.

The Court’s Assessment

1. On the Admissibility of the Application

The Court held unanimously that the applicants’ allegations in respect of unlawful detention and the fact that their right to freedom of expression and the press has been violated in conjunction therewith are admissible, considering that the legal remedies were exhausted by the applicants.

In this context, the Court stated that the individual application relates to the allegations as to the applicants’ detention violates freedom of expression and the press and that the applicants exhausted legal remedies by objecting to the decision on their detention.

The Court recalls on this issue that, in Hidayet Karaca’s application, the effects of detention measure on the freedom of expression were reviewed without waiting for the finalization of the relevant investigation and prosecution. However, the Court did not find a problem as to the lawfulness of detention in that application and the allegations on the freedom of expression were declared inadmissible as it was manifestly ill-founded. The Court also recalls that, as it is expressed in the opinion of the Ministry of Justice, the effects of detention measure on the freedom of expression and the press were reviewed by the ECthR in Nedim Şener v. Turkey and Şık v. Turkey judgments without requiring the finalization of investigation and prosecution phases and the Government’s objection as to “non-exhaustion of domestic remedies” was rejected.

2. On the Merits of the Allegations declared Admissible

Firstly, the Constitutional Court states that its review on the merits of the allegations declared admissible is limited to the “lawfulness of detention” and “the effects of detention measure on the freedom of expression and the press” independently of the investigation and prosecution of the applicants and possible outcomes of their trial. The Court emphasizes that this review is not on the merits of the applicants’ case pending before the court of first instance and, therefore, does not include whether publishing the news articles subject to the application constitutes a crime or not.

a) Allegations on the Violation of the Right to Liberty and Security of Person

The Constitutional Court’s assessments on these allegations can be summarized as follows:

Under Article 19 of the Constitution, detention of an individual requires “strong indication” of having committed an offence. This is a sine qua non element for implementing a detention measure.

On the other hand, detention measure, which is a severe protection measure, may be considered reasonable only if less severe measures have been considered and found to be insufficient to safeguard the individual’s and public interest. In this context, “strong indication of having committed an offence” is not sufficient on its own to implement detention measure which deprives the individual of his/her liberty. The detention measure must also be “necessary” in the circumstances of the present case. This is a requirement of “being necessary” which is one of the components of the “principal of proportionality”, one of the criteria in restricting the fundamental rights and freedoms as stated under Article 13 of the Constitution.

The constitutionality review as to whether the right to liberty and security of person has been violated or not must be carried out, in the first place, with regards to existence of “strong indication of having committed an offence” which is cited among the essential conditions of detention measure in the third paragraph of Article 19 of the Constitution.

Considering that the subject of the individual application is detention measure and that there is an ongoing trial procedure of the applicants, such review shall be carried out limited to whether the concrete facts indicating the strong suspicion of crime were adduced in the grounds of the decision on detention.

The main fact grounding the decision for detention of the applicants is that two news articles on stopping and searching the trucks were published in Cumhuriyet newspaper. Although the decision for detention of the applicants reads that “the state of evidence” with regards to the charged crimes is sufficient for their detention, such decision mentions no evidences other than the said news articles. The applicants were detained on the charges of publishing the information and photographs in the said news articles for the purposes of “deliberate support for an armed terrorist organization without being a member” and providing and disclosing such information and photographs for “political and military espionage purposes”. However, the grounds of the decision on detention does not sufficiently explain which concrete facts attributable to the applicants led to strong suspicion of crime as to said news articles were published for “political and military espionage purposes”. With regards to strong suspicion of crime as to “deliberate support for an armed terrorist organization without being a member”, the grounds of decision on detention does not provide any concrete facts other than the opinion that “the applicants were expected to know, due to their professional occupation, the news that they published was related to a terrorist organization being prosecuted at the time”.

On the other hand, the news similar to the ones subject to application were published with photos approximately sixteen months earlier in another newspaper and it is also important that the grounds of detention measure does not specify whether the publication of the similar news later by the applicants continues to pose a threat against national security or not.

It must also be examined whether the detention measure is “necessary” within the context of the principle of proportionality which is one of the criteria under Article 13 of the Constitution.

Can Dündar, one of the applicants, published on 29/5/2015 the first news subject to application. Chief Public Prosecutor’s Office of Istanbul announced that a prosecution was initiated for the news and requested for banning the internet access to the contents of the said news as it was considered as being related to national security and constituting “support for an armed terrorist organization”. The relevant judge issued a decision to ban internet access to the contents of the said news. Later on, the news article prepared by Erdem Gül, the other applicant, was published in the same newspaper on 12/6/2015. The applicants were invited by phone on 26/11/2015 to have their statements taken and were detained on the same day. During approximately six-months period from the first announcement of the prosecution until the date when the applicants were invited to have their statements taken, the Chief Prosecutor’s Office did not take the applicants’ statements and no custody or detention measure was implemented to the applicants in that time period. The questions asked while taking their statements and the grounds for their detention did not reveal which proofs –except for the news published– were found throughout the said time period regarding that the applicants committed the crimes they are charged with.

In this context, the facts of the case and the grounds of decision on detention does not sufficiently explain why it was “necessary” to implement detention measure on the applicants approximately six months after announcing that a prosecution was initiated about the said news articles and without considering that similar news were published several months ago on the incident which led to intense public discussions.

Consequently, the Constitutional Court ruled, by majority, that the applicant’s right to liberty and security of person guaranteed under Article 19 of the Constitution has been violated as conditions of “strong indication” and “being necessary” required for detention measure were not duly reasoned in the relevant decision.

b) Allegations on the Violation of the Freedom of Expression and the Press

The Constitutional Court’s assessments on these allegations can be summarized as follows:

Considering the questions addressed to the applicants by the Chief Public Prosecutor’s Office and grounds of the decision on their detention, no facts are mentioned– except for publishing news in the newspaper– that may constitute a basis for the charges against them. In this context, the detention measure implemented to the applicants, irrespective of the contents of the news, constitutes an interference with the freedom of expression and press. As a matter of fact, ECtHR recognized in its judgments on Nedim Şener v. Turkey and Şık v. Turkey cases that detention measure constitutes an interference with the freedom of expression.

On the other hand, not every interference with the fundamental rights and freedoms leads to a violation of the relevant right or freedom on its own. In order to determine whether an interference violates the freedom of expression and the press, it must also be tested whether such interference meets the criteria of being prescribed by law, having legitimate aim, being necessary in a democratic society and being proportionate.

There is no doubt that the said interference has legal basis in the relevant articles of Code of Criminal Procedure Law and Turkish Penal Code Law.

Under Articles 26/2 and 28/5 of the Constitution, freedom of expression and the press may be restricted for the purposes of “national security”, “preventing crime”, “punishing offenders”, “withholding information duly classified as a state secret” and “preventing disclosure of state classified information”. Considering the grounds in the justification of the decision on detention and the characteristics of the crimes charged against the applicants, it is seen that the aim pursued with detention of the applicants is compatible with the aforementioned purposes of restriction cited under the Constitution.

The fact that the interference has a legal basis and a legitimate aim is not sufficient alone to justify that the interference does not lead to a violation. The facts of the case must also be reviewed with respect to “being necessary in a democratic society” and “being proportionate”. The Constitutional Court shall carry out such review on the basis of detention process and the grounds of decision on detention.

Taking into account the assessments on the right to liberty and security of person and considering that the only fact adduced as basis for the crimes the applicants are charged with was the publishing of the relevant news articles, a severe measure as detention which does not meet the criteria of lawfulness cannot be considered proportionate and necessary in a democratic society.

The detention measure was implemented approximately six months after the beginning of the investigation on the said news and without considering the fact that similar news was published approximately sixteen months earlier in another newspaper. The circumstances of the case and the grounds of the decision on detention do not explain which “pressing social need” leads to such detention measure interfering with the applicants’ freedom of expression and why it is necessary in a democratic society for the protection of national security.

On the other hand, taking into account the principles emphasized in the judgments of the ECtHR in Nedim Şener v. Turkey and Şık v. Turkey cases, it is evident that implementing a detention measure without adducing concrete facts other than the published news, and grounding the necessity of such measure might lead to a chilling effect both on the applicants and the press in general.

Consequently, the Constitutional Court ruled by majority that the applicants’ freedom of expression and the press has been violated in conjunction with their right to liberty and security of person.

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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