Press Release No: Individual Application 6/18
11.01.2018

PRESS RELEASE CONCERNING THE DECISION ON DETENTION OF THE APPLICANT WHO IS A JOURNALIST (TURHAN GÜNAY)

On 11 January 2018, the Plenary of the Constitutional Court found a violation of the right to personal liberty and security in the individual application lodged by Turhan Günay (no. 2016/50972) on the grounds briefly explained below.

The investigation authorities argued that upon the change of the publication policy of the Cumhuriyet daily newspaper (“the newspaper”), the news, articles and headlines published in the newspaper were manipulated against the State and thereby the purposes of terrorist organizations were served. In this scope, the Yenigün Haber Ajansı Basın ve Yayıncılık Anonim Şirketi (“the Company”), the Company publishing the newspaper and the applicant who is one of the directors of the Cumhuriyet Vakfı (“the Foundation”), the Foundation holding the name and publication rights of the newspaper was held, together with the other directors, responsible for the news, articles and headlines.

Accordingly, the applicant was not accused due to an article of him that was published in the newspaper or an article published in a book supplement for which he had taken responsibility. The applicant was held responsible for the headlines, news and articles published in the newspaper, due to his taking part in the management of the Foundation and/or the Company.

However, in his defence during the proceedings, the applicant stated that he had never served on the Executive Board of the Foundation and that he took part in the management of the Company only between 2011 and 2013, long before the time of publications. In addition, the applicant’s name is not included in the lists of the Executive Board of the Foundation that are mentioned in the indictment. Nor is there any information as to the fact that the applicant took part in the Company’s management after 2013. The acts for which the applicant has been detained occurred after 2013.

Therefore, it has been concluded that the investigation authorities could not sufficiently demonstrate “a strong indication of guilt” on the part of the applicant, and that the applicant’s right to personal liberty and security has been violated.

The Facts

The applicant is a journalist and an author.

The Istanbul Chief Public Prosecutor’s Office launched an investigation against many people, including the applicant, on the grounds that together with the changes in the Executive Board of the Foundation, the publication policy of the newspaper also changed —in particular, during the period that extended to the coup attempt of 15 July— in contradiction to the founding philosophy of the Foundation and the publications were manipulated against the State. In this scope, especially, with the allegations that the newspaper was trying to influence the agenda in a way that was incompatible with the worldview of the newspaper’s readers; that it made news for destructive and divisive manipulations; that it published the statements of the leaders and heads of the terrorist organization making a call for violence; that it legitimized the terrorist organizations; and that it released publications aimed at demonstrating the Republic of Turkey as if it was in liaison with the terrorist organizations, an investigation was launched against the applicant and the other persons.

The Public Prosecutor’s Office argued that the applicant, whom it stated to have been a member of the Executive Board of the Company, was held responsible for the news, articles and headlines published in the newspaper after the change of the publication policy of the newspaper.

Upon the detention order of the Magistrate Judge’s Office, dated 5 November 2016, seven suspects, including the applicant, were detained on remand for alleged membership of an armed terrorist organization and carrying out activities on behalf of the organization.  

On 3 April 2017, the Chief Public Prosecutor’s Office indicted the applicant and sixteen other suspects for the offence of aiding and abetting an organization despite not belonging to the structure of that organization, one suspect for alleged membership of an armed terrorist organization, and another suspect for allegedly being a head of an armed terrorist organization.

The case has been pending before the first instance court as of the date when this application is examined.

The Applicant’s Allegations

Maintaining that he had no position in the Company or the Foundation, that the indicted acts indeed fell into the scope of the freedoms of expression and press, that there was no strong suspicion of guilt, and that he was detained for political reasons, the applicant alleged that his right to personal liberty and security was violated.

The applicant also claimed that his access to the investigation file was restricted, therefore he could get information on neither the accusations attributed to him nor the grounds for these accusations.

The Constitutional Court’s Assessment

Alleged Unlawfulness of Detention

In brief, the Constitutional Court made the following assessments:

The examination of the Constitutional Court will be limited to the assessment of the lawfulness of the applicant’s detention on remand, independently of the investigation and criminal procedure and its possible results. In addition, the issue as to whether Article 19 § 3 of the Constitution have been violated is to be examined in the specific circumstances of each application.

In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. In Article 19 §§ 2 and 3, certain circumstances under which individuals may be deprived of liberty are set forth, also provided that the conditions of detention must be prescribed by law. Therefore, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists.

Moreover, an interference with the right to liberty and security constitutes a breach of Article 19 of the Constitution unless it also complies with the conditions set out in Article 13 of the Constitution in which the criteria with respect to the restriction of fundamental rights and freedoms are specified. It is therefore necessary to determine whether the restriction complies with the requirements enshrined in Article 13 of the Constitution; i.e., the requirements of being prescribed by law, relying on one or more valid reasons specified in the relevant articles of the Constitution, and not being contrary to the principle of proportionality.  

Pursuant to Article 19 § 3 of the Constitution, the detention measure can be applied only for “individuals against whom there is a strong indication of guilt”. In other words, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. Therefore, in every concrete case, it must be assessed whether this prerequisite has been fulfilled or not prior to making an examination as to the other requirements of detention. Strong indication of guilt appears only in cases where the accusation is supported with convincing evidence likely to be regarded as strong.    

In every concrete case, it falls in the first place upon the judicial authorities deciding detention cases to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether the detention is a proportionate measure. As a matter of fact, those authorities which have direct access to the parties and evidence are in a better position than the Constitutional Court in making such determinations. However, it is the Constitutional Court’s duty to review whether the judicial authorities have exceeded the discretion conferred upon them. The Constitutional Court’s review must be conducted especially over the detention process and the grounds of detention order by having regard to the circumstances of the concrete case.

In line with these general principles, it must be primarily assessed whether there is a strong indication of guilt on the part of the applicant in the present case.

The investigation authorities argued that upon the change of the publication policy of the newspaper, the news, articles and headlines published in the newspaper were manipulated against the State and thereby the purposes of terrorist organizations were served. In this scope, the applicant, who was stated to be a member of the Executive Boards of the Company and the Foundation, was held responsible for the news, articles and headlines.

Accordingly, the applicant was not accused due to an article of him that was published in the newspaper or an article published in a book supplement for which he had taken responsibility. The applicant was held responsible for the headlines, news and articles published in the newspaper, due to his taking part in the management of the Foundation and/or the Company.

However, in his defence during the proceedings, the applicant stated that he had never served on the Executive Board of the Foundation and that he took part in the management of the Company only between 2011 and 2013. In addition, the applicant’s name is not included in the lists of the Executive Board of the Foundation that are mentioned in the indictment. Nor is there any information as to the fact that the applicant took part in the Company’s management after 2013. The acts for which the applicant has been detained occurred after 2013.

Therefore, it has been concluded that the investigation authorities could not sufficiently demonstrate “a strong indication of guilt” on the part of the applicant.

For the reasons explained above, the applicant’s right to personal liberty and security safeguarded by Article 19 § 3 of the Constitution has been violated.

It has been further considered that Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a “state of emergency”, does not justify the interference with the applicant’s right to personal liberty and security that is in breach of the safeguards set out in Article 19 § 3 of the Constitution.

For these reasons, it has been concluded that, also taken in conjunction with Article 15 of the Constitution, the applicant’s right to personal liberty and security has been breached.

In addition, although the applicant has been accused in relation to the publications of the newspaper, the Constitutional Court has relied on the fact that the investigation authorities could not reveal the material facts concerning the applicant’s influence on the relevant publications, and therefore reached the conclusion that the applicant’s right to personal liberty and security has been violated. Accordingly, it has been concluded that it is not appropriate to make an examination in terms of the applicant’s freedom of expression and press. Such an examination will be made in the relevant individual applications lodged by the applicant’s co-accused.

Alleged Restriction Imposed on the Access to the Investigation File

The Constitutional Court declared the applicant’s allegation under this heading inadmissible as being manifestly ill-founded.

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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