Press Release No: Individual Application 55/18
28.09.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING VIOLATIONS OF THE RIGHT TO LIFE AND THE FREEDOM OF EXPRESSION DUE TO DEATH THREATS AND COMPETENT AUTHORITIES’ FAILURE TO PUNISH THE SUSPECTS EFFECTIVELY

On 18 April 2018, the First Section of the Constitutional Court found violations of the right to life and the freedom of expression, respectively safeguarded by Articles 17 and 26 of the Constitution, and awarded compensation to the applicant in the individual application lodged by Baskın Oran (no. 2014/4645).

The Facts

The applicant, who has conducted academic studies on foreign policy and human rights, was writing for two national newspapers on the date of the incident.

At the material time, the applicant was a member of the Prime Ministry Human Rights Advisory Board (“the Advisory Board”) and the Chair of the Minority Rights and Cultural Rights Working Group of the Advisory Board (“the Working Group”).

The applicant argued that following the release of the “Report on Minority Rights and Cultural Rights (2014)” prepared by the Working Group, he was targeted by violent expressions and verbal attacks in official and unofficial articles.

Following the murder of Hrant Dink, Editor-in-Chief of Agos newspaper, the applicant, who was writing for the same newspaper, was provided with an official guard due to the increasing threats against him.

In 2008, the newspaper received an e-mail from an organization, which contained a death threat against the applicant. Upon this threat, the applicant filed a criminal complaint with the public prosecutor’s office. In the following days, the applicant received another threat message and reported it to the relevant authorities.

Ankara Chief Public Prosecutor’s Office referred the complaint concerning the first threat message to İstanbul where the headquarters of the newspaper was located. The İstanbul Chief Public Prosecutor’s Office sent the file to Adana due to the lack of competence, as the offence had been committed in Mersin.

The Adana Chief Public Prosecutor’s Office charged the suspect B.Ş., while finding that there was no occasion for further investigation against the other suspects.

The Adana Assize Court sent the file to İstanbul due to the lack of competence on the ground that the offence took place in İstanbul where the message had been received. The file was subsequently sent to Ankara where the applicant was living.

The Ankara Assize Court sent the file to the magistrates’ court for lack of jurisdiction. As the latter issued a decision of non-jurisdiction for lack of competence, the file was sent to the Court of Cassation for resolution of the dispute in question. The Court of Cassation lifted the decision of the magistrates’ court. Thereafter, the magistrates’ court sent the file to the relevant criminal court of first instance for lack of jurisdiction ratione materiae.

The assize court considered that the accused’s act fell within the scope of Provisional Article 1 of Law no. 6352 that entered into force during the proceedings and accordingly decided to adjourn the proceedings.

The assize court accepted the applicant’s appeal against the decision. Thereafter, the Criminal Court held a retrial and sentenced the accused to the minimum term of imprisonment. However, it suspended the pronouncement of the judgment. The applicant’s appeal was rejected, therefore he lodged an individual application.

The Applicant’s Allegations

The applicant maintained that the investigation launched into the death threats against him for his studies on minorities and cultural rights had not been concluded within a reasonable period of time; that the evidence had not been examined sufficiently; and that the accused was not punished effectively. He, therefore, claimed that his right to life and freedom of expression were violated.

The Constitutional Court’s Assessment

1. Alleged Violation of the Right to Life

In order for an application concerning the alleged violation of the right to life due to the acts of the public officials or private persons to fall within the scope of this right, the impugned act must result in death or the act must include a real and imminent threat to the life of the person concerned. Accordingly, it must be regarded as a fortunate coincidence that the relevant person has been able to survive under these circumstances.

In the present case, it appears that there was a real and imminent threat to the life of the applicant, a notable person receiving harsh backlash from a marginal group because of his opinions, and that the relevant authorities were aware of the existence of such a threat. It must be acknowledged that the threats received by the applicant in writing had naturally caused worry to him.

The applicant’s complaints that the authorities allegedly failed to impose a deterrent punishment on the perpetrator of the act, although they were informed of the threat to the applicant’s life, must be examined in terms of the procedural aspect of the State’s positive obligations deriving from the right to life.

The applicant complained that the person who had threatened him was not given a deterrent punishment. The Constitutional Court found noteworthy the applicant’s complaints as to the authorities’ failure to examine sufficiently the suspect’s affiliation with the terrorist organization. Regard being had to the fact that the main reason for the applicant’s complaint was that the legal qualification of the suspect’s act and his punishment were not severe enough, it must be underlined that the failure to examine the suspect’s ties with the organization affected the entire proceedings adversely.

The investigation and prosecution processes initiated upon the applicant’s complaint lasted approximately six years. A large part of this period was spent in order to identify the suspect, and subsequently, to resolve the disputes in terms of competence and jurisdiction in the determination of the court that would carry out the proceedings.

The applicant also claimed that he could not effectively participate in the proceedings and that the first instance court gave its decision on the merits at the first hearing. Nevertheless, the applicant made no explanation as to why he could not participate in the proceedings, although he had the opportunity to do so.

The prolongation of the proceedings due to competence/jurisdiction-related disputes is clearly in breach of the procedural obligations of the public authorities under the right to life. It has therefore been concluded that the judicial authorities who failed to act with due speed were far from creating a deterrent effect on the threat against the life.

Consequently, the Constitutional Court found a violation of the right to life safeguarded by Article 17 of the Constitution.  

2. Alleged Violation of the Freedom of Expression

The State’s positive obligations in terms of freedom of expression derives from Article 5 of the Constitution. In light of this article, it falls within the scope of the State’s positive obligations in terms of the freedom of expression to provide an effective protection system to authors and journalists for full enjoyment of the freedom of expression, to take measures that will provide those who are concerned with the opportunity to express their opinions and thoughts without fear, and to create a proper environment for the people to participate in the public debates.

The applicant has conducted studies on minority rights during a significant part of his academic and literary life. He was conducting similar studies at the time of the events, and he currently continues to do so. The Constitutional Court is of the opinion that, considering the judicial authorities’ failure to conduct an effective investigation and subsequent proceedings concerning the death threats against the applicant due to his studies on minority rights, there were no such circumstances for the applicant to carry out these studies safely. It has been acknowledged that the ineffective proceedings in question have had a deterrent effect on the applicant’s expression of his thoughts. Accordingly, it has been concluded that in the present case, the State has failed to fulfil its positive obligations arising from the freedom of expression.

Consequently, the Constitutional Court found a violation of the freedom of expression safeguarded by Article 26 of the Constitution and awarded compensation to the applicant.    

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

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