Turkey: Constitutional Court Issues Reasoned Decision on Dündar, Gül

Istanbul, 10 March 2016

The Constitutional Court (AYM) has issued the reasoned version of its ruling of releasing Cumhuriyet daily’s Editor-in-Chief Can Dündar and its Ankara Representative Erdem Gül arrested over their report on the National Intelligence Agency’s (MİT) trucks.

The court has remarked that the charges remained being only based on the report although six months had passed since the investigation, and thus the principle of lawfulness had not been fulfilled.

Ruling that the arrest of the journalists violated the principle of proportionality, guaranteed by Article 13 of the Constitution, the court has stressed that which evidences had been found could not be figured out through the questions addressed during the hearing of the reasons of the arrest.

President Erdoğan, stating he hasn’t read Constitutional Court’s justified decision on Can Dündar and Erdem Gül, has said, “I’ve heard they have pronounced 33-page justified decision. I believe they have difficulty in explaining the justification”.

Minister of Justice Bozdağ criticized Constitutional Court’s reasoned decision on Dündar and Gül case as “Constitutional Court replaces the court of first instance and makes an examination in substance. The Constitution does not accord the Constitutional Court such a right”.

The Minister has noted that the decision of the court had been an usurpation of authority and added:

“When the decision is analysed, we can clearly see that the Constitutional Court has crossed the line drawn by the Constitution, the Constitutional Court had not acted as a court examining the application but like a court subrogating the court of first instance”.

The headlines from Constitutional Court’s reasoned decision are as follows:

“No evidence except their report”

* The claims of violation of the right to liberty and security of the person and freedom of expression and press were to be recognized as the applicants had been deprived of their freedoms in an unlawful, arbitrary and disproportionate way, there was no justification which made their arrest necessary, the only reason for their arrest remained to be the report and no other evidence rather than the report could be introduced.

“No solid evidence to justify charges”

* It has not been declared on basis of which solid evidence it had been inferred that the report which is the subject of the charges had been published for purposes of “political or military spying”.

* No solid fact except the “conviction that the applicants should, with regards to their professional occupation, have known that their reports had referred to the terrorist organization into which the investigations had still continued” could be put forward which supported the charges of  “helping terrorist organizations knowingly and willingly as nonmembers”.

“Similar photographs had already been published earlier”

* Similar photographs and information concerning what had been in the trucks had been published 16 months before the current report subjected to the charges.

“The reason for the arrest unclear”

* It is unclear in the reasons of arrest order why the measure of arresting the journalist should be “necessary” six months after the investigation has been launched without taking into consideration that similar photographs and information concerning what had been in the trucks had already been released months before the recent report.

“Arrest is disproportionate interference with freedom of expression”

* The reasons for the arrest order do not mention any facts rather than the publishing reports in a newspaper, which could constitute a basis for the charges. In this sense, the arrest of the journalists constitute also an interference with the freedom of expression and press irrespective of the content of the reports of the journalists.

* The heavy measure of arrest which does not comply with the principle of lawfulness can also not be considered a necessary and proportionate interference with the freedom of expression and press in democratic societies.

“Deterring effect of interference with freedom of expression”

* The court has expressed that also the deterring effects the interference with the freedom of expression of and press would have for applicants in particular and the press in general should be taken into consideration.

“Right to freedom and security violated”

* The court has decided that the right to freedom and security of the person guaranteed by Article 19 of the Constitution had been violated as the conditions of “strong indication” and “necessity” required for the arrest had not existed.

What had happened?

Turkey’s Constitutional Court ruling on February 25 stated that the rights of Cumhuriyet newspaper journalists Can Dündar and Erdem Gül have been violated and underlining the lack of justification to jail them following the publication of several articles. The ruling refers to the violations of Article 19 (“right to personal liberty and security”), Article 26 (freedom of expression) and Article 28 (press freedom) of Turkey’s Constitution.

Dündar and Gül were arrested on 26 November 2015 after the newspaper’s reporting and footage of the content of trucks belonging to the National Intelligence Agency. They each faced aggravated life sentence, an additional life sentence, as well as 30 years in prison for revealing state secrets in a May 2015 report.

President Recep Tayyip Erdoğan had personally filed a criminal complaint and requested Dündar to be sentenced to one aggravated life imprisonment, one life imprisonment and 42 years in prison for “targeting state interests by using images contrary to facts”.

Erdoğan on a live broadcast on public channel TRT had said, “I guess the person who made this special news will heavily pay for it”.

Dündar and Gül had made an appeal to the Constitutional Court over “violation of freedom of press and speech and the right to security”.

Upon reporter of the Constitutional Court delivering the opinion that “freedom of press and expression, right to personal security have been violated, their imprisonment is unlawful” as to Gül and Dündar’s application, Gül and Dündar’s file had been referred to the Constitutional Court General Assembly.

Constitutional Court General Assembly has ruled journalists Can Dündar and Erdem Gül imprisoned as of November 26 over MİT truck report subjected to violation of right.

14th Heavy Penal Court has ruled release of Can Dündar and Erdem Gül following the “violation of rights” verdict by the Constitutional Court. Both arrested journalists have been released the same day around 03:00 am from Istanbul’s Silivri detention center but the prosecution continued against the journalists.

President Recep Tayyip Erdoğan has commented on the Constitutional Court’s ruling to release the journalists Gül and Dündar as “I don’t obey the court decision. I don’t respect it either”.

“The release marks an important day for media freedom in Turkey,” the OSCE Representative on Freedom of the Media, Dunja Mijatović said. “But the charges against Dündar and Gül must be dropped and Turkey must embark upon the reform of the laws that can currently criminalize journalistic work,” Mijatović said, adding that more than 30 journalists are still in prison in the country.

A strong local and international support from colleague journalists, trade unionists and press freedom organisations has been very active and effective for this case since the beginning of their arrests on November 26, 2015.


Source: Bianet.org/english (BIA News Desk) & European Federation of Journalists