LEGAL AMENDMENT ON CRIMINAL ENFORCEMENT: JOURNALISM CRIMINALIZED FURTHER!

Turkey has passed a new legal amendment concerning the enforcement of prison sentences. Around 90 thousand in prison for various crimes have packed and been released from prisons, either temporarily or for good. However, journalists jailed for exercising their freedom of press and expression are excluded from the scope of this legal amendment. Now, news and criticism have become even more severe crimes in Turkey, as journalists find themselves more and more criminalized…

At least 54 journalists in prison, that is, almost half of all imprisoned journalists are outside the scope of the legal amendment. At least 242 journalists who stood trial or continue to stand trial in the past two years cannot benefit from the amendment. Journalists who stand trial in the future will be facing even higher barriers.

Covid-19, an invisible virus that shakes the world, could not be expected to solve Turkey’s problems of freedom accumulated over many years, in the form of a single law with 70 articles. Likewise, the problems aggravated by the decisions of judges and prosecutors who draw their strength from the previous laws and are fully attuned to politicians, could not be solved in the political arena in just one week.

Sinan Tartanoğlu - Press in Arrest

Powered by the Covid-19 crisis, Justice and Development Party (AKP) drafted a legal amendment concerning criminal enforcement laws, which received the support of Nationalist Action Party (MHP) and was eventually passed into law by the Turkish parliament. Following the President’s approval, the amendment came into effect on April 15th, 2020.

The legal amendment offers amnesty for a portion of the prison sentences of convicts jailed for various crimes. The release of around 90 thousand convicts has begun after the amendment was approved.

However, the legal amendment excludes those imprisoned for exercising their freedom of press and freedom of thought. In a sense, politicians have placed yet another lock on the doors of their prison cells.

The legal amendment is fairly similar to the amnesty bill presented to the parliament by MHP in the last quarter of 2018. Both amendments excluded “terror-related offenses”, “armed organization offenses” and “sexual offenses.”

MHP retracted the bill after the following statement by President Tayyip Erdoğan, who doubles as the AKP leader, since his support was crucial for its enactment: “We will take into account your concern, but we can’t pass an amnesty bill just to make room in prisons.”

MHP’s bill concerned 162 thousand inmates, as well as their family members numbering in the hundreds of thousands, who represented a serious electoral support in the run up to the 2019 local elections. However, the “amnesty debate” fizzled out after Erdoğan’s aforementioned remarks.

Nonetheless, the hope for amnesty was kept fresh among the party’s electoral base until the local elections. The elections were held, and the ruling party suffered a serious blow in the largest cities.
The “Judicial Reform Strategy Document” issued after the elections and the 1. Judicial Reform Package passed under the scope of this reform strategy introduced no amnesty.

However, after the Covid-19 epidemic forced the entire world into self-imposed isolation, “those who are sentenced to isolation” once again came to the public agenda.

The new legal amendment that AKP passed from the parliament with the support of MHP further criminalizes the freedoms of press and expression at a time when the entire world reflects on death and survival.
There is no capital punishment in Turkey. However the legal amendment on criminal enforcement leaves imprisoned journalists facing death by Covid-19, although they should have never been investigated, detained, tried and imprisoned in the first place. This is tantamount to another form of capital punishment for journalists.

Could a legal amendment drafted by a government which views universal rights only through the lens of its own political interests decriminalize the freedoms of press and expression? Could an invisible virus that shakes the world help resolve deep-rooted problems related to liberties?

‘PUBLIC CONSCIENCE’

On March 11th, 2020, the government officially accepted that the Covid-19 infection had spread to Turkey. In response, concerns were raised publicly that the virus could have much more devastating effects in the prisons. Owing to these concerns, the government drafted a legal amendment on criminal enforcement, which would drastically reduce the prison sentences for certain offenses, thus releasing the convicts in question.

Upon the approval of this legal amendment, convicts who have served half of their prison sentences can be released. Prior to the amendment, they had to serve at least two thirds of the sentence.
Those convicted of the offenses of murder in the first degree, willful injury, torture, sexual assault, sexual intercourse with minors, sexual harassment, crimes against sexual inviolability, drug manufacturing and trafficking, as defined in the Turkish Penal Code, are excluded from the amendment.

The amendment never included journalists detained, investigated, tried, arrested and convicted, because, although it does not explicitly mention journalists, those charged with the “terror” offenses defined in the Anti-Terror Law are completely excluded from its scope. In addition, “offenses against state secrets and espionage” and “offenses against private life and personal privacy” are also excluded. These are two other accusations frequently leveled against journalists.

The government asserted that the legal amendment’s scope was determined in accordance with the “sensitivities of public conscience”. According to this political discourse, “public conscience” supposedly equates journalists with convicted sexual offenders and drug traffickers, thus excluding them from the scope of the legal amendment.

In fact this “public conscience” suddenly contracted when the legal amendment was debated at the parliament in early morning hours. The parliament decided to exclude those convicted of the crimes set forth in the National Intelligence Law, again in the name of “public conscience”.

This last tweak concerned the journalists Murat Ağırel, Barış Terkoğlu, Barış Pehlivan, Hülya Kılıç, Ferhat Çelik and Aydın Keser, who have been arrested and now wait in prison for the prosecutors to draft indictments against them. These journalists are charged with violating the National Intelligence Law for penning stories concerning the funeral ceremony of a National Intelligence Organization (MİT) officer killed in Libya. The parliament has eliminated the possibility for these journalists to serve only half of their prison sentences in case they are convicted of this charge, even before an indictment has been drafted. Because, of course, public conscience would not allow it.

As such, the parliament took on itself the powers of the judiciary, and decided on when and with whom the journalists not yet convicted would be released, although an indictment has yet to be drafted. This summary execution has been enacted by a legal amendment on criminal executions.

FIGURES…

According to the latest figures confirmed by Press In Arrest, at least 47 journalists who are jailed pending trial or convicted for charges pursuant to Anti-Terror Law in the last two years, cannot benefit from the legal amendment.

Journalist Mehmet Baransu is jailed pending trial since March 2015, for “offenses against state secrets and espionage” as per Turkish Penal Code. Not even the first instance court has reached a verdict on Baransu’s case, and even if he is convicted of this charge, he will not be eligible for release according to the latest legal amendment.

Journalists Murat Ağırel, Barış Terkoğlu, Barış Pehlivan, Hülya Kılıç, Ferhat Çelik and Aydın Keser are in prison pending trial for violating the National Intelligence Law, and likewise will not be eligible for release as per the latest legal amendment.

At least 242 journalists who stood trial or continue to stand trial in the past two years cannot benefit from the amendment. If journalists currently standing trial are convicted of crimes that fall outside of the scope of the amendment, they will face the same criminal enforcement procedures with those who commit “offenses against individuals”.

According to data confirmed by Press In Arrest, at least 223 journalists stood trial / continue to stand trial as per Anti-Terror Law, which is excluded from the scope of the amendment.

In the last two years other journalists stood trial / continue to stand trial as per certain provisions of Turkish Penal Code, which now fall outside the scope of the amendment:

. At least one journalist on charges of “violating the confidentiality of communication”
. At least one journalist on charges of “murder in the first degree”
. At least 12 journalists on charges of “offenses against state secrets and espionage”
. At least 8 journalists on charges of “offenses under the scope of the National Intelligence Law”.

(A journalist may simultaneously stand trial on multiple charges in multiple cases.)

HOW?

It is not only this latest amendment, but also all the other legislation passed until date with promises of more liberty, which prevent journalism from being accepted as a universal right. As laws get “tougher”, not only journalists, but also anyone who expresses a critical opinion gets closer to a prison sentence. As journalists get closer to imprisonment, the freedom of press and expression itself is increasingly reclassified as an “offense against the state”.

The government influences the legal proceedings concerning journalists in particular, and “dissidents” in general, and its perspective on “freedom of the press” points to an underlying problem which cannot be resolved with individual legal amendments.

First of all, an independent and impartial judiciary system must be established. To that end, politicians must step back from the sphere of the judiciary and the judiciary must renounce political aspirations.

An independent and impartial judiciary would prove its worth first and foremost in legal proceedings concerning freedom of press and freedom of thought and expression.

In these legal proceedings, the judiciary must attach more importance to the Press Law. For instance, no lawsuits must be filed against news stories if the legal deadline as per Press Law Article 26 has expired; otherwise, the courts must reject such indictments.

In order to take journalism out of the scope of “major offenses,” all provisions of Turkish Penal Code and Anti-Terror Law, which aggravate prison sentences in case an offense is “committed via the media” must be abrogated.

In the Turkish Penal Code, Article 43 on “successive offenses”, Article 299 on “insulting the President”, Article 125/3.a on “insulting a public official”, Article 301 on “denigrating the nation, state and its organs”, Article 220/7 on “knowingly and willingly abetting an armed organization without being part of its hierarchical structure”, Article 220/6 on “committing a crime on behalf of a terror organization without being its member” and Anti-Terror Law Article 6 on “publishing or issuing the announcements and declarations of terror organizations”, the following caveat must be added: “expressions of thought which do not breach the limits of reporting and criticism do not constitute crime”.

This caveat must be extended across all legal provisions that restrict the freedoms of journalists, especially Turkish Penal Code and Anti-Terror Law.

The courts must return to prosecutors any indictments which violate this caveat, and which present a media outlet’s news stories, articles and social media posts as evidence for crime.

Prosecutors who draft such indictments and judges who accept such indictments to launch lawsuits must face administrative sanctions from the Council of Judges and Prosecutors.

More severe sanctions must be imposed upon judges and prosecutors who take part in legal proceedings which are later overturned by courts of appeal or Court of Cassation, or which are considered by European Court of Human Rights and Constitutional Court as constituting a violation of rights, and the strict application of these sanctions must be monitored.