The Press In Arrest team has created a detailed list of how many journalists in Turkey face / faced trials in the last 2 years as per various legal provisions.
Press in Arrest - 3 May 2020
Many legal provisions in Turkey criminalize the press, publishing and criticism, thus violating the Constitution and the international conventions signed by Turkey.
According to Article 28 of the Constitution of the Republic of Turkey, “The press is free and shall not be censored”!
This first of the four articles concerning the freedom of press in the Constitution sets forth the fundamental principle of freedom of press as a universal right.
The Constitution further reinforces the protection over the freedom of press, assigning the state the responsibility for safeguarding this freedom: “The state shall take the necessary measures to ensure the freedom of press and information.”
Moreover, in order to ensure that the freedom of press and information are exercised properly, the Constitution draws clear boundaries between the laws and this fundamental principle of democracy. Accordingly, laws in Turkey “ shall not impose any political, economic, financial, and technical conditions obstructing or making difficult the free dissemination of news, thoughts, or opinions.”
Indeed, certain laws have special provisions that exempt the freedom of press from their definitions of offenses: “Expressions of thought which do not violate the limits of reporting or criticism cannot be considered as crime.”
However, both the Constitution and these protections, which are supposed to exempt the rights of press, expression and reporting from criminalization, are violated by a striking contradiction in the law.
The sentences for the crimes set forth in numerous legal provisions are to be aggravated, in case these crimes “are committed via the media”. As such, media activities are defined in advance as ‘crimes’ punishable in the harshest manner.
As a result, journalism virtually becomes a ‘major crime’ in Turkey.
Those who enforce the law take a stance against journalism during investigations and trials, thus further aggravating journalism’s position as a ‘major crime’.
Each legal provision which serves as a pretext to investigate, detain, arrest, file a lawsuit against and sentence a journalist, and each practice to that end constitutes a violation of the Constitution and international conventions.
That is because, Turkey amended its Constitution in 2004, rendering binding and placing above its national laws the European Convention on Human Rights and the rulings of the European Court of Human Rights, which go against the national legal provisions criminalizing journalism in Turkey. European Court of Human Rights indicates in a well-known ruling how European Convention on Human Rights, Article 10 on freedom of press and information shall be interpreted and applied:
“The legislation must always actively promote ideas, news and debates on public issues, and shall not weaken these via criminal laws even in a passive manner.”
The aforementioned contradictions in Turkey make it impossible to “celebrate” May 3rd as World Press Freedom Day in Turkey.
The Press In Arrest team has created the following list showing how many journalists face / faced how many trials in the last two years as per various articles of Turkish Penal Code, Anti-Terror Law, Law on National Intelligence Organization, and Capital Market Law.
OFFENCES AGAINST THE CONSTITUTIONAL ORDER AND ITS FUNCTIONING
“Any person who attempts to abolish, replace or prevent the implementation of, through force and violence, the constitutional order of the Republic of Turkey shall be sentenced to aggravated life imprisonment.”
“Any person who attempts, by use of force and violence, to abolish the Turkish Grand National Assembly or to prevent, in part or in full, the fulfillment of the duties of the Turkish Grand National Assembly, shall be sentenced to aggravated life imprisonment.”
“Any person attempting, by the use of force and violence, to abolish the government of the Republic of Turkey or to prevent it, in part or in full, from fulfilling its duties, shall be sentenced to aggravated life imprisonment.”
“Any person who establishes or leads an armed organization shall be sentenced to imprisonment for ten to fifteen years.”
“Any person who becomes a member of an armed organization shall be sentenced to imprisonment for five to ten years.”
“Any person who commits an offence on behalf of a terror organization, although he is not a member of that organization, shall also be sentenced for the offence of being a member of that organization.”
“Any person who aids and abets a terror organization knowingly and willingly, although he does not belong to the structure of that organization, shall also be sentenced for the offence of being a member of that organization.”
OFFENCES AGAINST STATE CONFIDENTIALITY, AND ESPIONAGE
“Any person who, partially or completely, destroys or damages documents relating to the security of the state, or who falsifies, steals or, by deception, removes them or makes use of them outside their assigned place, shall be sentenced to imprisonment of eight to twelve years.”
“Any person who secures information to be kept confidential for reasons relating to the security of the state, shall be sentenced to imprisonment of three to eight years.”
“A person who secures information that must be kept confidential for reasons relating to the security of the state, for the purpose of political or military espionage, shall be sentenced to imprisonment of fifteen to twenty years.”
“Any person who discloses information that must be kept confidential for reasons relating to the security of the state shall be sentenced to imprisonment of five to ten years.”
“Any person who, for the purpose of political or military espionage, discloses information that must be kept confidential for reasons relating to the security of the state shall be sentenced to life imprisonment.”
OFFENCES AGAINST THE SYMBOLS OF STATE SOVEREIGNTY AND THE REPUTATION OF ITS ORGANS
“(1) Any person who insults the President of the Republic shall be sentenced to imprisonment for one to four years. (2) Where the offence is committed in public, the sentence shall be increased by one sixth.”
“Denigrating the Turkish Nation, State of the Turkish Republic, the state’s institutions and organs.”
OFFENCES AGAINST DIGNITY
“(1) Any person who attributes an act, or fact, to a person in a manner that may impugn that person’s honor, dignity or prestige, or attacks someone’s honor, dignity or prestige by swearing shall be sentenced to imprisonment of three months to two years or a judicial fine. To be culpable for an insult made in the absence of the victim, the act should be committed in the presence of at least three other people. (2) Where the act is committed by means of an oral, written or visual medium message, addressing the victim, the penalty stated in the above paragraph shall be imposed. (3,a) Where the insult is committed against a public officer due to the performance of his public duty, the penalty to be imposed shall not be less than one year. (4) Where the insult is committed in public, the penalty to be imposed shall be increased by one sixth.”
OFFENCES AGAINST STATE SECURITY
“Any person who commits an act to place all, or part, of the territory of the state under the sovereignty of a foreign state or to disrupt the unity of the state or to weaken the independence of the state or to separate part of the territory under the sovereignty of the state from the state administration shall be sentenced to aggravated life imprisonment.”
“(1) Any person who accuses another person of committing an act contrary to law in order to secure the implementation of an administrative sanction or the commencement of an investigation and prosecution by submitting a complaint or notification to the authorities or through the media, knowing that the other person did not commit such act, shall be sentenced to imprisonment for one to four years.”
“An individual convicted of a crime may be deprived of certain rights such as voting and being elected, becoming an administrator in foundations, associations and trade unions, and adopting children.”
AGGREGATION OF OFFENCES
ACTIONS FOR DAMAGES
VIOLATION OF THE CAPITAL MARKET LAW
VIOLATION OF THE NATIONAL INTELLIGENCE LAW
Furthermore, the prosecutor’s office has drafted and sent to the court an indictment against 7 journalists -6 of whom are detained- concerning a news story on the funeral of a National Intelligence Organization (MİT) officer killed in Libya. It is expected that the court will accept the indictment and launch the trial. According to news stories about the indictment, the journalists will stand trial for allegedly “violating the National Intelligence Law”.
“Penalties are aggravated by half in crimes committed with terrorist aims.”
“Persons who announce or publish that a crime will be committed by terrorist organizations against persons, in a way that makes possible that these persons can be identified, whether or not by specifying their names and identities, or those who disclose or publish the identities of state officials that were assigned in fight against terrorism, or those who mark persons as targets in the same manner shall be punished with imprisonment from one to three years.”
“Persons who publish or broadcast statements or declarations that attempt to legitimize or praise terror organizations’ methods employing coercion, violence or threat, or that promote the use of such methods shall be sentenced to one to three years of imprisonment.”
“Persons who spread propaganda that attempts to legitimize or praise terror organizations’ methods employing coercion, violence or threat, or that promote the use of such methods shall be sentenced to one to five years of imprisonment. In case this crime is committed via the media, the sentence is aggravated by half. Expressions of thought which do not violate the limits of reporting or criticism cannot be considered as crime.”
[According to the Press in Arrest database; in the last two years, at least 398 journalists stood / stand trial in 159 cases. These 398 journalists include those who are under arrest but against whom no indictment has been drafted yet, and those who stand trial but whose indictment we have not been able to access and include in our database yet. A journalist may stand trial in multiple cases on the same and / or different charges. All data updated on May 3rd, 2020.]