Top court demands evidence
The Constitutional Court, in its reasons for the rights violation ruling it passed on detained Mehmet Altan and Şahin Alpay, stating that “articles and speech” cannot on their own be grounds for detention, has set new principles with regard to detained journalists.
The top court has pointed to a need for the adducing of “strong indications that a crime has been committed” and “concrete facts” to justify detention. This ruling of the Constitutional Court is also of a nature that rebuts the charges in the Cumhuriyet trial.
The Constitutional Court (CC), which has issued its first ruling over the detained journalists in the state of emergency process, has also set out its principles concerning the manner in which it will subsequently approach the issue of detained journalists. The CC, in its reasons for the rights violation ruling it passed on detained journalists and columnists Altan and Alpay, apart from deeming the detention measure to be unlawful, has called for “concrete facts,” deeming the articles, comments and speech used to justify detention to be insufficient to demonstrate that a crime had been committed. In the ruling, which additionally contains pronouncements that come as a reply to government officials’ claims that the CC had exceeded its jurisdiction, it was noted that whether or not judicial authorities had exceeded the bounds of discretion over the detention measure was subject to oversight by the Constitutional Court.
It was noted in the decision that the comments and speech cited as grounds for Altan’s detention consisted of the article entitled “The meaning of Sledgehammer” published in Star newspaper in 2010, his speech on a programme broadcast on Can Erzincan TV one day before the coup attempt and the article entitled “Turbulence” posted on his own website on 20 July 2016. In the decision, with it noted that there was no allegation that Star newspaper was one of FETO’s publishing outlets, it was said, “There also exists no determination or claim on the part of the investigating authorities that FETO/PDY was a criminal organisation in this period and that this was public knowledge. The factual basis has not been adduced that led the investigating authorities to the opinion that the article that was written three years ago and concerned a trial that was high on the country’s agenda at the time it was written was penned in line with FETO/PDY’s goals.”
No strong indications
It is noted in the decision, in which there is mention of the speech on Can Erzincan TV one day prior to the coup attempt over which charges have been pressed, “It is hard for these words to be definitively categorised as an incitement to a coup and for it to be accepted that the applicant spoke them in the knowledge of the coup attempt that would be staged the following day for the purpose of readying public opinion for it.” It is stressed in the decision that the factual basis whereby the applicant spoke these words for the purpose of preparing the setting for the coup attempt had not adduced by the investigating authority. The court, noting that the Republic prosecutor cited certain correspondence made via ByLock as evidence against Altan in his recommendation on the merits of the case, said, “At the same time, it has not been deemed possible, when consideration is given to the particularities of the event at hand and the contents of comments made about the applicant, for these on their own to be considered strong indications pointing to suspicion of guilt. The conclusion has consequently been reached that the adequate adducing of strong indications that a crime had been committed in the event at hand as per the grounds that the judgeship cited had not been achieved.”
Even if there is a state of emergency
The court, assessing the event in light of Article 15 of the Constitution concerning the suspension of rights in a state of emergency period, stressed that, in the absence of indications that a crime had been committed, all guarantees on the right to liberty and security of person would become devoid of meaning. It is said in the ruling, “Consequently, regardless of what reason is adopted, also in periods in which extraordinary administrative procedures are applied, the detaining of people about whom there is no indication that they have committed a crime cannot be accepted as being a measure ‘proportional to the needs of the situation.’ As such, it has been deemed that Article 15 of the Constitution which provides for the suspension and limiting of the exercising of fundamental rights and freedoms in state of emergency periods does not legitimise intrusions that are contrary to the guarantees set out in the third paragraph of Article 19 of the Constitution concerning the applicant’s right to liberty and security of person.”
When it comes to the deliberation made in the reasons on freedom of expression and the press, it was noted that for the intrusion not to constitute a violation it was insufficient simply for it to have a legal basis and a legitimate aim. Premised on this, it was said in the decision with reference to the event, “It is not apparent from the nature of the event in hand and the grounds for the detention order what the compelling social need was that gave rise to the intrusion involving the measure of detention against the freedoms of expression and the press and why this was necessary in a democratic social order. It is also clear that the applicant’s detention without any noteworthy concrete fact being adduced apart from the published articles and words spoken on Can Erzincan TV in the grounds for detention in the event at issue in the application will have a deterrent effect over the freedoms of expression and the press. For the reasons that have been set forth, the implementation of the detention measure against the applicant based essentially on articles and speech without the adducing of strong indications that he committed a crime is contrary to the guarantees in Articles 26 and 28 of the Constitution in normal periods with regard to freedom of expression and the press.”
The court, additionally examining if the intrusions against these freedoms made for state of emergency reasons were legitimate, noted that the freedom of expression and the press could be limited under state of emergency conditions under Article 15 of the Constitution. However, with it stated in the ruling that such intrusion had to be examined for proportionality to the needs of the situation, it was noted, “It was concluded that the implementation of the detention measure without the adducing of indications that a crime had been committed was not an intrusion that was proportional to the needs of the situation.” It was said in the ruling, “As such, it has been deemed that Article 15 of the Constitution which provides for the suspension and limiting of the exercising of fundamental rights and freedoms in state of emergency periods does not legitimise intrusions that are contrary to the guarantees set out in Articles 26 and 28 of the Constitution concerning the applicant’s freedoms of expression and the press.” The same reasons that were set out with regard to Altan were also expounded in the ruling on Alpay. It was said in the ruling, “The voicing by the applicant of his opinions in articles published in Zaman cannot be deemed to be a fact capable – on its own – of establishing that these articles were penned in the knowledge of FETO/PDY’s aims and in line with these aims.”
The Cumhuriyet trial
The CC’s reasons are of a nature that also rebut the charges in the Cumhuriyet trial. The prosecution and court, which has pressed charges over our newspaper’s editorial policy, has been unable to adduce facts and indications that tie the Cumhuriyet staffers with FETO apart from news reports.
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