The freedom of expression groups of cases (Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group) concern unjustified and disproportionate interferences with the applicants’ freedom of expression on account of criminal proceedings for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole (violations of Article 10).
Media and Law Studies Association updated the participants with recent developments of each case within the group of cases:
1. Öner and Türk Group of Cases
The Öner and Türk group concerns unjustified convictions of the applicants mainly based on Article 6 § 2 (printing of statements made by a terrorist organisation) and Article 7 § 2 (propaganda in favour of an illegal organisation) of the Anti-Terrorism Law; Article 215 (praising an offence or an offender) and Article 216 (provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences) of the Criminal Code (violations of Article 10).
Article 6/2 of Anti-Terror Law : Printing or publishing declarations or announcements of terrorist organizations:
In its entirety, Article 6 of Anti-Terror Law continues to be a source of violations.
Despite the claims of the authorities, the trials based on Article 6/2 of Anti-Terror Law continue and they constituted 1,7% of the charges during the monitoring period.
Prolonged trials and violations of the right to fair trial
Article 6/1 of Anti-Terror Law: Disclosing or publishing the identity of officials on anti-terrorist duties, or identifying such persons as targets
The ambiguous wording of Article 6/1 makes it possible for any public official (even retired ones) to be defined as “an official on anti-terrorist duties.”
Article 7/2 of Anti- Terror Law: Propaganda in favor of an illegal organization)
Amended in 2013 → «the interpretation has been narrowed down the act of making propaganda for a terrorist organization by justifying, praising or inciting its methods, is not recognized as an offense if it does not contain violence, force or threat.»
A sentence added in 2019 → «expressions of opinion constituting criticism or not exceeding the limits of reporting, will not constitute a crime.»
Article7/2 charges, which were among the charges leveled against individuals in 62 cases, constituted 54% of the terrorism-related charges in this period. In 46 of these trials, journalists were the defendants.
Amendments and especially the 2019 addition to the article in no way protect the freedom of criticism or the press.
Article 215 of the Turkish Penal Code: Praising an offense or an offender
The 2013 amendment to the Article 215 of the Turkish Penal Code has not solved the problems with the article and most importantly the problem of “unforeseeability” the Court had found in the case Yasin Özdemir v. Turkey. Individuals can still be charged and sentenced for their expressions which do not pose “an imminent and clear danger to public order.”
The lawsuit brought against journalist Cengiz Çandar and activist Kemal Işıktaş proves this point.
Indictment filed in 2020 cited social media posts shared in 2017 as evidence for the charges.
Article 216 of the Turkish Penal Code: Provoking the public to hatred, hostility, denigrating a section of the public
In their latest action plan, the authorities failed to inform the Committee about the progress or more appropriately the lack of progress regarding Article 216 of the Turkish Penal Code.
The article, however, is used more and more to stifle freedom of expression.
Examples of popstar Gülşen and journalist Mehmet Güleş demonstrate such tendency.
2. Nedim Şener Group of Cases
The Nedim Şener group of cases concerns pre-trial detention of journalists on serious charges (offenses against the constitutional order and its functioning and establishing organizations for the purpose of committing crimes) and as per Article 100 of Code of Criminal Procedure.
There has been no amendment, no progress
Currently at least 61 journalists in prison. 26 out of 61 are in pre-trial detention.
Over the past 9 months, 26 journalists have been arrested over the suspicion of «membership in a terrorist organization (Article 314 of TPC and Article 7-1 of ATL)
On 16 June 2022, 16 journalists arrested in Diyarbakır
On 29 October 2022, 9 journalists arrested in Ankara
On 10 January 2023, journalist Sezgin Kartal arrested in Istanbul
3. Altuğ Taner Akçam Group of Cases
The Altuğ Taner Akçam group deals with prosecutions under Article 301 of the Criminal Code (publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army), which the Court found not to meet the “quality of law” requirement in view of its “unacceptably broad terms” (violations of Article 10).
Article 301 of the Turkish Penal Code
Contrary to the claims of the authorities, the 2008 amendment to the Article 301 has not solved the problems and thus the article continues to be a source of further violations.
During the monitoring period 25 people, including lawyers, journalists and politicians stood trial on this charge.
Continuous legal harassment of the Diyarbakır Bar Association
4. Artun and Güvener Group of Cases
The Artun and Güvener group concerns unjustified interferences with the applicants’ right to freedom of expression on account of their criminal convictions for insulting public institutions, officials and the President under Articles 125 and 299 of the Criminal Code (the President, the Republic, police officers, tax inspectors etc.) (violations of Article 10). In the case of Vedat Sorli, the Court also indicated under Article 46 that bringing the relevant domestic law into line with the Convention would be an appropriate form of redress that would put an end to the violation found.
a. Article 125 of the Turkish Penal Code: insulting
No amendment
2005 amendment amended two clauses of the article : (4-openly insulting) and (5- insulting public officials working as a committee). Both increase the stipulated prison sentence.
There is no “Convention compliant attitude” when it comes to the application of Article 125.
73 people, including journalists, lawyers, activists and politicians stood trial on these charges. The majority of the insult charges were “insulting a public official. (Article 125/3a)”
2 years and 7 months prison sentence imposed upon the Istanbul Mayor Ekrem İmamoğlu for “insulting public officials who work as part of a committee because of their duties. (Article 125/5).”
b. Article 299 of the Turkish Penal Code: insulting the president
No amendment → The authorities claim that the requirement of the Ministry of Justice authorization for prosecution (NOT investigation) («filtering mechanism») has «eliminated the concerns.». However, the 2005 amendment amended the second clause of the article (2- openly) and increased the stipulated prison sentence.
Contrary to the claims of the authorities that all the concerns regarding Article 299 have been eliminated through a “filtering measure” and Convention compliant case law, the article is applied in absolute defiance of the Vedat Şorli judgment of the court to punish criticism and stifle freedom of expression.
Furthermore, Article 299 of the Turkish Penal Code increasingly gives way to Article 5 violations as it can be seen in the examples of journalist Sedef Kabaş ; a 70 years old man who shared her remarks and Cihan Kolivar, the president of the Turkish Union of Bread Producers.
5. Işıkırık Group of Cases
The Işıkırık group concerns Article 220 §§ 6 and 7 of the Criminal Code, which provide that anyone who commits a crime on behalf of an illegal organisation or who knowingly and willingly aids and abets an illegal organisation shall be sentenced as a member of that organisation. Based on these provisions, most of the applicants in this group of cases were sentenced to several years of imprisonment for membership of an illegal organisation for having, for example, peacefully participated in a demonstration called for by an illegal organisation, or expressed a positive opinion about such an organisation, without the prosecution having to prove the elements of actual membership. The Court criticised in particular the wording of the provisions and their extensive interpretation by domestic courts which did not provide sufficient protection against arbitrary interferences by the public authorities (§67) and therefore lacked foreseeability and had a chilling effect (violations of Articles 10 and 11).
a. Article 220/6 of the Turkish Penal Code: Committing an offense on behalf of an organization without being a member
The sentence added to the Article 220/6 in 2013 has not narrowed down the interpretation and application of the article.
Furthermore, the article continues to be a source violation with regards to Article 11 and also criminalizes both peaceful demonstrations and journalists covering those demonstrations.
b. Article 220/7 of the Turkish Penal Code: Aiding and abetting an organization willingly and knowingly without belonging to its structure
Contrary to the claims of the authorities, the problems with Article 220/7 have not been eliminated and the article continues to be a source of violations.
During the monitoring period, 58 activists, 38 journalists and 13 politicians were tried on Article 220/7 charges.
Furthermore, 5 journalists and a media employee were sentenced for “aiding and abetting an organization willingly and knowingly without belonging to its structure.”
Media and Law Studies Association provided recommendations to the Committee of Ministers to:
Re-examine these groups of cases more frequently.
Request the authorities to revise their action plan so that they address structural problems arising from the legislative frameworks as identified by the ECtHR in these groups of cases.
Reiterate demands for amendments to Article 125 and 301 of the Turkish Penal Code and the abolition of Articles 220/6, 220/7 and 299 of the Turkish Penal Code.
Urge the authorities to consider amending Article 6 of Anti-Terror Law so that it cannot be employed to intimidate investigative journalism.
Persistently request the authorities to provide up-to-date and detailed statistics on criminal investigations and prosecutions related to freedom of expression and the press, and to provide comments on these statistics.
Reiterate calls for strong high-level political messages from the authorities.
Considering the absence of progress in the implementation of these groups of cases, as well as the repeated and extensive use of these legal provisions in order to target journalists, media employees and other persons exercising freedom of speech, the Chair of the Committee should send a letter to the Minister of Justice of Turkey regarding the non-implementation of these groups of cases.
Please see the slides for the full Briefing.
Relevant Documents: