Public Prosecutor Asım Ekren: The statements of journalists should not be considered a crime under the law.

Public Prosecutor Asım Ekren emphasized the importance of mass communication tools such as radio-television, newspapers-magazines, and social media in his book "Procedures and Principles for Applications Against Illegal Publications on the Internet, Newspapers, and Television." He stated that the statements and behaviors of press members hold great value within the framework of press freedom, highlighting that a general framework based on the legislation and criteria of higher courts has been established for lawyers and press members. He also expressed that press freedom is one of the cornerstones of democratic societies, indicating that the responsibilities of professionals in the field should also be taken into account.

EXPLANATION ABOUT JOURNALISTIC ACTIVITIES

Public Prosecutor Asım Ekren shared information that the defendant practiced journalism and actively participated in certain media outlets as a result of evaluating all documents, information, and evidence collected during the investigation and prosecution phases.

1. The defendant acted as a press member in the capacity of a journalist in the newspaper, television, radio, or internet news site that publishes daily, periodic, widespread, regional, or local (national-regional-local) before, during, and currently, as stated in the indictment.
2. On the date of the alleged crime, the defendant participated in a program named… which was broadcast live, recorded, or repeated, where current issues such as general, political, economic, and social matters of our country-region-province were discussed with guests who hold public knowledge and have different or similar views, (writing a daily-weekly-monthly article in the column named… in the Newspaper-Magazine-Internet News Site), (attending a conference-seminar as an invited guest),
3. Accordingly, there is no doubt or objection regarding the act attributed to the defendant and the subject of the indictment.

LEGAL QUALIFICATION AND LEGISLATION

Public Prosecutor Asım Ekren made evaluations regarding the legal nature of the words of the defendant, who is a press member. Ekren emphasized that the legal and criminal responsibilities of actions committed through the press should be addressed within the framework of the principles established by the Constitutional Court, the European Court of Human Rights, and the Court of Cassation. In this context, he stated that the limits of legality of the defendant's statements should be clarified and discussed. The importance of the legal evaluation of the act was once again emphasized in light of the criteria accepted by higher courts.

In this regard

*The reasons and limits of legality for actions that can be evaluated within the scope of freedom of expression and committed through the press,

*Whether politicians, administrators, and public officials should show more tolerance in criticisms made due to their duties as a result of being introduced to the public by press members and through the press,

*The behaviors of press members that can create a shocking effect, somewhat provocative, exaggerated, coarse, disturbing, heavy, and harsh criticism, the boundaries of responses or mutual discussions and conversations being somewhat broader,

*The differences in value judgments that can vary from person to person and the differences in material facts,

*Situations where personal interests and freedom of expression come into conflict,

will be seen to lead to the following legal qualifications.

1. The evaluation of whether an act committed through the press is within the limits of freedom of expression (press) and/or lawful depends on whether the behavior (speech) in a non-press event is considered unlawful. In cases where the behavior (speech) in an event made through the press does not constitute unlawfulness, the press tools or members have the authority and responsibility to monitor, investigate, evaluate, disseminate, and thus inform, educate, enlighten, and guide individuals (the public). While fulfilling this, the act that would constitute unlawfulness due to the publication differs from the unlawful act in general events (outside the press). Therefore, the limits of unlawfulness or legality of the publication should be determined by considering this difference and exceptional situation. For example, the Constitutional Court's General Assembly's decision dated 03.03.2016 and numbered 2013/5653, paragraphs 38, 39, and 50; the European Court of Human Rights General Assembly's decision dated 03.07.2015 and numbered 2013/6237, paragraph 39; decision dated 08.04.2015 and numbered 2013/3614, paragraph 34; decision dated 23.01.2014 and numbered 2013/2602, paragraph 40; and decision dated 16.07.2013 and Mater-Turkey, application number 54997/08, paragraph 52; the Court of Cassation's General Assembly (HGK) decisions dated 13.02.2020 and numbered 2017/4-2338, 2020/140, and dated 06.12.2013 and numbered 2013/4-443, 2013/1646; the 4th Civil Chamber's (HD) decision dated 08.10.2019 and numbered 2017/15, 2019/4441 have made legal qualifications in this direction.
2. The punishment of an act by the legal system depends on the absence of a reason that justifies it, in other words, a reason that eliminates its unlawfulness. In this context, the right to inform and criticize, which constitutes a reason for legality in crimes committed through the press, must be based on the acceptance of the right to inform and criticize, which is derived from Articles 28 and following of the Constitution. The news subject to explanation or criticism must be real and current, there must be a public interest and benefit in its disclosure, and there must be a conceptual link between the manner of disclosure and the subject. Freedom of thought and therefore criticism is an indispensable right in democratic societies. It is essential for the progress and benefit of society. This is a requirement of the democratic social order and pluralism. Criticism also derives from this freedom, and the harshness inherent in criticism does not constitute a crime. Since criticism is not praise, it is natural for it to be harsh, hurtful, and injurious. For example, the 8th Criminal Chamber of the Court of Cassation's decisions dated 19.06.2023 and numbered 2021/16724, 2023/4938; decisions dated 29.05.2023 and numbered 2021/15314, 2023/3794, and the reference made to the decisions of the General Assembly of Criminal Law (CGK) numbered 2016/64, 2018/63: 12.
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3. The 21.12.2022 decision of the Criminal Chamber, case no. 2020/9565, 2022/10257; the decision of 29.06.2022, case no. 2020/12479, 2022/5270; the decision of the 7th Criminal Chamber dated 28.04.2022, case no. 2022/2578, 2022/8709; the 19th Criminal Chamber's decision dated 11.03.2019, case no. 2018/8289, 2019/5452, and the legal qualifications made by the Criminal General Assembly in its decision dated 03.02.2007, case no. 2007/7-28, 2007/34, are referenced in these decisions.



4. According to the Constitutional Court, freedom of expression, which is not absolute and can be limited, is subject to the regime of restrictions on fundamental rights and freedoms enshrined in the Constitution. It has emphasized that restrictions must be exceptional, necessary, and within certain conditions, and that these restrictions should be interpreted narrowly and convincingly. For example, the decisions of the Constitutional Court, AYM, GK, dated 27.09.2023, B. No: 2021/8967, 35, 12.11.2014, B. No: 2013/1461; 25.06.2014, B. No: 2013/409; 23.01.2014, B. No: 2013/2602 are in this context. While it varies somewhat from country to country, in most countries; defamatory, honor, dignity, and reputation-damaging words and statements, obscene content, words, writings, images, and explanations, incitement to war, changing the legal order by force, expressions aimed at creating hatred, discrimination, hostility, and violence are evaluated outside the scope of freedom of thought-expression-press and are punished as crimes. For example, the Constitutional Court, 04.06.2015, B. No: 2014/12151; 23.01.2014, B. No: 2013/2602; 02.10.2013, B. No: 2013/1123; 18.06.2009, E. 2006/121, K. 2009/90; 05.06.1997, E. 1996/70, K. 1997/53. The Supreme Court of Appeals General Assembly referenced these decisions of the Constitutional Court in its decisions dated 27.10.2009, E. 2009/9-190, K. 2009/253; 29.04.2008, E. 2007/8-244, K. 2008/92. Similar qualifications have been made according to the decisions of the European Court of Human Rights, stating that the publication must contain a discussion that attracts public interest, is current, and serves the public good, and must not incite hatred and hostility, promote violence, contain hate or discrimination, glorify crime and criminals, praise terrorism or separatist movements, legitimize or exalt them, and must not damage the personality rights, honor, dignity, and reputation of others through insults, curses, or similar means. Although freedom of expression is subject to exceptions, these exceptions should be interpreted narrowly, and the reason for the restriction must be presented convincingly. The European Court of Human Rights, Lehideux and Isorni-France, 23.09.1998; 26.11.1991, Observer and Guardian-United Kingdom, A Series no: 216, B. No: 13585/88. These decisions have also been referenced in the decisions of the Supreme Court of Appeals General Assembly, 16.06.2020 E. 2017/4-1349, K. 2020/407 and 23.06.2020. E. 2017/4-1406, K. 2020/449.



5. As stated in the decisions of the European Court of Human Rights, freedom of the press is one of the most important tools for informing the public about the behavior of the authorities and presenting it for public scrutiny. Freedom of the press, in this respect, is the freedom to convey and communicate news and information that concerns the public. The Court states that the press performs the role of 'public watchdog' and 'guardian' and therefore is granted privileges in the exercise of freedom of expression. For example, the decisions of Éditions Plon V. -France, application no: 58148/00, 44; Bladet Tromsø And Stensaas V. -Norway, B. No: 21980/93, 59; are in this direction. The Supreme Court of Appeals General Assembly referenced these decisions in its decision dated 24.06.2015, case no. 2013/4-2436, 2015/1731. Again, with similar qualifications, it has been stated that while the press should not exceed the boundaries drawn to protect the reputations of others, it is also the press's duty to convey news and opinions on political issues, as in other areas of public interest. The press does not only have the duty to convey such news and opinions; the public also has the right to obtain them. More generally, the freedom of political discussion is at the very center of the concept of a democratic society that pervades every point of the Convention. For example, the decisions dated 16.07.2013, Mater-Turkey, application number, 54997/08, paragraph, 52; the General Assembly's decision dated 03.07.2015, application number, 2013/6237, paragraph, 39; and the decision dated 25.06.1992, Thorgeir Thorgeirson-Iceland, number, 239, paragraph, 55-70 also made the same legal assessment. In the decision of the Constitutional Court, a legal qualification parallel to the findings and assessments mentioned above has been made. Accordingly, freedom of the press is vital for the functioning of democracy. In a democratic system, the actions and processes of the state must be under the scrutiny of not only judicial and administrative authorities but also the press and the public. Written, auditory, or visual media ensures the healthy functioning of democracy by subjecting the political decisions, actions, and omissions of organs using public power to strict scrutiny and facilitating citizens' participation in decision-making processes. For this reason, freedom of the press is a valid and vital freedom for everyone. For example, the qualifications in the decisions dated 25.06.2014, application number 2013/409, paragraph 75; and 03.03.2016, application number, 2013/5653 are in this direction.



6. Freedom of expression and the press applies not only to information and ideas that are well-received or not found disturbing or ignored but also to information or ideas that can create an aggressive, shocking effect or are disturbing. The following decisions can be cited as examples of this qualification: AYM, 16.07.2004, B. N: 2012/1184; 19. CD, 11.03.2019, E. 2019/921, K. 2019/5454; 19.06.2017, E. 2016/13057, K. 2017/5905; CGK, 13.02.2007, E. 2017/7-28, K. 2007/34; ECHR, 07.02.2012, BD, 0660/08, Von Hannover -Germany; AxelSpringer AG-Germany, BD, 39954/08.



7. It has been stated that public officials must be protected against derogatory attacks aimed at undermining their functions and damaging their reputations while they perform their duties, and at the same time, they should show more tolerance towards criticisms of their actions and words compared to ordinary citizens. It has been accepted that words consisting of value judgments that are not based on acts and do not require proof, even if shocking, can be evaluated within the scope of the right to criticize and freedom of expression. The following decisions can be cited as examples: ECHR, Hriko-Slovakia, 2004, para. 40,45; Jeruselam-Austria, 2001, para. 44; Sokolowski-Poland, 2005 para. 47; Steur-Netherlands, 2003, para. 39.



8. According to general acceptance, it has been adopted that media professionals should distinguish between value judgments that can vary from person to person and material facts when expressing their opinions through publication. In other words, a traditional distinction is made between facts and value judgments regarding the nature of statements that may damage a person's personality rights.


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Olguların gerçekliği ispat edilebilse de değer yargılarının doğruluğunu kanıtlamak mümkün değildir. Sınırlamaya konu edilen bir yayında, sırf kişiden kişiye değişen ve ispatı mümkün olmayan değer yargılarından hareketle birtakım sözlerin söylenmesi düşünce ve ifade özgürlüğü kapsamında değerlendirilebilir. Bu nitelendirmeye şu kararları örnek olarak göstermek mümkündür: 4. CD, 21. 12. 2023, E. 2021/17693, K. 2023/26149; AİHM,Karis-Yunanistan, 5. 6. 2008; Erdener-Türkiye 02. 02. 2016; Morar-Romanya, 07. 07. 2015; Lingens-Avusturya, B. No: 9815/82, 08. 07. 1986, prg. 46;HGK, 01. 02. 2012, E. 2011/4-687, K. 2012/26; 19. CD, 15. 05. 2017, E. 2016/74. K. 2017/4574.
9. Generally, in situations where an individual's interest conflicts with freedom of expression, it is not conceivable for the legal system to simultaneously protect both conflicting values. One of these two values must be prioritized over the other. As a result, the lesser value may be deemed appropriate to remain unprotected in the specific case and at that moment against the value that should be prioritized. The fundamental criterion for this is the public interest. It has been accepted that, in the presence of the conditions of legality regarding publications and the clear absence of the specified limits, the news should be protected in the name of freedom of expression. For example, AYM, 03. 03. 2016, B. NO: 2013/5653; ECHR, 16. 7. 2013, Mater-Turkey, B. No: 54997/08; HGK, 06. 12. 2013, E. 2013/4-443, K. 2013/1646; CGK, 13. 02. 2007, E. 2007/2-28, K. 2007/34; 19. CD, 02. 11. 2020, E. 2019/30287, K. 2020/13553; 19. CD, 15. 04. 2019, E. 2019/1533, K. 2019/7233; 4. CD, 11. 12. 2014, E. 2013/41028, K. 2014/35880; 4. HD, 23. 10. 2019, E. 2017/1685, K. 2019/4894; 20. 12. 2017, E. 2017/3558, K. 2017/8501 sayılı ilamlardaki hukuki nitelendirme de bu şekildedir.
10. The press members are relatively protected when expressing their views through publication, even if they are somewhat provocative, exaggerated, coarse, disturbing, harsh, or critical in nature. In the decisions, it has been emphasized that freedom of expression applies not only to information and ideas that are well-received or not found disturbing or are ignored but also to information or ideas that can create an aggressive or shocking effect or are disturbing. For example, ECHR, 23. 9. 1998, Lehideux and Isorni-France; CGK, 13. 02. 2007, E. 2007/2-28, K. 2007/34; 19. CD, 03. 05. 2018, E. 2017/6373, K. 2018/5569; 4. CD, 12/03/2014, E. 2012/28050, K. 2014/8102 sayılı ilamları bu mahiyettedir.
11. In responses or in mutual conversations, the boundaries have been set somewhat wider. For example, according to the decision of the 4th Civil Chamber of the Court of Cassation dated 26. 03. 2015 and numbered 2014/8386, 2015/3689, it was stated that the expressions used by the defendant in response to the plaintiff's statements about the defendant were within the limits of freedom of expression, as the expressions accepted by the court as insults were responses to the plaintiff's personal value judgments and evaluations regarding himself. Similar characterizations have been made in other decisions as well. For example, in the decision of the 4th Criminal Chamber of the Court of Cassation dated 03. 10. 2023 and numbered E. 2021/11924, K. 2023/21876, it was stated that the words in the incident in question were not of a nature to offend the honor and dignity of the participant, but rather were of a news and criticism nature, and that the contrary opinion would mean an unreasonable expansion of the value intended to be protected by the crime and would be an interpretation incompatible with the universal legal thought that prioritizes freedom of expression. Therefore, it was stated that the decision to convict the defendants instead of acquitting them was to be overturned. Similar characterizations were made in the decisions of the same chamber dated 17. 04. 2024, E. 2021/24199, K. 2024/4955 and 19. CD, 05. 07. 2018, E. 2018/3292, K. 2018/8231.
12. The legal basis of the above explanations, which evaluate the criteria adopted by the higher courts, are the relevant articles of our Constitution regarding freedom of thought and opinion 25, freedom to express and disseminate thoughts 26, freedom of the press 28; Law No. 5187 regarding the purpose and scope 1, freedom of the press 3; Law No. 6112 regarding its purpose 1; Article 10/1 of the European Convention on Human Rights regarding freedom of expression; and Article 19 of the Universal Declaration of Human Rights regarding freedom of opinion and expression.

"ALL STAGES OF THE EVENT MUST BE EVALUATED TOGETHER"

The Public Prosecutor Asım Ekren addressed the issues of whether the statements of the press members constitute a crime and whether they require compensation. Based on the expert report, he stated that the defendant's statements should be examined in all aspects of the event. In the evaluations made, it was stated that the journalist's statements did not exceed the limits of legality and were not defined as a crime by law. Furthermore, it was emphasized that criticisms should be evaluated more leniently for public officials and famous individuals. In this context, the importance of considering the principles established by the higher courts was pointed out.