Public Prosecutor Asım Ekren: There is no legal regulation that allows for a direct broadcast ban to be imposed.

Public Prosecutor Asım Ekren, in his article titled "The Legal Basis and Sanction of Publication Bans," pointed out the circumstances under which a publication ban can be imposed by a court decision in legislation and practice, noting that there is no legal regulation allowing for a direct publication ban. Public Prosecutor Asım Ekren clarified the issue by stating, "According to the provision in the 4th paragraph of Article 28 of our Constitution regarding press freedom, 'In order to fulfill the purpose of the judicial duty, a publication ban cannot be imposed on events, except for decisions made by the judge within the limits specified by law.' As a rule, the principle that publication bans cannot be imposed on the reporting of events has been adopted. Accordingly, the fundamental rule is that it is free to publish and report events within the framework of freedom of expression (press freedom). In very exceptional cases, when legal conditions arise, it is possible for a judge to issue a publication ban."

"DECISIONS MADE BY THE JUDGE ARE RESERVED"

Explaining the exceptional circumstances that may exist outside the fundamental principle, Asım Ekren stated: "The phrase 'in order to fulfill the purpose of the judicial duty, decisions made by the judge within the limits specified by law are reserved' is included in the Constitution. Again, the 1st paragraph of Article 3 of the Press Law emphasizes the principle of freedom of the press, that is, its freedom. Accordingly, the press is free. This freedom includes the rights to obtain, disseminate, criticize, interpret information, and create works. As a limiting provision that must be interpreted exceptionally and narrowly regarding publication bans, the 2nd paragraph of the same article states, 'The use of press freedom may be restricted in order to ensure the authority and impartiality of the judiciary.' Regarding radio or television broadcasts, the 7th article of Law No. 6112, which regulates broadcasts during extraordinary periods, states that broadcasts cannot be monitored or suspended, but 'a temporary publication ban may be imposed, provided that judicial decisions are reserved.' Additionally, Article 10, paragraph 1 of the European Convention on Human Rights, which is part of our country's law, states that freedom of expression is fundamental, but in paragraph 2, it states that '...it may be subject to restrictions or sanctions in order to ensure the authority and impartiality of the judiciary.'" he said.

"NEWS MADE THROUGH THE PRESS CANNOT BE MONITORED"

Asım Ekren, when considering the Constitution mentioned above and the legal provisions derived from this article together with the provisions of the contract, explained by listing the articles:

1) As a rule, the principle of freedom of publication is valid, and news made through the press regarding events cannot be monitored or banned.

2) According to the provision of the Constitution, 'in order to fulfill the purpose of the judicial duty, decisions made by the judge within the limits specified by law are reserved';

a) In order to fulfill the purpose of the judicial duty,

b) Within the limits specified by law,

c) A publication ban may be imposed on news (publications) made through the press regarding events by a decision made by the judge.

3) In accordance with the above provision of the Constitution, the 3rd article of Law No. 5187 on printed works and internet news sites states that 'Press freedom may be restricted in order to ensure the authority and impartiality of the judiciary.'

4) Similarly, in accordance with the same provision of the Constitution, the 7th article of Law No. 6112 regarding radio-television broadcasts states that 'it cannot be suspended, provided that judicial decisions are reserved.'

6) The reasons for restrictions in paragraph 2 of Article 10 of the Convention may be subject to restrictions or sanctions to ensure the authority and impartiality of the judiciary. Also, Article 19 of the Universal Declaration of Human Rights states that freedom of opinion and expression is protected by law, and Article 12 states that the right to personality must be protected by law. [3]

Accordingly, regarding events, a publication-news ban decision can only be issued in an exceptional and narrow manner and aimed at ensuring the fulfillment of the purpose of the judicial duty. The legal basis for this is Articles 28 of the Constitution, 3 of Law No. 5187, 7 of Law No. 6112, 10 of the Convention, and 12 and 19 of the Universal Declaration. The reasons for limiting freedom of expression in terms of legislation and high court decisions are as follows:

- Protection of national security and territorial integrity,

- Ensuring public order and safety and preventing crime,

- Protection of health or morals, and the rights and reputations of others,

- Prevention of the dissemination of confidential information or ensuring the authority and impartiality of the judiciary.

"THE PUBLIC HAS THE RIGHT TO INFORMATION ABOUT FAMOUS PEOPLE"

Stating that the judge can only issue a publication ban decision by interpreting narrowly and exceptionally in order to ensure the fulfillment of the purpose of the judicial duty among the legal reasons mentioned above, the Public Prosecutor said: "Although freedom of expression (press freedom) is subject to exceptions, it has been stated that these exceptions must be interpreted narrowly and the reason for the restriction must be presented convincingly. Therefore, in order for a publication ban to be issued due to a specific judicial activity, it must be convincingly demonstrated that the fulfillment of the purpose of the judicial duty is at risk, in other words, that the power, authority, and impartiality of the judicial authority would be jeopardized if such a decision were not made."

One other important aspect is the title of the person in question. It is necessary to evaluate normal (ordinary) citizens separately from politicians, public figures, and those who have become famous through the media, such as artists, athletes, journalists, and public officials. It has been accepted that there is a right to information for the public regarding these individuals, and that they should be more tolerant of criticism, thus the freedom of the press should be broader in this regard.

"THERE IS NO CIRCUMSTANCE PREVENTING THE PUBLIC PROSECUTOR FROM MAKING A REQUEST"

Asım Ekren stated that although there is no clarity in the law regarding the competent and authorized judge or court, the place where the investigation or trial is conducted is the peace criminal court, and if there is a civil or criminal case, the court handling the case is the one where the person entitled to make a request is located, and he added that there is no circumstance preventing the public prosecutor from making a request within the scope of the investigation.

If the specified conditions are met, the judicial sanction for acting contrary is stated in Article 285/2 of the Turkish Penal Code No. 5237: "A person who violates the confidentiality of decisions that must be kept secret against the parties to the investigation during the investigation phase and the actions taken as a result of these decisions shall be punished with imprisonment from one year to three years or a judicial fine." Additionally, for radio and television, administrative sanctions can be imposed by the RTÜK in accordance with Article 32 of Law No. 6112. According to Article 7 of the same law, if a broadcast is made contrary to the publication bans and restrictions imposed under the Press Law, the RTÜK may suspend the broadcast of the media service provider's programs for one day. Within a year; in case of repetition of the violation, the broadcasts of the media service provider may be suspended for up to five days, and in case of a second repetition, for up to fifteen days, and in case of a third repetition, the broadcast license may be revoked.

"IF PUBLISHING CONTRARY TO THE JUDGE'S DECISION, IT MUST BE PROVEN"

Public Prosecutor Ekren added that in the case of publishing contrary to the judge's decision, it must be clearly established or proven that the publisher was aware of the decision in order for sanctions to be applied to the publisher.

Public Prosecutor Asım Ekren, in his article titled Who is Right? Police, Gendarmerie, Municipal Police, or Citizens? (Use of Force Authority), addressed a topic that is often discussed in the public and media following unwanted incidents, focusing on whether law enforcement officers, commonly known as police, gendarmerie, neighborhood watchmen, municipal police, correctional officers (guards), forest rangers, coast guard, customs officers, and private security personnel, exceed the limits of the use of force authority defined in the law, and who is right or wrong.

"LAW ENFORCEMENT FORCES MAY USE WEAPONS WHEN NECESSARY"

Public Prosecutor Ekren stated that whether one is right or wrong cannot be accurately analyzed based on feelings or perspectives, and that the issue is more about adapting a regulation in the relevant legislation to an event that occurs under certain conditions. "The laws clearly state that the relevant law enforcement forces may use force when necessary, and even use weapons if required," Ekren said, adding that the use of this authority is a duty and is beneficial for the safety of the public, and that there are certain limits and measures to this authority, which also concern the security and dignity of the individual. "

"THERE IS A NEED FOR LAW ENFORCEMENT OFFICERS TO PROTECT THE HEALTH AND MORALITY OF SOCIETY"

As frequently mentioned in the laws, issues such as the protection of national security, public order, the health and morality of society, the prevention of crimes, and ensuring the authority and impartiality of the judiciary are of utmost importance. One of the most important tools for achieving this is the power of law enforcement officers, who are authorized to use force when necessary. Additionally, the personal security, bodily integrity, reputation, and rights of individuals that make up society are also very important. One of the most important tools for achieving this is ensuring that citizens are safe from the use of force. Although these two tools complement each other when necessary, we sometimes encounter two situations that are in conflict with each other. In fact, each of these two situations is essential to the matter. In other words, they have a complementary nature, like two halves of an apple. It is difficult for one to function without the other. I will try to contribute to the understanding of the issue by discussing the relevant legislation that delineates the boundaries of these two indispensable situations, along with the practical application of the Supreme Court and appellate court decisions and case examples," he stated, providing the following example:

"To better illustrate the issue, let’s explain with an example: The police team sees a citizen named (A), who is reported to be disturbing the environment by swearing loudly, continuing his actions in front of a shopping center while intoxicated. Despite a verbal warning, (A) continues his actions. He insists on not getting into the police vehicle and tries to escape, at which point police officer (E) from the three-person team catches him. As (A) continues to resist, when the officer tries to take him down and put handcuffs on him, (A) attempts to punch him, and the officer sprays him with pepper spray.Sure, here is the translated text while preserving the original HTML structure and translating the `title` and `alt` attributes of the `img` tags:



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As a result of this, the citizen (A) falls to the ground and injures his head by hitting the concrete sidewalk. He kicks the police officer who tries to lift him from the ground while cursing at him. As a result, the police officer's finger is broken. While one police officer jumps on (A), another police officer punches him to prevent him. When he remains motionless on the ground, handcuffs are put on him. At this moment, the angry police officer (S) kicks him while he is motionless on the ground. The police officers, together, cover his mouth to prevent him from shouting and hold him by his arms, partially dragging him on the ground, and force him into the police vehicle. (A) breaks the door opening handle inside the vehicle by kicking it. At the police station (in the detention center), while sitting with his hands handcuffed, police officer (E) punches him, saying why he is showing off outside. (A)'s nose is broken.

In the incident mentioned, which can often be encountered with similar cases;

Crimes: For the citizen (A), resisting the police officers in the performance of their duties, publicly insulting a public official working in a board, and damaging public property will be subject to criminal proceedings under Articles 265/1, 86/1, 3-c, 87/3, 125/1, 3-a, 4, 152/1-a of the Turkish Penal Code (TCK). Additionally, administrative sanctions will be applied for behaving in a way that disturbs the peace and tranquility of others while being drunk, according to Article 35 of the Misdemeanor Law No. 5326.

Actions exceeding the limits of the use of force: The act of kicking the citizen while he is handcuffed and on the ground falls under the scope of intentional injury by exceeding the limits of the use of force, as referred to in Article 256 of the TCK, thus requiring criminal liability under Article 86/2, 3-d of the TCK. Because it involves the use of force beyond what is required by the duty against a person whose resistance has already been broken.

Actions within the limits of the use of force: The uses of force performed until the citizen (A) is brought to the police station (arresting, throwing him to the ground, spraying pepper spray, jumping on him, hitting his head on the concrete sidewalk, putting on handcuffs, punching and kicking, covering his mouth, dragging him into the vehicle) are proportionate to the breaking of the citizen's resistance according to the circumstances, thus falling within the scope of legality and not requiring criminal liability.

Actions unrelated to the limits of the use of force: The punching by police officer (E) while (A) is handcuffed at the police station falls under the scope of intentional injury without any relation to the limits of the use of force, thus requiring criminal liability under Articles 86/1, 3-d, 87/3 of the TCK. If police officer (E) had made one or two similar actions (such as insulting, pulling his hair afterward, pushing) shortly before or after the punching, it could even be possible to evaluate it as torture due to being carried out systematically and continuously within a certain process.

"USING FORCE ON A HANDCUFFED PERSON IS ILLEGAL"

Ekren concluded his remarks as follows: "The mistakes and irregularities seen in this example are as follows: The use of force increasing until the person's resistance is broken is legally legitimate or lawful, while the intentional use of force exceeding the limits after the resistance is broken falls under the scope of intentional injury. Therefore, using force on a handcuffed and lying person is wrong and constitutes an illegal act. The actions taken while at the police station are mistakes or irregularities that are not related to exceeding the limits of the use of force and are criminal."