REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
FIRST SECTION
DECISION
İLHAN CİHANER APPLICATION (2)
(Application No: 2013/5574)
Date of Decision: 30/6/2014
1. The applicant stated that, due to news about himself which were published in a national newspaper, his personal rights were damaged and he was not able to obtain an outcome out of the legal remedies he resorted to because of the incident and asserted that his constitutional rights were violated.
2. The application was directly lodged with the Constitutional Court on 25/7/2013. As a result of the preliminary examination of the petition and annexes thereof as conducted in terms of administrative aspects, it was found that there was no deficiency that would prevent referral thereof to the Commission.
3. It was decided by the Second Commission of the First Section on 31/10/2013 that the examination of admissibility be conducted by the Section and the file be sent to the Section.
4. In the session held by the Section on 4/12/2013, it was decided that the examination of admissibility and merits be carried out together.
5. The facts and cases which are the subject matter of the application were notified to the Ministry of Justice on 6/12/2013. The Ministry of Justice presented its opinion to the Constitutional Court on 4/2/2014.
6. The opinion presented by the Ministry of Justice to the Constitutional Court was notified to the applicant on 5/2/2014. The applicant submitted to the Constitutional Court his statements against the opinion of the Ministry of Justice on 27/2/2014. III. FACTS AND CASES
7. As expressed in the application form and the annexes thereof, the facts are summarized as follows:
8. In the copy dated 19/2/2010 of Yeni Şafak Newspaper which has been published for about 20 years at a national level, news was published with the headline "Prosecutor Sunk To His Neck", referring to the applicant who was the Chief Public Prosecutor of Erzincan prior to that date.
9. On the first page of the newspaper, the headline “Prosecutor Sunk To the Neck” was used and some allegations were directed at the applicant, reading underneath the headline, “Osman Şanal, the Chief Prosecutor who was dismissed from office by HCJP through a judicial coup, obtained shocking information about İlhan Cihaner, who was detained on the allegation that he was a member of Ergenekon. Gendarmerie and MİT members came together under Cihaner's lead for the conspiracy against religious communities”.
10. The piece of news was continued on page 11 of the newspaper and covered about a full page. The headline reading "Pressed the button after breakfast with Çiçek" in a large font size at the top of the page was preferred. Then, underneath the headline, statements reading
“It is revealed that Chief Prosecutor İlhan Cihaner, who was detained due to the allegation that he was a member of Ergenekon, met Colonel Çiçek, who had undersigned the 'Action Plan to Fight Reactionary Movement', at the military officers' club. About 2 months after the meeting, Cihaner decided to expand the investigation he stearted against religious communities in 2007 in a way so it would cover 16 provinces” were involved.
11. The rest of the piece of news which contained the photographs of two high ranking military officials and the applicant read as follows:
“It is revealed that İlhan Cihaner, the Chief Public Prosecutor of Erzincan who was taken into custody and interrogated within the scope of the investigation led by Osman Şanal, the Chief Public Prosecutor of Erzurum, whose special authorities were removed by HCJP, and was then detained, met Colonel Dursun Çiçek, who undersigned the 'Plan to Finish Off AK Party and Gülen' at the military officers' club before the March 29 local elections. It is determined that Çiçek went to Erzincan in January - February 2009 and first had meetings at the 3rd Army Command commanded by General Saldıray Berk, who was summoned to give a statement as a 'suspect' within the scope of Ergenekon, and then had breakfast with the Chief Prosecutor Cihaner at the military officers' club. This traffic of meetings was also included in the file of the investigation which was initiated in relation to Cihaner based on the allegation of being a member of the 'Ergenekon Terrorist Organization'.
Initiated After The Meeting
The meeting between Cihaner and Çiçek, who were charged with conspiring against the religious communities and the police and putting the 'Memorandum of Military Coup' into action in Erzincan, took place in January - February at Erzincan Officers' Club before the March 29 local elections. It caught the attention that the meeting took place before Cihaner's expansion of the investigation he had started in relation to religious communities back in 2007 by means of including famous businessmen and renowned politicians in 16 provinces on 2 March 2009, about 2 years later.
Secret Witness Also Talked
It is learned that detailed information about the Cihaner - Çiçek meeting which took place at the military officers' club was present in the statements given by a secret witness during the investigation led by Şanal. During the interrogation at the prosecutor's office, Cihaner was asked "Do you happen to know Colonel Dursun Çiçek, did you meet before, did you see the Memorandum of Military Coup?" Cihaner said that he did not know Çiçek and did not meet him and did not speak to him on the phone.
Did He Visit You?
During the interrogation, the prosecutors asked Cihaner such questions in relation to the meeting at the officers' club: "Did Çiçek visit you in Erzincan?", "It is found out that you met for breakfast. What did you talk about during breakfast?", "According to the statement by 'Munzur', the secret witness, Çiçek arrived in January - February 2009, was welcomed by a delegation and went to the 3rd Army Command in a private car. Considering that you also met him, what was the aim of him coming here? Did you talk about the plan?"
Back-up Plan from the 3rd Army
A question asked to Cihnaer during the interrogation revealed that an alternative plan was devised at the 3rd Army, which was commanded by General Saldıray Berk, who was summoned for giving a statement with the title of suspect after the arrest of soldiers and MİT members. Prosecutors asked Cihaner "It is determined that, following the arrest of the suspects, a new plan coming out of the 3rd Army Command was made, houses were to be rented and soldiers were to be settled there, a plan was made in a way that images belonging to Gülen Community were to be provided, a raid was to be conducted, it was to be proved that both the members of the community were members of an armed terrorist organization and this community was to illegally staff the Armed Forces. What is your position in these attempts?"
Pasha Knows About the Bombs
A document seized in the hard disc of the arrested First Lieutenant Ersin Ergut revealed the conspiracy to be organized against the police. It is found out from the document that Cihaner, the Regiment Commander Colonel Recep Gençoğlu and General Berk had information about the throwing of bombs into a dam, which would be proved to be belonging to the police through false witnesses.
'Evidence will be created against the Gülen group'
During the investigation, it is found out that Public Prosecutor Cihaner organized meetings at the Provincial Gendarmerie Intelligence Command with the suspects who were detained later, i.e. the Regional Director of MİT and the then Provincial Gendarmerie Regiment Commander Colonel Recep Gençoğlu. It is learned that Cihaner also presided some of the meetings at the Provincial Gendarmerie Intelligence Headquarters. It is found out in the notes which were seized at First Lieutenant Ersin Ergut, who was detained within the scope of the investigation, that Cihaner presided the meeting and statements such as "It will be proved that Gülen group is a criminal organization, evidence will be created for this purpose" were included. This situation was asked to İlhan Cihaner during interrogation. Cihaner denied the allegations.
Guns Were Going to be Planted in Community Houses
'Efe' and 'Munzur', the secret witnesses the statements of whom were resorted to during the investigation, said that Colonel Recep Gençoğlu, the Regiment Commander, and Prosecutor İlhan Cihaner assigned Non-Commissioned Officer Şenol Bozkurt, who was detained, the duty of renting studenthouses. The secret witnesses stated in their statement, "Students would visit the community houses and dormitories. Guns were going to be planted in the houses. Simultaneous operations were going to take place , guns were to be seized and the community was going to be reflected as an armed terrorist organization". During the interrogation, the prosecutor stated that the statements of the secret witnesses and the evidence gathered overlapped with the "Plan to Finish Off AK Party and Gülen", which was undersigned by Colonel Dursun Çiçek, and asked Cihaner for his defense.
'Munzur', who said that he had no security of life, is lost
Breaking news came yesterday as the discussion in relation to the detention of İlhan Cihaner, Chief Public Prosecutor of Erzincan, goes on. A person who introduced himself as a close friend of the secret witness with the code name 'Munzur' said in his denunciation call received by Erzincan Police Department, "I have concerns about the security of the life of Munzur". It is stated that, following this call, Secret witness Munzur vanished into thin air.
Help the Blackmail
It is learned that Ş.T., who worked at Gendarmerie Intelligence Branch Office and was detained within the scope of the investigation conducted by Erzurum Chief Prosecutor's Office exerted pressure in order to help the conspiracy towards some bureaucrats and community houses in Munzur. It was also included in the statements that Non-Commissioned Officer Ş.T. threatened Secret Witness 'Munzur', saying "You cannot work your way out of this. Once you are among us, you will do what we say. You know many secrets of ours, we will finish you off." Gendarmerie Threatens
It is stated that the person who made the denunciation told the Police hot line the following: "Munzur started to have even more serious concerns about his security of life after the prosecutor called Osman Şanal was dismissed from duty yesterday evening. He stated that, availing themselves of the opportunity, some Gendarmerie officials threatened him and wanted me to get to the police immediately if I did not hear from him." It is known that thousands of murders by unknown assailants were committed in the region in the past and, lately, witnesses were forced to change their statements through threats and blackmail in the Temizöz (Murders by Unknown Assailants) Case.
Pashas did not want any police protection
General Saldıray Berk, Erzincan 3rd Army Commander, and General Necdet Özel, 2nd Army Commander, who are expected to give statements until February26 within the scope oft he Ergenekon Investigation, did not want the police guards allocated in Ankara, where they came to the day before in order to have meetings at the Turkish General Staff. Soldiers accompanied the 2 pashas who came for having contacts."
12. The applicant lodged an action for compensation at the Ankara 5th Civil Court of First Instance on the date of 18/2/2011 on the claim that his personal rights were assaulted due to the news piece published in the copy of Yeni Şafak Newspaper dated 19/2/2010, the details of which are provided above.
13. Ankara 5th Civil Court of First Instance decided on the dismissal of the case through its decision dated 30/6/2011 and numbered M. 2011/76, D. 2011/296 on the justification that the article published in Yeni Şafak Newspaper did not exceed the limits of the freedom of the press which is guaranteed in article 28 of the Constitution and in the Code of the Press dated 9/6/2004 and numbered 5187. The relevant part of the justification of the decision is as follows:
“…
It is seen that the freedom of the press is guaranteed in article 28 of the Constitution and articles 1 and 3 of the Code of the Press numbered 5187, that the purpose of the guarantee which is provided to the press is to ensure that the society lives in health, happiness and security, that this is possible with the people being cognizant of the issues which occur in the world and in the society they live in and concern the society, that the press has the authority and responsibility to follow, search into, evaluate, disseminate the incidents and thus inform persons, teach and illuminate them, that, however, the freedom of the press is not unlimited and, in cases where the freedom of the press and the section of the Constitution titled Fundamental Rights and Freedoms and the personal rights guaranteed in articles 24 and 25 of the T.C.C. come face to face with each other, one of the two values has to be valued above the other, that the basic criterion here is the public interest, that publications need to be made by remaining within objective limits and by maintaining the balance between essence and form by taking into consideration the fact that writing is real, there is public interest, the existence of social interest and the up-to-dateness of the subject matter and it is necessary not to hold the press responsible for the publication of the incidents which existed in appearance at that moment but understood to be not real later on.
When the title and contents of the article, where the statement "Prosecutor Sunk to the
Neck" was involved in the top heading of the news piece published in the copy of Yeni Şafak Newspaper dated 19.02.2010, which is the subject matter of the lawsuit, and where the statements "Memorandum breakfast with Colonel Çiçek" in the sub-heading and "Pressed the button after breakfast with Çiçek" in the heading on the page across were involved, are evaluated together as a whole, it was necessary to rule on the dismissal of the case since it is understood that the limits of the freedom of the press guaranteed in article 28 of the Constitution and articles 1 and 3 of the Code of the Press were not exceeded in the news piece, that the right of the press to forge public opinion and the right to social criticism were used while delivering the news, that the balance between the essence and form were not broken, that the news piece was in congruity with apparent truth, that the limits of conformity with law were stayed within, that the statements in the heading and the contents of the news pieces were not in a quality of an assault towards the personal rights of the plaintiff, that the conditions for non-pecuniary compensation were not realized.
14. Upon the appeal of the applicant, the said decision of the First Instance Court was upheld by the writ of the 4th Law Chamber of the Supreme Court of Appeals, dated 27/5/2013 and numbered M. 2012/11135, D. 2013/10003.
15. The writ of the Supreme Court of Appeals was notified to the applicant on the date of 28/6/2013 and the applicant lodged an individual application to the Constitutional Court on the date of 25/7/2013.
16. Article 9 of the Constitution with the side heading ''Judicial power'' is as follows:
"The judicial power is exercised by independent courts on behalf of the Turkish Nation.
17. Article 28 of the Constitution with the side heading ''Freedom of the press'' is as follows:
“The press is free, it cannot be censored. The establishment of a printing house cannot be subjected to a condition of getting permission and depositing a financial guarantee.
(Abolished paragraph two: 3.10.2001-4709/10 art.)
The State takes the measures to ensure the freedom of the press and getting information.
Provisions of articles 26 and 27 of the Constitution are applied in the restriction of the freedom of the press.
Anyone who writes any type of news or articles which threaten the internal or external security of the State, the indivisible integrity of the State with its territory and nation, which tend to encourage offending, riot or insurgence or which have any relation to secret information belonging to the State, or has them printed, or anyone who prints or gives to someone else such news or articles for the same purpose will be responsible as per the provisions of the law regarding these offences. As a precaution, distribution may be prevented by the decision of a judge; in the case when a delay is prejudicial, by the authority expressly authorized by law. The authority preventing distribution notifies this decision to a judge that has jurisdiction within twenty four hours at the latest. If the judge having jurisdiction does not approve this decision within forty eight hours at the latest, the order to prevent distribution is deemed null and void.
In order to duly perform the duty of hearing cases, within the limits to be specified by law, reserving the decisions made by the judge, no prohibition can be placed on the broadcasting of events.
Periodicals and non-periodicals may be confiscated by the decision of a judge in cases when the investigation or prosecution of the offences indicated by law has started; and by the order of the authority expressly authorized by law in cases when a delay is prejudicial in terms of the protection of the indivisible integrity of the State with its territory and nation, of national security, public order, public morality and of the prevention of crime. The authority making the decision for confiscation notifies this decision to a judge having jurisdiction within twenty four hours at the latest; if the judge having jurisdiction does not approve this decision within forty eight hours at the latest, the decision for confiscation is deemed null and void.
General provisions apply to the capture and seizure of periodicals and non-periodicals due to the investigation or prosecution of an offence.
Periodicals published in Turkey may be temporarily suspended with a court verdict in cases when they are convicted due to content that is violating the indivisible integrity of the State with its territory and nation, the fundamental principles of the Republic, national security and public morality. All types of publications which explicitly have the characteristics of being the continuation of a suspended periodical is prohibited; these are confiscated through the decision of a judge.”
18. Article 138 of the Constitution with the side heading ''Independence of courts'' is as follows:
"Judges are independent in their duties; they give judgment in accordance with their personal conviction in line with the Constitution, the codes and the law.
No organ, authority, office or individual can give orders and instructions to courts and judges in the exercise of the judiciary power, send them circulars or make recommendations and suggestions.
No questions can be asked, deliberations be held or any statements be made at the Legislative Assembly in relation to the exercise of judicial power concerning a case under trial.
Legislative and executive organs and the administration are obliged to abide by court judgments; such organs and the administration can in no way change court judgments and delay their execution.”
19. Article 139 of the Constitution with the side heading ''Guarantee for judicature and prosecutorship'' is as follows:
"Judges and prosecutors cannot be dismissed, they cannot be retired before the age specified in the Constitution unless they request to do so; they cannot be deprived of their salaries, allowances and other personnel rights even for the reason that a court or cadre is abolished.
Exceptions in the law are reserved for those who are convicted of an offense requiring dismissal from profession, those who are definitely considered to be unable to perform their duties for health reasons or those for whom a decision is made that they are not suitable to remain in the profession."
20. Article 140 of the Constitution with the side heading ''Profession of judgeship and prosecutorship'' is as follows:
"Judges and prosecutors perform their duties as judges and prosecutors of civil and administrative judiciary. These duties are performed by professional judges and prosecutors.
Judges perform their duties in line with the principles of the independence of courts and the guarantee for judgeship.
The qualifications, appointment, rights and duties, salaries and allowances, promotion, temporary or permanent change of their duties and place of duty, the initiation of disciplinary proceedings against them and the imposition of disciplinary punishment to them, the conduct of investigation against them due to offenses they committed in relation to or during their their duties and the decision against them to be subject to trial, the cases of being guilty or incompetent in a way to require dismissal from the profession, their in-service training and other personnel matters are regulated by law in line with the principles of the independence of courts and the guarantee for judgeship.
Judges and prosecutors serve until they complete sixty five years of age; the age limit, promotion and retirement for military judges are specified in law.
Judges and prosecutors cannot assume any official and private duties other than those specified in law.
Judges and prosecutors are affiliated to the Ministry of Justice in terms of their administrative duties.
Those individuals who are judges and prosecutors and also serve at administrative positions in justice services are subject to the provisions in relation to judges and prosecutors. These are classified and graded within the framework of the principles regarding judges and prosecutors and they enjoy all types of rights vested in judges and prosecutors.
21. Article 3 of the Code numbered 5187 is as follows:
"The press shall be free. This freedom shall cover the rights to obtain, disseminate information, criticize, interpret and to create works.
The exercise of the freedom of the press can only be restricted in accordance with the requirements of a democratic society in order to protect the reputation and rights of others, public health and ethics, national security, public order, public security and territorial integrity, to prevent the revelation of State secrets or the committal of crimes, to ensure the authority and impartiality of judicial power."
22. The individual application of the applicant dated 25/7/2013 and numbered 2013/5574 was examined during the session held by the court on 30/6/2014 and the following were ordered and adjudged:
23. The applicant asserted that he was the Chief Public Prosecutor of Erzincan on the date of 19/2/2010 when the news piece that is the subject matter of the application was published in Yeni Şafak Newspaper and that, on that date, he was conducting a criminal investigation against some people including the owner of the said newspaper, thus Yeni Şafak Newspaper made publications against him which targeted his professional reputation and personal rights.
24. Furthermore, the applicant claimed that some changes were made at the High Council of Judges and Prosecutors following the referendum on Constitutional amendments which was held on the date of 12/9/2010 and that the independence and impartiality of the judiciary were damaged. The applicant claimed that the right to a fair trial as included in article 36 of the Constitution was violated due to the fact that the action for compensation he filed against Yeni Şafak Newspaper was dismissed at a court which was not independent and impartial, as a result of a trial which took two hearings and in violation of the precedential decisions of the Supreme Court of Appeals; that article 141 of the Constitution was violated since the justification of the decision was insufficient and that article 17 of the Constitution was violated due to the fact that the article published in the newspaper damaged his personal rights.
25. The applicant claimed that the Court of First Instance and the relevant chamber of the Supreme Court of Appeals which rendered the decisions that were the subject matter of the application were not independent and impartial.
26. In the opinion of the ministry, it is stated that the applicant could not assert a concrete fact in relation to his complaints about the independence and impartiality of the courts and the judges working there and that the complaints had an abstract quality.
27. Paragraph (3) of article 47 of the Law on the Establishment and Trial Procedures of the Constitutional Court dated 30/3/2011 and numbered 6216 with the side heading ''Individual application procedure'' is as follows:
“In the application petition… the right and freedom which is claimed to have been violated due to the transaction, action or neglect and the provisions of the Constitution which are relied on and the reasons for violation…, need to be stated….”
28. Paragraph (2) of article 48 of the Code numbered 6216 with the side heading ''The conditions and evaluation of admissibility of individual applications" is as follows:
“The Court, .... can rule on the inadmissibility of applications, which are clearly devoid of grounds.”
29. The relevant part of article 59 of the International Regulation of the Constitutional Court with the side heading "Individual application form and annexes" which regulates the content of individual applications are as follows:
(2) The application form shall contain the following matters:
…
ç) A chronologically ordered summary of the incidents pertaining to the act,
action or neglect of the public power alleged to have caused the violation.
d) What the reason of violation of which of the rights within the scope of an individual application is and concise explanations pertaining to relevant justifications and evidences.
e) The grounds pertaining to the claim of direct damage to a current and
individual fundamental right of the applicant.
…”
30. As per paragraph numbered (3) of article 47 and paragraphs numbered (1) and (2) of the Code numbered 6216 and the relevant paragraphs of article 59 of the Internal Regulation, it rests with the applicant to prove his allegations about the incidents by submitting the evidence relevant to the incidents that are the subject matter of the application to the Constitutional Court and by making statements on the fact that the provision of the Constitution that is relied on was violated according to him.
31. The applicant asserted that the news piece published in the said newspaper carried the purpose of exerting pressure on the investigation which he conducted regarding the owner of the newspaper, that he was turned into a target due to the professional activities he conducted with the title of Chief Public Prosecutor, that a new High Council of Judges and Prosecutors was formed with the Constitutional Amendments in the year 2010, that his court case was reviewed in a way that was remote from independence and impartiality due to staffing at the judiciary.
32. The HCJP elections which the applicant based his allegations on were held following the amendment of article 159 of the Constitution with article 22 of the Code on Making Amendments to Some Articles of the Constitution of the Republic of Turkey dated 7/5/2010 and numbered 5982 and the adoption of the said amendment with the referendum held on the date of 12/09/2010.
33. In individual applications that are lodged with the Constitutional Court, the applicants have the liability to meticulously prepare and follow up their applications. As a requirement of this liability, the applicant is obliged to prove his legal allegations by making statements in relation to the fact that the provision of the Constitution which he claimed to have been violated was actually violated. Making reference to some provisions of the Constitution in an abstract manner by the applicant does not mean that the allegations are proved. Remedy of individual application to the Constitutional Court is not regulated as a remedy that enables the assertion of unconstitutionality in an abstract manner.
34. In the present application file, a connection could not be made between the said HCJP elections and the proceedings of the HCJP and the claims that the Court of First Instance was not independent and impartial, a situation that could put the independence and impartiality of the Court of First Instance in a suspicious status was not determined in line with the subjective or objective principles and no point in relation to the fact that the trial was not independent and impartial was found.
35. For the reasons explained , since the allegations of violation that were asserted could not be proven by the applicant, it needs to be decided that this part of the application is inadmissible due to "being clearly devoid of basis" without being reviewed in terms of other inadmissibility conditions.
b. Claim of Violation of the Right to Reasoned Decision and Claim of Violation of
36. The applicant asserted that the Court of First Instance and the Supreme Court of Appeals made decisions without justification. The conditions that the applicant complained about and the way he brings forth his complaints need to be taken into consideration and these complaints need to be reviewed within the context of article 17 of the Constitution.
37. The complaints of the applicant in relation to the fact that his personal rights were damaged due to the article published in the said newspaper and article 17 of the Constitution was violated are not clearly devoid of basis. Besides, as there is no other reason for inadmissibility, it needs to be decided that the part of the application as regards these complaints is admissible.
38. The applicant claimed that article 17 of the Constitution was violated due to the fact that the news piece published in the said daily newspaper damaged his personal rights. The applicant asserted that he initiated an investigation against the owners of the said newspaper with the title of Chief Public Prosecutor before the date when the news piece that is the subject matter of the court case was published, that the news piece which is the subject matter of the court case was a part of the smear campaign started against himself, that the real purpose of the news piece was to manipulate the investigation started and exert pressure on judicial organs. According to the applicant, he was turned into a target due to his judiciary activities and his personal rights were violated due to the fact that he was reflected as a coup planner in the said news piece.
39. In the ministry opinion, the case law of the European Court of Human Rights (ECtHR) are reminded and it is stated that the complaints of the applicant that his private life was intervened in needed to be evaluated in terms of whether a fair balance was ricken between the private life of the applicant and the freedom of the press and their disseminate news of the journalists.
40. In his response to the ministry opinion, the applicant reiterated his allegations in the application petition. The applicant also asserted that he was the Chief Public Prosecutor of Erzincan during the period when the incidents mentioned in the news piece took place, that the freedom of expression can be restricted with the purpose of "duly performing the duty of hearing cases" included in paragraph two of article 26 of the Constitution, that the freedom of expression needed to be restricted for the purpose of protecting him as a judiciary official in order to ensure the authority and impartiality of the judiciary power.
i. Spiritual Integrity of the Person
41. Paragraph one of article 17 of the Constitution is as follows:
“Everyone has the right to life and the right to protect and improve their material and spiritual existence."
42. The personal honor and reputation of an individual is included within the scope of "spiritual existence" which is stipulated in article 17 of the Constitution. The state is liable not to arbitrarily interfere with personal honor and reputation which are a part of the spiritual existence of an individual and to prevent the attacks of third parties. (App. No: 2013/1123, 2/10/2013, § 33) In other words, the right to the protection of personal reputation is under the protection of paragraph one of article 17 of the Constitution and, in the event that the individual is not protected against verbal assaults impacting on honor and reputation or publications and broadcasts made through the press and publications, paragraph one of article 17 of the Constitution may be violated.
43. The ECtHR evaluates the interference on personal honor and reputation within the scope of article 8 of the European Convention on Human Rights (the Convention) with the side heading "the right to respect for his private and family life, his home and his correspondence". According to the ECtHR, the right to the protection of personal reputation is a part of the right to respect for private life which is protected by article 8 of the Convention (See X and Y v. the Netherlands, App. No: 8978/80, 26/3/1985, § 22; Pfeifer v. Austria, App.
No: 12556/03, 15/11/2007 § 35; Axel Springer AG v. Germany, App. No: 39954/08, 7/2/2012, § 83). In the same manner, both the right to the protection of the reputation of someone against statements claimed to have included insults in a newspaper article (White v. Sweden, App. No: 42435/02, 19/12/2006, § 19 and 30) and the claim that the person is not protected against a critical newspaper article (Minelli v. Switzerland, (sd), App. No: 14991/02, 14/06/2005) are considered to be within the scope of private life.
44. Even if criticized within a context of public discussion and due to the articles published, the reputation of a person constitutes a part of his personal identity and spiritual integrity (See Pfeifer v. Austria, § 35) and benefits from the protection of paragraph one of article 17 of the Constitution.
45. On the other hand, in order for paragraph one of article 17 of the Constitution to be applied to the incident, the assault on the person's reputation needs to reach a certain level of weight and it needs to be done in a way to damage the personal enjoyment of the applicant from the right to request respect for his personal reputation (see Mater v. Turkey, App. No: 54997/08, 16/7/2013, § 52).
46. Furthermore, in a foreseeable manner, article 17 of the Constitution cannot be asserted in order to complain about the tarnishing of the reputation to possibly arise from the very own acts of the person (see Mater v. Turkey, App. No: 54997/08, 16/7/2013, § 52).
47. The matter with court cases such as the court case which is the subject of review is not an act of the state but the claim that the protection ensured by judiciary authorities for the personal reputations of the applicants is insufficient. Although article 17 of the Constitution and article 8 of the Convention basically aims at protecting the individual against the arbitrary interference of public officials, the said articles do not only aim at ensuring that the state refrains from making such interferences. The required positive liabilities can be added to the negative liability inherent in paragraph one of article 17 of the Constitution in order to ensure an effective respect towards the material and spiritual existence of the individual. These liabilities may require taking certain measures in order to guarantee respect to the right to request the protection of personal reputation in a way to cover the relations of people with each other (For similar judgments within the scope of article 8 of the Convention, see X and Y v. the Netherlands, App. No: 8978/80, 26/3/1985, § 23; Von Hannover v. Germany(no 2), App. No: 40660/08 and 60641/08, 7/2/2012, § 98). These measures can be resorted to in terms of the protection of personal reputation against the interference of third persons.
48. In the news piece that is the subject matter of the application, it was asserted that the applicant, who was detained on the charge that he was a member of Ergenekon Terrorist Organization on the date when the incidents took place while he was the Chief Public Prosecutor of Erzincan, took part, through his meetings with some military officials before being detained, in the coup plan which was asserted to have been made by some high level military officials against the civil government and some details were included. It should be admitted that the right of the applicant to the protection of his personal reputation was interfered with due to the allegations in the said news piece.
ii. Freedom to Express and Disseminate Thoughts and Freedom of the Press
49. In the current application, a balance needs to be stricken between the right of the applicant to request the protection of his personal reputation which is protected in paragraph one of article 17 of the Constitution and the freedom of the press of the national daily newspaper which is guaranteed in article 28 of the Constitution and, in connection with this freedom, the freedom to express and disseminate thoughts which is guaranteed in article 26 of the Constitution. Due to this reason, general principles in relation to the use of these freedoms need to be determined.
50. Article 26 of the Constitution with the side heading of ''Freedom of expression and dissemination of thought'' is as follows:
“Everyone has the right to express and disseminate their thoughts and convictions orally, in writing, in pictures or through other means individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities. The provision of this paragraph does not prevent the subjection of dissemination by radio, television, cinema or other means to a system of permission.
The exercise of these freedoms may be restricted for the purposes of national security, public order, public security, protecting the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing offending, punishing offenders, not revealing information duly classified as a State secret, protecting the reputation or rights and private and family lives of others or protecting professional secrets set forth in the law or duly performing the duty of hearing cases.
Regulatory provisions concerning the use of means to disseminate information and thoughts shall not be deemed as a restriction of freedom of expression and dissemination of thoughts on the condition that the transmission of information and thoughts is not prevented.
Forms, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought are regulated by law.”
51. The relevant paragraphs of article 28 of the Constitution with the side heading ''Freedom of the press'' are as follows:
“The press is free; it cannot be censored. The establishment of a printing house cannot be subjected to a condition of getting permission and depositing a financial guarantee.
52. The means which can be resorted to in the exercise of the freedom of expression and dissemination of thought are listed in article 26 of the Constitution as ''orally, in writing, in pictures or through other means'' and with the expression ''other means'', it is demonstrated that all kinds of means of expression are under constitutional protection (App. No: 2013/2602, 23/1/2014, § 43).
53. More detailed regulations regarding the freedom of the press are contained within the Constitution. The main regulation in the field of the freedom of the press is found under article 28 of the Constitution. This article is regulated in a way to cover printed materials but to exclude audiovisual communication tools. Indeed, in article 26 of the Constitution where the freedom to express and disseminate thoughts is regulated, it is stated that "...broadcasts through radio, television, cinema or similar ways may be subjected to a system of permission..." and it is tried to be explained that these communication tools can make use of the freedom of expression and dissemination of thought In addition to article 28 of the Constitution, article 29 refers to the right to publish periodicals and non-periodicals and article 30 refers to the protection of press equipment. The right to use mass communication tools other than the press owned by public entities is regulated under article 31 of the Constitution. Moreover, expressions contained within the provisions of the Constitution regulating the freedom of the press such as [those who...] ''write'', ''print'', ''give to someone else'', ''preventing the distribution'', ''confiscation'', ''periodical publication'' and ''nonperiodical publication'' may only be used for means of mass communication such as ''newspapers'', ''books'' and ''journals'' which can be printed and propagated. Therefore, according to the Constitution, the press is one of the means of mass communication; however, it is separated from other means of mass communication and specially protected.
54. The freedom of expression and dissemination of thought directly impacts a significant part of the other rights and freedoms enshrined in the Constitution. Indeed, freedom of the press, which is the main means of dissemination of thought through the press and publications in the form of newspapers, journals and books, is one of the ways of exercising the freedom of expression and dissemination of thought. The freedom of the press is protected not as a separate article in the Convention but under article 10 which is in relation to the freedom of expression. Article 10 of the Convention protects not only the contents of
55. As frequently emphasized in the case law of the ECtHR, the freedom of expression constitutes one of the main elements that sets the foundation of a democratic society and one of the fundamental conditions required for the progress of the society and development of the individual. ECtHR reiterated in many of its judgments that, reserving paragraph 2 of article 10 of the Convention, the freedom of expression may apply to not only "information" and "ideas" that are accepted by the society or are deemed to be harmless or irrelevant but also for information and thoughts that are offensive, shocking or worrying. According to ECtHR, the freedom of expression is a requirement of pluralism, tolerance and broadmindedness, in the lack of which we cannot speak of "a democratic society". Guaranteed in article 10, although this right is subject to some exceptions, these exceptions need to be interpreted narrowly and the restriction of this right needs to be convincing (in addition to other judgments, see Handyside v. United Kingdom, App. No: 5493/72, 7/12/1976, § 49).
56. On the other hand, the freedom of the press is specially regulated under articles 28-32 of the Constitution. The freedom of the press covers the right to explain and interpret thoughts and convictions via means such as newspapers, journals and books and the right to publish and distribute information, news and criticisms (see CC, M. 1996/70, D. 1997/53, D. D. 5/6/1997). The freedom of the press ensures that the individual and the society are informed by performing the transmission and circulation of thoughts. The expression of thoughts, including those who oppose to the majority, via all sorts of means, garnering supporters to the thoughts which have been explained, convincing the relevant people into realizing the thoughts are among the requirements of the pluralistic democratic order. Therefore, the freedom of expression and dissemination of thought and the freedom of the press are of vital importance for the functioning of democracy.
57. In a democratic system, the practices and actions of the state should be under the supervision of the press and also the public opinion as much as the judicial and administrative officials. The written, audio and visual press guarantee the healthy functioning of the democracy and the self-fulfillment of individuals by meticulously inspecting the political decisions, acts and negligences of the organs which exercise public authority and facilitating the participation of citizens into the decision making processes (for similar ECtHR judgments, see Lingens v. Austria, App. No: 9815/82, 8/7/1986, § 41; Özgür radio - Ses Radio Television Production and Promotion Corp. v. Turkey, App. No: 64178/00, 64179/00, 64181/00,
64183/00, 64184/00, 30/3/2006 § 78; Erdoğdu and İnce v. Turkey, App. No: 25067/94, 25068/94, 8/7/1999, § 48). Therefore, the freedom of the press is a vital freedom which applies to everyone (see CC, M. 1997/19, D. 1997/66, D. D. 23/10/1997).
58. ECtHR underlined the fundamental role the press played in a democratic society many times. Although it is necessary not to exceed certain limits specifically in relation to the protection of reputation and rights of others, the press has the duty to transmit any subject that concerns public interests within an awareness of its duties and responsibilities. The duty thereof which is solely composed of disseminating information and ideas in relation to such matters is added with the right of the public to receive these information and ideas. According to ECtHR, the press would not be able to play its indispensable role as a "watchdog" if it were not for this duty (Bladet Tromsø and Stensaas v. Norway [BD], App. No: 21980/93, 20/5/1999, §§ 59 ve 62; Pedersen and Baadsgaard v. Denmark [BD], App. No: 49017/99, 17/12/2004 § 71).
59. Furthermore, it should be taken into consideration that it is not the duty of judicial bodies to put themselves in the shoes of the press in such applications and identify what would be the way of covering news (Jersild v. Denmark, App. No: 15890/89, 23/9/1994, § 31).
60. In order for the press to be able to fulfill its social duty, it needs to act with a sense of responsibility as much as it should be free. Although it is possible in the freedom of the press to resort to exaggeration and even provocation to a certain extent (Prager and Oberschlick v. Austria, App. No: 15974/90, 26/4/1995, § 38), this freedom also obliges the concerned to respect professional ethics and act in a way to provide accurate and reliable information and on bona fides (Bladet Tromsø and Stensaas v. Norway [BD], App. No: 21980/93, 10/5/1999, § 65).
61. Distortion of truth on mala fide may sometimes really exceed the limits of acceptable criticism. A declaration which is in conformity with facts may sometimes be accompanied by emphases, value judgments, assumptions and even implications that could provoke an inaccurate image in the eyes of the public. Therefore, the duty to provide information includes obligations and responsibilities and limits that the press agencies need to conform to per se. This situation applies to the cases where the persons, the names of whom are mentioned in the statements present specifically in the press, are charged in a serious manner (see Mater v. Turkey, App. No: 54997/08, 16/7/2013, § 54-55).
62. The freedom of expression and dissemination of thought and the freedom of the press complementing the former and ensuring its use, which are not absolute rights either but rights which can be limited, are subject to the limitation regime of the fundamental rights and freedoms contained within the Constitution. It is stipulated under clause four of article 28 of the Constitution that the provisions of articles 26 and 27 will be applied in the limitation of the freedom of the press. Thus, the freedom of the press has been subjected to the restriction regime stipulated within article 26, which acts as the general provision regarding the freedom of expression and dissemination of thought, and in article 27 regarding artistic and academic expressions. Other limitations aimed at the freedom of the press are contained within clause 5 and following clauses of article 28. The press needs to conform to the limitations which are introduced in order to protect "the reputation or rights, private or family lives of others", which is one of the limitations listed in articles 26, 27 and 28 of the Constitution.
63. Lastly, the people also have the right to obtain this kind of information. The freedom of the press constitutes one of the best means of transmitting various political opinions and attitudes to the public opinion and forming a conviction regarding these (for a similar judgment, see Lingens v. Austria, App. No: 9815/82, 8/7/1986, §§ 41-42).
iii. Factual Claims and Value Judgments
64. Within the unique conditions of the present case, it should be examined whether courts fall insufficient in terms of protecting the applicant from an excessive criticism. In this context, the dispute between the parties in the present application is largely relevant to whether the news piece which is the subject matter of the case is an explanation of the material incidents or is qualified as a value judgment. At this point, a careful distinction should be made between material facts and value judgments. It should be kept in mind that, although material facts can be proven, it is not possible to prove the accuracy of value judgments (see Lingens v. Austria, App. No: 9815/82, 8/7/1986, § 46).
iv. Appropriate Criteria Resorted to In Order to Strike a Balance
65. In applications such as the one in the current incident, the outcome of the application does not change, in principle, in relation to the fact that the application is lodged either by the newspaper which published the disputed article or news piece on the basis of articles 26 and 28 of the Constitution or by the person who was the subject of this news piece or article on the basis of paragraph one of article 17 of the Constitution. In fact, both of these two rights deserve an equal respect in principle (for similar ECtHR judgments, see Von Hannover v. Germany (no 2) App. No: 40660/08 and 60641/08, 7/2/2012, § 106).
66. Judicial bodies need to strike a balance between these two rights in a way that is congruent with the criteria set forth in the case law of the Constitutional Court. The criteria which could be applied to the current incident in relation to striking a balance between the freedom of the press and the freedom to express and disseminate thoughts within this scope and the right to the protection of reputation are provided below.
α) Contribution to public interest
67. The first basic element is the contribution that the appearance of news, articles or photographs on the media will make to a discussion on public interest (Von Hannover v. Germany (no 2) App. No: 40660/08 and 60641/08, 7/2/2012, § 109). Identification of the matters that are the subject of general interests is dependent on the conditions of the present case in addition to the contents of the disputed articles. However, the presence of such an interest should be admitted to in situations (see Egeland and Hanseid v. Norway, App. No: 34438/04, 16/4/2009, § 58) where only the publication is relevant to political matters or the crimes committed.
β) Level of famousness of the targeted person and the subject matter of the news piece or article
68. The role and function of the targeted person and the quality of the activity that is the subject of the news piece, article, interview and/or photograph constitute another important criterion which is relevant to the previous criterion. At this point, it would be right to distinguish between ordinary individuals and public persons or individuals who act in the public sphere as a political personality. A person who is not known by the public can request to benefit from a private protection in relation to the right to seek respect for his personal reputation and the right to his private life, protection at such a level is not the case for individuals who are known by the public (for a judgment on the fact that protection will be more flexible for persons who are recognized by the public, see Minelli v. Switzerland (s.d.), App. No: 14991/02, 14/6/2005). For instance, a news piece mentioning the incidents which could offer a contribution to a discussion in the democratic society about political persons who undertake an official duty and a news piece on the details regarding the private life of a person who does not undertake such a duty cannot be held to be the same (Von Hannover v. Germany, App. No: 59320/00, 24/09/2004, § 63).
69. Although, in the first situation mentioned, the role of the press overlaps with the "watchdog" function, which is a liability to transmit information and ideas in subjects of public interest in a democracy, this role is of secondary importance in the second situation. In the same manner, although the right of the public to information may, in some certain cases, be superior to various dimensions of the private lives of persons who are known by the public, of public officials and, specifically, of political personalities, such a situation of superiority cannot be mentioned in the case that the news pieces published and the photographs and comments accompanying them are only about the details regarding the private lives of these persons and they do not have a purpose other than satisfying the curiosity of a specific segment in relation to this subject, even if the people concerned have a certain fame (Von Hannover v. Germany, App. No: 59320/00, 24/09/2004, § 65). In this latest situation, the freedom of expression needs to be interpreted rather narrowly (Von Hannover v. Germany, App. No: 59320/00, 24/09/2004, § 66).
70. In the event that the freedom of expression and dissemination of thought and the freedom of the press and the protection of the fames and reputations of others clash as it is the case in the current application, if the person the fame of whom is the matter is a public official, the public duty that this person assumed should be taken into consideration during balancing. However, it cannot be said that public officials open all kinds of their statements for close scrutiny as it is the case with the politicians. Public officials need to have public trust in order for them to duly perform their duties and this can only be ensured by protecting them against unfounded allegations (see Lesnik v. Slovakia, App. No: 35640/97, 11/6/2003, § 53).
γ) Previous behavior of the person concerned
71. The behavior of the person concerned before the publication of the news piece or the article or the fact that the disputed information was previously published are also included among the elements to be taken into consideration (Von Hannover v. Germany(no 2) App. No: 40660/08 and 60641/08, 7/2/2012 § 111).
δ) Contents, form and consequences of the publication
72. The form of publishing the news piece, interview, photograph or article in a newspaper and the way the targeted person is presented therein should also to be taken into consideration (see Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria (no 3), App. No: 66298/01 and 15653/02, 13/12/2005, § 47). Furthermore, the extent of publication may also be important according to whether the news piece is published in a national or local, large circulation or small circulation newspaper (see Karhuvaara and Iltalehti v. Finland, App. No: 53678/00, 16/2/2005, § 47).
ε) Conditions for the publication of the news piece or the article
73. Lastly, the conditions for the publication of the news piece or the article needs to be evaluated in the light of the incidents which took place in the country in the period when the incidents stated in the said news piece took place. At the same time, the quality or severity of the interference, in other words, the impact of the publication of the news piece, in terms of the targeted person also needs to be taken into consideration.
74. Firstly, the questions whether the news pieces or articles published in a national daily newspaper offer a contribution to a discussion developing on the basis of the facts and whether its contents goes beyond the wish of the public to satisfy its curiosity should be answered. In this context, the higher the value of a news piece or article to inform the public is, the more the person needs to succumb to the publication of the said news piece or article. On the contrary, the lower the value of the article to inform, the more the protected interest of the person needs to be given superiority.
75. The applicant asserted that the news piece and the article published in the said national daily newspaper was prepared in a way contrary to facts and that the news piece as a whole damaged his reputation and personal rights by featuring him as a member of an organization and by including incriminating claims. In the action for compensation which he lodged, the applicant complained that the Court of First Instance and the Supreme Court of Appeals did not protect his reputation.
76. According to the information and documents which the applicant appended to his individual application petition, although the applicant asserted during the trial held at the Court of First Instance that the incidents published in the said news piece were untrue, he was not able to prove that the information in the news piece published in the newspaper was not accurate and that the way the information is obtained was unacceptable. Against the abstract evaluations of the applicant that the said news piece was a part of the smear campaign against himself, the defendant asserted that the said news piece was published within the framework of the rules of genuineness, up-to-datedness, public interest, social interest and an intellectual connection between the subject and the statements. The defendant asserted that degrading phrases were not used in the said news piece, that the said news piece was previously published in another newspaper and they actually benefited from the information included in that news piece, that the news piece was in compliance with the apparent truth. The Court of First Instance turned down the request of the applicant, with the justification that the said news piece was in compliance with the apparent truth as a whole and the balance between essence and form was not distorted.
77. The said news piece basically includes some activities that caused the applicant to be detained by the court of special venue. Within this scope, it is asserted that the applicant met some military officials, that the investigation which the applicant previously started against various religious communities was extended after these meetings in a way to cover 16 provinces, that the real purpose of the applicant in the investigation he ran was to lay the foundations for the planned military coup by establishing a contact between the government in power and the religious communities that were being investigated. In the said news piece, the questions directed at the applicant during the interrogation of the applicant by the prosecutors having special authority and the statements of the two secret witnesses and some military persons who were heard in relation to the activities which led to the detention of the applicant were included. Despite the fact that the applicant abstractly asserts the said statements are not true, he did not ask for the comparison of the statements which were included among the evidence that led to his detention with the news piece and did not rely on such kind of an evidence. The applicant did not assert that the statements included in the news piece were not present in the investigation file, either.
78. According to the said news piece, the applicant was detained for being a member of "Ergenekon Terrorist Organization". The investigations towards the said "Organization" were started on the date of 12 June 2007 with the search carried out by the police in a shanty house in Ümraniye district of İstanbul following a denunciation made through a phone call to Trabzon Provincial Gendarmerie Command. As a result of the said police operation, a lot of military equipment and a flash memory that belonged to a non-commissioned officer who was retired from the Turkish Armed Forces were seized. During the examination of the flash memory, a document titled "Lobby, Strictly Confidential - December 1999 / İstanbul" was found. It is found out that, in the "Introduction" section of this document, the statements "(...) The obligation of the organization of 'Civilian Elements' in connection with 'Ergenekon', which functions within the Turkish Armed Forces, is an inevitable truth" were included. The investigation was extended by taking into consideration the documents obtained, its contents and the seriousness of the hand grenades. In this framework, searches were conducted in the houses and offices of many people who were tried in the court case called Ergenekon, these people were taken into custody and some were detained by the courts of venue. During the searches conducted and in the computers of the concerned, a great number of documents belonging to the organization and documents indicating the organization's structure were seized.
79. The investigation was extended by the Chief Public Prosecutor's Office on the basis of the evidence obtained at the initiation stage of Ergenekon investigation and specifically some retired or active generals and officers were included in the investigation in the process. During the searches conducted in the houses and/or offices of these people, evidence which were claimed to indicate the hierarchical structure of the organization and some plans which were claimed to have been drawn to subvert the Government by force were seized. Among the revealed plans were the action plans called "Sarıkız", "Yakamoz", "Eldiven", "Ayışığı", "Kafes" and "Fight with Reactionary Movement" (for an extended explanation in relation to the said Ergenekon trials, see App. No: 2012/849, 4/12/2013, §§ 2237).
80. In the indictments that were prepared by the Chief Public Prosecutor's Office of Istanbul, it was stated that action plans called Sarıkız, Kafes and Action Plan to Fight Reactionary Movement were relevant to the process which precedes the military coup and the main purpose in these plans was to lay the foundations for the military coup to be carried out; that the action plan called Yakamoz was relevant to the implementation of the military coup; that the action plan called Eldiven involved plans regarding the restructuring of the state and the political institutions in the process after the military coup.
81. In the news piece that is the subject matter of the present application, it was stated that the applicant was detained on the allegation that he put into practice the plan which was mentioned as the plan "to finish off AK Party and Gülen". Therefore, when the said news piece is evaluated together with Ergenekon investigation process preceding this news piece, it may be admitted that the disputed news piece and the article offer, to a certain extent, a contribution to a discussion having a public quality. In relation to this matter, it should be remembered that the function of the press to disseminate information and ideas in relation to all the problems having a public quality is added up with the right of the public to receive these information and ideas.
82. Lastly, when it is taken into consideration that the applicant was the Chief Public Prosecutor of Erzincan, which is a high level public duty, in the slice of time when the incidents took place and his undisputed level of fame which increased even more together with the incidents that took place before the news piece, the applicant cannot claim that he is not a well-known person.
83. On the other hand, it should be kept in mind that prosecutors are public officials serving their duties in order for the justice system to function smoothly. Just like other public officials, prosecutors should also have the trust of the public (for a similar judgment, see Saday v. Turkey, App. No: 32458/96, 30/3/2006, § 33). For this reason, it is among the duties of the state to protect the prosecutors serving their duties within the justice system in addition to judges and other judicial employees against unfounded allegations.
84. In a democratic society, although individuals are vested the right to criticize and comment about the judiciary system and the public officials therewithin, these criticisms need not reach a dimension that violates the right of persons to request the protection of their honor and reputation.
85. In the present incident, the Court of First Instance carried out the proceeding of striking a balance among the freedom of the press of the national daily newspaper and the freedoms thereof to express and disseminate thought within this context, and the rights of the applicant for respect for his pride and reputation. The Court of First Instance paid special attention to the question of whether the said news piece and article offer a contribution to a discussion that concerns general interest and, furthermore, focused on the conditions within which the news piece was prepared. The Court of First Instance focused on the issue of truth of the incidents included in the article that is the subject matter of the court case and decided that the essence - form the relationship between the incidents taking place on the date the news piece was published and the contents of the news piece was not distorted and that the incidents within the news piece were "in conformity with the apparent truth".
86. On the other hand, it cannot be said that there is no exaggeration whatsoever in the said news piece. However, it should be admitted that the scope of the freedom of the press needs to be interpreted so wide as to allow a certain degree of exaggeration and provocation, as a natural consequence of its close relationship with democracy (Radio France and Others v. France, App. No: 53984/00, 30/3/2004, § 37). As a matter of fact, in the present incident, the Court of First Instance evaluated the exaggerated statements about the applicant specifically in the headline of the news piece "Prosecutor sunk to the neck" and "pressed the button" within the framework of Ergenekon Coup Plan and decided that these stataments remain within the limits of conformity to law.
87. On the other hand, regardless of whether the allegations included in the news piece against which a court case was lodged as allegations based on facts or as value judgments, the Court of First Instance evaluated that the allegations included in the news piece, in which the judicial process in relation to the detention of the applicant was explained, were not completely devoid of factual basis. Furthermore, the Court of First Instance placed an emphasis on both the freedom to express and disseminate thought and the freedom of the press and the limits of these freedoms in the face of personal rights of others.
88. For a long time in the period when the incidents took place, the applicant was the target of articles about himself which included criticism. However, the article which is the subject matter of the present application is a news piece not in relation to the duty of the applicant who was the Chief Public Prosecutor of Erzincan in that period but in relation to the incidents which led to his detention within the scope of an investigation which he was a suspect in and it does not include an insult to the applicant in person nor provoke violence against him nor prevent the judiciary duty of the applicant.
89. Under these conditions, when all of the above evaluations and the shares of discretion that the judiciary bodies have while balancing different interests are also taken into consideration, it is concluded that the positive liabilities included in paragraph one of article 17 of the Constitution were conformed to. Due to the reasons explained, it needs to be decided that this article was not violated.
In the light of the reasons explained, it was decided on the date of 30/6/2014;
A.
1. That the claims that the right of the applicant to be tried at an independent and impartial court was violated are INADMISSIBLE as these "are clearly devoid of basis",
Application No: 2013/5574
2. That the claims that the right of the applicant to protect his material and spiritual existence was violated are ADMISSIBLE,
B. That, in relation to the claim that the right of the applicant to protect his material and spiritual existence was violated, paragraph one of article 17 of the Constitution was NOT
VIOLATED,
C. That the trial expenses be charged on the applicant.
President Serruh KALELİ
Member Zehra Ayla PERKTAŞ
Member Burhan ÜSTÜN
Member
Erdal TERCAN
Member Zühtü ARSLAN
