REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

ORHAN PALA

(Application no. 2014/2983)

15 February 2017

            THE FACTS

            [8-25] The applicant is a journalist and the chief editor of the website, www.borsagundem.com, through which live broadcasts and news concerning capital markets are made and periodic articles are published.

            On 5 November 2012, the website managed by the applicant published a piece of news concerning two persons who are shareholders and board members of some companies shares of which were traded at the İstanbul Stock Exchange and also owners of an intermediary firm (the complainants).

            In the news in question, it is noted that the complainants were previously convicted of manipulation; however, the conviction decision against them did not finalize due to statute of limitations; and that they were currently prosecuted before the İstanbul Criminal Court for contravening the Capital Market Law, fraud, supplying arms for an armed terrorist organization, membership of an armed terrorist organization, membership of an organization to commit an offence and establishing an organization to commit an offence. In the remaining part of the news, information is provided about the companies the complainants have recently taken over, and it is alleged that they are living in luxury and source of their fortune is issue of concern.

            The complainants filed a criminal complaint against the applicant, alleging that the information in the news was distorted and not accurate, as a result of which their reputation had been tarnished, and that shares of their companies listed in the Istanbul Stock Exchange decreased in value due to this news. In his defence submissions during the criminal proceedings against him, the applicant indicated that the information therein was accurate and submitted the indictment drawn up in the previous proceedings conducted against the complainants. He also provided the relevant court with a document which included information about the proceedings conducted against the complainants on the publication date of the news and which was alleged to be taken from the National Judiciary Informatics System (UYAP).  

            At the end of the proceedings, the applicant was sentenced to 2 months and 27 days’ imprisonment for insulting; however, the court suspended the pronouncement of the judgment. The challenge against the criminal court’s decision was dismissed by the magistrate court on 24 January 2014.

            V. EXAMINATION AND GROUNDS

26. The Constitutional Court, at its session of 15 February 2017, examined the application and decided as follows.

A. The Applicant’s Allegations and the Ministry’s Observations

27. The applicant maintained that in average 150 pieces of news were reported every day through the web-site where he was serving as a chief editor. He further indicated that a news source delivered him the impugned news based on an UYAP document; and that the content of the news was apparently accurate, and they had no intent to deceive the readers. He further criticized that the incumbent court failed to check the UYAP data and accordingly alleged that his right to a fair trial had been violated.

28. He also emphasized that as the complainants were the managers and shareholders of publicly-held companies and intermediary firms, the proceedings conducted against them were of a particular concern for the public; and that publication of such news through a website providing news and information about the stock exchange and capital markets was also of public interest. The applicant accordingly claimed that his freedom of expression had been breached. He requested the Court to find a violation and order a retrial.

29. In the observations of the Ministry, certain judgments of the Constitutional Court and the European Court of Human Rights (the ECHR) were recalled, and it was noted that a fair balance was to be struck between the applicant’s freedoms of expression and the press and the complainants’ rights to honour and dignity. It was also indicated therein that the UYAP (National Judiciary Informatics System) screenshot, which was submitted to the first instance court, had been extracted from a citizen portal which rendered service to citizens via vatandas.uyap.gov.tr. The Ministry further noted that according to the examination as to the authenticity of the information included in the UYAP document, “information other than the one on type of case matches with the information in the file available on UYAP; however, the information on type of case does not correspond to. However, on the date when the screenshot was taken, these offences were also stated in the file”.  

30. In his counter-statements against the Ministry’s observations, the applicant reiterated his complaints in the application form.

B. The Court’s Assessment

31. Relevant part of Article 26 of the Constitution, titled “Freedom of expression and dissemination of thought”, reads as follows:

“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities…

The exercise of these freedoms may be restricted for the purposes of … protecting … reputation and rights … of others…

The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law.”

32. Relevant part of Article 28 of the Constitution, titled “Freedom of the press” reads as follows:

“The press is free and shall not be censored…

The State shall take the necessary measures to ensure freedom of the press and information.

In the limitation of freedom of the press, the provisions of articles 26 and 27 of the Constitution shall apply…”

33. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The applicant asserted that the evidence he submitted to the inferior court to prove the authenticity of the news and to show his good faith had not been assessed sufficiently; and that his punishment was in breach of his right to a fair trial. Under the circumstances of the present case, it was considered that the applicant’s complaint that no adversarial proceeding was conducted in respect of him in order to determine whether his allegations had a basis was to be examined together with his complaint concerning the alleged violation of the freedoms of expression and the press.

1. Admissibility

            34. The Court declared the alleged violations of the freedoms of expression and the press admissible for not being manifestly ill-founded and there being no other grounds for their inadmissibility.

            2. Merits

            a. Existence of Interference

            35. The applicant was sentenced twice to imprisonment for a term of 2 months and 27 days due to the news published through the web-site where he was the chief editor. The incumbent court then suspended the pronouncement of his verdict. Therefore, the applicant’s freedom of expression was interfered with by this decision.

            b. Whether the Interference Constituted a Violation

36. Relevant part of Article 13 of the Constitution reads as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution... These restrictions shall not be contrary to …, the requirements of the democratic order of the society and … the principle of proportionality.”

37. The afore-mentioned interference would constitute a breach of Article 26 of the Constitution unless it satisfied the conditions set out in Article 13 of the Constitution.

38. Therefore, it must be determined whether the restriction complied with the requirements set out in Article 13 of the Constitution and applicable to the present case, namely being prescribed by law, relying on one or several justified reasons specified in Article 26 § 2 of the Constitution and not being contrary to the requirements of a democratic society and the proportionality principle.

i. Lawfulness

39. Article 132 of the Turkish Criminal Code no. 5237 was found to satisfy the criterion of “being restricted by law”.

ii. Legitimate Aim 

40. It has been concluded that the decision whereby the applicant was sentenced was a part of the measures intending to protect “…. reputation or rights of the others” and pursued a legitimate aim.

iii. Compliance with the Requirements of a Democratic Society and Proportionality

(1) General Principles 

41. The Court has previously explained several times what should be inferred from the phrase “requirements of the democratic order of the society”. Accordingly, the measure restricting fundamental rights and freedoms must meet a social need as well as be a measure of last resort. A measure failing to satisfy these requirements cannot be considered to comply with the requirements of the democratic order of the society (see Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, § 51; Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 68; and Tansel Çölaşan, no. 2014/6128, 7 July 2015, § 51). The inferior courts have a certain amount of discretionary power in deciding whether such an exigency exists. However, this discretionary power is subject to the Court’s review.

42. Besides, it must be assessed whether any restriction on fundamental rights and freedoms is a proportionate measure which permits minimum interference with fundamental rights, in addition to being necessary for the democratic order of the society (see the Court’s judgment no. E.2007/4, K.2007/81, 18 October 2007; Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, § 63; and Bekir Coşkun, §§ 53, 54; for the explanations as to the principle of proportionality, see also Tansel Çölaşan, §§ 54, 55; and Mehmet Ali Aydın, §§ 70-72). Therefore, there must be a reasonable proportionality between the sentence imposed and the damage sustained by the complainants.

43. Firstly, the applicant was punished not on account of all information and comments included in the impugned news but for having misinformed the public of the accusations imputed to the complainants during their criminal proceedings. In the said news, it was claimed that the complainants were being tried for, inter alia, providing arms to, and being a member of, an armed terrorist organization. However, the complainants were indeed tried not for these offences but for, inter alia, establishing a criminal organization and being a member thereof.

44. The inferior courts failed to strike a balance between the applicant’s freedoms of expression and the press and the complainants’ right to protect their dignity. The first instance court found the unauthenticity of certain information in the news sufficient for constituting an attack towards the complainants’ dignity. Therefore, the question before the Court is whether the inferior courts’ decisions -whereby the applicant was held liable for unauthenticity of certain information in the news published through the website where he was the chief editor- are in breach of the freedom of imparting information, which is safeguarded by Articles 26 and 28 of the Constitution. 

45. Online news reporting falls into the scope of the freedom of the press so long as it fulfils the main function of the press (see Medya Gündem Dijital Yayıncılık Ticaret A.Ş. [Plenary], no. 2013/2623, 11 November 2015, §§ 36-42). Freedoms of expression and the press are of vital importance for the proper functioning of democracy (see Bekir Coşkun, §§ 34-36).

46. However, Articles 26 and 28 of the Constitution do not afford unlimited freedom of expression. The obligation to comply with the restrictions specified in Article 26 § 2 imposes certain “duties and liabilities” for the exercise of the freedom of expression, which is applicable also to the press (see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 89; and R.V.Y. A.Ş., no. 2013/1429, 14 October 2015, § 35).

47.  These duties and liabilities are of particular importance when “reputation and rights of the others” may get harmed and particularly when reputation of a person whose name is cited is at stake. As in the present case, in determining the extent of the media’s obligation to research authenticity of factual statements in respect of private persons, which are allegedly libellous, the conditions required to be taken in consideration may be enumerated as follows: nature and degree of the factual statement in question; whether the sources of news are reasonably reliable in terms of the relevant allegations; and whether the journalists have acted in good faith with a view to providing accurate and reliable information.

48. Freedom of the press entails those concerned to respect for the professional ethics and to act in good faith as well as in a manner that would ensure them to provide accurate and reliable information. Distorting the truth maliciously may sometimes extend the limits of acceptable criticism. Therefore, the task of reporting news necessarily embodies duties and responsibilities as well as boundaries required to be complied with by the media outlets themselves (see Medya Gündem Dijital Yayıncılık Ticaret A.Ş., §§ 42-43; Kadir Sağdıç [Plenary], no. 2013/6617, 8 April 2015, §§ 53, 54; and İlhan Cihaner (2), no. 2013/5574, 30 June 2014, §§ 60, 61). In this respect, it may be said that if factual allegations defaming real persons were not checked, the permittable limits of the freedom of expression would be exceeded.

             (2) Application of Principles to the Present Case

            49. It is obvious that the initiation of criminal proceedings due to several offences against the complainants, who were the managers and shareholders of intermediary firms and companies of which shares were traded at the stock market, is of particular concern to the public. Besides, no objection was raised as to the information included in the news, except for qualifications of certain imputed offences.   

            50. The applicant maintained that the source of information concerning the offences specified in the news and imputed to the complainants was a document obtained from the UYAP, and he submitted this document to the incumbent court in order to show his good faith. The court, however, failed to take any action with a view to determining whether the document was authentic or not. Besides, although the applicant submitted a sound factual basis, the court also refused to assess this evidence. The Ministry confirmed that it was indeed a copy of the original UYAP screenshot but noted that the UYAP data were updated afterwards. Although the applicant based his allegations on an official record, it was not admitted that the offences specified in the news, which had sufficient factual basis, were falsified in bad faith or by means of altering the truth.

            51. Expecting the journalists to act as a prosecutor to verify the accuracy of a statement imposes a heavy burden of proof on them, and such a liability may give rise to unfair consequences at the end of the proceedings where they stand as an accused or a defendant. Therefore, in the present case, it must be acknowledged that the applicant, as a journalist, had acted in an adequately responsible manner.

            52. In its previous judgments, the Court has noted that punishment of journalists due to news or comments made about an individual would pose an obstacle, to a significant extent, to the contribution of the press to the discussion of matters that are of public interest; and that they must not be punished in the absence of strong grounds (see Bekir Coşkun § 58; and Ali Rıza Üçer (2), [Plenary], no. 2013/8598, 2 July 2015, § 46).

            53. Besides, it is explicit that sentencing the applicant to imprisonment due to a press offence would not be compatible with the freedoms of expression and the press. Such a sentence may be justified only in exceptional cases. Even if a person suffering pecuniary or non-pecuniary damage on account of a publication may be entitled to bring a civil claim for damage against the journalist publishing inaccurate information about him, it must be acknowledged that the imprisonment sentence, which is highly severe in terms of ordinary defamation cases as in the present application, inevitably has a chilling effect on the freedoms of expression and the press.

            54. In addition, the criminal court decided to suspend the pronouncement of the verdict and subjected the applicant to probation for five years. In his capacity as a chief editor, the applicant always faces the risk of execution of his sentence within this probation period. The fear of being sanctioned has a suspensive effect on the individuals, and even if an individual may complete the probation period without being further convicted, such a suspensive effect may restrain disclosure of his thoughts or his press activities. As a result, it must be admitted that the risk of execution of his imprisonment sentence in future has caused him stress and fear of being punished.

55. Consequently, the Constitutional Court found violations of the freedoms of expression and the press safeguarded by Articles 26 and 28 of the Constitution.

3. Application of Article 50 of Code no. 6216

56. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.   In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled.   However, legitimacy review cannot be done, decisions having the quality of administrative acts and transactions cannot be made.   

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

            57. The applicant requested a retrial. He did not claim any compensation.

            58. It was concluded that the applicant’s freedoms of expression and the press were violated.

            59. As there is legal interest in conducting a retrial in order to redress the consequences of the violations of the applicant’s freedoms of expression and the press, it must be ordered that a copy of the judgment be sent to the 19^th Chamber of the Anatolian Magistrate’s Court (abolished) for a retrial.  

            60. The total court expense of 2,006.10 Turkish liras (TRY) including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

For these reasons, the Constitutional Court UNANIMOUSLY held on 15 February 2017 that

A. The alleged violations of the freedoms of expression and the press be DECLARED ADMISSIBLE;

B. The freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution were VIOLATED;

C. A copy of the judgment be SENT to the relevant court taking over the files of the 19^th Chamber of the Anatolian Magistrate’s Court (abolished) to conduct a retrial for redress of the consequences of the violation;

D. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;

E. The payment be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment. In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date.

F. A copy of the judgment be SENT to the Ministry of Justice.