REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

HAKAN YİĞİT

(Application no. 2015/3378)

5 July 2017

THE FACTS

[8-31] The applicant is the news director of a web-site, namely memurlar.net. Following the 17-25 December investigations, tape recordings alleged to belong to Fetullah Gülen or persons who are in close relationship with him were broadcasted or reported as news via many web-sites. Subsequently, the news portal, memurlar.net, broadcasted these tapes with the heading “Conversation between Gülen and the top Abi (“top brother”) is now available on the Internet”.

The tape in question relates to the phone conversations held between Fetullah Gülen and a person who was defined by the web-site as “the top abi” and whose full identity information was not given. During these conversations, the unidentified person provided Fetullah Gülen with information −generally classified− about several bureaucrats, politicians and businessmen, informed Fetullah Gülen of the relations between the group which is led by Fetullah Gülen and which would be subsequently called as the FETÖ/PDY, as well as received instruction from Fetullah Gülen.  

Following the broadcast of the news, Fetullah Gülen filed a criminal complaint against the applicant as well as the media outlets broadcasting the impugned news for insulting his personal rights and breaching the confidentiality of communication.

Thereupon, the Ankara Chief Public Prosecutor’s Office brought a criminal case against the applicant for unlawfully disclosing the contents of the communication and insulting persons through internet. According to the prosecutor’s office, the imputed offence results from the broadcast of the relevant contents through media outlets and is a type of offence which is separate from the offences of breach of the confidentiality of communication and recording of the contents thereof. The prosecutor’s office noted that commission of the offence in question was completed by way of notifying or announcing the contents of the communication to the person or persons who is/are not a party thereto.  

During the criminal proceedings, the applicant maintained; that they had acted in line with the responsibility of the press; that the news is within the press freedom to make news and that the impugned tapes were removed from the web-site one day later upon the request of the complainant’s lawyer.

By the decision of the 24^th Chamber of the Ankara Criminal Court, the applicant was acquitted of the offence of insulting but sentenced to 1 year and 8 months’ imprisonment for breaching the confidentiality of communication. However, the criminal court decided to suspend the pronouncement of the judgment and to subject the applicant to probation for a period of 5 years. According to the criminal court, publication of a phone conversation between persons –even if socially prominent ones–, which enables everyone to learn the content thereof, is sufficient for the offence to occur.  The applicant’s challenge to the criminal court’s decision was dismissed by the 6^th Chamber of the Ankara Assize Court.

V. EXAMINATION AND GROUNDS

32. The Constitutional Court, at its session of 5 July 2017, examined the application and decided as follows.

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

33. The applicant maintained that he was the news director of one of the most popular web-sites of Turkey; that the impugned video and audio tapes published and made available by them had already been broadcasted by networking sites and hundreds of web-sites; and that they reported the contents of these audio tapes as news. He also noted that, in relation to the officials of the other press and media outlets having broadcasted the same audio tapes, either a decision of non-prosecution was issued by the chief public prosecutor’s offices or an acquittal decision was rendered by the courts. He submitted some of these decisions to the Court and accordingly alleged that his freedoms of expression and the press were violated.

34. In its observations, the Ministry of Justice (“the Ministry”) recalled the judgments of the Court and the European Court of Human Rights (“the ECHR”) concerning the freedoms of expression and the press as well as pointed out the public interest inherent in the impugned news. According to the Ministry, conversations mentioned in the said news revealed the plans of the Fetullahist Terrorist Organization/Parallel State Structure (“the FETÖ/PDY”) and the organization leader concerning the appointment of bureaucrats and state tenders, which thereby contributed to a public debate. The Ministry also pointed out that there was no allegation that the conversations included in the news had been neither unreal nor distorted. Referring to the ECHR’s case-law in its Radio Twist A.S. v. Slovakia judgment, the Ministry noted that the mere act of broadcasting any information −even if obtained illegally by a third person− must be also considered to fall into the scope of the freedom of expression. The Ministry further stated that broadcasting of the same communication contents previously by several global and national web-sites and news portals must also be taken into consideration.

35. In his counter-statements against the Ministry’s observations, the applicant reiterated his previous submissions and requested the Court to find a violation.

B. The Court’s Assessment

36. Article 26 of the Constitution, titled “Freedom of expression and dissemination of thought” and to be relied in the assessment of the allegation, 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 … and private and … life 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.”

37. 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…”

1. Admissibility

38. 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

39. The applicant was sentenced to imprisonment for a term of 1 year and 8 months on account of the news published via the web-site where he was the chief editor. The incumbent court then suspended the pronouncement of the verdict. Accordingly, the court decision constituted an interference with the applicant’s freedoms of expression and the press.

b. Whether the Interference Constituted a Violation

40. 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.”

41. The afore-mentioned interference would constitute a breach of Articles 26 and 28 of the Constitution unless it satisfied the conditions set out in Article 13 of the Constitution. Therefore, it must be determined whether the restriction complied with the requirements set out in Article 13 of the Constitution, 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 democratic society and the proportionality principle.

i. Lawfulness

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

ii. Legitimate Aim 

43. It has been concluded that the decision whereby the applicant was sentenced was a part of the measures intending to protect “…. private lives of the others” and pursued a legitimate aim.

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

(1) General Principles 

44. There is no hesitation as to the requirement that online news reporting must be considered to fall 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).

45. As the Court has stated many times, the freedom of expression safeguarded by Article 26 of the Constitution and the freedom of the press, which is one of the former’s aspect requiring special safeguards and set out in Article 28 of the Constitution, are essential foundations of the democratic society and sine qua non for the improvement of the society and development of each individual (see Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 69; and Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, §§ 34-36).

46. Both the freedoms of expression and the press are subject to certain restrictions set out in Article 26 § 2 of the Constitution and required to be fully complied with. These exceptions must be convincingly established in every concrete case.

47. The Court also explained what should be inferred from the phrase “requirements of the democratic order of the society” specified in Article 13 of the Constitution. 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, § 51; Mehmet Ali Aydın, § 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.

48. 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.

49. In the present case, the applicant was punished for having disclosed the private communication of individuals through the impugned news. Further, the first instance court considered that the content of communication and the way how the news was reported were not insulting the complainant and accordingly acquitted the applicant of the charge of defamation. Therefore, the question before the Court is rather whether the domestic court’s decision −which regarded as an offence the publication of the complainant’s private conversation through news on the website where the applicant was the chief editor− was contrary to the freedom of imparting information safeguarded by Articles 26 and 28 of the Constitution.

50. 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).  These duties and liabilities are of particular importance when private lives of others may get harmed and particularly when reputation of a person whose name is cited is at stake.

51. It must be also borne in mind that while the press is to comply with the relevant restrictions, it is also obliged to impart information on matters of public concern and State affairs, as required by its primary duty to ensure proper functioning of a democracy. Apart from the press’ liability to impart the said information and ideas, the public also has the right to receive them. Freedom of the press affords the public one of the best means for discovering ideas and conducts of public figures such as politicians, high bureaucrats, opinion leaders or businessmen as well as for forming an opinion in respect thereof (see İlhan Cihaner (2), no. 2013/5574, 30 June 2014, §§ 56-58; Kadir Sağdıç [Plenary], no. 2013/6617, 8 April 2015, §§ 49-51, 61-63; and Nihat Özdemir [Plenary], no. 2013/1997, 8 April 2015, §§ 45-47, 57-58).

52. Besides, the information imparted by the press in the present case concerns private communication of the individuals. As per Article 22 § 1 of the Constitution which sets forth “Everyone has the freedom of communication. Privacy of communication is fundamental”, “everyone” also including the public figures is afforded freedom of communication, and privacy of the communication cannot be breached.  

53. In Article 22 of the Constitution, it is not particularly cited that communication must be “respected”. It is obvious that there is a right to “respect for” the freedom of communication for two reasons: First, freedom of communication, which is enshrined in the chapter (IV) titled “privacy and protection of private life” under part two of the Constitution where the individual’s rights and duties are set forth, is a special aspect of the right to “privacy of private life” enshrined in Article 20 of the Constitution. Therefore, as required by Article 20 of the Constitution where it is specified “Everyone has the right to demand respect for his private life…”, everyone has the right “to demand respect” also for his freedom of communication. Second, the nature of privacy inherent in the communication according to the Constitution primarily embodies the right “to demand respect” for communication. 

54. Article 22 of the Constitution does not only require the State to refrain from interfering but also imposes certain positive obligations to effectively respect for freedom of communication, when taken together with Article 5 of the Constitution. This obligation also requires the State to take relevant measures for ensuring respect for freedom of communication and protecting the privacy of communication, regardless of the relationships between individuals. As a requirement of this constitutional obligation, Article 132 of Code no. 5237 defines the acts of contravening the privacy of communication between private persons, intercepting the communication and disclosing the contents as criminal acts.

55. The present case concerns the punishment imposed on the applicant for his alleged disclosure of contents of the communication. Disclosure means revealing, imparting or disseminating any confidential information. In cases where contents of the communication are disclosed and disseminated for the first time, this act is easily defined as disclosure in criminal law. However, the question whether the act of revealing, disseminating or declaring once again the contents previously published or made public would be regarded as “disclosure” is a controversial issue.

56. Therefore, a meticulous distinction must be made between the act of disclosing the content of communication for the first time and the act of reporting previously disclosed contents as news. It is not the Court’s duty to point out that previous disclosure of any kind of confidential information concerning private life, such as contents of communication, automatically decriminalizes their being reported as news. However, it must be admitted that lawfulness of sanctions imposed on a journalist for publishing confidential information which has been already made known for the first time is in dispute.

57. In the present case, the interference with the private communication was made not by the organs exercising public power but by a media outlet. Therefore, a conflict arose between the legitimate aim of restriction –“protection of private lives of the other individuals” – that is specified in Article 26 § 2 of the Constitution and the journalists’ right to freely use the relevant information. It is obvious that this conflict becomes more apparent in cases of interference with the freedom of communication, which is afforded special protection by the Constitution. However, reporting of sensitive information such as contents of communication –even if obtained through illegal means– as news does not automatically deprive the journalists of the protection afforded by Articles 26 and 28 of the Constitution.  

58. In applications similar to the present one, the step required to be taken by the Court is to strike a balance between the journalists’ freedom of the press and the freedom of communication of the individuals whose private communication has been interfered. Such a balance may be struck only when all conditions including the content of information reported as news, identities of the individuals whose communication has been interfered, contribution made by the news to public debates and the context where the concrete case took place are taken into consideration

59. In exercising its power to review, the Court is to consider and examine the case as a whole including the content of the communication reported as news and the context whereby these contents are expressed. It must be firstly established whether the interference is “proportionate to the legitimate aims” and whether the grounds specified by national authorities to justify the said interference are “relevant and sufficient”. In doing so, the Court must reach a favourable conclusion that the bodies exercising public power and the inferior courts have applied standards complying with the principles set out in Articles 26 and 28 of the Constitution as well as relied on acceptable assessment of the relevant findings.

(2) Application of Principles to the Present Case

60. The applicant, chief editor of a news portal, was convicted of having published contents of the other individuals’ communication. The incumbent chief public prosecutor’s office asserted that reporting or disclosing the content thereof to a person or persons not a party to the communication constituted the offence. The first instance court did not make any further assessment and accordingly decided that publication of phone conversations of individuals −regardless of who they were− in a way that everyone may become aware thereof was sufficient for occurrence of the offence.

61. The first instance court did not strike a balance between the applicant’s freedoms of expression and the press and others’ right to protection of their honour and dignity and granted absolute superiority to the latter one. According to the Court, any conclusion reached without taking the case as a whole and striking a balance between the individuals’ rights and freedoms in line with the established principles cannot be considered to comply with the principles enshrined in Articles 26 and 28 of the Constitution.

62. Firstly, in the present case, the applicant was convicted of having disclosed the contents of communication –which were published on the internet− of Fetullah Gülen, known by the public as a retired preacher. These contents enabled individuals to learn ideas and conducts of the complainant who was indisputably a notable person as well as activities of the group led by the complainant in the political, social and economic fields and to form an opinion on these matters. Therefore, publication of the contents undoubtedly contributed to a debate of high public interest, which was at the top of the public agenda. 

63. Secondly, the complainant did not claim that the applicant had made unreal news by altering the content or making any addition thereto. Nor did the inferior courts make such assessments in their decisions.

64. Thirdly, in the reasoning of the conviction decision, the first instance court did not take into consideration the fact that it was not the applicant who had published the said communication contents for the first time. As a matter of fact, within the context of the criminal law and in light of the relevant case-law of the Court of Cassation, the question as to whether the “disclosure”, which is an element of the offence, had occurred is the main issue to be discussed. At the time when the impugned news was published, the contents of Fetullah Gülen’s communication had already been made public. Therefore, the aim pursued for the protection of the communication contents of those concerned had considerably disappeared, and the damage intended to be prevented by the restriction imposed had already taken place.  

65. Lastly, it was not stated that the other media outlets were punished for having published contents of the said communication. On the contrary, a decision of non-prosecution was rendered, on 21 March 2014, by the Ankara Chief Public Prosecutor’s Office in respect of at least four press officials who had published the same contents with those of the applicant. Nor was it maintained that the other journalists publishing the said communication contents had been punished on account thereof.

66. In light of the above-mentioned considerations, it has been concluded that the inferior courts’ intent to protect the complainant’s freedom of communication was not sufficient for justifying the restrictions imposed on the applicant’s freedoms of expression and the press enshrined in Articles 26 and 28 of the Constitution. The inferior courts failed to strike a fair balance between the protection of freedom of the press as well as freedom of communication, which is an aspect of the private life.

67. The first instance court sentenced the applicant to imprisonment for a term of 1 year and 8 months but then suspended the pronouncement of the verdict. He was accordingly subject to probation for five years. The applicant, who was the chief editor of a news site, always faced the risk of execution of his imprisonment sentence within that period. Fearing to be subject to a sanction has a deterrent effect on individuals, and even if the person concerned is not convicted of a new offence during the probation period, he is under the risk, due to this effect, of abstaining from expressing his ideas or conducting press-related activities in future (see Orhan Pala, no. 2014/2983, 15 February 2017, § 54).

68. In other words, given the primary duty of the press to ensure proper functioning of democracy, it must be admitted that the applicant’s punishment may discourage the contribution made by the press to open debates of public interest. Therefore, the interference in the form of the applicant’s imprisonment for a term of 1 year and 8 months and his being subject to probation for 5 years as the pronouncement of his verdict was suspended is disproportionate to the aim pursued for the protection of the complainant’s private life.

69. For these reasons, the Court found violations of the freedoms of expression and the press which are safeguarded respectively in Articles 26 and 28 of the Constitution.

C. Application of Article 50 of Code no. 6216

70. 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.”

71. The applicant requested the Court to find a violation and order a retrial as well as to award him 50,000 Turkish liras (TRY). He did not claim any compensation for pecuniary damages.  

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

73. 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 24^th Chamber of the Ankara Criminal Court (file no. E.2014/493) for a retrial.

74. The Court finding violations of the applicant’s freedoms of expression and the press decided to award the applicant 2,000 Turkish liras (TRY) as non-pecuniary compensation for his damages which could not be redressed by a mere finding of a violation.

75. The total court expense of TRY 2,026.90 including the court fee of TRY 226.90 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 5 July 2017 that

A. The applicant’s request for non-disclosure of his identity in public documents be DISMISSED;

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

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

D. A copy of the judgment be SENT to the 24^th Chamber of the Ankara Criminal Court (the file no. E.2014/493) to conduct a retrial for redress of the consequences of the violation;

E. A net amount of TRY 2,000 be PAID to the applicant as non-pecuniary compensation, and other claims for compensation be DISMISSED;

F. The total court expense of TRY 2,026.90 including the court fee of TRY 226.90 and the counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;

G. 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.

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