The police circular is clearly against the Constitution as it aims to reduce accountability of public officials and to censor the freedom to receive and impart information. It also violates freedoms safeguarded in Article 10 of the European Convention on Human Rights
Att. FİGEN A. ÇALIKUŞU
Turkey’s General Directorate of Security issued a highly controversial circular last week, banning audio-visual recordings of law enforcement officers at protests. Issued on 27 April 2021, merely three days ahead of the International Workers’ Day, the circular no. 2021/19 stated:
“… Our law enforcement personnel often encounter such situations that concern violations of the right to privacy and personal data protection of all our citizens. Such violations, which can sometimes amount to preventing the officers from performing their duties, are occasionally published on various digital platforms in a way that is harmful to the personal rights and security of our personnel and citizens. (...) ...that all personnel should be informed that they should not allow any conduct that might lead to audio and video to be recorded in such a manner while performing their duties; obstruct those who record such material in accordance with the nature of the act and the situation; and take legal action when legal conditions are met.”
The directive was put into effect in no time. Immediately after the circular was announced, law enforcement officers confiscated the mobile phones of members of the press and prevented them from filming by force as they were covering a May Day rally, which was banned as part of the nationwide COVID-19 lockdown, in Ankara’s Kızılay district.
It can be inferred that the intended outcome of the circular was, in its essence, to conceal the images and footage that document the disproportionate use of force by police to prevent individuals from exercising their constitutional rights under the pretense of “the right to privacy.”
However, it is of paramount importance in a democratic state of law that law enforcement agencies, furnished with authorization, are transparent and accountable. Law enforcement officers, who provide a public service, and are, in that vein, vested with certain powers to maintain and protect the public order due to which they have the opportunity to effortlessly impinge upon the fundamental rights and freedoms of individuals, should be kept under scrutiny.
The circular does not respect the right to freedom of the press and communication, neither does it define or set up any exemptions in this regard, which compromises both the right of communication of individuals and freedom of the press of media workers in the social events that take place in public spaces, which are considered to be of public interest.
According to Article 10 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of expression, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
In its entirety, the content of the circular is clearly contrary to Article 2 of the Turkish Constitution, as it aims to reduce accountability of the public officials in the line of duty; Article 28 of the Constitution, as it seeks to censor freedom to receive and impart information; Article 10 of the ECHR, as it violates freedom to hold opinions and receive and impart information.
Granting that it should not exceed certain boundaries, notably in terms of preventing disorder and protecting the reputation or rights of others, it is still the duty of the press to provide information and ideas on all matters of public interest –in line with their obligations and responsibilities.
Article 10 of the ECHR safeguards not only the essence of the information and ideas expressed, but also the manner in which they are conveyed.
In conjunction with the duty of the press to disseminate such information and ideas, the public has a right to receive them, as well. Otherwise, the press would not be able to play the vital role of “public watchdog.”
In addition to being unlawful and bringing about rights violations with regard to members of the press, the circular in question infringes upon the fundamental rights and freedoms of individuals; it further contravenes the opportunities and procedures of individuals to claim their rights and gather evidence that might be of help to their defense –hard-fought rights in the criminal procedure law– as well as the right to communicate and the right of defense.
According to Article 36 of the Turkish Constitution, everyone is entitled to freedom to claim their rights through legitimate means and procedures. Aside from being an exemption to the law on protection of personal data, that persons can take steps to prove that a crime has been committed as part of their freedom to claim their rights is an outstanding merit that must be legally protected.
First of all, each individual may feel the need to document an event which takes place in the public place on suspicion of a crime. This is a natural result of living in a community and solidarity. Furthermore, the right to document a criminal act directed specifically at one’s own person or those close to them is already under legal protection.
To establish recording audio and conversations as a criminal act requires, at first, the clarification of the concepts of private life and the right to privacy.
The preamble of Article 134 of the Turkish Penal Code (TCK) refers to “a private life occurrence that is otherwise inaccessible for observation by others.” Accordingly, audio recording of events that may be publicly known and conservations during such events does not constitute the crime of violation of the right to privacy.
More importantly, it is undisputed that recording audio-visual material in the absence of the opportunity to gather evidence through other means or with the intent of preventing the loss of evidence that is otherwise likely to be lost does not constitute a crime, either.
It is, therefore, within the scope of both the right of defense and the right to a fair trial for the defense to find and use evidence as they deem appropriate and submit it to the competent court; it is an inalienable right.
The reverse would be tantamount to depriving persons of their right of defense, which is a human rights violation.
It is imperative for the measures to be taken pertinent to the field of fundamental rights and freedoms by the executive branch in accordance with the command of the law to be objective and not grant broad discretion to administration to avoid arbitrary practises.
It is incumbent on the legislative branch to make predictable regulations that do not allow arbitrariness in the field of fundamental rights and freedoms. Granting a broad discretion to administration that may lead to arbitrary practices would constitute a violation of the relevant provision of Article 13 of the Constitution, which states that fundamental rights and freedoms can only be restricted by law.
Unfortunately, a number of dire events that occurred as a consequence of unwarranted and excessive use of force by police officers, who are public officials, both at home and abroad have ingrained themselves in our memories. Thanks to the audio-visual recordings, these events were subject to prosecution.
It is widely accepted that the state has a tendency to protect its citizens before public officials, since the individual is presumably unarmed, unauthorized and powerless.
In conformity with its constitutional duty to protect the right to life of individuals, the state is obliged to prevent any intervention in the right to physical and psychological integrity of persons, and to conduct effective investigations, prosecutions, and secure the punishment of perpetrators in case of unavoidable interventions.
In conclusion, the circular in question, which disregards the constitutional rights of the press and individuals, and which allows for discretionary and unlawful practices, as well as outright censorship, has no place in a democratic rule of law. No one can be criminalized for exercising their rights, nor can they be punished for that reason. To the contrary, anyone who gives orders to obstruct those who exercise their constitutional rights, and anyone who enforces such orders commits a crime.