In today’s judicial crackdown on journalists, popular accusations include “marking persons assigned with the fight against terrorism as targets” and “publicly disseminating misleading information”

AYÇA SÖYLEMEZ

“As you know, Silivri is a prison where mostly political figures, ‘criminals of thought’ and victims of conspiracies are held as convicts.” This is a quote from journalist Furkan Karabay, who was arrested twice in a year over his news coverage.

10Haber reporter Karabay was arrested on 9 November over his reporting and social media posts on the judicial process concerning Esenyurt District Mayor Ahmet Özer, who was replaced by a government-appointed trustee. Karabay, who was also arrested in December 2023 over another news item, was this time charged with the favorite charges of the recent period, including “insult,” “marking persons assigned with the fight against terrorism as targets” and “publicly disseminating misleading information.” The basis given for the allegations was a social media post the journalist shared. In his statement to the police, Karabay said that his post concerned his news article published on 10Haber news website, which was based on the investigation file against Özer and that he was carrying out his duties as a journalist.

One of the charges against Karabay, who shared the same fate as many journalists coming under investigation and prosecution after being charged on the basis of their journalistic activities, was “marking persons assigned with the fight against terrorism as targets,” which is governed by Article 6/1 of the Anti-Terror Law (TMK). While journalists had been tried under this article for many years, none had been arrested until last year. Karabay was released on 18 November 2024 after his lawyer objected to his arrest. Last year, he was arrested under the same charge as part of an investigation into his news coverage and released several days later upon the objection to his arrest and was eventually acquitted at the end of his trial, which concluded recently.

When journalist Fırat Can Arslan was arrested in July 2023 as part of an investigation into his social media posts concerning the relocations of a judge and a public prosecutor couple in Diyarbakır, he became “the first journalist to be arrested on this charge.” Arslan was released and acquitted months later, however the article continues to serve as a new tool of judicial pressure hanging over the head of every journalist who names a member of the judiciary in their reporting. (At the time, journalists Evrim Deniz, Evrim Kepenek, Sibel Yükler and Delal Akyüz were detained for sharing Fırat Can Arslan’s tweet about his news item. A decision not to prosecute the journalists was later issued.) ANKA News Agency Managing Editor Mansur Çelik was detained on suspicion of the same crime, while a sentence given to journalist Alican Uludağ on this charge was overturned by the court of appeals. In recent years, many journalists have appeared before a court on this charge and there are numerous ongoing court cases.

In a statement in early 2024, Reporters Without Borders (RSF) stated that approximately 20 journalists stood on trial on this charge in 2023 and that the vagueness of the legislation allowed for arbitrary implementation. The RSF statement read: “This provision, like paragraph 2 of article 7 of the [Anti-Terrorism Law] on ‘terrorism propaganda,’ which aims to ‘protect persons serving in counter-terrorism,’ is used above all to silence media professionals.”

Most popular charges

Until recently, journalists often appeared before courts on charges of “praising crime and criminals,” “terroism propaganda” and “committing crimes on behalf of an organization without being a member.” Charges commonly used in journalism trials change in every period. At present, those “in vogue” are “marking persons assigned with the fight against terrorism as targets” and “publicly disseminating misleading information,” as mentioned above.

Meanwhile, “inciting hatred and enmity” most often falls to the lot of social media users. The charge of “insult” is the Swiss army knife of charges, used against anyone at any period.

The most recently added charge to the ever-wider selection has been “publicly disseminating misleading information,” which is governed by Article 217/A of the Turkish Penal Code (TCK) and widely known as the “disinformation” law.

The crime of “publicly disseminating misleading information,” which was proposed with the claim of “fighting disinformation and false news,” was enacted in October 2022 under article 29 of the Law 7418. At the time, Justice and Development Party (AKP) Parliamentary Group Deputy Chair Mahir Ünal said that the law did not constitute “censorship”:

“Article 218 of TCK is clear. Expressions of thought which do not go beyond the boundaries of information and with the purpose of criticism do not constitute crimes. Full stop.

“Disinformation is not just insult. Disinformation is not just disseminating false information. Disinformation is the act of disseminating a collection of these, in coordination and over a period of time, towards a common goal. The judiciary gets to decide whether piece of information or news is misleading. As for the criteria to be used, all five of the five items must be met for the crime to be established. Accordingly:

1) The disseminated news must be false;

2) It must be false news concerning national security or public health;

3) There must be intent to create panic, fear or concern among the public;

4) Its must be amenable to disrupting the public peace;

5) All of this must be carried out publicly.

“I would like to emphasize that all these criteria must be met. An act that meets three of these five criteria will not be considered a crime. All of the representatives from the Ministry of Justice who attended the meetings said: ‘It’s not easy for all five criteria to be met, so it is difficult to establish the crime.’ The actions of someone who says that a dollar will soon be worth 40 liras, a scientist sharing earthquake predictions will not come under this crime. This is clear from reading the law.”

But implementation did not go the way Ünal described. On the contrary, the article of the law, which was given as one of the reasons for Furkan Karabay’s arrest, appeared in decisions and rulings in a way that validated the predictions of the press freedom organizations.

This charge was used most of all in trials of journalists reporting on the earthquakes of 6 February 2023, the mine collapse in İliç, Elazığ, and the elections. According to data compiled by the Journalists’ Union of Turkey (TGS), a total of 46 investigations were launched against 40 journalists on suspicion of this crime between October 2022 and April 2024; 10 journalists were detained and four journalists were arrested. The investigations led to 14 court cases being filed and defendants being acquitted in five cases. One case resulted in an imprisonment sentence of 10 months. Trials are underway in eight cases.

One of the journalists on trial is Tolga Şardan. The police raided T24 columnist Şardan’s home in Ankara and Şardan was placed under arrest by the magistrate after the Istanbul Chief Public Prosecutor’s Office began an ex officio investigation into his article headlined “MİT’in Cumhurbaşkanlığı’na sunduğu ‘yargı raporu’nda neler var?” (What is in the National Intelligence Organization ‘judiciary report’ presented to the Presidency?). Following Şardan’s arrest, media freedom organizations and political parties demonstrated outside the Constitutional Court, with which petitions for the stay of execution of the law and its annulment had already been filed.

At its 8 November 2023 session, the Constitutional Court rejected the request for annulment with five judges voting for and seven against, on the grounds that the article was not unconstitutional. In its reasoned decision, the Constitutional Court stated that the article met the criterion of legality, that the material elements and criminal intent for the crime, the nature and amount/duration of the punishment set for the crime and the aggravated instances of the crime had been clearly established in the provision with no room for hesitation and therefore the article was not vague or unpredictable.

Judicial pressure

According to data compiled by the Expression Interrupted platform, there are at present 27 journalists or media workers in prison in Turkey. Hundreds of journalists are on trial.

According to Expression Interrupted’s quarterly Freedom of Expression and the Press Agenda reports, a total of 210 journalists faced trial, 19 journalists were sentenced, 10 new cases were filed against journalists and five journalists were arrested in the first quarter of 2024. In the second quarter of 2024, 192 journalists stood trial and 12 journalists were sentenced. Seven new cases were filed against journalists and five journalists were arrested. According to the most recent report, published in November, 89 journalists stood trial, 11 journalists were sentenced, new cases were filed against 10 journalists and four journalists were arrested in the third quarter of 2024.

According to the 2023-2024 Press Freedom Report by the TGS, published on 3 May World Press Freedom Day, at least 14 journalists were imprisoned in the past year, 69 journalists were detained, journalists spent a total of 153 hours in detention and 52 journalists had to provide statements as part of investigations against them. Criminal cases during this period resulted in a total of 47 years, 1 month and 24 days of imprisonment sentences and TL 31,160 in judicial fines. Furthermore, 66 journalists were assaulted physically, while 26 journalists were verbally threatened. These figures do not even include the social media harassment that journalists face.

At present, there is the possibility that a new criminal definition called “influence agents” may be added to the list of charges available to members of the judiciary, which grant them indefinite discretionary powers and can apply to anything that is said or written as their scope is very vague.

The Turkish Journalists’ Association (TGC) has stated that the crime of “influence agents” is unconstitutional: “It will never be clear what or who is to be punished under this article. This will be another means of potentially silencing information and ideas that create public outrage, that are shocking or disturbing. It is unclear what [this article] regulates or what it punishes. It is neither clear nor comprehensible. This new legislation will harm the press and free expression of opinions and will be a new stick used against journalists.”

Existing and recently enacted legislation and their implementation in the recent period demonstrate that journalists are the ones who are the real “targets.”