Since 2018, at least 49 journalists have faced 37 court cases on charges of “marking persons assigned with the fight against terrorism as targets” under Article 6/1 of the Anti-Terror Law while two journalists have been arrested on this charge in the last two years

MELİKE POLAT*

The Anti-Terror Law (TMK), which has been in effect since 1991, has frequently been used as a tool to punish the freedom of expression and press in recent years. Politicians, academics, journalists and persons who disclose opinions that are opposed to the government are often declared to have perpetrated crimes related to “supporting terrorism.”

According to data compiled by the Expression Interrupted platform, at least 49 journalists have faced 37 court cases on the charge of “marking public officials assigned with the fight against terrorism as targets” (TMK 6/1) since 2018. Two journalists have been arrested on this charge in the last two years. So much so that one of these journalists was arrested twice within a year on the same charge under two different investigations. While 27 of the court cases resulted in acquittal due to the elements of the crime not having formed, one case was dismissed. Four cases resulted in the sentencing of journalists. Of the sentences that were issued, one was upheld, two were deferred and one is pending appeal. Five court cases are still underway.

As arrest orders are gradually increasing in cases related to this “crime,” which hangs as a Damocles’ sword over the heads of journalists to intimidate, deter and set an example for others, we find ourselves in need of understanding exactly what we face.

Paragraph one of article six on “Disclosing and Publishing” of the Anti-Terror Law stipulates punishment for “disclosing or publishing the identity of public officials who have taken part in the fight against terrorism or presenting persons who have taken part in the fight against terrorism by this means.” In the event the crime is committed through the press or broadcasts, managing editors of publications or broadcasting organizations who were not parties to the crime are also punishable by a judicial fine. While the punishment for the crime of disclosing or publishing the identity of public officials who have taken part in the fight against terrorism was a judicial fine until 2006, an amendment in 2006 changed it to an imprisonment sentence between one to three years.

Journalists reporting on members of the judiciary and counter-terrorism processes and questioning decisions by the judiciary are of crucial importance for informing the public, ensuring accountability and judicial independence and maintaining democratic oversight.

Reporting on public hearings, citing the name of judges in news items or producing news items critical of the decisions of the judiciary are generally considered to come under the freedom of the press and such criticism plays a vital role in democratic societies. The same can also be said for prosecutors’ decisions, which are important documents that are of public interest and allow the public to have information about the judicial system.

Violation of the principle of predictability

At present, cases filed under the charge of “marking public officials assigned with the fight against terrorism as targets” are a widely used means of bringing pressure to bear on journalists. This piece of legislation paves the way for judicial harassment of journalists due to its vague limits and wide interpretability.

The legislation, which aims to prevent the disclosure and publishing of the personal information of public officials who have taken part in counterterrorism and them being presented as targets violates the principle of predictability and is extremely ambiguous. As the anti-terror legislation does not define “public officials who have taken part in the fight against terrorism,” there is significant controversy over who might be the victims of this crime. Although a potential victim of this crime should be someone who has directly served in counterterrorism, the concept can be interpreted very widely, resulting in problems in implementation. This expression needs to be understood narrowly as public officials who have been actively involved in counterterrorism or provided intelligence support.

Because of the courts’ wide interpretation of this article, journalists can become victims of judicial harassment for reporting not just about security forces, but also about judges and prosecutors through criminal cases filed under the TMK 6/1 charge. This jeopardizes the balance between judicial independence and the right to a fair trial on the one hand and the freedom of expression on the other and creates a deterrent against reporting which is critical of the judicial system. By levelling such charges, the judiciary itself becomes a part of the threat to the freedom of expression of journalists, although it is tasked with protecting the rule of the law.

Elements of the crime defined in TMK 6/1

For the crime of “marking public officials assigned with the fight against terrorism as targets” to form, some elements of crime need to be established. Although there is no full consensus on which criteria should apply to establishing whether this crime has formed, in general it is accepted that elements of this crime include the public disclosure of the identity or employment information of a public official who has directly taken part in counterterrorism that exposes the public official to attack, violence or other risks; and that this disclosure should have been made with the intent of presenting the public official as a target. Once the disclosure has occurred and after an evaluation of whether the disclosure has resulted in tangible danger to the public official in question, any disclosure or sharing of information which has resulted in a security risk for the public official presented as a target may constitute an element of the crime.

Given that the expansion of the scope of this crime can create a conflict with the freedom of expression where journalists are concerned, courts should carefully examine the intent of journalists, the public interest and the contents of news items.

Do judges an prosecutors count as “officials assigned with the fight against terrorism”?

Although judges and prosecutors do not meet the criteria for “directly serving in counterterrorism,” recently it has become more common for journalists to face TMK 6/1 charges due to their reporting on judges and prosecutors. This has expanded the boundaries of the law to make TMK 6/1 a means of pressure on journalists.

Reporting concerning criticism of the judicial system in particular, or on decisions by judges and prosecutors, or even on the relocations of judges and prosecutors can lead to court cases under this charge. A critical news item including the names of the relevant members of the judiciary has the aim of informing the public; nevertheless, the journalists may be charged on the pretext that these people have been “presented as targets.” This indicates that the Anti-Terror Law is being implemented to include public officials other than “security forces,” which it was actually intended to cover.

Decisions by judges and prosecutors must be open to public oversight and criticism. The trials of journalists on charges such as “marking public officials assigned with the fight against terrorism as targets” is a violation of the freedom of expression. In democratic societies, journalism is intended to regulate the actions of public officials and to inform the public. The right of journalists to report on the judicial system is directly connected to the principle of the rule of the law.

That critical reporting concerning judges and prosecutors is included under this crime is also harmful to the principles of judicial impartiality and accountability.

Balancing the freedom of expression and the press

The right to freedom of expression and the press is enshrined in Article 26 of the Constitution of the Republic of Turkey and Article 10 of the European Convention on Human Rights (ECHR). Any restrictions to or interference with the freedom of expression must be carried out due to predictable and delimited reasons for legitimate purposes, maintaining a fair balance between the requirements of a democratic society on the one hand and the aims and means of the restriction on the other, and without affecting the essence of the right.[1]

Any interference with freedom of expression needs to be necessary, exceptional and implemented as a last recourse. If they do not meet these criteria, restrictions to the freedom of expression cannot be measures that meet the requirements of a democratic society.

For news and expressions that have content of close public interest, the right to freedom of expression and the press extends much stronger protection. In the case of reporting or disclosures which are of close public interest, restrictions to the freedom of the press should be interpreted narrowly and expressions on such matters should only be restricted for very strong reasons.[2] Decisions to the contrary would constitute interference with free debate on matters of public interest, which is central to the concept of a democratic society. The European Court of Human Rights (ECtHR) has found the freedom of expression and the press to have been violated in many cases through the chilling effect of the fear of sanctions on the enjoyment of the right to freedom of expression and the press which could dissuade persons from using similar expressions in the future.[3]

TMK 6/1 from the perspective of ECtHR judgments

The European Court of Human Rights has examined article 6 of Turkey’s Anti-Terror Law in various cases. The ECtHR accepts that automatically punishing the citing of the names of persons taking part in counterterrorism in news items is not legitimate. In its judgments concerning a ban on publishing the name of a person who has taken part in counterterrorism, the ECtHR has stated the need for assessing “whether the public should be aware of the incident in connection with which the person is named, whether the person in question is already publicly known and whether an expression that could be considered incitement to violence against the person in question is used.”

For each news item, many elements including who has prepared the news item, in which context and with what aims; whether the news item results in the alleged risk and whether the concerned person’s name has been disclosed previously for other reasons should be examined. Open public debate on matters of public interest is an absolute necessity for the realization of values such as democracy, respect for human rights and the rule of the law which lie at the core of the European Convention.

According to ECtHR judgments, launching investigations or prosecutions over actions covered by the freedom of expression by themselves constitute interference with the freedom of expression. It is clear that this will cause the press to refrain from fulfilling its functions protected by the freedom of the press and expression and therefore have a chilling effect.

Trials of journalists under the Anti-Terror Law constitute a complex legal issue. Balancing the freedom of expression with counterterrorism is of crucial importance in a democratic society. Protecting journalistic activities, ensuring freedom of expression and strengthening democratic oversight mechanisms is vital for the future of societies. For this reason, court cases filed to silence or put pressure on journalistic activities must be seen as cases of judicial harassment.

*Melike Polat is a human rights lawyer

[1] Emin Aydın Application, B. No. 2013/2602, 23.01.2014, para. 56; YouTube Llc Corporation Service Company and Others [Plenary] Application B. no. 2014/4705, 29.05.2014, para. 53.

[2] Sürek v. Turkey (1), no. 26682/95, § 61; Taranenko v. Russia, no. 19554/05, 13.10.2014, § 77

[3] Lombardo and Others v. Malta, no. 24.04.20077333/06, § 61, Association Ekin v. France, no. 39288/98, 18.01.2000; Aktan v. Turkey, no. 20863/02, 23.09.2008, §§ 27-28.