The lack of clarity in the Constitutional Court judgment for the annulment of the deferment of the sentence practice provides grounds for courts not to act to remedy violations. The courts cause new violations by continuing to “exploit” the practice against the Constitutional Court judgment

 

CANAN COŞKUN

 

In its judgment which was published in the Official Gazette on 1 August 2023, the Constitutional Court has annulled the “deferment of the sentence” practice, which is governed by article 231/5 of the Code of Penal Procedure that entered into force in 2006. As the violations are rooted in the law, the amendment to the Code of Penal Procedure will enter into effect on 1 June 2024, however it has failed to remove the violations of the freedom of expression and the press caused by the deferment of the sentence. In cases against journalists which were re-opened due to previous rights violations, prosecutors are requesting sentencing.

 

 

The Constitutional Court ruled on a total of 607 individual applications it received between 2014-2021, which claimed that deferment of the sentence rulings had violated the freedom of expression and the press, freedom of peaceful assembly and freedom of association on 29 March 2023, under the case name “Abbas Yalçın and others.” In the Constitutional Court judgment, which was published in the Official Gazette on 1 August 2023, it is stated that interventions arising from the practice of deferment of the sentence do not meet the criterion of legality.

 

In its “Abbas Yalçın and others” judgment, the Constitutional Court has summarized the kind of rights violations resulting from the deferment of the sentence as follows:

 

 

“This manner of implementation of the deferment of the sentence practice not only deters people who have previously been sentenced from exercising their rights protected under articles 26 and 34 of the Constitution, but it also undoubtedly deters other members of society from freely stating their thoughts and joining meetings and demonstrations. The determent effect resulting from fear of sentencing due to irregular trials results in silencing dissenting voices in society and among the public and undoubtedly presents an obstacle to a sustainable pluralistic society.”

 

What is the deferment of the sentence?

 

The deferment of the sentence was a suspension of verdict on probation if certain conditions were met and that the sentence issued to the defendant was at most two years of imprisonment or an administrative fine. If the defendant did not commit another crime willfully and met their obligations during the probation period, which was established as five years in the law, the sentence was abolished. Judges would ask defendants whether they would accept the deferment of the sentence and then announced their verdict. Defendants accepted the practice to avoid punishment and as appeals to a higher court against deferment of the sentence decisions were not allowed, the defendant’s right to defense was interrupted.

 

 

With the legislative announcement known as the Eighth Judicial Package, the deferment of the sentence, which is governed by article 321 of the Code of Penal Procedure was also amended. The change that will enter into force in June 2024 removes the provision that a deferment of the sentence cannot be ruled unless the defendant accepts it. According to this amendment, defendants can apply to appellate court against deferment of the sentence rulings, with no prejudice to provisions of article 272 of the Code of Penal Procedure that regulate recourse to appeals. Article 272 was also amended as it was connected to the deferment of the sentence practice. Accordingly, except for imprisonment sentences commuted into fines, there can be no appeals for administrative fines of up to TL 15,000. If the deferment of the sentence is ruled by an appellate court or the Court of Cassation acting as a court of first instance, the defendant can appeal to an appellate court.

 

 

Constitutional Court: “Exploitation of procedure”

 

The issue of judges asking defendants whether they would accept the deferment of the sentence was also taken up in the Constitutional Court’s “Atilla Yazar and others” judgment, which was also connected to the deferment of the sentence. In that judgment, the Constitutional Court had stated that the defendant being asked whether they would accept the deferment of a potential sentence at the start of a hearing and at a stage when the evidence had not yet been presented was a derogation from the right to a fair trial. The Constitutional Court described the situation as an “exploitation of procedure” and stated, “It would not be wrong to say that the declaration of intent by defendants who accept a deferment of the sentence eat the beginning of the hearing is being exploited.”

 

Cases re-opened

 

Courts have re-opened the cases included in the “Abbas Yalçın and others” judgment to remedy the violations. Abbas Yalçın is a lawyer who is being re-tried and has clients who are being re-tried in this context. Yalçın interpreted the judgment bearing his name for P24 Platform for Independent Journalism and said that the text was not clear. Yalçın stated that there is no clarity about which news items and applications were concerned and that the judgment does not contain anything pertaining to the merits of the application.

 

Abbas Yalçın was the lawyer and managing editor for the Cumhuriyet newspaper when the cases were first re-opened. The oldest case against Yalçın that was concluded with a deferment of the sentence ruling and has been reopened as per the Constitutional Court judgment dates from 2014. At the time, there were many investigations against Turkish state officials for corruption and bribery, which made headlines around the world.

 

Yalçın said that at the time, after 17 December 2013, the number of response and correction texts the newspaper received increased significantly. Yalçın said, “We could almost not find the time to go and provide a statement to the authorities” and that some of the cases included in the Constitutional Court judgment that bears his name are deferred sentences for irregularities in publishing these texts.

 

Criminal courts of peace used to issue rulings for the publication of response and correction texts. Their ruling could be appealed against with the one higher criminal court of peace. Appeals filed with criminal courts of peace, which functioned as a closed-circuit system, would often be rejected without justification.

 

In the article titled “Haberimizin arkasındayız… Cevaplıyoruz ve düzeltiyoruz,” (“We stand by our reporting… We respond and correct”) which was published in the 6 December 2014 edition of the Cumhuriyet newspaper, it was stated that for the first time in its history, the newspaper had to publish five retraction texts that day and it had to abide by the rulings issued against documented and factual news items due to the hefty pecuniary measures in the Law on the Press. The article said the following about the situation which was developing in the judiciary following interventions due to the investigations of 17 December 2013:

 

“In 2013, we published a total of just four response and correction texts. In 2014, until June, the İstanbul Courthouse issued just three rulings for the publication of response and correction texts. However, with the abolishment of the criminal courts of peace on 16 June and their replacement by new criminal judges of peace with new powers, the number of rulings has exploded. In the approximately six months that have based, we were issued with 13 orders for publishing response and correction texts by the İstanbul Courthouse alone.”

 

“Fined if you publish, fined if you do not”

 

Abbas Yalçın said that he was tried in a total of 46 cases for failing to duly publish response and correction texts. He added that these texts were used as a “judicial stick” to beat opposition newspapers and websites and said:

 

“If the news item was published online, the court would order access to it to be denied and if it was published in the print edition, they would send a response and correction text. When we published the text, they would file a complaint saying it was not done ‘duly.’ In any case, whether we published the text or not, we were fined TL 100,000. While most of these sentences were subject to deferment, with new cases that were filed within the five-year probation period, the newspaper was made to pay the fines to avoid possible imprisonment sentences. This was a way of creating economic hardship for newspapers.”

 

A sentence and an acquittal

 

Abbas Yalçın’s client, journalist Faruk Eren has also acted as the managing editor of Cumhuriyet.Eren was also subject to a sentence, which was deferred, due to not duly publishing response and correction texts. In the retrial following the Constitutional Court judgment, prosecutor for the hearing Mehmet Ateş requested sentencing for Eren, arguing that the Constitutional Court’s justification for the annulment did not concern the merits of the case and that it had been established that the defendant had committed the crime of not publishing a response and correction text.

 

At the time, a court case over “insulting the president” was filed against the newspaper’s website news manager Serdar Eroğlu over a news item published on the website. Eroğlu was sentenced at the end of the trial and the sentence was deferred. In the retrial following the Constitutional Court judgment, prosecutor for the hearing Sercan Baş requested Eroğlu’s acquittal, based on the Constitutional Court judgment. In the prosecutor’s opinion, it was stated that as criminal intent had not been established clearly and unequivocally, there was not sufficient evidence for sentencing based on the elements of the crime having formed. Eroğlu was acquitted in this trial.

 

First an acquittal, then a sentence

 

There has been an interesting turn in a freedom of expression case at the İstanbul 2nd Criminal Court of First Instance that was re-opened following the Constitutional Court judgment. At the first hearing held on 23 February 2024, prosecutor Mehmet Ateş requested the acquittal of the defendant, who is a lawyer, in line with the “Abbas Yalçın and others” judgment. The defendant lawyer requested the court to rule in line with the prosecutor’s opinion, however the judge adjourned the trial until 29 March 2024 to examine the case file. At the hearing on 29 March, the prosecutor changed his opinion. Prosecutor Ateş argued that the Constitutional Court’s violation judgment was did not pertain to the merits of the case and that it had been established that the defendant had committed the crime of “denigrating he Turkish nation, the state of the Republic of Turkey and institutions and organizations of the state” and requested sentencing.

 

Some cases subject to re-trial following the “Abbas Yalçın and others” judgment have ended with dismissal. One such case was that journalist Mehmet Salih Turan on the charge of “terrorism propaganda” over 11 Twitter (currently X) posts he shared between July 2016 and November 2017. Following the Constitutional Court’s violation judgment, Turan’s case was re-opened and prosecutor Halit Sevimli requested sentencing. At the final hearing on 24 April 2024, the panel of judges noted that Turan’s deferment of the sentence period had ended on 15 April 2024 and the defendant had not re-offended and passed the period with good behavior. The court therefore ruled to eliminate the verdict against Turan and to dismiss the re-opened case.

 

 

“Another means of resisting Constitutional Court judgments”

 

Evrensel newspaper contributor İhsan Çaralan is another journalist whose case was retried following the annulment of the deferment of the sentence practice. Çaralan’s case has been reopened at the İstanbul 2nd Criminal Court of First Instance. During the retrial, prosecutor Mehmet Ateş requested sentencing for Çaralan. The prosecutor argued that the Constitutional Court’s violation judgment did not pertain to the merits of the case and that it had been established that Çaralan had repeatedly committed the crime of “insulting the president.”

 

Çaralan’s lawyer Devrim Avcı has spoken to P24 about prosecutor’s requesting sentencing in cases that were reopened after the Constitutional Court judgment. Lawyer Avcı said that the requests for sentencing were another means of resisting Constitutional Court judgments and added, “I think such means became feasible following the Court of Cassation not abiding by the Constitutional Court judgment on Can Atalay.” Avcı said that prosecutors request sentencing especially in cases against the opposition press: “Prosecutors who do not favor liberty in interpreting cases resist Constitutional Court judgments. This prolongs the trials. If a sentence is issued in the retrial, the process will begin anew. That journalists being constantly in a defendant’s position also violates the presumption of innocence.”

 

“The judgment avoids stepping on anyone’s toes”

 

Prosecutor Ateş, who has requested sentencing for Çaralan has also requested sentencing for journalist İnan Kızılkaya, who is being retried as per the Constitutional Court’s violation judgment. The prosecutor argued that the Constitutional Court’s violation decision did not pertain to merits of the case and, as with Çaralan, it had been established that Kızılkaya had repeatedly committed the crime of “insulting the president.” Kızılkaya’s lawyer Sercan Korkmaz said that as the Constitutional Court judgment concerns a procedural violation, the courts were reluctant to overturn their previous verdicts. Korkmaz said that the courts were taking steps to rewind the process because the Constitutional Court judgment was not clear and added, “The Constitutional Court judgment looks good, but is problematic in terms of its consequences and as always avoids steeping on anyone’s toes.”

 

The lack of clarity in the Constitutional Court judgment for the annulment of the deferment of the sentence practice provides grounds for courts not to act to remedy violations. Judges are still asking defendants whether they would accept the deferment of the sentence right after they provide their first defense statement. The courts cause new violations by continuing to “exploit” the practice against the Constitutional Court judgement.