Violence against journalists is aimed both at preventing incidents from becoming public and silencing the public and all rights defenders who play the vital role of “watchdog,” especially journalists 

 

BENAN MOLU*

 

In addition to the fact that media professionals in Turkey have been subjected to detentions, arrests, investigations, prosecutions, and prison sentences for their reporting, police violence against journalists during news coverage has also been under discussion in recent months.

 

The Ombudsman Institution of the Grand National Assembly of Turkey (TBMM) rendered a decision on this issue for the first time as regards the application concerning the intervention against journalist Demet Aran, who was prevented from filming, whose mobile phone was confiscated, and who was taken into custody, handcuffed behind her back, by the police during news coverage. Concluding that raising police shields and preventing journalists from filming did not constitute a breach of press freedom, the Ombudsman Institution advised the General Directorate of Security that law enforcement officers should take utmost care to provide a suitable environment for members of the press who carry out journalistic activities and use more careful language in their relations with journalists while performing their law enforcement duties.[1]

 

Aran is not the first nor the only journalist who was confronted with an intervention during news coverage. As will be explained in detail below, and as was stated in the defense statement of journalist Beyza Kural,[2] who was also subjected to police violence during news coverage; Ruşen Takva, who was prevented from taking pictures as he was reporting on a press statement in the eastern province of Van; Fatoş Erdoğan, who was threatened by a police officer who said, “I will kill you if I get hold of you”; Özge Uyanık, whose mobile phone was flung down as she was covering May Day protests in Ankara; and Yıldız Tar, who was battered and whose mobile phone was confiscated while covering the “Eryaman-Esat case,” which concerns the organized attacks against trans women in Ankara in 2006, are some of the journalists who have been subjected to police violence recently.

 

However, this issue mainly gained traction when police officers forced down Bülent Kılıç, a photojournalist for Agence France-Presse (AFP), and stepped on his neck; later detained him, handcuffed behind his back, and broke his camera during the banned Pride Parade in Istanbul on 26 June 2021, and once again when HaberTürk newspaper columnist Muharrem Sarıkaya slapped Ahmet Demir, a reporter for İhlas News Agency (İHA) based in Gaziantep province, while conducting an interview with Gaziantep Mayor Fatma Şahin.

 

This article seeks to examine the decisions of the Turkish Constitutional Court and the European Court of Human Rights (ECtHR or the Court) regarding police violence against journalists, which invariably resulted in impunity in the past in Turkey.

 

The “watchdog” role of journalists

 

According to the established case-law of the Constitutional Court and the ECtHR, freedom of expression and the press constitutes one of the essentials of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment[3]:

 

“The preeminent role of the press in a State governed by the rule of law must not be forgotten. [...] Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.”

 

The function of journalists is to impart information/news and monitor the actions and inactions of the political authority, playing the role of “watchdog,” particularly in respect of the public’s right to receive information and ideas. In a state governed by the rule of the law, the press plays a preeminent role.

 

The prohibition of inhuman treatment and the obligation to conduct an effective investigation within the context of Article 17 of the Turkish Constitution and Article 3 of the ECHR

 

The Constitutional Court has ruled on three individual applications concerning the physical injuries inflicted on journalists by the police during news coverage, finding rights violations. The first application concerns the incident where the police surrounded journalist Erdal İmrek and other journalists as they tried to cover the police intervention against a group of people who wanted to get to the Taksim Square to deliver a press statement and hold a commemoration on the anniversary of the Gezi Park protests in 2014, encircled them by police shields and then removed them from the scene by a method known as “sweeping.”[4] At the time, the applicant sustained kicks, slaps and punches, was exposed to pepper spray from a distance of 30 cm, and was taken into custody shortly afterwards.

 

As regards the application, the Constitutional Court held that the prohibition of treatment incompatible with human dignity was violated, taking into account the fact that the applicant had been physically injured and pepper-sprayed while in state custody, and that there was no indication in the photos and footage presented to the court that the use of force by the police was made strictly necessary; that the applicant had injured himself or that other journalists had beaten him.[5]

 

This decision was followed by the individual application lodged with the court on behalf of Beyza Kural.[6] The detention of the applicant, a journalist, handcuffed behind her back, while covering the attack on students during a demonstration at Istanbul University that was being held in protest against the Council of Higher Education (YÖK) on the anniversary of its establishment despite showing her official press card and shouting repeatedly that she was a member of the press by plainclothes police officers, who said, “Nothing is as it used to be anymore. We will teach you that,” resulted in a rights violation.

 

The Constitutional Court observed that handcuffing alone could not be considered as ill-treatment in every incident, however, when considered together with the statement, “Nothing is as it used to be anymore. We will teach you that,” which was uttered in a manner that could be witnessed by the applicant’s colleagues, the police officer deliberately harmed the physical integrity of the applicant with the intention of humiliating the applicant and teaching her a lesson in some capacity.[7] For this reason, it was concluded that the applicant’s detention in handcuffs was sufficiently serious to attain a minimum level of severity falling within the scope of Article 17/3 of the Constitution to be considered as incompatible with human dignity.

 

In both applications, the applicants’ criminal complaints against the police were dismissed on the grounds that the police did not overstep their authority to use force despite the photos and camera footage. In both applications, the Constitutional Court has considered the dismissal of criminal complaints, the failure to evaluate whether the use of force by the police was justified in the circumstances and made necessary in the absence of a concrete reason that would necessitate the recourse to force by the police, the failure to take necessary steps to identify the perpetrators in a timely manner, the failure to put in efforts to secure evidence to shed light on the incident, and the failure to show a sufficiently sensitive approach to the investigation as a violation of the obligation to conduct an effective investigation into the allegation that the prohibition of ill-treatment was violated.[8]

 

Finally, as regards the application that concerns the apprehension of journalist Gökhan Biçici while he was covering the Gezi Park protests of 2013 by police officers who said, “Take him in, and finish him off in a well somewhere,” after which he sustained kicks in the head and the groin as he was curled up into a fetal position on the ground, was later handcuffed and placed in detention, where he was beaten and threatened and held for hours, as a result of which initially a permanent search warrant was issued, which was followed by a decision to discontinue the proceedings, the Constitutional Court found that Article 17 of the Constitution was violated under its substantive and procedural limbs.[9]

 

Stating that there were no official reports or images showing that the applicant had himself resorted to violence or resisted the law enforcement officers, and that there was no evidence that would lead one to surmise that the recourse to physical force against the applicant was made strictly necessary by his own conduct, the Constitutional Court ruled that police violence against the applicant had been incompatible with human dignity.[10]

 

It was found to be contrary to the obligation to conduct an investigation diligently and expeditiously that an investigation was not launched ex officio and in a prompt manner; that sufficient effort was not put into the investigation, and that a permanent search warrant was issued five years after the investigation was initiated on the grounds that the law enforcement officers could not be identified by the camera footage, despite the fact that the applicant had stated, both in his criminal complaint and his appeal against the decision to discontinue the proceedings, that the law enforcement officers who had beaten him were the personnel responsible for the use of gas weapons of the riot police and that he could identify them.[11]

 

The ECtHR’s approach to the issue is the same in the Najafli v. Azerbaijan judgment. As regards the application concerning the severe beating of the applicant, who was a journalist, to the extent that he lost consciousness and received long-term medical treatment by the police while covering a demonstration held by a number of opposition parties in Baku in 2005, and the dismissal of the investigation launched upon his criminal complaint, the ECtHR concluded that the use of such severe violence against the applicant, who did not resort to violence against the police or pose a threat to them, was unnecessary and excessive, noting that the statements from witnesses and the photos, which the applicant produced before the Court, supporting the version of events that the applicant was beaten with truncheons by police officers were sufficiently strong and consistent evidence, and that neither the government in their submissions nor the domestic judicial authorities in their decisions were able to provide a convincing rebuttal.[12] The failure to conduct an effective investigation against such unnecessary, excessive and unacceptable use of force showed that there had been a violation of Article 3 of the European Convention on Human Rights (ECHR or the Convention) under its substantive and procedural limbs.[13]

 

Freedom of expression and the press within the context of Articles 26 and 28 of the Constitution and Article 10 of the ECHR

 

The Constitutional Court and the ECtHR considers the ill-treatment and detention of journalists where it is not in dispute that such persons are members of the press during an intervention at a social event as an interference with freedom of expression and the press. The Constitutional Court underlined that the ill-treatment of journalists by public officials while performing their professional duties could seriously hamper their exercise of the right to receive and impart information, asserting that more focus should be placed on the protection of journalists from violence while carrying out their work in the field.[14]

 

As a matter of fact, as regards the applications lodged with the court on behalf of İmrek, Kural and Biçici, the Constitutional Court considered the prevention of journalist applicants, who were carrying out their professional duties and were making an intense effort to cover the events that took place between the demonstrators and the police at the time, from filming and their exposure to physical intervention an interference with freedom of expression and the press.

 

In deciding whether this interference amounted to a violation of freedom of expression and the press, the Constitutional Court took into account three points. The first was that the applicants were not participants of the demonstration and the police were aware of this fact.[15] The second point was that the applicants showed their press cards or told the police that they were journalists. The third point was that the journalists did not prevent the police from performing their duties at the time for any purpose other than reporting the events in question; they did not use violence against the police or posed a threat to them by pretending to be demonstrators, as could be seen from the photos and camera footage.[16] 

 

Considering the aforementioned three points together, the Constitutional Court found that the administrative and judicial authorities failed to provide credible evidence that the prevention of journalists from performing their duties was lawful and pursued a legitimate aim, and based on the photos and the footage with which it was presented, that such an intervention was not necessary in a democratic society, and hence, concluded that there had been a violation of freedom of expression and the press.[17]

 

The ECtHR, too, renders its judgments by making an assessment on the three points in question. For instance, in the aforementioned Najafli v. Azerbaijan judgment, in which it was shown that the journalist was not wearing a special blue vest as did other journalists in the field, but a badge on his chest clearly identifying him as a journalist, the ECtHR did not accept the government’s argument that “it was not likely for the police to determine that the applicant was a journalist,” and found that it was neither lawful nor pursued any legitimate aim that the applicant, who was wearing a journalist’s badge on his chest and told the police officers that he was a journalist during the intervention, was subjected to such excessive use of force while simply doing his work, and concluded that it was contrary to freedom of expression and the press.[18]

 

It can be understood that the conduct of the applicants, who are mainly journalists, played a dominant role in the ECtHR’s judgments on this issue. The applicant, who was a photographer and a journalist employed by a weekly magazine, was assigned by his employer to take photos of a demonstration which was an exceptionally large one in the Finnish context and was closely followed by all the media, and to produce an extensive report on the demonstration afterwards. Prior to the demonstration, there had been intelligence that there could be an attack on the demonstration, nevertheless the demonstration was held. The applicant participated in the said demonstration, refused to leave the area when the police ordered the crowd to disperse, and was kept in detention for 17 hours. A Chamber of the ECtHR found no violation of the applicant’s freedom of expression and the press, as a result of which the case was referred to the Grand Chamber. Taking into consideration the fact that the journalist chose to stay with the demonstrators despite the police orders to disperse; that he did not use the separate secure area reserved for journalists; that he knowingly did not obey the police orders; and that he did not make sufficiently clear efforts to identify himself as a journalist to the police, the Grand Chamber concluded that the impugned measure in question was necessary in view of the competing interests at stake and, like the Chamber, found no violation of freedom of expression and the press.[19]

 

In the case of Selmani and Others v. the former Yugoslav Republic of Macedonia, which concerns the attempts to remove the accredited journalists from the Parliament gallery while they were covering a debate on the approval of the state budget and the resistance of the journalists against such attempts, the ECtHR came to the opposite conclusion.[20] When the opposition MPs started to create noise and slap the table of the President of the Parliament during budget discussions, the security officers entered the area and pulled the President out of the chamber, and attempted to remove opposition MPs and journalists. Whereas some journalists complied and left the gallery, the applicants, who denied that the reasons for their removal were explained to them, refused to leave, arguing that the public had the right to be informed as to what was going on, but were later forcibly removed from the gallery.

 

The ECtHR held that what happened in the Parliamentary chamber were matters of legitimate public interest; that the journalists had the right to impart information on the event -- and that the public had the right to receive such information -- and, as was emphasized in the Pentikainen judgment, the prevention of a journalistic activity by an attempt to remove journalists from the scene should be subject to strict scrutiny.[21] For this reason, the Court decided to have regard to the applicants’ conduct. The Court noted that the applicants were passive bystanders who were simply doing their work during the incident; that they neither contributed to nor participated in the events, and that they did not pose any threat to public safety, and as such, their refusal to leave the Parliament gallery could not be considered “resistance.”[22]

 

In all three cases, the ECtHR, unlike the Constitutional Court, took into account yet another point: the effects of attempting to remove a journalist from the scene on journalistic activities. Even in the Pentikainen case, the ECtHR took into consideration the fact that the applicant was not prevented from carrying out his journalistic work in any capacity; that his camera or other professional equipment was not confiscated, and that no penalty was imposed on the applicant, which, taken together, immensely contributed to the ensuing decision that the “watchdog” role of the journalist had not been impaired and accordingly, there had been no violation of Article 10 of the Convention.[23] This approach was replicated in the Selmani case in that the fact that the forcible removal of journalists from the Parliament was an intervention that prevented the public from receiving instant information about the events in the chamber and that entailed immediate adverse effects/results was accepted as a significant element in the prevention of the “watchdog” role and the exercise of the journalistic activity, and it was pointed out that the intervention in question did not meet the requirement of pressing social need.[24]

 

In lieu of conclusion

 

Violations of freedom of expression and the press have varied and increased on a daily basis in Turkey, which is called one of the largest prisons in Europe, and even the world, for journalists.[25] The prevention of journalists by the police as they perform their journalistic activities, the confiscation of their mobile phones/cameras, and their subjection to physical and verbal violence is among such violations, as shown by the aforementioned Constitutional Court and ECtHR judgments.

 

The fact that journalists have to submit photos and camera footage to the Constitutional Court and the ECtHR to prove the acts of violence that they themselves have experienced, and that the courts find violations based on such evidence alone demonstrates the importance of documenting violence, and hence, the journalists.

 

As a matter of fact, the General Directorate of Security circular prohibiting the audiovisual recording of law enforcement officers in the exercise of their duties and stipulating legal action against those who fail to comply with the prohibition on the grounds of “violation of privacy” and that “the audiovisual recording prevent(ed) the police from performing their duties,” which was issued on 27 April 2021 and the execution of which was stopped on 11 November 2021 by the Council of State, was drafted exactly for this reason.[26]

 

When considered together with the police circular, violence against journalists during news coverage not only causes the person concerned to be subjected to violence and intervention but is also aimed both at preventing the newsworthy incidents -- e.g., violence in a protest -- from becoming public and silencing and intimidating the public and all rights defenders who play the vital role of “watchdog,” especially other journalists.[27]

 

As was stated by the Constitutional Court, it is apparent that in order to deal with these issues, mental and cultural changes should be made in the treatment of journalists by the organs that exercise public power, particularly the judiciary.[28]

 

*Lawyer, human rights defender

 

 

 

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[1] https://www.dw.com/tr/ombudsmandan-emniyete-iki-tavsiye-karar%C4%B1/a-60316673                                    

[2] https://twitter.com/b__yaz/status/1407738693293596673

[3] Lingens v. Austria, 9815/82, 08.07.1986; Castells v. Spain, 11798/85, 23.04.1992 and Bekir Coşkun application, The Plenary, 2014/12151, 04.06.2015.

[4] Erdal İmrek application, 2015/4206, 17.07.2019.

[5] Erdal İmrek application, para. 52-55.

[6] Beyza Kural Yılancı application, 2016/78497, 12.01.2021.

[7] Beyza Kural Yılancı application, para. 57-59.

[8] Erdal İmrek application, para. 68-72 and Beyza Kural Yılancı application, para. 62-65.

[9] Hüseyin Gökhan Biçici application, 2016/10643, 08.06.2021.

[10] Hüseyin Gökhan Biçici application, para. 72-75.

[11] Hüseyin Gökhan Biçici application, para. 78-83.

[12] Najafli v. Azerbaijan, 2594/07, 02.10.2012, para. 7-10, 37-39.

[13] Najafli v. Azerbaijan, para. 40-41.

[14] Erdal İmrek application, para. 86; Beyza Kural Yılancı application, para. 74 and Hüseyin Gökhan Biçici application, para. 94.

[15] Erdal İmrek application, para. 89; Beyza Kural Yılancı application, para. 75 and Hüseyin Gökhan Biçici application, para. 95.

[16] Erdal İmrek application, para. 89; Beyza Kural Yılancı application, para. 76-77 and Hüseyin Gökhan Biçici application, para. 96.

[17] Erdal İmrek application, para. 90-91; Beyza Kural Yılancı application, para. 78-79 and Hüseyin Gökhan Biçici application, para. 97-98.

[18] Najafli v. Azerbaijan, para. 67-70.

[19] Pentikainen v. Finland, Grand Chamber, 11882/10, 20.10.2015, para. 114-115.

[20] Selmani and Others v. the Former Yugoslav Republic of Macedonia, 67259/14, 09.02.2017

[21] Selmani and Others v. the Former Yugoslav Republic of Macedonia, para. 75-76.

[22] Selmani and Others v. the Former Yugoslav Republic of Macedonia, para. 80-81.

[23] Pentikainen v. Finland, Grand Chamber, para. 114.

[24] Selmani and Others v. the Former Yugoslav Republic of Macedonia, para. 84-86.

[25] https://rsf.org/en/news/turkey-worlds-biggest-prison-journalists and https://www.amnesty.org/en/latest/news/2019/05/turkey-the-worlds-largest-prison-for-journalists/.

[26] https://www.dw.com/tr/dan%C4%B1%C5%9Ftay-emniyet-genelgesinin-y%C3%BCr%C3%BCtmesini-durdurdu/a-59790457.

[27] For similar examples, see Khadija Ismayilova v. Azerbaijan (no. 2), 30778/15, 27.02.2020.

[28] Erdal İmrek application, para. 85.