In the expert opinion prepared by lawyer Benan Molu, the case filed against journalist Fırat Can Arslan is examined within the framework of international and European human rights law principles

Punto24 Platform for Independent Journalism (P24) has prepared an expert opinion on the case filed against journalist Fırat Can Arslan on the charge of “marking public officials assigned with the fight against terrorism as a target” under Article 6/1 of the Anti-Terrorism Law (TMK) over a social media post he had shared. Arslan has been in pre-trial detention since 25 July 2023 as part of the case.

Prepared at the request of Arslan’s lawyer Resul Temur, the expert opinion was written by Benan Molu, a lawyer registered with the Istanbul Bar Association No. 1, who specializes in European human rights law and individual applications to the Constitutional Court and the European Court of Human Rights (ECtHR).

Arslan was detained on 25 July 2023 after he shared on his social media account a decision by the Council of Judges and Prosecutors (HSK) regarding the relocations of the public prosecutor who issued the indictment against 18 journalists, 15 of whom were jailed in Diyarbakır in June 2022, and his spouse, who was a judge on the panel of the high criminal court overseeing the case against the journalists. Following his arrest, Arslan was referred to a criminal judgeship of peace, which ruled to place the journalist in pre-trial detention citing “flight risk” and deciding that judicial control measures would be insufficient.

Arslan’s lawyer Resul Temur submitted the expert opinion to the court one day before Arslan’s first hearing, which was scheduled for 31 October 2023.

The expert opinion examines the accusation against Arslan within the framework of international law and European human rights law with a particular focus on European Court of Human Rights judgments regarding freedom of expression and media freedom, which are binding for Turkey in accordance with international law.

The expert opinion underlines that Arslan’s post subject to the accusation was related to the detention of the journalist’s colleagues: “Arslan did not make any comments other than posting a screenshot of the HSK decree regarding the relocations of a public prosecutor who had issued an indictment against journalists and a judge who had accepted this indictment, and stating the fact that these public officials had been relocated.”

The expert opinion asserts that exposing journalists to judicial procedures in order to silence and punish them for their news coverage may lead to a violation of Article 18 of the European Convention on Human Rights (ECHR) in conjunction with Article 10.

The expert opinion emphasizes that in legal doctrine, Article 6/1 of the Anti-Terror Law “is deemed to have an ambiguous wording that may cause problems in terms of the principle of legality and to be interpreted broadly in a way that may violate freedom of expression and the press.”

“In the present case […] the interpretation and implementation of paragraph 1 of Article 6 of the TMK does not meet the conditions of the victim being a public official involved in the fight against terrorism and the necessity of calling for a crime against this person. For this reason, as per legal opinions that comprise the doctrine, judgments by Turkish courts, including the Supreme Court of Appeals, and judgments by the ECtHR, it is thought that these posts that fall within the scope of journalistic activity, which is safeguarded under the freedom of expression and the press, may not contain the elements of the crime stipulated in paragraph 1 of Article 6 of the TMK.

“In the present case, in terms of the tweet shared by Arslan, it appears that there is a conflict between Arslan's right to freedom of expression and press and the legitimate reason of the safety of the judge and prosecutor in question. However, in line with the principles set out in this opinion, unless there is any evidence to show that Arslan acted in bad faith or pursued any purpose other than the issues he felt obliged to reach the society, P24 is of the opinion that the dominant legitimate purpose here is the public interest within the scope of journalistic activity.”

The first hearing of Arslan’s trial was held on 31 October 2023 at the Diyarbakır 4th High Criminal Court. Rendering its judgment at the end of the hearing, the court ruled to acquit and release Fırat Can Arslan on the grounds that the elements of the crime were not present. Detailed information about the hearing, monitored by P24, can be found in this report.