The expert opinion penned by lawyer Benan Molu examines the case against journalist Furkan Karabay in the framework of international law and European human rights law

Punto24 Platform for Independent Journalism has filed an expert opinion concerning the court case against journalist Furkan Karabay on charges of “marking the officials assigned with the fight against terrorism as targets” governed by article 6/1 of the Counter-Terrorism Law (TMK) and “insulting a public official” governed by Article 125 of the Turkish Penal Code (TCK).

The expert opinion was authored by Benan Molu, a lawyer registered with the Istanbul Bar Association No. 1, who is an expert on European human rights law and individual applications to the Constitutional Court and the European Court of Human Rights (ECtHR). The expert opinion was prepared upon the request of Furkan Karabay’s lawyer Enes Hikmet Ermaner.

Karabay was sent to pre-trial detention on 29 December 2023 on the charge of “marking the officials assigned with the fight against terrorism as targets” by the İstanbul 7th Criminal Court of Peace. The reason for the charge and imprisonment was the news item titled “Mafya davasında rüşvet kavgası tutanaklarda: Polis nereye bıraktıysa oradan aldı, konuşursam çarşı pazar karışır,” (Minutes show bribery fight in mafia case: Police picked it up right where they dropped it off; What I could tell would cause an uproar) which was published on the Gerçek Gündem news site on 27 December 2023 and Karabay’s post on X platform on the same date which read, “Murat Bircan, member of the 13th High Criminal Court which has violated the Constitution, was once an AKP candidate for MP for Samsun.” Upon the objection to his imprisonment, Karabay was released on 8 January 2024 under an obligation to sign his name once a week at the police station and a ban on travelling abroad.

The indictment filed by the İstanbul Chief Prosecutor’s Office on 18 January 2024 cited the news item and the social media post above as evidence of the charge. The indictment reads as follows: “Given that naming Şaban Yılmaz, who is serving as the chief prosecutor at the İstanbul Courthouse, which has carried out many operations against PKK/KCK and FETÖ/PDY armed terrorist organization and many criminal organizations and which has put up a determined struggle against such organizations; Okan Albayrak, who has served as the President of the İstanbul Commission of Justice; and judge Murat Bircan, member of the 13th High Criminal Court which is charged with prosecuting terrorism charges with such imputations and perception forming can clearly serve no purpose other than to mark these individuals as targets to these organizations; therefore the suspect has committed the crime of marking people serving in counter-terrorism as targets; furthermore that the suspect has included the petition by İstanbul Anadolu Chief Prosecutor İsmail Uçar in the news items to make tangible imputations to create the perception that bribes were being received and that this aspect of the suspects’ actions renders them of a nature damaging to honor and dignity and therefore results in the crime of publicly insulting a public official due to their duties; it is concluded that the suspect has committed the crimes of marking people serving in counter-terrorism as targets and publicly insulting a public official due to their duties…”

The first hearing in the trial was held on 16 May 2024. The court ruled to keep in place the ban on Karabay travelling abroad and to convey the case file to the prosecutor’s office for the preparation of the final opinion on the case.

The expert opinion, which was presented to the court by Karabay’s lawyer Enes Hikmet Ermaner at the second hearing held on 2 July 2024, underlines that an imprisonment sentence issued to the journalist over the enjoyment of the freedom of expression and the press could violate the freedom of expression and the press guaranteed by the Constitution and the ECtHR, and the ban might bring limitations to these rights and freedoms for political purposes.

The expert opinion further states that the reporting and the tweet by Karabay do not contain any incitement to hatred, enmity or violence against the judge and prosecutors in question and that as per ECtHR jurisprudence preparing a news item or posting a tweet, which simply name the judge and the prosecutors, is not sufficient to form the elements of the crime of “marking as targets.” The expert opinion reads as follows:

“The news item in question concerns allegations of bribery in the judiciary. Karabay wrote the news item based on court minutes and the letter sent by Chief Prosecutor İsmail Uçar to the Council of Judges and Prosecutors on 5 September 2023, without including any commentary. Similarly, the tweet subject to the case simply reminds the reader that Murat Bircan had stood for MP on the Justice and Development Party (AKP) roster and was posted by quoting another news item concerning the court, of which Bircan is a member, not implementing the Constitutional Court ruling on Can Atalay. Furthermore, the information contained in the news item and the tweet were not voiced for the first time by Karabay. As Karabay and his lawyer stated at the first hearing on 16 May 2024, the issue was well known to the public and was discussed extensively on news sites, television programs and social media. Furthermore, the way a person is released from remand or membership in a political party by a judge who declined to implement a court order could constitute a violation of the right to a fair trial governed by article 36 of the Constitution and article 6 of the ECHR.”

The expert opinion states that while the prosecutor also seeks sentencing for Karabay for “insulting a public official,” the news item and the tweet include assessments coming under the freedom of expression and the press and do not contain expressions which may damage the honor or dignity of the judges and prosecutors and therefore elements of crime had not formed concerning this charge. The expert opinion states:

“Despite the elements of the crime not having formed, Karabay was deprived of his liberty from 29 December 2023 to 8 January 2024, was banned from travelling abroad and obligated to sign his name as a judicial control measure between 8 January 2024 and 1 February 2024. Furthermore, the prosecution seeks two separate imprisonment sentences for Karabay of 1 to 3 years and 3 months to 2 years. This situation is at odds with the ‘watchdog’ role of journalists and indicates that a fair balance between the freedom of expression and the press and the security of public officials is not sought.

“Given that the ECtHR has found interventions against journalists who were not placed in pre-trial detention and were only fined to be disproportionate and dissuasive, P24 is of the opinion that this intervention which has resulted in the imprisonment of Karabay over a tweet which does not contain any hate speech or incitement to assault or violence and carries the risk of imprisonment from 1 year to 3 years and 3 months to 2 years does not meet the criterion of legality, and cannot be accepted as a necessary and proportionate intervention in a democratic society.

“In light of ECtHR and local court judgments, P24 is of the opinion that an imprisonment sentence for the enjoyment of the freedom of expression and the press for Furkan Karabay, who is thought to be the subject of judicial harassment due to the court case filed against him and his arrest over a news item he prepared, could violate the freedom of expression and the press guaranteed by the Constitution and the ECHR and the ban on bringing limitations to these rights and freedoms for political purposes.”