Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.
The expert opinion prepared by lawyer Benan Molu examines the case against journalist Tolga Şardan within the framework of international law and European human rights law
Punto24 Platform for Independent Journalism (P24) has prepared an expert opinion regarding the trial of journalist Tolga Şardan on charges of “spreading false information” (governed by article 217/A of the Turkish Penal Code) and “publicly denigrating the judicial organs of the state” (governed by article 301 of the Turkish Penal Code).
The expert opinion was written by lawyer Benan Molu, who is registered with İstanbul 1st Bar Association and is an expert on European human rights law and individual applications to the Constitutional Court and the European Court of Human Rights (ECtHR). The opinion was prepared upon the request of Tolga Şardan’s lawyer Mustafa Gökhan Tekşen.
Şardan was detained on suspicion of “spreading false information” on 1 November 2023 and imprisoned pending trial the same day, following the publication of his article titled “MİT’in Cumhurbaşkanlığı’na sunduğu ‘yargı raporu’nda neler var?” (“What is in the National Intelligence Organization’s (MİT) ‘judiciary report’ report submitted to the Presidency?”) on the T24 news site on 31 October 2023. Şardan was released with a ban on travelling abroad following the ruling of the İstanbul 1st Criminal Court of Peace concerning the objection to his imprisonment.
The indictment filed by the İstanbul Chief Prosecutor’s Office on 15 February 2024 cites Şardan’s column as evidence of the charges. The indictment reads as follows:
“It is understood that the column published by the suspect on a website includes unequivocal claims that the National Intelligence Agency (MİT) had prepared a ‘report on the judiciary;’ that despite the claims of the suspect he had confirmed the information included in the column, there is no evidence in the investigation file indicating this and that the MİT’s response clearly states there is no such report and therefore the claim in the column that undue and illegal undertakings take place at courthouses would negatively impact the trust of the people in state institutions; that this information is relevant to public order and is misleading to the public; that that expressions used in the column have the potential to disrupt the public peace; that the expressions used by the suspect in the column to directly state that the state’s judicial organs arrive at decisions through undue and illegal undertakings implicate the judiciary as a whole and harm societal trust in the judiciary; that in this context the suspect must be accepted to have acted with the intent to denigrating the judicial organs of the state and; in addition that the element of ‘public dissemination’ is present as the suspect has published his denigrating expressions on a website and the column was seen and read by many people…”
The first hearing in the trial was held at the İstanbul 2nd Criminal Court of First Instance on 9 July 2024. The prosecutor delivered their final opinion on the case and requested sentencing for Şardan for the crimes of “publicly spreading false information” and “publicly denigrating the judicial organs of the state.”
At the second hearing held on 17 December 2024, Şardan’s lawyer Mustafa Gökhan Tekşen stated that the expert opinion he would present to the court emphasized that any potential imprisonment sentence for the journalist due to his use of the freedom of expression and the press could violate the freedom of expression and the press guaranteed by the Constitution and the European Convention on Human Rights (ECHR) and the ban on restricting these rights and freedoms with political motivations.
The expert opinion underlines that for the crime of “publicly spreading false information to the public” to be committed, all conditions, namely spreading information contrary to facts; spreading this information solely with the intent to create concern, fear and panic among the public; and spreading this information in a way amenable to disrupting the public peace should be met. The expert opinion argues that the interpretation and implementation of article 217/A of the Turkish Penal Code (TCK) in this case does not meet the requirements for establishing elements of crime and that article 301 of the TCK does not meet the condition of legality as per ECHR standards and therefore the interference is unlawful. The expert opinion states:
“The detention, trial and sought imprisonment sentence against journalist Tolga Şardan over his reporting concerning the crisis in the judiciary constitutes interference with Şardan’s freedom of expression and the press. For the impugned crime to be established as per article 217/A of the TCK, perpetrators should have spread information contrary to the facts, with the intent to create concern, fear, and panic among the public and in a way amenable to disrupting the public peace. For the impugned crime to be established as per article 301, judicial organs of the state must have been publicly denigrated, and the expressions used should go beyond expressions of thought for purposes of criticism.
“The news item in question concerns the crisis being experienced in the judiciary. Şardan prepared the news item with reference to the letter sent to the Council of Judges and Prosecutors (HSK) by İstanbul Anadolu Courthouse Chief Prosecutor İsmail Uçar on 5 September 2023 and to unlawful situations taking place in courthouses, especially in large cities such as İstanbul, İzmir and Ankara, without including commentary from a personal perspective.
“While the expressions used in the news item may be critical or unpalatable, they do not incite to hatred or violence and do not contain hate speech and therefore come under expression of thought for purposes of criticism as per the ECtHR jurisprudence discussed above. They are therefore protected under the freedom of expression and the press.
“Despite elements of the crime not having formed as per articles 217/A and 301 of the TCK, an imprisonment sentence is sought for Şardan. This contravenes 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 being sought.”