The indictment was accepted by the Istanbul 5th Criminal Court of First Instance, which set 18 April 2024 as the date for the first hearing

MURAT KÖK

A new court case on charges of “insulting a public official” and “libel” has been filed against journalist Furkan Karabay, the editor of the news portal Gerçek Gündem, who is already facing more than 20 criminal cases and lawsuits over his reporting and his social media posts.

The indictment, issued by the Istanbul Chief Public Prosecutor’s Office upon a complaint filed by President Recep Tayyip Erdoğan’s former lawyer Mustafa Doğan İnal, is seeking up to 6 years and 4 months of imprisonment for Karabay for “insulting” İnal on social media, claiming that he is a “public official.”

The Istanbul 5th Criminal Court of First Instance accepted the indictment on 26 December 2023 and set 18 April 2024 as the date for the first hearing.

Prosecutor presents repeated evidence

The prosecutor who issued the indictment has based the charges on posts Karabay shared on his personal social media account on 11 August 2022, 27 April 2023 and 2 November 2023. Although the introduction to the indictment states 3 November 2023 as the “date of the crime,” no news items or social media posts from this date were listed in the indictment. The prosecutor also failed to mention that there were two criminal investigations which later became court cases and one civil case regarding the posts on 2 November 2023; one criminal investigation, which later became a court case, and one civil case regarding the posts on 27 April 2023; and one civil case regarding the posts on 11 August 2022 against Karabay.

The indictment claims that Karabay had “repeatedly committed the crime of insulting a public official due to his/her duty by using expressions that would damage the honor and standing of the complainant by posting tweets alluding to İnal; sharing written messages to insinuate that the complainant, who is a lawyer, had influenced cases and connected them with the FETÖ stock exchange while practicing his profession, which is a public duty”; and had “repeatedly committed the crime of libel by imputing unlawful actions with the aim of ensuring the investigation, prosecution or administrative sanctioning of the complainant.”

Indictment fails to explain why İnal is considered a public official

Although the prosecutor claims in the indictment that İnal is a “public official,” the document does not contain any arguments to support this claim.

According to Article 1 of the Law No. 1136 on Attorneys-at-Law, attorneyship is a “public service and a professional occupation.” Despite the clear wording of the law, the prosecutor who prepared the indictment claims that attorneyship is a “public duty.” Although the prosecutor does not refer to Article 6, titled “Definitions,” of the Turkish Penal Code (TCK); and while paragraph c of the said article defines persons “temporarily” participating in the execution of public services as “public workers,” paragraph d draws a distinction between judges and prosecutors, who are civil servants, and lawyers as per Article 128 of the Constitution.

The Court of Cassation ruled on the matter of whether lawyers taking part in repossession executions are to be considered “public officials” in its decision dated 17 June 2021. Stating that while it is certain that lawyers execute judicial duties, the high court focused on the “attorneyship relationship”: “This relationship needs to be considered a ‘service’ relationship as lawyers should have powers of collection in the letter of lawyer in order to collect the sum on behalf of their clients and these powers are given not due to the lawyer’s duty but is based on the demand and will of the client and within the attorneyship relationship; and furthermore as these powers may be terminated at will or the client may withdraw the power of attorney within the attorneyship relationship.”

In its 16 September 2020 ruling on the application by Hakan Tokatlıoğlu (2018/24939), the Constitutional Court arrived at a similar conclusion: “While there is no doubt that the concept of employment in public service covers public officials, employment in public services may be possible through private law contracts. However, it is not possible to consider attorneys-at-law, who are not public officials, who are not employed under an administrative contract or in public service through a private law contract of a commercial or industrial nature and who practice their profession freely to be employed in public service. For, unless the above listed conditions are satisfied, attorneyship is, as a rule, excluded from the public hierarchy. As the free practice of attorneyship is not carried out in the name of or on account of the state and freely practicing attorneys being free as to whether they will work and free in choosing their clients once they are registered with the bar association; not receiving any salary from the state, deriving their income from the attorneyship fees they obtain from their clients, the state not contributing financially to freely practicing attorneys with the exception of tasks such as compulsory defense counseling and reconciliation, the state not having financial or legal responsibility for business and transactions carried out by freely practicing attorneys; freely practicing attorneys enjoying all rights and undertaking all obligations arising from the contract between them and their clients themselves are points in support of this conclusion.”