NAZ AKMAN- Implemented by the Association of Journalists and funded by the European Union, “Democracy for Media/Media for Democracy” project hosted lawyer Gökhan Tekşen at the Press House in Ankara for his presentation titled “Communication Law in Light of Recent Judicial Rulings”.

Before the presentation, M4D Project Assistant Coordinator Seva Üman gave brief biographical information about Tekşen who completed his primary education in TED College and later graduated from Başkent University- Law Faculty. Having worked as a freelance lawyer for some time, Tekşen later worked as a legal advisor for the Ankara Bar Association.  Tekşen, who established his own law firm, was among those who followed the trial of Bekir Coşkun where the Constitutional Court with its verdict set a precedent regarding violations of national press and freedom of expression. Ülman also told the audience that Tekşen has conducted work on Sözcü newspaper writer Kemal Başytaş’ individual appeal as a result of his verdict. Tekşen is married and the father of two children. 
Tekşen began his presentation by displaying a video about “what freedom of the press is not” and underlined that altering the truth has got nothing to do with press freedom.  Reminding the audience the importance of protecting the basic principles of press freedom Tekşen stated that the Constitutional Court is the highest legal institution in Turkey and plays a very important role regarding freedom of expression and the press.  Tekşen remarked that legal concepts and definitions in terms of freedom of the press are positive whereas this does not reflect on practise. Tekşen stated that the European Declaration of Human Rights and the European Court of Human Rights’ decisions are binding, therefore are part of domestic law and are related to freedom of expression and the press.

Non-prosecution verdict in Izmir but conviction in Istanbul for Bekir Coşkun

Freedom of expression is a fundamental norm while not being an absolute right pointed out Tekşen and underlined that it can be limited in terms of national security or public morality. According to Tekşen what influences the law is judicial opinion, while verdicts are shaped by lawyers and judges through legal precedents. Many court cases depicted in the media have showcased good laws but bad practise, and bad laws but good practise, these two situations are problematic in Turkey according to Tekşen.
Tekşen mentioned the example of journalist Bekir Coşkun, who was taken to court on grounds of “insulting members of parliament”. The court in Izmir ruled non-prosecution in Izmir, while the court in Istanbul convicted Coşkun. Tekşen said “The law is the same in all of Turkey, but we see different practises. Coşkun’s case was taken to the Constitutional Court which deemed it freedom of expression. Although the Constitutional Court makes bad verdicts from time to time when it comes to freedom of expression it tends to rule in favour of the applicant. These days we increasingly see that defamation is being decriminalized in Europe and the US. It’s still a controversial topic in Turkey”.

Detention is a disproportionate intervention
Tekşen remarked that “insulting the President” is legally considered different from “defamation” and has become a punitive weapon and said “While the law should protect people it can become a weapon”.  According to Tekşen court cases regarding “insulting the President” were very high in 2014, after the July 15 Coup Attempt these figures dropped in 2016 but increased again in 2018 and 2019. Tekşen remarked that Law No: 301 is also quite problematic:
“Law No:301, that we’ve seen in the Hrant Dink case also, is now used at the discretion of the Ministry of Interior. Expressing an idea with the aim of criticism in not a crime, we see bad legal practise in the Hrant Dink case. The cases regarding Erdem Gül and Can Dündar are good examples of “exposing state secrets”. In terms of press freedom, nothing that constitutes a crime can be a secret. If it concerns public interest, access to news must be considered in terms of freedom of the press. Therefore, being detained due to news is a good example. Here, detention is a disproportionate intervention”.

Access restriction to Wikipedia is still a big problem

Tekşen remarked that accusations of “being a member of a terrorist organization” and “conducting terrorist propaganda” have ambiguous definitions, and newspapers such as Sözcü and Cumhuriyet have been accused of these crimes, this poses a risk to freedom of expression much like the sword of Damocles. Tekşen also remarked that press outlets facing such predicaments also implicates its readers, too.
Citing the “Ayşe Öğretmen” trials Tekşen said “an up-to-date, positive verdict was given regarding terror allegations that called for peace rather than violence”. Articles regarding “inciting hatred and enmity among the public” also pose a significant risk against press freedom said Tekşen.
Touching on access restrictions Tekşen pointed out that the blocking of Wikipedia is still a big problem, and despite measures taken to block specific links, while in cases where this has not been practised has meant complete access restriction to websites. Rights gained in printed press should also be applied in digital media said Tekşen and added that the statute of limitations for printed press is four months, whereas there is no limit imposed on the internet which is quite problematic.

Sledgehammer and Ergenekon trials known for ‘fabricated evidence’ were replaced by trials based on no evidence

Talking about the structural problems of the judiciary Tekşen remarked that one of the most frequently encountered problems are judicial organs being unaware of verdicts of the Constitutional Court. He said “Forget about ECtHR verdicts, the lack of awareness regarding binding Constitutional Court verdicts demonstrate the degree of disconnectedness when it comes to applying the law. It is important that in the project conducted by the Constitutional Court and the ECtHR, lawyers and related judges are informed about the verdicts in question. The Constitutional Court will of course lead the way”.
Tekşen continued with the following words:
“We are able to get results in terms of freedom of the press by applying to the Constitutional Court and the ECtHR. Verdicts of the Constitutional Court are binding on other courts, therefore they are obliged to prevent negligence, and rule for acquittals, and so on. We need to internalize this system. Recently, trials such as the Sledgehammer and Ergenekon trials where there have been allegations of ‘fabricated evidence’ were replaced by ‘trials conducted without evidence’.
The announcement of the verdict being deferred means the postponement of the sentence for 5 years, but in terms of the press this can be used as a form of oppression resulting in self-censorship. That’s why the Constitutional Court says “you can bring the issue to me”. The Constitutional Court and the ECtHR have certain criteria regarding individual applications; inciting violence, hate speech, discrimination, degrading treatment. 

Press members should stand together and protect their rights

Tekşen said that as long as journalists do not stray away from rights-based journalism and do not enter “minefields” they will be able to circumvent sanctions “The Constitutional Court and the ECtHR rule in favour of journalists provided the content is not shocking, disturbing or contains provocative statements”.
Drawing attention to solidarity and awareness Gökhan Tekşen concluded his presentation with the following statement:
“Press members should come together, protect their rights and organize in alignment with the principles of the profession.  Social solidarity, the right to access news are important for the public; in addition, the ECtHR model can be employed to show solidarity with journalists on trial. A journalistic organization comprised of people from here could directly intervene a trial and provided that can be done, we could talk about a real referendum in terms of practices”.