Individual Application

The Facts

The applicant, a correspondent in an online newspaper, published columns about the district governor in the newspaper on various dates. The district governor filed a criminal complaint for the columns in question, and criminal proceedings were initiated against the applicant for the alleged offence of defamation. As a result of the proceedings, the criminal court of first instance sentenced the applicant to imprisonment for the impugned offence. Upon appeal, the Court of Cassation upheld the imprisonment decision.

The Applicants’ Allegations

The applicant claimed that his freedoms of expression and the press had been violated on the grounds of the imprisonment sentence imposed for defamation due to his columns published in a newspaper.

The Court’s Assessment

In the present case, the applicant published articles indicating that the district civil registry offices had exercised the authority to conduct marriage procedures, that this authority was unlawful and the complainant, who was the district governor, had turned a blind eye to these unlawful procedures, that money had been collected in an irregular manner in the projects of the Housing Development Administration of the Republic of Türkiye (“TOKİ”) and Şahintepesi, that the complainant had reserved the project for certain persons without any tender procedure, negotiation, etc.; that the complainant had remained silent despite the rumours that he had been abusing the said procedures to serve his own interests in the district.

At the outset, in order for the offence of defamation to be constituted, the person must know that the other person, whom he/she is accusing of committing an illegal act, did not commit such an act and the perpetrator must aim to initiate the commencement of investigation and prosecution against the accused person, or imposition of administrative sanctions despite of his/her innocence. In this respect, the offence of defamation may be committed with intent as the elements of the offence require the perpetrator to know with certainty that the victim to whom a false accusation has been made is in fact innocent or that the alleged act is unfounded. The offence of defamation does not arise even in the case of allegations based on conjecture and supposition. As the citizens are entitled to file a complaint on suspicion, there must be conclusive evidence indicating that the perpetrator falsely accused the victim, knowing his/her innocence in order for the offence of defamation to be constituted.

In the present case, the court of first instance considered that the applicant’s lack of knowledge in relation to the regulations on the powers of the civil registry to issue marriage licences could not be regarded as a valid justification and concluded that the offence of defamation had been materialized. Article 4 of the Turkish Criminal Code no. 5237 prescribing “Ignorance of the criminal laws may not be an excuse.” indicates that the ignorance of the criminal nature of the act committed does not exempt the perpetrator from criminal liability.

On the other hand, the applicant considers that the authorisation of marriages by the civil registry offices is unlawful and accuses the complainant of failing to prevent this unlawfulness. The applicant’s allegations were confined to claiming that the administration had acted unlawfully. Calling into question the lawfulness of the powers of the organs, and in particular, of the administrations that exercise public power is a factual allegation, and considering it as an element of defamation offence would render it impossible to research, investigate, examine the acts and actions of the administration, to form and disseminate opinions in this regard, and to allocate the role of government watchdog to the press, which is considered as an indispensable role in a democratic society.

The first instance court indicated that it had carried out the necessary correspondence with the relevant institutions in relation to the TOKİ and Şahintepesi projects and concluded that, according to the reply letters in question, the matters alleged by the applicant in the columns were incorrect and the offence of defamation had therefore been constituted. Nevertheless, the first instance court failed to provide concrete assessments specific to the alleged facts and events put forward in the applicant’s columns. The applicant questioned the lawfulness of the acquisition of Şahintepesi project without a tender and conducted research into the rumours that “although there was no TOKİ account for Gerger, the governor tried to raise money for a TOKİ project in İstanbul.” The relevant articles reflect the applicant’s role as the watchdog of society. As a journalist, the applicant acted as a spokesperson on behalf of the society and voiced the rumoured concerns in a provocative manner. It is evident that the factual basis of the applicant’s allegations concerns the projects conducted in the district. However, the applicant cannot be expected to prove the existence of rumours about the projects in the same way as a prosecutor proves the veracity of a statement. The obligation to investigate referred to here does not mean verifying the factual accuracy, but should be understood as the need to demonstrate the appropriateness of the manner of obtaining the information about the event occurred at the time of publication. It would be sufficient for the applicant to establish whether the news sources were reasonably reliable and that he acted in good faith to provide accurate and credible information.

In the light of the principles in relation to the lawfulness criteria enshrined in Article 13 of the Constitution, it cannot be claimed that the foreseeability requirement can be met by a judicial interpretation which considers the commission of an act that has been understood to falling outside of the scope of the prescribed norm as the violation of that norm. Having assessed the impugned columns in the application as a whole, it would be far-fetched to reach a conclusion that the applicant intended to initiate, and acted with the intent to initiate, an administrative or judicial investigation against the district governor at the time. Therefore, the applicant, in his capacity as a journalist, does not aim to initiate an investigation against the district governor, but to call his particular acts and behaviours into question in the eyes of the public. In addition, the first instance court also failed to demonstrate with conclusive evidence and beyond a reasonable doubt that the applicant accused the claimant, knowing that the latter had not committed the alleged unlawful act. In this regard, it has been concluded that the impugned interference did not satisfy the lawfulness requirement laid down in Article 13 of the Constitution.

Consequently, the Court has found violations of the freedom of expression and the press.