Constitutional Court Issues Reasoned Decision on Dündar, Gül

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The Constitutional Court (AYM) has issued the reasoned version of its ruling of releasing Cumhuriyet daily’s Editor-in-Chief Can Dündar and its Ankara Representative Erdem Gül arrested over their report on the National Intelligence Agency’s (MİT) trucks.

The court has remarked that the charges remained being only based on the report although six months had passed since the investigation, and thus the principle of lawfulness had not been fulfilled.

Ruling that the arrest of the journalists violated the principle of proportionality, guaranteed by Article 13 of the Constitution, the court has stressed that which evidences had been found could not be figured out through the questions addressed during the hearing of the reasons of the arrest.

CLICK - COURT RULES RELEASE OF CAN DÜNDAR, ERDEM GÜL

The headlines from Constitutional Court’s reasoned decision are as follows:

“No evidence except their report

* The claims of violation of the right to liberty and security of the person and freedom of expression and press were to be recognized as the applicants had been deprived of their freedoms in an unlawful, arbitrary and disproportionate way, there was no justification which made their arrest necessary, the only reason for their arrest remained to be the report and no other evidence rather than the report could be introduced.

“No solid evidence to justify charges”

* It has not been declared on basis of which solid evidence it had been inferred that the report which is the subject of the charges had been published for purposes of “political or military spying”.

* No solid fact except the “conviction that the applicants should, with regards to their professional occupation, have known that their reports had referred to the terrorist organization into which the investigations had still continued” could be put forward which supported the charges of  “helping terrorist organizations knowingly and willingly as nonmembers”.

“Similar photographs had already been published earlier”

* Similar photographs and information concerning what had been in the trucks had been published 16 months before the current report subjected to the charges.

“The reason for the arrest unclear”

* It is unclear in the reasons of arrest order why the measure of arresting the journalist should be “necessary” six months after the investigation has been launched without taking into consideration that similar photographs and information concerning what had been in the trucks had already been released months before the recent report.

“Arrest is disproportionate interference with freedom of expression”

* The reasons for the arrest order do not mention any facts rather than the publishing reports in a newspaper, which could constitute a basis for the charges. In this sense, the arrest of the journalists constitute also an interference with the freedom of expression and press irrespective of the content of the reports of the journalists.

* The heavy measure of arrest which does not comply with the principle of lawfulness can also not be considered a necessary and proportionate interference with the freedom of expression and press in democratic societies.

“Deterring effect of interference with freedom of expression”

* The court has expressed that also the deterring effects the interference with the freedom of expression of and press would have for applicants in particular and the press in general should be taken into consideration.

“Right to freedom and security violated”

* The court has decided that the right to freedom and security of the person guaranteed by Article 19 of the Constitution had been violated as the conditions of “strong indication” and “necessity” required for the arrest had not existed.

What had happened?

Prosecution was started as to the article published with the headline “Here are the weapons Erdoğan claim to not exist” on May 29 over “Procuring information as to state security”, “Political and military espionage”, “Declaring confidential information”, “Propagandizing terror organization”.

Chief Public Prosecutor Hadi Salihoğlu had declared the prosecution by press release.

President Recep Tayyip Erdoğan had personally filed a criminal complaint and requested Dündar to be sentenced to one aggravated life imprisonment, one life imprisonment and 42 years in prison for “targeting state interests by using images contrary to facts”.

Erdoğan on a live broadcast on public channel TRT had said, "I guess the person who made this special news will heavily pay for it".

Dündar and Gül had been imprisoned as of November 26.

Upon their objection against arrest being rejected, they had made an appeal to the Constitutional Court over “violation of freedom of press and speech and the right to security”.

Upon reporter of the Constitutional Court delivering the opinion that “freedom of press and expression, right to personal security have been violated, their imprisonment is unlawful” as to Gül and Dündar’s application, Gül and Dündar’s file had been referred to the Constitutional Court General Assembly.

CLICK - AYM REPORT: ARREST OF GÜL, DÜNDAR UNLAWFUL

Constitutional Court General Assembly has ruled journalists Can Dündar and Erdem Gül imprisoned as of November 26 over MİT truck report subjected to violation of right.

CLICK - CONSTITUTIONAL COURT RULES JOURNALIST CAN DÜNDAR, ERDEM GÜL EXPOSED TO VIOLATION OF RIGHT

14th Heavy Penal Court has ruled release of Can Dündar and Erdem Gül following the “violation of rights” verdict by the Constitutional Court.

CLICK - COURT RULES RELEASE OF CAN DÜNDAR, ERDEM GÜL

President Recep Tayyip Erdoğan has commentated on the Constitutional Court’s ruling to release the journalists Gül and Dündar as “I don’t obey the court decision. I don’t respect it either”.

CLICK - ERDOGAN ON RELEASE OF GÜL AND DÜNDAR: DON’T OBEY OR RESPECT THE COURT RULING

(EA/DG)