No Violation Of the Right To Personal Liberty And Security And Freedoms Of Expression And Press Due To The Arrest Measure
Events
The Chief Public Prosecutor’s Office (Chief Public Prosecutor’s Office) received a written notification stating that “Petty Officer E.B. assigned at Hadımköy Barracks Command is committing offences against the state. I believe that he is passing out information on operations that should remain confidential over the phone.” Upon a written notification, the Chief Public Prosecutor’s Office initiated an investigation against E.B. for the offence of political and military espionage under Article 328 of the Turkish Penal Code No. 5237.
Within the scope of the investigation, a decision was taken to intercept the communication of the person in question and his telephones were tapped by a judge’s decision. It was determined that this person had many telephone conversations with the applicant and these conversations were recorded. Subsequently, it was also decided to detect and record the communication of the applicant. The applicant was detained in accordance with the wiretap recordings. The Chief Public Prosecutor’s Office referred the applicant to the Criminal Judge of Peace with a request for his arrest for the offence of disclosing confidential information relating to the security and political interests of the state (Article 329 of Law No. 5237) and the applicant was arrested.
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A public case was filed against the applicant for the offence of disclosing information relating to the security and political interests of the state. The Assize Court, which accepted the indictment, decided in its interim decision to release the applicant on judicial control condition of banning the applicant from travelling abroad. Based on this decision, the Chief Public Prosecutor’s Office issued an indictment against the applicant for the offence of obtaining information relating to the security of the state (Article 327 of Law No. 5237). The indictment was accepted by the Court and it was decided to consolidate the case with the ongoing case.
Court considered that the first act of the applicant fell within the scope of the offence of obtaining prohibited information and decided to postpone the 1 year, 1 month and 10 days of imprisonment imposed for this offence. The second act of the applicant was considered to be within the scope of the offence of disclosing prohibited information and the court sentenced him to 2 years and 6 months imprisonment for this offence.
Allegations
The applicant claimed that his right to personal liberty and security and his freedoms of expression and press were violated due to the detention measure applied against him.
The Court’s Assessment
1. Regarding the Alleged Violation of the Right to Personal Liberty and Security
In the concrete case, the applicant was arrested for the offence of disclosing confidential information relating to the security and political interests of the state, but not for the offence of obtaining such confidential information.
According to the Court of Cassation, the legislation generally divides state secrets into three categories. These are “information and documents that are essentially state secrets”, “information and documents that the competent authorities prohibit disclosure of” and “information and documents kept confidential by the administrative institutions of the State”.
According to the Court of Cassation, the word “obtaining” in Article 327 of the Law No. 5237 should be understood as the learning of information that must remain confidential in any way by making a voluntary, conscious and executive effort, applying means in this regard or reaching intermediaries, other than accidental learning. It is not necessary to disclose this information for this offence to occur. Obtaining means learning the information in these documents without requiring the receipt of the documents. The offence is completed by obtaining the secret information. There is no difference between obtaining the information directly from the source or from the transmitter.
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In terms of the offence of disclosing confidential information, it was alleged that the applicant compiled confidential information obtained from a person named E.B. and published it on the ODA TV website. It was alleged by the investigating authorities that E.B., being a soldier, conveyed to the applicant confidential information which he had obtained in various ways and which was confidential in terms of the security, internal or external political interests of the state, and that the applicant, being a journalist, disclosed this information to the public under the name of journalistic activity by exceeding the legal limits defined for freedom of the press. The indictment included six articles of the applicant in this context. However, only two of these articles were associated with the information stated to be confidential.
The information disclosed within the scope of the article that would support the allegation that the applicant disclosed confidential information was the identity of the commander to be sent to Libya. In the context of the specific circumstances of the concrete case, it cannot be said that the disclosure of information on the identity of the commander to be sent to Libya at a time of hot conflicts is not capable of causing a potential danger to national security and the right to life of the commander whose name was disclosed.
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There are written statements of the Ministry of National Defence, as the competent administrative authority, regarding the content of some of the telephone conversations between the applicant and the soldier in question. Accordingly, it is stated that there are correspondence and reports in military sources regarding a significant part of the issues the applicant asked the non-commissioned officer and the information this person gave to the applicant, and that most of these are of a confidential nature.
Since the aforementioned information is related to the operations of the Turkish security forces operating in Syria and Libya, it is possible to consider them as information that must remain confidential in terms of the security or domestic or foreign political interests of the state. The applicant, who received this information, which is of critical importance for national security, is an experienced journalist who regularly writes on the Turkish Armed Forces; he is in a position to know that this information will be confidential and that the criminal provisions of Law No. 5237 on these matters will be applied in case of its provision or disclosure.
It is understood that the sharing of information was not a one-off, and that this information was obtained during the period of hot conflicts. It is seen that the applicant learnt this information not by chance but consciously, that he was in constant contact with the relevant non-commissioned officer in order to learn this information and that he asked this person questions to learn more.
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In the concrete case, issues such as operation routes are directly related to national security and the names of the units are directly related to the right to life of the members of that unit. Even if this information is not disclosed, the possession of this information by persons other than those who have a need to know may pose irreparable risks in terms of national security and the rights of others. In this context, the provision of such information by unauthorised persons carries the danger of causing irreparable damage to the interests of the country. The fact that the applicant did not use illegal means such as theft, threats or blackmail in obtaining the information is not of decisive importance in assessing whether he complied with his duties and responsibilities in terms of the journalistic profession under the circumstances of the concrete case.
On the other hand, the fact that some of this information was reported in other press organs does not have a decisive effect on the situation. This is because the applicant does not transmit the information contained in other press organs and – even if it is assumed that this information has been published – the applicant has first-hand confirmation of the accuracy of the said information. Moreover, it is observed that a significant part of this information has not been made public before or has not become a matter known by everyone.
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Consequently, in the concrete case, it cannot be said that the assessments made by the investigating authorities and the judicial bodies deciding on the arrest of the applicant that there are strong indications of guilt in terms of the offence of obtaining information that should remain confidential in terms of the security or internal or external political interests of the state are unfounded.
In the concrete case, while the Criminal Judge of Peace decided to arrest the applicant; it was based on the fact that the evidence had not been fully collected due to the ongoing investigation, that there was a possibility that the applicant could influence the evidence if he was released, that there was a suspicion of flight considering the possible amount of punishment to be received if the acts were deemed fixed, and that judicial control measures alone would not be sufficient.
In addition, the magnitude of the threat to national security arising from the information provided by the applicant is incomparably greater than the interest arising from learning and sharing it with the public. İn the case of an action of this nature, national security outweighs the values protected by freedom of the press. Considering the characteristics of the concrete case, it cannot be said that it was arbitrary and unfounded for the Criminal Judge of Peace to conclude that the arrest measure applied to the applicant was proportionate and that the judicial control application would be insufficient, taking into account the gravity of the sanction envisaged for the alleged offence and the nature of the work.
For the reasons explained above, the Constitutional Court concluded that the right to personal liberty and security was not violated.
2. Regarding the Allegation of Violation of Freedom of Expression and Press
In the concrete case, when the applicant’s allegation that his arrest was unlawful is examined, it is concluded that there is convincing evidence to suspect that the applicant may have committed a crime, there are also reasons for arrest in the case and it can be said that the arrest is proportionate. Considering the evaluations made in this context, there is no situation that requires a different conclusion in terms of the applicant’s claim that he was subjected to an investigation and arrested only due to his actions within the scope of freedom of expression and freedom of the press.
For the reasons explained above, the Constitutional Court decided that the freedoms of expression and press were not violated.
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