Top Turkish court orders retrial of 3 journalists after lower court refuses to reconsider their convictions

Turkey’s Constitutional Court has ordered a retrial for three journalists, ruling that a lower court violated their freedom of expression by refusing to reconsider their convictions despite an earlier European Court of Human Rights (ECtHR) judgment in their favor, the Bianet news website reported on Friday.

The decision, dated April 30 and published in Turkey’s Official Gazette on Friday, concerns journalists Ali Buluş, Bayram Parlak and Mehmet Karaaslan, who were convicted of terrorism-related offenses in 2008. The Constitutional Court found that the refusal to reopen their cases had failed to remedy the violation identified by the European court in 2020.

The ruling requires the Mersin 4th High Criminal Court in southern Turkey to reopen the proceedings to address the violation and its consequences. It does not automatically overturn the journalists’ convictions or amount to an acquittal.

On March 17, 2008, the now-closed Adana 8th High Criminal Court sentenced each journalist to more than six years in prison for knowingly and willingly aiding a terrorist organization without having membership in it. Karaaslan received an additional 10-month sentence for allegedly disseminating terrorist propaganda during a demonstration.

At the time, Parlak was the Mersin representative of the Gündem newspaper, while Buluş and Karaaslan were reporters for the Dicle News Agency (DİHA). Their convictions were upheld on appeal.

The journalists subsequently applied to the ECtHR, arguing that they had been convicted because of their journalistic activities in violation of Article 10 of the European Convention on Human Rights, which guarantees freedom of expression.

On June 23, 2020, the ECtHR ruled in their favor, finding that the application of Article 220(7) of Turkey’s Penal Code, which criminalizes knowingly aiding a terrorist organization without being a member of it, failed to meet the legal requirement of foreseeability.

The European court concluded that the provision had been interpreted and applied in a manner that left individuals unable to reasonably foresee the criminal consequences of their actions. It found a violation of Article 10 and did not consider it necessary to separately examine Karaaslan’s propaganda conviction.

Following the judgment, the journalists requested a retrial. However, the Mersin 4th High Criminal Court rejected their application on March 8, 2021, reasoning that the provision underlying their convictions remained in force and that the conditions for reopening the proceedings had not been met.

The Mersin 5th High Criminal Court rejected their appeal on April 19, 2021.

In its ruling the Constitutional Court said the lower court had incorrectly interpreted the ECtHR judgment as identifying a problem arising solely from the wording of the law.

The Constitutional Court emphasized that the European court had also found that the interpretation and application of Article 220(7) by Turkish courts created legal uncertainty. It said the lower court should have examined whether the shortcomings identified by the ECtHR could be remedied in the journalists’ individual cases, which required reopening the proceedings.

The refusal to do so failed to meet the standards required by Article 26 of Turkey’s constitution, which protects freedom of expression, and left the earlier rights violation unresolved, the court said.

The ECtHR has previously criticized Turkey’s broad interpretation of Article 220(7). In a 2018 ruling concerning a man convicted over his participation in public demonstrations, the European court found that the provision had been applied so broadly that the consequences of his actions were not reasonably foreseeable.

In the journalists’ case, the Constitutional Court rejected their requests for financial compensation, finding that a retrial would provide sufficient redress, but ordered that their legal costs be covered.

The ruling was adopted by a majority, with three judges submitting separate or additional opinions calling for a constitutional review of Article 220(7).

Two dissenting judges argued that reopening the proceedings would not eliminate the violation while the underlying law remained in force and that legislative changes were necessary to address the problem.