Article 10 to the Rescue of Turkish Journalists

There are not many people who stand for what they believe about their countries. Yes, people have ideas and they do try to have a voice in society. But it is a completely different story for men like Tuşalp, Saygılı, Falakoğlu, Karakoyun, Turan and Turgay. These men stood for their writings and newspapers in order to show their country that it has to embrace its own public’s critiques. These men broke away from the dogmatic ideology of “criticizing other countries but not touching one’s own country.” Even though there are people like Ömer Binici, who criticize their country through the social media, men like him are not concerned with freedom of expression in Turkey, the way Tuşalp was.

In the year 2005, Tuşalp –“a journalist/columnist and author of a number of books”[1]– published an article named “Stability” in the daily newspaper Birgün. One the article was published, he was sent to trial. The reason of his trial was that the language and many statements in his article were interpreted as constituting an attack on the Prime Minister Recep Tayyip Erdoğan’s personal rights. The title of his article, Stability, was criticized of “loosing its dictionary meaning and become a sickening word.” The Prime Minister, ministers, and in fact all statesmen and politicians were accused of using their titles as a protective shield for practicing “robbery and profiteering”.[2] The article states, “He [Abdullah Gül] does not know what crime and punishment are. He doesn’t read, he doesn’t learn. He is content with what entered his head at Imam Hatip School when he was 12-13 years old.”[3] In addition, Tuşalp also wrote, “Haven’t the poor sons joined their corrupt fathers? (…) Didn’t Erkan Yıldırım become rich when he bought a boat and started carrying passengers while his father, Binali Yıldırım, governed the transport sector?”[4]

After the first trial in 2006, Tuşalp published another article called “Get well soon” again in Birgün. He made the following statement in his article, which caused the Prime Minister to once again start a trial: “From my column I say to Prime Minister Recep Tayyip Erdoğan, get well soon. I leave him in the hands of the Turkish doctors. (…) I consider it useful for both his and the public’s mental health to investigate whether he had a high-fevered illness when he was young (…) I suspect that he is suffering from a psychopathic aggressive illness. I wish him a quick recovery.”[5] In both trials, the Ankara Civil Court found Tuşalp guilty of attacking the personal rights of Erdoğan and accused the articles of suggesting Erdoğan is mentally ill. “It held that a politician naturally had to bear and tolerate reasonable criticism. However, the court considered that, in the instant case, the remarks made in the article went beyond the limits of acceptable criticism and belittled the Prime Minister in the public and the political arena.”[6]

After the trials were held in Turkey, Tuşalp decided to take the two cases to the European Court of Human Rights under Article 10[7]. The European court decided that “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation”[8] and a politician should be open to criticism. On the other hand, the Turkish court had stated, “the press had certain privileges so as to provide free and impartial news, to be able to discuss views and opinions and to enlighten the public. However, like all freedoms these privileges were not without limits (…) so far as it concerned the protection of honor and reputation of persons (…) Namely the freedom of the press and personal rights, and one of the rights would require more protection than the other.”[9] Instead, the European court stated, “there is nothing in the case file to indicate that the applicant’s articles had any affect on Mr. Recep Tayyip Erdoğan’s political career or his professional and private life.”[10] As Tuşalp pointed out many times in his trials, the aim of his articles was not to insult the Prime Minister but criticize him. This case is an example of how Turkey’s Prime Minister should approach journalists who write in line with Article 10 of the European Convention on Human Rights.

As Tuşalp; Saygılı, Falakoğlu, Karakoyun, Turan and Turgay tried to defend themselves in the European Court of Human Rights. Their cases are further examples that prove the government in Turkey is still in need of its own Article 10 to allow people to criticize many matters that are important in Turkey. These applicants were the owners, executive directors, editors in chief, news dissectors and journalists of certain Turkish newspapers. The newspapers they worked with were banned temporarily. For instance, in the case of Turgay vs. Turkey, the publications in Turgay’s newspaper were suspended for a month. The reason of the trial was that the publications were mainly thought to be propaganda in favor of the terrorist organization PKK, and that they “constituted the approval of crimes committed by the organization and its members.”[11] At the end of the trial at the European Court, it was decided that the state would pay 7,740 EUR for pecuniary damage and commercial loss to the applicants’ newspaper. The commercial loss of the newspaper was a result of the decision of suspension. Therefore, the articles were found appropriate under Article 10.[12]

While there are ongoing cases like that of Tuşalp, recently a man named Ömer Binici commented, in his private Facebook page, that Hitler and Erdoğan are similar in that Erdoğan dictates the number of children families should give birth to.[13] His post caused the government to open an investigation on him. While the government investigated him, Binici stated he was designated to Ardahan, which was though to be related to his post and even an implication of exile. Even though Arif Dağlı, the department head of Adana Turkish Health, said he would not let Binici take the case to the European Court of Human Rights, the news to his story ended quickly.

After seeing these journalists fighting for their rights, turn back to the “search of voice in public” sentence. Do you believe people are really in search for a voice in the public in order to show everyone that the president, or anyone in the government, can be criticized? Or are they hiding in the shadows and just declaring their ideas to impress the people around them? The answer to this question is that there are not many people who are ready to sacrifice themselves for their thoughts. This is mostly caused by the debatable nature of Article 10, which is related to freedom of expression.

Due to ongoing censorship acts and the many journalists who are still in prison, people are afraid to speak up. Ömer Binici’s case is a concrete example of this fact. After a small column on how he criticized the president was published, the news about him was over. This is an example that shows that people are more comfortable criticizing other countries than their own. The public should not be afraid of criticizing its government because criticism is a way of setting a more democratic order. The European Court of Human Rights supports this idea by declaring Tuşalp not guilty and that “both articles focused on very important matters in a democratic society which the public had an interest in being informed about and fell within the scope of political debate.”[14] But the critiques should be limited when the facts can be questioned. The reason why Tuşalp was able to go to court was that his article “Stability” was based on facts. By acting with determination, journalists like him manage to stamp their names on important issues that many governments are struggling with.[15] Hopefully in the future, the government will understand the importance of criticism.

By: Melisa Raptopulos

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