The Constitutional Court has annulled the 1-year 15-day prison sentence handed down to Özgür Boğatekin, the managing editor of Gerger Fırat news site, a local outlet based in Adıyaman, for articles dating back to 2013.
The articles in question included a piece titled "If meat stinks, add salt" and columns with headings such as "Law or District Governor?" and "Whose pocket is the profit going into?" criticizing Ömer Bilgin, the then district governor of Gerger in Adıyaman.
The decision by the court highlighted a violation of Boğatekin's freedom of expression and press freedom, emphasizing that the initial court had imposed punishment despite being aware that no unlawful act had been committed.
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A father and son running a local newspaper have been facing one trial after another for years
Interference with freedom of expression
The court emphasized the need to assess whether the first-degree court's interference with Boğatekin's freedom of expression adhered to the "legal measure" outlined in Article 13 of the Constitution. It noted Boğatekin's assertion that he had criticized Bilgin for not addressing the alleged unlawful exercise of marriage authority by district population directorates in his column.
The court stated, "In this specific case, the first-degree court started from the premise that the applicant's lack of knowledge about the regulations regarding the marriage authority of population directorates could not be considered an excuse, concluding that defamation had occurred.
“It is clear that the applicant believes the marriage authority of population directorates is against the law and accuses the complainant of not preventing this 'illegality.' The applicant's claim is merely asserting that an action by the administration is against the law."
The role of the press
The court further argued that questioning whether the powers of organs exercising public authority, especially administrations, comply with the law – although it may seem absurd for officials or legal professionals – is a factual claim that gives rise to the crime of defamation. Accepting such claims would make it impossible for the administration, which must perform all its duties in accordance with the law, to be investigated, scrutinized, evaluated, and for thought to be produced and disseminated in this area, undermining the press's indispensable role as a public watchdog in a democratic society.
Regarding another article by Boğatekin related to alleged irregularities and unlawful fundraising in Housing Development Administration (TOKİ) projects, the court pointed out that the journalist conducted an inquiry.
The court stated, "These articles are a reflection of the applicant's role as a societal watchdog. The applicant, as a journalist, has represented the voice of the community and expressed loudly voiced rumors. The factual basis of the applicant's claim is evident in the projects carried out in the district. However, it cannot be expected from the applicant to prove the accuracy of rumors, like a prosecutor, regarding the existence of rumors about the projects."
By a majority vote, the court ruled that the articles' publication violated the constitutional provisions on freedom of expression and the press, emphasizing that this violation could only be remedied through a retrial. The court also decided to award the journalist 30,000 liras in moral compensation. Notably, Gerger Criminal Court of First Instance had convicted Boğatekin of defamation on March 31, 2015, and the Court of Cassation's 8th Criminal Chamber upheld the sentence on March 9, 2020. (HA/VK)
