Erdem Gül and Can Dündar, Application No: 2015/18567, 25 February 2016

A) Facts

The applicant, Can Dündar is the executive officer of the daily newspaper Cumhuriyet and the other applicant Erdem Gül is Ankara representative of the same newspaper. On 1 January 2014 in Hatay and on 19 January 2014 in Adana, some trucks, alleged to be carrying weapons, were stopped and searched. The daily newspaper Aydınlık published these allegations on their issue dated 21 January 2014. After that, Can Dündar published a news with a heading of “Here are the Guns which Erdoğan States ‘Do Not Exist’” on 29 May 2015 and Erdem Gül published a news with a heading “The Guns on Articulated Lorries of NIO which Erdogan States ‘They Exist or Not’ have been Confirmed by the Gendarmerie, Gendarmerie Said the Guns ‘Exist’.” There was an investigation launched against the applicants for the crimes of, helping the armed terror organization FETÖ/PDY towards their organizational aims without being a member; for espionage purposes providing and publishing information which should be kept confidential for the security of the State or its domestic and international benefits. The statements of the applicants were taken six months later, on 26 November 2015. In the same day, the 7th Criminal Judicature of Peace of İstanbul ruled detention of the applicants. The objection made to this decision was dismissed.

B) Judgment and Reasoning of the Court

The Constitutional Court first of all examined the question of exhaustion of legal remedies as follows: “The ongoing trial does not need to be completed in order to consider the claims on violation of the freedom of press and expression by the detention. It is clear that the applicants exhausted the legal remedies by submitting an objection against the said decision” (§ 58). The Court emphasized the role of the press to provide transparency and accountability in a democratic society as a supervisor over the public (§ 87). It also stated that the press must act in accordance with the journalism ethics (§ 89).

The Court noted that, whereas the interference was lawful and had a legitimate aim, such a heavy measure could not be deemed as necessary and proportionate in a democratic society without meeting the criteria of legality (§ 97). After reminding that the same news was published by another newspaper sixteen months ago and a long period of six months had passed before the applicants were detained, the Court stated that no grounds were provided to prove a compelling social need for the interference with the freedom of press and expression (§ 98). It also emphasized that the reasoning of the detention did not contain any concrete basis, other than the published news and that the present interference arose a deterrent effect on both the applicants and the press in general (§ 99). The Court concluded that Articles 26 and 28 of the Constitution were violated (§ 100). The dissenting judges Hicabi Dursun and Kadir Özkaya assert that the reasoning in the decision of the first instant judicature maintained a balance between national security and freedom of press and did not include any arbitrariness or discretionary mistake. Another dissenting judge Rıdvan Güleç was of the opinion that the application has not met the criteria of admissibility.

C) Significance of the Judgment

This judgement is significant as being the first judgement of the Constitutional Court on the effects of the detention measure applied to journalists on the freedom of press and expression and found a violation. For the first time, the Court decided that the ongoing trial does not have to be completed to consider the effects of the detention measure on the freedom of press and expression. It is also important that the Court noted an interference in the form of detention

against journalists would cause a deterrent effect. This judgement also contains a substantial discussion on how to strike a balance between national security interests and freedom of press.