Judicial reform package encouraging for journalists but short-sighted

Justice Minister Sadullah Ergin announced on Jan. 18 a new judicial reform package that would -- among many other things -- introduce some changes that will have an impact on freedom of the press and expression in the country. For example, judicial fines, investigations, prosecutions and verdicts demanding or ruling up to five years of imprisonment imposed on journalists will be postponed, if the package is approved. If the suspected journalists do not repeat the same crime again within three years, their criminal file will be annulled. If the same offense is repeated within three years, the penalty will be imposed or the investigation will continue from where it left off.

In addition, the package will remove an article in the Counterterrorism Law (TMK) which permits courts to withhold publication of a newspaper for up to one month.

Evaluating those measures in the package, Deniz Ergürel of the Media Association (Medya Derneği) has said the package contains some short-term positive developments for journalists, but it lacks substantive changes to ease freedom of expression issues faced by journalists.

“Making these amendments -- which can be considered as an amnesty for press crimes -- permanent must be the priority of the legislators. Therefore, one of the basic articles of the newly prepared constitution must concern freedom of the press and expression,” he said, adding that the Turkish Penal Code (TCK) and the TMK articles related to journalists must be rearranged in a democratic way.

For most observers, some articles of the TCK and TMK are the culprits in many cases that journalists face. The “Independent Communications Network [BİA] Media Monitoring Report 2011” noted that as part of the TCK and the TMK, journalists faced investigations in relation to “connections to an illegal organization” that may be “armed” or “unarmed.” “Especially in the last two years, most of the journalists have been jailed because of ‘membership in a terrorist organization,’ and prosecutors established those connections based on loose definitions of ‘terrorism’ in the TCK and TMK,” said Nadire Mater, founder of bianet.org.

“Even though the government calls those journalists who are in prison ‘murderers and molesters,' this is not the case,” she added in reference to Prime Minister Recep Tayyip Erdoğan's late January words saying the journalists were arrested based on the grounds that they possessed firearms or explosives, forged documents, committed sexual harassment or were involved in terrorism or coup attempts. The prime minister went on to say that countries in the West were not able to understand Turkey because they were not facing journalists who were inciting a coup d'état.

Observers note that press freedom in Turkey has started to be discussed intensely in the West, particularly after many cases were launched against members of the press in the wake of the case against Ergenekon, a shadowy network of military and civilian bureaucrats as well as criminal gangs that is believed to have conspired to topple the ruling Justice and Development Party (AK Party) government.

“These cases were launched particularly with respect to the TCK provisions concerning ‘breaches of secrecy' and ‘attempts to influence a fair trial',” said lawyer and human rights activist Orhan Kemal Cengiz, adding that the overwhelming majority of these cases were launched against journalists despite their pro-government stance over the Ergenekon investigation, which was opened in 2008.

According to the latest Ministry of Justice reports from November 2009, there have been 4,139 investigations related to journalists reporting on Ergenekon-related cases, and there are 2,500 court cases. However, those journalists who have faced investigations, mostly regarding Articles 285, 288 and 125 of the TCK -- concerning breaches of secrecy, attempts to influence a fair trial and defamation -- were not put behind bars.

There are, however, a few journalists from the mainstream media detained pending trial in relation to Ergenekon, and they are accused of membership in the Ergenekon terrorist organization. There are also eight journalists, from OdaTV, who are in detention pending trial in relation to Ergenekon. Prosecutors claim that those suspects used the OdaTV website to influence the Ergenekon trial.

The BİA report, which lists the name of every journalist who is in jail, indicates that 104 journalists and 30 distributors/media workers were imprisoned through the end of 2011, only six journalists out of 104 are charged and prosecuted with direct regard to their news, writings and books in the criminal cases pending against them and all other journalists and media workers are in jail due to their alleged affiliations with an illegal organization within the scope of the TMK and the TCK.

According to the report, 64 out of 100 journalists and all of a total of 30 distributors are from Kurdish media outlets; 27 out of 104 jailed journalists have been convicted; the trials of 34 of them are still pending.

‘Postponing problems not remedy’

Mehmet Uçum, a lawyer who works in the area of media law, said the most recent judicial reform does not help to solve freedom of expression problems in the country but chooses to postpone them.

“Instead of postponing the problem, the government should have solved the core issue. Now, with postponement, the government gives the impression that it is trying to discipline those who act in a certain way. It says: I forgive you now but if you do it again, then I'll punish you,” he said.

Journalist and writer Hasan Cemal noted in his Feb. 1 column that in the first half of the 1990s, approximately 100 people, mostly Kurdish journalists, were in jail based on crimes attributed to them in relation to the TMK.

“Kurdish journalists were being murdered in extrajudicial killings in the country's Southeast at the time,” he wrote in the Milliyet daily. “Concerning freedoms, the situation in those days was not pretty, just as it is not today, and it stemmed from the Counterterrorism Law.”

Upon announcement of the judicial reform package, the European Commission called on all stakeholders to seize the occasion of the reform package to address the root problems that undermine freedom of expression, the right to liberty and security and the right to a fair trial. EU Commissioner for Enlargement Stefan Füle emphasized that there needs to be a change in the definition in the TCK, TMK and the Code on Criminal Procedure (CMK) concerning terrorism and membership in a criminal organization in order to make a clear distinction between the freedom to express opinions and the incitement of violence.