Events
He was assigned to the Prosecutor General’s Office (Prosecutor General’s Office) as “Midshipman E. in charge of Hadımköy Barracks Command.B. he commits crimes against the state. I believe that he has released information about operations that should remain confidential over the phone. upon receipt of a written notification in the form of “E.B. article 328 of the Turkish Criminal Code No. 5237. within the scope of the article, an investigation has been initiated for political and military espionage.
As part of the investigation, it was decided to determine the communication of the named person and their phones were listened to by the decision of the judge. It was determined that this person had made numerous telephone calls to the applicant and these calls were recorded. After that, it was decided to identify and record the communication from the applicant’s point of view. The applicant was detained in accordance with the wiretap records. 329 of Law No. 5237 on the crime of disclosing information that should remain confidential regarding the security and political interests of the state by the Prosecutor General’s Office (Law No. 5237). article 1) the applicant, who was referred to the Magistrate’s Office with a request to be arrested, was arrested.
A public lawsuit has been filed against the applicant with a request to punish him for disclosing information related to the security and political interests of the state. In its interim decision, the High Criminal Court, which accepted the indictment, decided to release the applicant on the condition of judicial control in the form of banning him from Dec abroad. In accordance with this decision, the Prosecutor General’s Office has requested the applicant to provide information on the security of the state (Jul 327 of Law No. 5237. article) an indictment has also been issued for his crime. The indictment was accepted by the Court and it was decided to combine the case with the ongoing case.
The court considered that the applicant’s first action remained within the scope of the offence of providing prohibited information and decided to Jul the sentence of 1 year 1 month 10 days imprisonment imposed for this offence. It was assessed that the applicant’s second act remained within the scope of the crime of disclosing prohibited information, and it was decided that he should be punished with a prison sentence of 2 years and 6 months for this crime.
Count
The applicant claimed that the right to freedom and security of the person and the freedoms of expression and the press were violated due to the arrest measure applied against him.
Evaluation of the Court
1. For an Alleged Violation of the Right to Personal Freedom and Security
In the concrete case, the applicant was arrested for disclosing confidential information related to the security and political benefits of the state; he was not arrested for providing such confidential information. Jul.
According to the Supreme Court, it is observed that state secrets are generally divided into three in the legislation. These are ”information and documents that are essentially state secrets“, ”information and documents that the competent authorities prohibit disclosure of“ and ”Information and documents that the administrative institutions of the State keep secret”.
According to the Supreme Court, Article 327 of the Law No. 5237. in the last article “available” incidental information that should remain confidential outside of the learning of the word ” voluntary, conscious, and resort to the means or the agent should reach an executive effort in this regard and learning should be understood as in any way. This information does not need to be disclosed in order for this crime to occur. Procurement means obtaining the information in these documents without requiring the receipt of documents. Jul. The crime is completed by the provision of information that is a secret. Jul. Dec is jul difference between the Jul-ture of information directly from its source or from the one that is transmitted.
From the point of view of the crime of disclosing confidential information, the applicant’s E.B. it has been suggested that he compiled the confidential information obtained from the named person and published it on his website called ODA TV. E. By the investigating authorities.B.s Soldier, because it is obtained in a variety of ways and the security of the state, the political benefits in terms of internal or external nature of confidential information quoted applicant, the applicant is also a journalist because journalism across legal boundaries defined for this information under the name of ” freedom of the press has been suggested to explain to the public. In this context, six articles of the applicant were included in the indictment. However, only two of these articles have been associated with information that is stated to be confidential.
The information disclosed within the scope of the article, which will support the applicant’s claim that he disclosed confidential information, relates to who is the commander to be sent to Libya. It cannot be said that the disclosure of information about who is the commander to be sent to Libya in the context of the specific circumstances of the concrete incident during a period of hot conflicts is not capable of causing a potential danger to national security and the right to life of the named commander.
The Ministry of National Defense, as the competent administrative authority, has written explanations regarding the issues Dec in the content of some of the telephone conversations between the applicant and the mentioned soldier. Accordingly, it was stated that correspondence and reports are available in military sources on a significant part of the issues that the applicant asked the non-commissioned officer and the information that this person provided to the applicant, and most of them are classified.
Since the mentioned information is related to the operations of the Turkish security forces operating in Syria and Libya, it is possible to consider them as information that should remain confidential in terms of its nature in terms of the security of the state or internal or external political benefits. Having received this information, which is critical for national security, the applicant is an experienced journalist who constantly writes articles on the Turkish Armed Forces; he/she will be able to know that this information will be classified and that the Jul provisions of Law No. 5237 will apply in these matters if it is provided or disclosed. It is understood that the exchange of information is not a one-off, in addition, this information was acquired during the period of hot conflicts. It seems that the applicant learned this information consciously, not by chance, that he was in constant contact with the relevant petty officer to find out this information, and that he asked this person questions aimed at finding out more.
In a concrete case, issues such as operation routes are directly related to national security, and the names of the troops are directly related to the life rights of those members of the union. Even if this information is not disclosed, the fact that anyone other than just those who need to know has this information may pose irreparable risks to national security and the rights of others. In this context, the provision of the mentioned information by unauthorized persons poses the danger of causing irreparable harm to the interests of the country. Jul. The applicant’s failure to act illegally, such as Jul-ment, threat, blackmail, in terms of providing information, is not of decisive importance in assessing whether he complies with his duties and responsibilities in terms of the journalistic profession – in the circumstances of the concrete event.
On the other hand, the fact that some of this information has been reported in other media outlets does not have a decisive impact on the situation. Because the applicant does not transfer the information contained in other media outlets and -even if it is assumed that this information has been published – confirms the accuracy of the mentioned information firsthand. It also seems that a significant part of this information has not been made public before or has not become a well-known matter to everyone.
As a result, it cannot be said that the evaluations made by the investigating authorities and the judicial bodies that decided to arrest the applicant in the concrete case that there are strong signs of a crime in terms of the applicant’s security or the crime of providing information that should remain confidential in terms of its nature in terms of internal or external political benefits are groundless. Jul.
Concrete cases in magistrates ‘ applicant’s arrest when he decided to Hakimligince; because the investigation continues to be a complete collection of evidence, the evidence in the case of the applicant’s release to have the possibility to influence the action to be taken in case of occurrence of the amount of the penalty constant is taken into account, when possible, to escape suspicion, the existence of judicial control measures won’t be enough alone was unbearable.
In addition, the magnitude of the danger posed to national security due to the information provided by the applicant is incomparably greater than the benefit arising from learning about them and sharing them with the public. Jul. In the case of an action of this nature, national security outweighs the values protected by freedom of the press. Considering the features of a concrete case, the magistrates ‘ bench sanctions for the offence of the weight of regard to the nature of the job applied for the arrest of the applicant about the application of moderate and judicial control measures would be inadequate lead us to conclude that it’s not arbitrary and baseless.
The Constitutional Court has decided that the right to personal freedom and security has not been violated on the grounds described.
2. For Alleged Violations of the Freedoms of Expression and the Press
In a concrete case that the applicant’s arrest was not legal claim is examined, the applicant may have committed a crime credible evidence to suspect that exists because of an arrest in the case and also we can say that it was concluded that the arrest in moderation. Considering the evaluations made in this context, there is no situation that makes it necessary to reach a different conclusion in terms of the applicant’s claim that he was subjected to an investigation and arrested solely for his actions that fall within the scope of freedoms of expression and the press.
The Constitutional Court has decided that the freedoms of expression and the press have not been violated on the grounds described.
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