Why does news gathering fall within press freedom?
Article 26 of the Constitution guarantees the freedom to receive and impart information and ideas, and Article 28 guarantees freedom of the press. This protection does not apply only to the stage at which a finished piece is published. Reaching the source of a story, observing the event and gathering the information to be conveyed to the public are also part of journalistic activity.
In reporting on a demonstration, the position of a journalist and that of a person taking part in the demonstration must be assessed separately. A journalist's presence at the scene does not justify attributing all of the demonstrators' conduct to him or her. What the specific person did, whether he or she was performing their duty, and whether he or she actually obstructed law enforcement activity must be examined. In the Erdal İmrek decision it was significant that the applicant was carrying out journalistic activity and that the public authorities knew this. (Constitutional Court, §§ 79–89.)
How is the right of assembly distinguished from press freedom?
The dispute examined in this article is not built on the applicant's right to take part in the assembly as a demonstrator. The essential issue is the obstruction of the journalist's access to the news and of the activity of reporting it. For this reason, the same public event may be examined under different rights for different people.
The applicant also linked being held in the police cordon to the right to personal liberty and security. The Constitutional Court dealt with the specific allegation under press freedom. This decision cannot be cited as though a separate violation had been found under Article 19 of the Constitution. Legal characterization is not done by carrying every cited article number over into the outcome of the decision. (Constitutional Court, § 75.)
What happened in the Erdal İmrek application?
The application concerns police intervention during the reporting of a demonstration held in 2014 on the anniversary of the Gezi Park events. Around twenty journalists, including the applicant, were enclosed within a cordon, and their movements and filming were obstructed. The file contained allegations that pepper spray was used, that the applicant was taken away and injured, together with medical findings.
The journalists told the officers that they were being prevented from doing their job. The Constitutional Court found that it was known that the applicant was a member of the press and was trying to report the events. That there was no finding that the applicant had used violence against the police, obstructed the performance of duty or posed a threat to law enforcement was decisive for whether the intervention was necessary. (Constitutional Court, §§ 80, 87–89.)
The criminal investigation conducted after the incident ended with a decision not to prosecute (kovuşturmaya yer olmadığı kararı); in the administrative courts as well, the applicant's request was not granted. Before the Constitutional Court, the physical intervention, the adequacy of the investigation and the obstruction of journalistic activity were all assessed. This distinction shows that the same incident should not be seen merely as a compensation matter.
On what grounds is police intervention assessed?
Article 16 of Law No. 2559 on Police Duties and Powers (Polis Vazife ve Salâhiyet Kanunu) makes the power to use force subject to conditions; it provides for graduated use of force linked to the nature and degree of resistance and to the aim of neutralizing it. This provision does not mean that everyone at the scene may be targeted without distinction. It must be determined against whom, on account of what conduct and to what extent the intervention was applied.
From the standpoint of press freedom, the explanation the Constitutional Court expects is as follows:
“What is expected of the organs exercising public power at this point is to show the reasonable grounds for obstructing the journalists, including the applicant, from doing their job.”
Direct quotation: Constitutional Court, Erdal İmrek, Application No. 2015/4206, July 17, 2019, § 89. Full text of the decision.
In the specific file, the administration was unable to present sufficiently strong and consistent grounds showing that obstructing the news coverage and the physical intervention were strictly necessary. The existence of a general security duty does not, on its own, explain the necessity of an intervention against a particular journalist. This outcome is the reasoning the decision applied to the incident; it does not mean that all security measures are prohibited.
Nor does journalist status provide an absolute privilege against any security measure. Nevertheless, the justification for an intervention must be explained through the journalist's actual conduct and its effect on the news coverage. Public authorities cannot, without justification, equate journalistic activity with taking part in the demonstration or with the use of violence.
The substantive and procedural limbs of the prohibition of ill-treatment
The protection in Article 17 of the Constitution safeguards a person's physical and mental integrity. The substantive limb concerns the nature of the treatment the person was subjected to. The procedural limb requires that arguable allegations of ill-treatment be investigated effectively. That an investigation file has been opened does not mean that all necessary inquiries have been carried out.
In the Erdal İmrek application, the medical report played an important role in assessing the injury and the exposure to pepper spray. The Constitutional Court emphasized that doctors’ reports are key in allegations of ill-treatment. That the injury could be remedied by simple medical intervention was not used as an automatic threshold taking the incident wholly outside constitutional review. (Constitutional Court, §§ 52–59.)
Does the absence of a moment on camera explain the whole incident?
That no direct beating is visible in particular footage in the file does not mean that the whole incident was recorded completely in terms of time and space. The Constitutional Court criticized reaching a conclusion on the assumption that the footage covered the entire incident. The period covered by the recordings, the camera angle and the portions in between must be assessed. (Constitutional Court, § 69.)
The legal assessment that follows is not that the footage is worthless on its own. Footage must be considered together with medical records, witness statements and other findings. That a finding does not show something is not the same as claiming that it never happened. The decision constitutes a concrete example against completing an incomplete investigation with assumptions.
What deficiencies were found in the investigation?
The Court assessed the failure to take steps to collect camera recordings from surrounding businesses, the failure to hear the three witnesses whose names the applicant had given and other persons, and the passive attitude in the face of information requests that went unanswered for months. In particular, not requesting in time footage whose retention period might expire is a deficiency that reduces the possibility of establishing the truth. (Constitutional Court, §§ 62–64.)
“In a criminal investigation concerning a case of ill-treatment, even the failure to collect certain important evidence capable of clarifying the incident may, on its own, cast a shadow on the consistency of the outcome reached.”
Direct quotation: Constitutional Court, Erdal İmrek, Application No. 2015/4206, July 17, 2019, § 67. Full text of the decision.
The obligation to conduct an effective investigation does not require a conviction in every complaint. What is required is that steps capable of clarifying the incident are taken with care and that the result rests on adequate inquiry. Nor does the Constitutional Court’s finding of a violation replace a conviction handed down by a criminal court against particular police officers.
The judgment and its limits
On July 17, 2019, the Constitutional Court held unanimously that the substantive and procedural limbs of the prohibition of treatment incompatible with human dignity had been violated. It also held that freedom of expression under Article 26 and freedom of the press under Article 28 of the Constitution had been violated. These outcomes are connected with one another, but they do not express the same legal concept.
| Heading of the judgment | Outcome of the decision |
|---|---|
| Constitution, Art. 17 | Violation of the substantive and procedural limbs of the prohibition of treatment incompatible with human dignity |
| Constitution, Arts. 26 and 28 | Violation of freedom of expression and freedom of the press |
| Redress | Remittal for a fresh investigation and retrial |
| Non-pecuniary damages | Net TL 27,500 to the applicant |
| Other claims for compensation | Rejected |
A copy of the decision was sent to the Istanbul Chief Public Prosecutor’s Office and the Istanbul 2nd Administrative Court (İstanbul 2. İdare Mahkemesi) to remedy the consequences of the violation. TL 27,500 is the non-pecuniary damages awarded in this file and on the date of the decision; it is not a fixed amount applicable to every police intervention today. Litigation costs were awarded separately at TL 2,959.40. The compensation and cost items should be kept apart. (Constitutional Court, judgment.)
The decision does not finally establish the criminal liability of all police officers, nor does it provide that journalists may enter any security area without limit in all circumstances. It finds a constitutional violation on the basis of the justification for the intervention examined, the person’s conduct and the consequences of the deficient investigation.
Which documents and remedies matter in similar incidents?
Documenting the incident and the news coverage
The journalistic assignment, the work at the scene, the time of the intervention, health records, the originals of the footage and eyewitnesses should be assessed together. Presenting a particular press card is not the same as showing journalistic activity in the specific incident. It cannot be concluded from the Erdal İmrek decision that only people holding a particular card can benefit from press freedom.
Where surrounding camera recordings are located and which time interval is needed must be stated clearly. Because retention periods for recordings may be limited, it is important to ask the competent authorities to collect them in time. In the account of the incident, matters directly observed, information learned from others and legal interpretation should be kept separate. This approach strengthens the clarity of the allegation and the possibility of investigating it.
Criminal investigation and administrative compensation are different routes
A criminal investigation is directed at determining the criminal liability of individuals, while an administrative full remedy action (idari tam yargı) is directed at compensating harm arising from an act of the administration. Using one of the routes does not mean that the time limits of the other stop automatically. Which route is effective for which allegation, and which must be exhausted before an individual application, must be determined separately according to the nature of the alleged violation.
Under Article 173 of Law No. 5271 on Criminal Procedure (Ceza Muhakemesi Kanunu), a person harmed by the offense may object to the competent criminal judgeship of peace (sulh ceza hâkimliği) within two weeks of the notification of the decision not to prosecute (kovuşturmaya yer olmadığı kararı). The period in the current text is two weeks; one should not act on the fifteen-day wording seen in older texts. In the objection, it should be made concrete which events and which evidence require the investigation to be widened.
Article 13 of Law No. 2577 (İdari Yargılama Usulü Kanunu) generally provides, for damage arising from administrative acts, for an application to the relevant administration within one year of learning of the act and in any case within five years of the act. After notification of the rejection reply, or after the thirty-day period of no reply expires, the time limit for filing suit comes into play; the general administrative suit period under Article 7 is sixty days. Learning of the damage and of the administrative link, the nature of the application and any special provisions must be assessed on the file.
An individual application to the Constitutional Court is made, after effective ordinary remedies are exhausted, under the conditions of Law No. 6216. The thirty-day individual application period, as a rule, is not the same as the criminal objection period or the administrative suit period. The period running from the final decision should not be overlooked on the belief that another process is continuing.
Conclusion
An intervention that obstructs a journalist’s news coverage requires adequate justification based on specific conduct and a genuine security need. In the Erdal İmrek decision this justification was not shown, and the allegations concerning the injury were not investigated effectively. The Constitutional Court therefore found separate violations of the prohibition of ill-treatment and of freedom of expression and freedom of the press. In similar incidents, the legal assessment should address together the reason for the intervention, the journalistic activity, the medical and visual findings, and the adequacy of the investigation.
Frequently Asked Questions
Is preventing a journalist from filming an interference with press freedom?
Obstruction that affects news-gathering activity is assessed under press freedom. To reach a finding of violation, the justification and conditions of the interference are examined separately. See the section on protection of news coverage.
Is the absence of a beating in a video enough to end the investigation?
It must be determined whether the footage covers the whole incident. Medical records and other evidence are also assessed together. This is explained in the section on the scope of camera recordings.
Did the Constitutional Court convict the police officers with this decision?
No. A finding of a constitutional violation is not a conviction by a criminal court. The fresh investigation is for the incident to be investigated effectively. See the section on the adequacy of the investigation.
What is the time limit for objecting to a decision not to prosecute?
Under the current Article 173 of the Criminal Procedure Law, it is two weeks from notification. The competent authority and the specific calculation of the period must be determined on the file. See the section on remedies.
Does every applicant receive TL 27,500 in compensation?
No. The amount belongs to the 2019 judgment in the Erdal İmrek application. It is neither a fixed tariff nor a guaranteed result for current disputes. It is explained in the section on the judgment and its limits.
Sources
Constitutional Court, Erdal İmrek, Application No. 2015/4206, July 17, 2019; in particular §§ 52–69, 75–92 and the judgment. Official link to the decision. The full text was also verified through the De Jure decision record.
Constitutional Court, Qualified Rights Decision Summaries (Nitelikli Haklar Karar Özetleri), printed pp. 158–159. Source book. Direct quotations were taken from the full text of the decision.
Constitution of the Republic of Türkiye, Arts. 17, 26 and 28. Official text of the Constitutional Court.
Law No. 2559 on Police Duties and Powers, Art. 16. Official legislation text.
Law No. 5271 on Criminal Procedure, Art. 173. Official legislation text. The objection period was changed to two weeks by Law No. 7499.
Law No. 2577 on Administrative Procedure, Arts. 7 and 13. Official legislation text.
Law No. 6216 on the Establishment and Rules of Procedure of the Constitutional Court, Arts. 45, 47 and 50. Official text of the Constitutional Court.