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The Case of Can Dündar and Erdem Gül

On Appeal Contracts Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    May 6, 2016
  • Outcome
    Imprisonment, Criminal Sanctions
  • Region & Country
    Turkey, Europe and Central Asia
  • Judicial Body
    First Instance Court
  • Type of Law
    Criminal Law
  • Themes
    National Security
  • Tags
    Journalism, Terrorism, National Security, Official Secrets, Political speech

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Case Analysis

Case Summary and Outcome

Can Dündar, editor-in-chief of the newspaper Cumhuriyet, and Erdem Gül, the newspaper’s Ankara representative, were convicted and sentenced to prison for  “disclosing documents concerning the security of the State” for reporting on arms shipments to rebels in Syria.  Both were acquitted of charges of trying to overthrow the government and espionage, but the Court ordered that charges of “knowingly and willfully” helping a terrorist organization be decided separately. The judgment is under appeal.

Columbia Global Freedom of Expression could not identify official legal and government records on the case and information on the case was derived from secondary sources. Global FoE notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.


Facts

In May 29, 2015 the journalists Can Dündar and Erdem Gül published and article in Cumhuriyet titled “Here are the weapons Erdoğan claims to not exist”, alleging that Turkey’s National Intelligence Organization (MIT- Millî İstihbarat Teşkilâtı) had been delivering arms to rebels in Syria. Cumhuriyet also published a video and photos supporting the claim in June 2015. Following this, President Erdoğan publicly stated that they would ‘not get away with it’ and in November 26, 2015, they were arrested and held in pretrial detention on charges of espionage (Article 337 Turkish Penal Code), divulging state secrets (Article 329 Turkish Penal Code) and membership of a terrorist organization. Dündar, before testifying to prosecutors, said: “We are not traitors, spies or heroes: we are journalists”.

The defendants applied to the Constitutional Court demanding to be released on the grounds that their pretrial arrest was unconstitutional and that their lawyers had been unable to examine their files. They cited the 2014 European Court of Human Rights decision of Ahmet Şık and Nedim Şener v. Turkey, in which the Court found that Turkey had violated the right to freedom of expression and the right to a free trial.

Dündar and Gül were held in Turkey’s Silivri  prison for 92 days until the Constitutional Court ruled in their favor, recognizing that their right to personal liberty and security together with their right to freedom of expression were infringed under Articles No. 19 (the right to personal liberty and security), 26 (the right to express and disseminate one’s thoughts and opinions) and 28 (freedom of the press) of the Turkish Constitution. Consequently, they were released on February 26, 2016, although the Turkish President of the Republic stated that he would neither recognize nor obey the Constitutional Court’s ruling. He said that, “the prosecutor may object the decision and an upper court may start a new process”. He further noted that Turkey is ready to pay compensation if an upper court’s decision – detaining the two journalists again – would be appealed before the Strasbourg Court. “The State can object to the European Court of Human Rights if it gives a decision supporting the Constitutional Court or it can pay the compensation”, he said. Moreover, the Minister of Justice, Bekir Bozdağ, said that “the decision is certainly an examination of evidences: the Constitutional Court replaces the court of first instance and makes an examination in substance. The Constitution does not accord the Constitutional Court such a right”.

In March 2016, a Court in Istanbul court ruled that the entirety of Dündar and Gül’s trial would be held in camera.


Decision Overview

On May 6, 2016, Istanbul’s 14th Court for Serious Crimes convicted both Dündar and Gül for revealing state secrets that posed a threat to state security or to Turkey’s domestic or foreign interests. Dündar was sentenced to seven years in prison, reduced to five years and 10 months; and Gül to six years, reduced to five, under Article 329 of the Turkish Penal Code.

The Court acquitted the journalists of the additional charges of espionage and trying to overthrow the government, because the prosecution had not established a connection between the date of publishing the report, the purpose and the medium. However, the Court announced that the investigations on the charges of helping the FETÖ/PYD organization (Gülenist Terrorist Organization / Democratic Union Party [Syria]) would continue and ordered the files related to these charges to be separated from the proceedings, to be re-examined once the investigation is completed. In this regard, the Court held that because there was no final judgement on the existence and illegality of the FETÖ/PYD organization, the journalists could not at this time be charged with helping it. The Court also ordered to lift the ban on travel for the two journalists.

The court did not order the continued detention of the journalists. Dündar and Gül have appealed and remain free pending the determination of the appeal.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

This judgment restricts reporting on the potential involvement of the Turkish state with the military conflict in neighboring Syria and ordered the imprisonment of the journalists and editors involved. If appealed to the European Court of Human Rights, this would almost certainly be held to violate the right to freedom of expression.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • ECtHR, Sık v. Turkey, App. No. 53413/11 (2014)

    This case set a precedent for other cases of Turkish journalists falsely accused of terror-related offenses and whose right to liberty and security was infringed because of a overlong pretrial detention.

  • ECtHR, Nedim Şener v. Turkey, App. No. 38270/11 (2014)

    This case set a precedent for other cases of Turkish journalists falsely accused of terror-related offenses and whose right to liberty and security was infringed because of a overlong pretrial detention.

National standards, law or jurisprudence

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

Official Case Documents

Official Case Documents:



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