The prison sentence given to journalist Çetin Yılmaz using the evidence obtained through ‘virtual patrol’ has been taken to the Constitutional Court

The Legal Team of the Media and Law Studies Association (MLSA) has brought the prison sentence given to journalist Çetin Yılmaz for “making propaganda for a terrorist organization” before the Constitutional Court. The application emphasized that the sentence given to journalist Yılmaz violated Article 13 of the Constitution, which stipulates the restriction of fundamental rights and freedoms and Article 20, which guarantees the privacy of private life. On March 30th, 2022, the Manisa 2nd High Criminal Court sentenced journalist Çetin Yılmaz to 1 year 6 months and 22 days in prison for “making propaganda for a terrorist organization” because of some social media posts. The Legal Team of MLSA applied to the Constitutional Court on the grounds that the sentence given to Yılmaz violated Articles 25, 26 and 28 of the Constitution and Article 10 of the European Convention on Human Rights (ECHR) which protects the freedom of expression. In the application, it was emphasized that the social media posts which were cited as the ground for conviction were gathered with the purpose of manufacturing evidence and that the conviction targeted the journalistic activities of Yılmaz. Recalling the judgment of the Constitutional Court, in which the court found it unlawful for the police to gather evidence through a method called “virtual patrol”, MLSA lawyers argued that the interference with the journalist’s right to freedom of expression in this way has no place in democratic societies. Yılmaz’s lawyers further argued: “On 19.02.2020, the Constitutional Court ruled to annul the Article 6, Paragraph 18th of the Law No. 2559 on the Duties and Discretion of the Police (PSVK) which granted the police the authority to gather evidence through virtual patrol. The trial which resulted in conviction began with an investigation that was carried out through a virtual patrol. In this way, the investigation itself was carried out in an unlawful manner and through the following trial which resulted in the applicant’s conviction constituted the violation of Articles 13th and 20th of the Constitution.” In their application to the Constitutional Court, Yılmaz’s lawyers also argued that the right to a fair trial, which is protected by Article 36 of the Constitution and by Article 6 of the ECHR, was violated. It was shared with the High Court that the local court sentenced the journalist without allowing adequate and further investigation on the social media posts in question and without considering the fact that the social media posts in question did not belong to the journalist.

Background

Journalist Çetin Yılmaz was detained on August 13, 2021, together with six people and was released with judicial control measures after spending a week in police custody. In the indictment dated August 26, 2021, 13 social media posts shared on Instagram, Twitter and Facebook between 2015-2020 were cited as evidence for the charge against journalist Yılmaz. At the sentencing hearing of Yılmaz on 30 March 2022, who was tried at the Manisa 2nd High Criminal Court, lawyer Erselan Aktan drew attention to the fact that all the posts included in the indictment were obtained unlawfully. Reminding the court of the ruling by the Constitutional Court, Aktan said “The client’s personal Twitter account was scanned through a method called ‘virtual patrol.’ The Constitutional Court found this method to be unconstitutional and revoked the article of the law which gave the police an authority to conduct such an investigation. The Court ordered law enforcement to stop this kind of investigation and advised local courts not to take into consideration the posts which are acquired via this method and presented as evidence for their verdict. However, in this case, both the investigation and prosecution were carried out in such an unlawful manner.” The court sentenced Yılmaz to 1 year 6 months 22 days in prison, reasoning that journalist Yılmaz committed the offense he was charged with. The court deferred the announcement of the verdict.