The offences against the right to a fair trial in Turkish Law as the restriction of freedom of mass communication

This dissertation deals with an instrument which aims to solve the conflict between the right to a fair trial and freedom of mass communication arising in relation to the manner which the media presents the legal news. Such instrument is "the offences against the right to a fair trial'. The offences against the right to a fair trial as the limits of the freedom of mass communication are mainly regulated in the section titled "Crimes against judiciary" of Turkish Penal Code. Also some press offences similar to these offences such as art. 21 and art. 19 (abolished by law numbered 6352) of Press Code safeguard the right to a fair trail. Therefore the dissertation is named "The Offences against the Right to a Fair Trial in Turkish Law as the Restriction of Freedom of Mass Communication". This study is composed of two main sections. In the first main section of this dissertation, the concepts, scope and elements of right to a fair trial and freedom of mass communication are generally explained. In this context the dispositions of the international conventions, the constitutional and legal provisions are respectively given. The provisions regarding freedom of mass communication, the restriction of such freedom by the criminal provisions, press offences and particular systems of responsibility are described in detail. In this context, we have pointed out the problems on the applicability of the particular systems of responsability with regards to the art. 5 of the TPC sideheaded "Relation with the Special Laws" and the disorganization of the legislation regarding the freedom of mass communication After the determination of the conflict between the right to a fair trial and freedom of mass communication, the criminological and sociological aspects of such conflict are tried to be presented with reference to various data such as the results of surveys and research.The researches put forward that the public's most important source of information regarding the justice, is media. The distortion in the presentation of legal news by such an important source of information arises as the main reason of the conflict between the right to a fair trial and the freedom of mass communication. Also the aim of economic gain which dominates today's industrialized media activities, lies behind the distortion in the presentation of legal news. As the result of the competition and supply-demand balance in the media market, especially the news regarding the criminal justice and sensational or violent crimes is made. In addition the speed of the news may negatively affect its exactitude. This presentation problem of the legal news has negative effects both on the pending criminal proceedings and on the criminal policy. It is tried to be explained in this study how the trial conducted through the media damages many principles such as primarily the presumption of innocence and the rights of defense, equality of arms, legality of penalties and the personality of penalties. The relation of the media with the sources of information, which frequently shows up as the reasons or results of such violations, is separately discussed. In this context, the advocate's role and usage of the media, for balancing the fair trial violations realized by media is notably important. Because the determinations made in here, are effective in the conclusions we have reached regarding the meaning of defense counsel's defense immunity as a reason of legal compliance with respect to the offences against the right to a fair trial in the second main section. If it is necessary to put forward a general principle, we may state that the possibility for defense counsel to be the perpetrator of these offences is incompatible both with the aim of these offences and the duty of the defense council to defend and to safeguard the right to a fair trial of the accused. The effects of media to the criminal policy are also explained in our dissertation. The criminal policy principles damaged by the media are parallel with those of a fair trial. These damages show up as violations of the principles "ultima ratio' which means the criminal law is the ultimate remedy and "in dubio pro libértate' which means the freedom shall be preferred in case of doubt, and as a tendency from the offence criminal law to the offender criminal law. Following the presentation of the right to a fair trial and freedom of mass communication conflict thereby, the deontological approaches to the solution of such conflict are very briefly explained for not to exceed the limits of this study. In this context the deontological approaches to the solution of the conflict are discussed with regards to the two sides of the conflict. Firstly the related provisions of the Bangalor Principles of Judicial Conduct for the judges and the Principles of Budapeste for the prosecutors are introduced, and then the ethichal principles for the law enforcement officers are mentioned. As regards the other side of the conflict, the related provisions of the Charter of Press Council which is the most important organization for the self-control in our country are presented. Also at the end of the first main section of this study, the legal approaches to the solution of the conflict between the right to a fair trial and freedom of mass communication are discussed in general. Firstly it is explained that the conflict is tried to be resolved within the context of "contempt of court in Anglo-American law. It is also presented that all the codes of procedure serve the aim of fair trial in general. It is emphasized that the conflict is tried to be resolved by certain types of offences regulated between the crimes against judiciary in Turkish Penal Code and certain press offences such as art. 21 and art. 19 (abolished by law numbered 6352) regulated in Press Code. Under this topic the principles suggested by the European Court of Human Rights are also tried be explained, by the study of decisions in detail. In this part of the dissertation, the opinions regarding the juridical value which is intended to be safeguarded by the crimes against judiciary and the relationship between crimes against judiciary and criminal justice is discussed. So that we have reached the conclusion that the offences which will be analyzed in the second main section of our study are the hard core that protects the right to a fair trial within the crimes against judiciary. Finally in this section, the concept of judicial secret is discussed and its relation with the other kinds of secrets legally protected is explained. In the second main section of our dissertation, the offences against the right to a fair trial regulated in articles 277, 288, 285 and 286 are analyzed by all their elements and in detail. In addition their relations with certain press offences such as art. 21 or abolished art. 19 in Press Code are discussed under the subsections titled merger of crimes or other related sections. Herein after, we will try to summarize the main conclusions that we have reached in this context. Since the offence types in articles 277 and 288 of the TPC, are regulated according to the general provision-special provision relationship by law numbered 6352, these offence types are analyzed together. These two offence types, are regulated almost in the same form, in terms of all their elements except the comformity to the type of action. The offence of influencing the authorities performing jurisdiction, experts or witnesses regulated in art. 277 of TPC, punishes the unlawful attempts to influence the persons in scope of the object of the offence in favor or against any one of or all the parties of the proceeding. This offence was the new version of the offence regulated in article 232 of the abolished Turkish Penal Code numbered 765 before the modifications by the law numbered 6352. Therefore in that period, we could say that this provision was not a new provision in comparison with the other types of offences which we analyze in our study. However the aspects of this provision which differed from the old provision, gave this provision a considerably new form. This offence type is transformed into an entirely new type of offence by the law numbered 6352. These differences are examined in detail and criticized in our study. The first of these differences is the scope of the object of the offence, which includes not only the judges as in the abolished TPC art. 232; but also the public prosecutors and the advocates as in the TPC numbered 5237. This character arises from the erroneously made definition of "the authorities performing jurisdiction" in article 6 of the TPC. The inclusion of the experts and the witnesses in scope of the object of the offence by law numbered 6352, has strengthened this difference. Secondly, this offence type is regulated as a "free demeanor offence" in art. 277 of TPC unlike the article 232 of the abolished TPC. Moreover the action models which were listed in the article as an example are removed from the article by the law numbered 6352. This method of regulation is objectionable regarding the legality and certainty principles, because of the fact that it may cause the offence to have a merger relation with many different types of offences. Such way of regulation, may leave the door open to arbitrariness by threatening the legal security. In fact, the previous regulation method of the article was such as to make the offence types like articles 288 of the TPC and 19/2 of the Press Code nonfunctional. Therefore it also caused some prejudice for the freedom of mass communication. However the offence type should be such as to prevent the influences coming not from media but especially from the other powers of the state as legislature and executive and as the sanction of article 138/2 of the Constitution. This article has been transformed into a totally diffent structure from the article 232 of the abolished TPC by the law numbered 6352. The aim of this modification was to resolve the uncertainty between TPC art. 288 and this article within the frame of general provision-special provision relationship and that TPC 288 becomes a special provision for media. Thus, the offence types in articles 277 and 288 of TPC, are regulated almost in the same form, in terms of all their elements except the comformity to the type of action. In our opinion it would be more convenient to foresee the offence type as an "alternative demeanor" offence as it was in the abolished TPC, instead of modifications which totally differentiates the offence type from the article 232 of the abolished TPC. Finally we have reached the conclusion that attempt to this offence type is not possible due to the fact that this offence type is a concrete risk offence which attempt conditions are needed for its commission. In addition, for the purpose of not to create a "presumption of intent", we have argued that commission of risk offences by an eventual intent can not be possible. These conclusions are also argued for the other offence types in the scope of this dissertation which shows up similar characteristics. As we have mentioned above, the offence of attempt to influence the fair trial regulated in art. 288 of TPC, is a special norm with regard to the offence in art. 277 of TPC . This offence type which entered into our law by TPC numbered 5237 is the similar of the offence type in article 434-16 of the French Penal Code. This offence penalizes the act of publicly making written or oral statements for the aim of unlawfully influencing the authorities performing jurisdiction, experts or witnesses. This offence is also regulated as a concrete risk offence which can be committed by a particular intent same as art. 277 of the TPC. The statement to be "efficientfor influencing is also needed for the commison of this offence. Thereafter the offences that we have analyzed respectively are the violation of secrecy of investigation (TPC. art. 285/1-2) and the violation of secrecy of the closed trial (TPC. art. 285/3). In this context we have also examined the acts violating the secrecy of the trial in the scope of the Code of Civil Procedure which TPC art. 285/3 imposes sanction. In our opinion these offence types are particular offences.. Nonetheless in case these offences are committed via mass media when the publicity is required,for their commission, the limitation in art. 40/2 of TPC foreseeing that the media members can only be responsible from these offenses as soliciting or supporting parties is inconvenient. The offence of publishing an image of a person causing his perception as guilty which is regulated in article 285/5 of TPC is an offence similar to the offences in comparative law aiming to safeguard the presumption of innocence. It is appropriate that, by the law numbered 6352, the article has been rewritten by using the correct language in accordance with the critics. Nonetheless there may be some difficulties in the determination of the concrete risk and the relation of causality since this offence type is regulated as a concrete risk offence. When the offence type was written over again, in line with the suggestions it would be better to include the disclosure of the identity in its scope and to make a more certain and detailed regulation as the French law. At this point, it is necessary to mention the provision on the postponement of the sentences and proceedings for media regarding the offences such as art. 277, 285, 288 of TPC and abolished art. 19 of Press Code, which is regulated in the law numbered 6352. The need for the applicability of this provision for anyone with regards to the equality principle and criminal policy is important. In addition, in each three of the postponement circumstances for the continuation of the proceedings or execution of the sentences, condemdation in the probation period by a definitive judgment because of an offence in the scope of the postponement is required. In our opinion this condition, may create an effect of autocensure/censure because of the probation periods which may cause pressure on the media. The last type of offence that we have analyzed in our study is the offence of recording or transferring of sound or image which is regulated in article 286 of TPC. The erroneous usages of Turkish language in this offence type ought to be corrected which we have also discovered in other offence types that we have discussed in our study. No modification is made in this offence type by the law numbered 6352. There are offence types and bans in comparative law similar to this offence type, which is the sanction of the ban on the use of audio and video recording devices. Since this provision is also the sanction of the ban of recording or broadcasting in the Code of Civil Procedure, it is also discussed in this context. We have reached the conclusion that as regards the criminal procedure, the broadcasting of the records kept in the circomstances prescribed by the law by the court or kept unlawfully, is not in scope of the offence in art. 286 of TPC. However we have suggested the regulation of an explicit provision for the broadcasting of the trials as an exemption of the ban on the use of audovisuel recording devices provided that the presumption of innocence and right to a fair trial of the accused is not violated. So that, whenever necessary, the realization of the indirect publicity by this way will be guranteed explicitly. As a summary, we have discussed the offences against the right to a fair trial as the restriction of freedom of mass communication in our dissertation and at the same time we have tried to reach most libertarian conclusions that we can for both. For example, our determinations on the facts that these offences can not be committed by eventual intent or they are not suitable for the application of attempt provisions, intended not to extend the penalization area against the freedom of mass communication. Similarly, our determations pointing out the needs for those offence types to be regulated as concrete risk offences or even if they are regulated as absract risk offences the evaluation of causality and suitability are also for the same purpose. Also we have reached the conclusion that defense immunity is a reason of legal compliance for these offences except art. 286 of TPC, because it is out of question that these offences can not restrict the rights of defense and defense counsel's defense immunity which would be totally contrary to their aim. Accordingly we have suggested that an explicit provision similar to the article 128 of TPC regarding this reason of legal compliance for the offences of libel should be regulated also for the articles 277 and 288 of TPC. The aspects of the offence types which might cause prejudice for the principles of legality and certainty had been frequently emphasized and proposals were brought forward while offence type analyzes had been made in this study. The sanctions of the offence types in scope of our study, the modifications by law numbered 6352 regarding those sanctions and the postponement provision regulated in that law are also examined by their negatif and positive aspects. Although the matter of this dissertation is limited to Turkish law, we have tried to include in detail the related provisions of comparative law as far as possible in the text or in footnotes.