With less than a month to go before the early general election, pressure applied by the government on critical media is increasing day by day.
After several television stations offering views critical of the government were dropped by Tivibu and Digitürk, the country's largest satellite TV subscription service, Bülent Keneş, the editor-in-chief of Today's Zaman, was arrested on Friday over tweets in which he allegedly insulted the president. Keneş was taken to the Metris Prison on Saturday after the İstanbul 7th Penal Court of Peace ruled to arrest him pending trial.
According to Sami Selçuk, a former head of the Supreme Court of Appeals (Court of Cassation), the option to arrest suspects pending trial is frequently abused. Prefacing by saying that he has not been informed of the specifics of Keneş's file, he told Today's Zaman, “The identity of this person -- his address and the institution for which he works -- is well-known. So, why arrest him?”
Last week, Digiturk decided to stop broadcasting Yumurcak, a children's TV station, as well as the Bugün, Mehtap, Kanaltürk, Samanyolu, S Haber and Irmak stations, all of which the interim Justice and Development Party (AK Party) government has been targeting ahead of the Nov. 1 election in an effort to muzzle critical media outlets.
In yet another attempt to intimidate dissenting voices, the headquarters of the Hürriyet daily was attacked twice last month. Angry mobs of AK Party sympathizers gathered in front of the building and shattered its windows with sticks and stones, leading the journalists inside to fear for their safety. One columnist, Ahmet Hakan, who has long been faced with politically motivated threats, was hospitalized after being beaten by AK Party sympathizers at the beginning of the month.
Today's Zaman's Keneş was arrested pending trial for allegedly violating Article 299 of the Turkish Penal Code (TCK). The article states, “Anyone who insults the president of the republic shall be imprisoned for a term of from one to four years. When the offense is committed in public, the sentence shall be increased by one sixth.” Keneş' arrest is seen as yet another effort to silence the media, dealing a blow to the freedom of the press.
Underlining that the arrest of a suspect pending trial should not be ordered as a rule, but an exception, Selçuk said, “The criminal justice system in no way obligates a judge to resort to an arrest pending trial. Even when the conditions of the case warrant the arrest, the law leaves it to the discretion of the judge.”
According to Selçuk, currently a professor of criminal law at Bilkent University, one can gain an impression of the nature of a government by examining the way its criminal justice system functions. Selçuk explained: “Preserving the freedom [of a suspect] is the rule. A judge should rule for release when in doubt. This is the rule in democratic countries.”
Keneş had been referred to a court for arrest by prosecutor Umut Tepe on Thursday, after which the court initially ruled for his release. However, the prosecutor objected to the court's decision the next day, demanding that an arrest warrant be issued.
Ümit Kardaş, a professor of criminal law at Fatih University, does not believe the legal conditions for arrest are present in Keneş' case. Noting that heavy criticism is not legally considered an insult, Kardaş, who formerly served as a military judge, said, “It is absurd that a person be arrested on the allegation of an insult.” He added, “This practice is neither in line with Turkish criminal law nor the case law of the European Court of Human Rights (ECtHR).”
Below is the process by which Keneş was illegally arrested:
1- Tepe demanded on Thursday that Keneş, who had gone to the courthouse to make a statement, be arrested pending trial based on strong criminal suspicion and the possibility that he might flee.
2 - Charged with insulting the president, Keneş was released by the court but prohibited from leaving the country. It is illegal to impose judicial action, such as the restriction of his movement, on a suspect charged with a crime that requires a sentence of less than four years in prison.
3 - Regarding the biased charges of “insulting the president,” Keneş' tweets contain no references to Erdoğan, and his right to express his opinions would ordinarily be upheld by the freedom of speech.
4 - Tepe objected to the court's decision to release the editor-in-chief and apparently did not notice the order for him to remain in the country. Recep Uyanık, the presiding judge at the İstanbul 7th Penal Court of Peace, quickly reversed his decision and ordered the arrest pending trial.
5 - No additional evidence was provided to warrant the change in the ruling.
6 - Keneş is facing trial because of 14 tweets, one of which was originally posted by Kemal Kılıçdaroğlu, the leader of the main opposition Republican People's Party (CHP).
To follow the prosecutor's logic, anyone who retweeted Keneş' allegedly insulting tweets should also have been arrested for committing the same crime. Indeed, anyone who, like Keneş, retweeted Kılıçdaroğlu's tweet should also have been arrested.
7 - Keneş would customarily have appeared before the judge following the ruling for his arrest. In this case, Uyanık left the building after making his ruling. The prosecutor then illegally issued a warrant for Keneş to be detained, causing him to spend the night at the İstanbul Police Department instead of in prison.
8 - Though he was charged with a media offense, Keneş was taken to the station by members of an anti-terrorism unit, and spent the night in its detention ward.
9 - The next morning, Keneş waited for four hours for İsmail Yavuz, the judge on duty, to arrive. Yavuz was scheduled to begin work at 9 a.m. but showed up at 12:30.
10 - The judge based his decision to arrest Keneş on Article 100 of the TCK, which lists the conditions under which a suspect can be arrested pending trial. Insulting the president is not included among these conditions, which include charges of rape, genocide, drug trafficking and establishing a criminal organization.
According to the same article, the ruling to arrest a suspect pending trial may be made when there is solid evidence that the suspect is likely to flee, destroy evidence or intimidate witnesses. Keneş would not normally be considered a flight risk, as he voluntarily went to the courthouse to give a statement when the charges were brought. Neither would it be possible for him to destroy evidence, as the only pieces of evidence presented are his tweets, which are included in his investigation file. Keneş cannot possibly intimidate any witnesses, as there are no witnesses mentioned in his case.
Already having been targeted with several criminal complaints, two lawsuits for damages and six defamation investigations launched by Erdoğan, his advisors and his associates in the government, Keneş was in the daily's newsroom working on the weekend edition of the paper, waiting for the police to take him into custody.
In the run-up to next month's parliamentary election, the government's attempts to intimidate independent and critical journalists by abusing at the criminal justice system have increased in intensity and frequency.