Aziz Oruç
In a significant legal development, the Court of Cassations of Turkey has overturned the prison sentence of journalist Hacı Boğatekin and sent the case back to the local court for retrial. This ruling comes after a prolonged 16-year judicial process, offering Boğatekin a chance for acquittal.
The case against Boğatekin, a journalist, began with the publication of an article titled “FETÖ and Apo” in the Gerger Fırat newspaper on Jan. 4, 2008. After years of legal battles, the 8th Criminal Chamber of the Court of Cassations found the conviction faulty, setting the stage for Boğatekin's potential exoneration. He will face the Adıyaman 1st High Criminal Court once again on April 4.
Boğatekin was initially arrested and detained following his article, leading to a prolonged legal struggle that lasted 16 years. This recent decision by the Court of Cassationsis anticipated to serve as a precedent.
According to Hüseyin Boğatekin, a lawyer who spoke to the Media and Law Studies Association (MLSA), the Court of Cassations Court's decision is immensely valuable for press and freedom of expression. The ruling takes into account not only the Court of Cassations Court's findings but also emphasizes the Constitutional Court's decision regarding the violation of freedom of expression. This decision is binding for Boğatekin's case and may set a precedent for numerous cases involving freedom of expression, particularly for those who have spoken in favor of Abdullah Öcalan. Hundreds of indictments were prepared citing the Court of Cassations Court chamber's decision, which initially affirmed Boğatekin's conviction.
The Court of Cassations's emphasis on freedom of thought
The Court's decision highlighted the fundamental nature of freedom of expression in pluralistic democracies, considering it an inalienable right. While the article in question contained phrases that might be seen as uncomfortable for a significant portion of the society regarding the PKK, it did not promote or endorse terrorism, nor did it praise any criminal acts. Consequently, considering the overall content of the article and the Constitutional Court's decision on Oct. 19, 2022, regarding the violation of freedom of expression and press, the Court of Cassations concluded that the elements of the alleged crime were not met.
Background of the case
The Constitutional Court previously found the one-year sentence for Boğatekin, based on his "FETÖ and Apo" article, unconstitutional. This marked the end of a 14-year judicial process, with the high court emphasizing the vital importance of freedom of expression and press for the functioning of democracy.
Boğatekin had been undergoing legal proceedings for years following the publication of his column in the Gerger Fırat newspaper. He was charged with "terrorist propaganda" by the Malatya 3rd High Criminal Court and sentenced to one year and six months in prison on June 25, 2008. Following an appeal, the case was revisited, resulting in a conviction for "praising crime and a criminal," leading to a one-year prison sentence. Boğatekin took the case to the Constitutional Court, which initially deemed the application inadmissible. However, following a separate conviction for defamation, the postponed proceedings were reopened, eventually leading to Boğatekin's acquittal on Feb. 6, 2018.
After the Supreme Court's decision, Boğatekin applied to the Constitutional Court for the second time on Jan. 27, 2020. The Court, acknowledging Boğatekin's status as a journalist, stated that the subject matter of his column was of social concern and that his role as a journalist in addressing these issues should be considered in the application.
