Fair Trial and Press

FAIR TRIAL PRINCIPLE AND ITS REFLECTIONS IN THE PRESS OF TURKEY WITH THE RESPECT OF ECHR DECISIONS

ABSTRACT

When World War II ended with consequences that had never been ensued before, Europe understood deeply that superiority of law that based on inherent rights was the first condition to ensure, in life. The lost of 'humanity' values ​​at the war led Europe to sign intergovernmental, European Convention of Human Rights (ECHR). The contract came under control of the Court of Human Rights. Fair trial is a right in the convention that is an absolute right that cannot be limited. Due to the guarantees brought by the right of fair trial, the most important assurance is the presumption of innocence. This assurance is to protect the accused and to protect the dignity of the accused. However, this assurance gets violated by press for many times.In this article, the correlation between fair trial, presumption of innocence and press were evaluated in the light of ECHR decisions.

Keywords: Fair trial, ECHR, Court of ECHR, , press, Presumption of Innocence

Abstrait

Lorsque la Seconde Guerre mondiale s'est terminée avec des conséquences qui n'avaient jamais eu lieu auparavant, l'Europe a compris profondément que la supériorité du droit fondé sur les droits inhérents était la première condition à assurer, dans la vie. La perte des valeurs « d'humanité » pendant la guerre a conduit l'Europe à signer la Convention intergouvernementale européenne des droits de l'homme (CEDH). Le contrat est passé sous le contrôle de la Cour des droits de l'homme. Un procès équitable est un droit inscrit dans la convention qui est un droit absolu qui ne peut être limité. Cette assurance vise à protéger l'accusé et à protéger la dignité de l'accusé. Cependant, cette assurance est violée à plusieurs reprises par la presse. Dans cet article, la corrélation entre procès équitable, présomption d'innocence et presse a été évaluée à la lumière des décisions de la CEDH.

Mots-clés : Procès équitable, CEDH, Cour CEDH, , presse, Présomption d'Innocence

Introduction and General Remarks

As the right of Fair Trial is one of the most fundamental issues of jurisdiction, also taking it into consider as the most crucial right during and after the the trial would not be any wrong. Fair Trial Right is the basis of state of law. It provides inherent assurances to the party in the defense position, especially by strengthening the defense, which is often in a weak position against the prosecution in Criminal Justice, and equates it with the prosecution in terms of power in the trial process. The most up-to-date and comprehensive form of the right to a fair trial is embodied in the ECHR, but the right to a fair trial was not foreign to Turkey before the ECHR. It was partly included in Turkish Law with the Imperial Edict of Gulhane¹. In order to fulfill the guarantees of the right to a fair trial, the state parties to the ECHR have been obliged to make efforts to take the necessary measures, as a result of this, the AYM's reference to the ECtHR case-laws in most of its decisions in this direction can be given as an example. Hence, it can be shown as an example that the Constitutional Court (AYM) attributes to the ECtHR case-law in most of its decisions in this direction. The duty of securing the rights under Article 6 of the ECHR, titled Fair Trial, which guarantees the right to defence, rests with the contracting states².

Nearly half of the violation decisions given by the ECtHR since the establishment of the court, have been found to have violated the right to a fair trial (Article 6), regarding the length of the trial and the fair trial³. As of April 2020, there are a total of 24883 decision by ECtHR that have been found to have violated Article 6. When the Court ( ECtHR) examines an issue, takes the matter into consider whether the conditions are met for a fair trial rather than that if it is a fair decision. The ECtHR does not have the authority to enter into the merits of the domestic decision. It is up to domestic courts to evaluate the evidence presented and decide what is relevant to the case.Convention bodies have limited supervisory power only within the framework of the priority principle of equity. To what extend does the warrants of Fair Trial Right stay valid or does the accelerating information flow with the rapidly developing technology affect this situation and what are the precautions? In this study, questions like those were evaluated in the light of ECtHR and Constitutional Court decisions. In order to answer these questions, it is useful to take a closer look at the notions first.

^{1 Tanör Bülent, Osmanlı-Türk Anayasal Gelişmeleri, Yapı Kredi Yayınları,İstanbul,1992 s.89.}

^{2 Colozza v. Italy, HUDOC, Appl.No: 9024/80 , 12.02.1985, para 28}

^{3 ECHR, https://www.echr.coe.int/Documents/50Questions_TUR.pdf}

I. FAIR TRIAL

The principle of fair trial designates the essential elements of the trial in civil or criminal cases and even in administrative law cases to a certain extent.⁴ Beside ECHR, Right to Fair Trial is also regulated in the United Nations International Declaration of Human Rights (art. 10) as well as in the United Nations International Covenant on Civil and Political Rights (art. 14)⁵ Constitution of Turkish Republic, regulated the right to Fair Trial in the article of 36.

Article (6) of the ECHR regulates the right to a fair trial. Accordingly, every person has the right to demand that their case be heard by an independent and impartial court established by law, which decides on both the disputes regarding his civil rights-obligations and the charges against him in the criminal field, and at the same time, to have his case heard in a fair and open session within a reasonable time⁷. The first condition of a fair trial is an impartial and independent court established by law. In this sense, an impartial court signifies that the members of the court have no interests and prejudices against the parties. The independent court must contain the features specified in the article 138 of the Constitution of Turkey, accordingly an independent court; does not receive any instructions or advice from any organ, authority or person.

Article 6, which explains the fair trial, clearly listed the rights and principles that make up the concept of fair trial. However, while interpreting these rights and principles, the court may also consider some other principles or rights as implicit elements within the scope of the article, although they do not explicitly mentioned in the article. For instance, the right to apply to the court implicitly is also understood. The ECtHR stated in its decision of Golder that without the right to apply to the court, it would be impossible to benefit from the safeguards of a fair trial.⁸

^{4 İNCEOĞLU Sibel, Adil Yargılanma ve Yargı Etiği, Şen Matbaa, Istanbul,2008}

^{5 TBMM, https://www.tbmm.gov.tr/komisyon/insanhaklari/pdf01/203-208.pdf}

^{6 MSHS, https://humanrightscenter.bilgi.edu.tr/media/uploads/2015/08/03/MedeniVeSiyasiHaklaraIliskinSozlesme.pdf}

^{7 ECHR, https://www.echr.coe.int/Documents/Convention_TUR.pdf s. 6. (ilk fıkra)}

^{8 GOLDER v. THE UNITED KINGDOM, HUDOC,Appl.no : 4451/70, 21.02.1975,para.35}

The concept of reasonable time is thought to be the most violated part of the right to a fair trial in practice, albeit unintentionally. Long trial processes, long procedures, backlogs before the courts cause delays in cases. Although the states that are parties to the convention try to reduce the burden of the court in this regard (for example, the establishment of the mediation institution), it still cannot be said that they fully meet the reasonable time requirement. As for the just decision, although what is meant by fairness is open to interpretation, it can be concluded that a just decision is not arbitrary or contrary to the rules of logic, based on the decisions of the ECtHR. As long as the judge's evaluation of the allegations and evidence does not contain significant unreality, there can be no talk of unfairness.⁹ The decision must be based on a legally valid reason. If it is enough to refer to the domestic law article, it will constitute a violation in terms of fairness.¹⁰ The judgment is given in open session, but in some cases it may be restricted. Particularly in terms of public morality, public order and national security, it is possible for the hearing to be closed in some cases when the protection of minors or the privacy of the parties to the case is in danger or in cases where hearing the case in public would harm the security of justice. This shows that some concessions must be made from the right to a fair trial in order to ensure a fair trial. The reason is that when all the rights brought by the principle of fair trial are used at the same time, some problems will arise.

The second paragraph of the sixth article guarantees the presumption that the accused is innocent. Since this part will be discussed separately, it is useful to continue with the third paragraph, which regulates the defense rights of the accused in general.The third paragraph states: every accused has at least the following rights:

To be informed as soon as possible, in a language they understand, and in detail, of the nature and cause of the accusation against them; have the necessary time and facilities to prepare their defense; to defend oneself or to have the assistance of a defender of their choice, and to have the free assistance of a court-appointed lawyer if the defense lacks the financial means to hire them and the interests of justice require it. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them; to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

^{9 Sculer-Zgraggen v.Switzerland, HUDOC,Appl. no: 14518/89, 24/06/1993, para. 55-57}

^{10 İNCEOĞLU, 2007, s. 91-92.}

When making a decision, the ECtHR checks whether the time period affects the defense negatively. While the written notice that sent seventeen days before the hearing in the complex case subject to the trial was deemed to comply with the sufficient time requirement¹¹, The Court found that the lawyers' ability to obtain the seventeen thousand-page case file only two weeks before the hearings began violated 6/3(b).¹² Another element of the Fair Trial is equality of arms. This principle means that there is an equality between the parties in terms of rights and obligations before the court. The principle of equality of arms includes: Opportunity to present counter-evidence in general, equality of rights in hearing witnesses, parity in terms of expert, equal opportunities in accessing information and documents.¹³

II. PRESUMPTION OF INNOCENCE

The second paragraph of Article 6 of the European Convention on Human Rights has declared the presumption of innocence by saying that every person accused of a crime is presumed innocent until their guilt is proven legally. As can be understood from the definition, for the presumption of innocence to work, there must be a criminal charge attributed to the person. In general terms, imputation is the official notification by the competent authority containing the allegation that the person has committed a crime.¹⁴ While evaluating the accusation, the court evaluates the content of the proceedings against the applicant rather than the formal aspect.¹⁵ The Court has foreseen that the substantive rather than the formal meaning of this concept should be preferred. The court is obliged to look behind the appearances and examine the facts of the concrete case in question.¹⁶

^{11 X v. Austria, HUDOC, Appl no: 7909/77 15 DR 160 (1978)}

^{12 Ocalan v.Turkey,HUDOC,Appl no: 46221/99 , 12/05/2005}

^{13 İNCEOĞLU ,2007,s.60}

^{14 Deweer v. Belgium, HUDOC, Appl. no: 6903/75 , 27/02/1980, para. 46}

^{15 Deweer v. Belgium, para.46}

^{16 Deweer v. Belgium, para. 42}

In the autonomous interpretation of crime and punishment, it is determined whether a crime or punishment has a criminal nature by taking into account some criteria called Engel Criteria. The Engel Criteria were determined by the outcome of a case in ECtHR. The Engel case,a case brought against certain members of the armed forces, which in the Netherlands had a disciplinary nature rather than a criminal law.¹⁷ The Court states that it will evaluate whether a trial has been made regarding the criminal charge, which should benefit from the guarantees in Article 6, by looking at the following three factors:

• what class the crime falls under (under national law)

• nature of the act

• nature and gravity of the sanction

There is no need to make an assessment in terms of the first criterion because it is only important as a starting point. In the case of a crime defined under criminal law in domestic law, it will automatically fall within the scope of application of the article. Even if it is of the nature to be considered a disciplinary offense by the organs of the Convention, if it is regulated within the scope of criminal law in domestic law, the prosecution for this offense will fall within the scope of Article 6.If there is a crime regulated outside of the criminal law in domestic law, for example, if a disciplinary offense or an act subject to administrative sanction is the subject of a lawsuit, the other two elements gain importance.¹⁸ The nature of the act is taken into account on four factors:

· Limitation of the relevant act in the vast majority of States parties (common denominator approach) ¹⁹

· The similarity of the act in question with the acts defined in the penal laws.²⁰

· The similarity between the querelas applied in the trial and the criminal trial querela.²¹

· The number and status of the persons to whom the relevant sanction is directed (The most important factor.)²²

^{17 Engel and others v. The Netherhlands, HUDOC, Appl no: 5100/71 , 23/11/1976}

^{18 İNCEOĞLU ,2007,s.91}

^{19 Ozturk v. Germany, HUDOC, Appl no: 8544/79, 21/02/1984, para.53}

^{20 Ezeh and Connors v. United Kingdom, HUDOC, Appl no: 39665/98, 40086/98 ,09/10/2003,para.104}

^{21 Benham v. United Kingdom,HUDOC, Appl no: 19380/92, 10/06/1996, para. 56}

^{22 Weber v. Switzerland, HUDOC,Appl no: 11034/84, 22/05/1990, para.33}

In the Ozturk decision, the court evaluated the nature and purpose of the punishment within the nature of the act.²³ The ECtHR characterized the purpose of the punishment as deterrent and criminal and declared that these were sufficient to show that the act was criminal in the context of article 6 of the ECHR²⁴ In the Ozturk decision, the criterion of the nature and purpose of the punishment was evaluated within the concept of the actual crime by evaluating the number and status of the persons to whom the sanction was directed. For example, in terms of traffic fines, which are considered as administrative fines, the criteria of the number and status of the persons to whom the sanction is directed are taken into account.

Generally, in cases where the punishment requires deprivation of liberty, the ECtHR considers that the crime falls within the criminal law.The court did not consider the sentences of 2 days of restriction of limits and 4 days of heavy restriction of limits to be as heavy as penalties in criminal law.²⁵ Moreover, the Court did not classify crimes punishable only by fines as criminal.²⁶ If the punishment foreseen for the crime does not have a characteristic that is normally found in the criminal law, for example, in the dismissal or suspension of the person, there will be no criminal charge despite the severe consequences. In order for the presumption of innocence to work, a criminal case does not need to be opened legally. A person suspected of committing a crime and a police investigation has been initiated or detained will also benefit from the presumption of innocence. According to the Court, the accusation is also considered to have occurred when there is a reasonable suspicion of crime²⁷.

The ECtHR defines the presumption of innocence as follows: It is an assurance that ensures that the members of a court do not act with prejudices that the accused has committed the crime imputed to him, that the burden of proof is on the prosecution and that the accused will benefit from the state of doubt.²⁸

^{23 Ozturk v. Germany para.53}

^{24 TOSUN Seyfullah,Anayasa Mahkemesine Bireysel Başvuruda Masumiyet Karinesi, On İki Levha Yayıncılık, İstanbul,2018,s.17}

^{25 Engel and others v. The Netherhlands}

^{26 Ravnsborg v. Sweden, HUDOC,Appl. no: 14220/88 ,23/03/1994,para.35}

^{27 Yankov, and Others v Bulgaria ,HUDOC, Appl no: 4570/05, 23/09/2010,para.22-23}

^{28 Barbera, Messague ,Jabardo, HUDOC,Appl no: 10590/83, 06/12/1988, para.77}

Within the presumption of innocence²⁹; It includes the assurance that prosecution assumes the burden of claim, the principle that the accused benefits from suspicion, the right to protect from the statements of public authorities or public officials and to be protected from the press³⁰, the right to remain silent and not be forced to incriminate themseld, the right to be released within a reasonable time, the right to be protected in related proceedings based on criminal charges. The presumption of innocence and the guarantees it provides apply to the entire trial in the case of a criminal charge.³¹ The Court has included in its case-law that the presumption of innocence can be violated not only by a judge or court, but also by other public authorities, even by the press.

In this context, the ECtHR examines the statements of public officials, including police³², prosecutor³³, politician³⁴. In terms of the statements of public officials or public authorities, the ECtHR generally decides by taking into account the criteria of whether the aforementioned statements indicate a suspicion that an offense has been committed or whether an offense has been committed, whether they are brought in a context independent of the criminal proceedings, and at what stage of the criminal case they are expressed³⁵. For example, there may be a violation of the presumption of innocence due to articles in the media or some humiliating statements based on statements or provocations by state officials.³⁶ For example, the fact that during the press conference some of the highest ranking officers of the French police referred to Allenet de Ribomont as a partner in the murder, despite the lack of a final decision, violated Article 6-2.

This statement both contributed to the public's belief that this person was guilty and caused the judiciary to fall into a bias in evaluating the facts.

^{29 Uluslararası Af Örgütü ,Adil Yargılanma Hakkı , Çev. Fadıl Ahmet Taner,Erol Kaplan,İstanbul,İletişim ,s. 180}

^{30 Allenet De Ribomont v. France ,HUDOC, Appl no :.15175/89, 10/02/1995, Para.36}

^{31 Adolf v. Austria, HUDOC, Appl. no: 8269/78 , 26/03/1982}

^{32 Samolia and Cioncav. Romania ,HUDOC,Appl. no:33065/03,04/03/2008}

^{33 Daktaras v. Lithuania, HUDOC, Appl. no:42095/98 10/10/2000}

^{34 Kouzmin v. Russia, HUDOC,Appl.no:58939/00, 18/03/2010}

^{35 TOSUN, 2018, s.132}

^{36 İNCEOĞLU,2007,s.96-97}

The ECtHR examines the language used in the decision or preamble in order to distinguish between the suspicion of guilt and the admission of guilt in the statements in the decisions or preambles of the domestic courts. The ECtHR examines whether the state of suspicion or the accused guilt is expressed.³⁷ It was considered reasonable to express doubts about the accused's innocence only if the criminal proceedings were not concluded with a decision that went into the merits of the charge.³⁸ In addition, the ECtHR has decided that such suspicion does not comply with the presumption of innocence in cases where the criminal proceedings have resulted in acquittal.³⁹ Making a decision by considering criminal records or some other factors does not constitute a violation of the report of innocence.⁴⁰

Sometimes, the guarantees of the presumption of innocence may be constrained In this context, the ECtHR generally uses the criterion of adequate guarantees.While this criterion limits one of the right to a fair trial, it states that other fair trial guarantees must be adequately provided.⁴¹ In terms of presumption of innocence guarantees, this criterion is; It is used for the prosecution to assume the burden of proof, for silence and not to be compelled to incriminate oneself (nemo tenatur), and in related proceedings based on criminal charges. The burden of proof can get reversed in some situations. The ECtHR has bound the burden of proof to reverse from the prosecution to the defense on certain conditions. The ECtHR stated that, as a rule, the de facto and legal presumptions that place the burden of proof on the defense will be regulated by the states parties. However, these arrangements must be within reasonable limits, and reasonable limits mean that the person's right to defense is not harmed in other words, it is valid if people can prove the opposite of these factual and legal presumptions. Fact and legal presumptions within reasonable limits do not violate the presumption of innocence. If the ECtHR decides that there is a fair balance between the right of defense granted to the applicant and the benefit arising from the factual or legal presumption in question, it may decide that the presumption of innocence has not been violated even if it is very difficult for the applicant to prove the contrary of the fact or legal presumption.

^{37 Nölkenbockhoff v.German, HUDOC, Appl.No: 10300/83, 25/08/1987,Para38}

^{38 Sekanina v. Austria, HUDOC, Appl. No: 13126/87,25/08/1993, Para.58}

^{39 Sekanina v. Austria, Para. 59-64.}

^{40 Engel and others v. The Netherhlands, Para 90}

^{41 TOSUN, 2018, s. 13}

^{42 Janosevic v. Sweden, HUDOC, Appl. No. 34619/97, 23/07/2002, Para. 102-104}

III. THE RELATIONSHIP BETWEEN THE PRESS AND THE PRESUMPTION OF INNOCENCE

Today, with the number of masses reached by the press spanning all of the societies of the member states of the Council of Europe, the delivery of judicial news and how it is given is of great importance. Receiving news is an inherent right. It ıs frequently asked that if this right ignore the guarantees given to the accused at the trial stage.

First of all, it is necessary to answer the question of what is the press. Besides the concept of press includes printed and written works such as newspapers, magazines, books; it also the includes other mass media such as radio, television and internet Especially, the concept of press used for the delivery of judicial news also includes other mass media such as radio, television and internet.⁴³ Considering the size of the masses reached by the press today, the delivery of forensic news and the perception aroused play a very important role for the accused. Untrue news about events can be published, this situation can lead to prejudice in the public and even judicial authorities, and the right to presumption of innocence can be violated. Violation of the presumption of innocence by the press can affect the judiciary.It is inevitable that the result of declaring the person guilty in the society with an unlawful news. The press should be maintained within the criteria of compliance with the law so that the reputation of the person in the society would not be damaged due to the investigation and prosecution carried out against them on suspicion of crime. A reasonable balance between the privacy of private life, personal rights, confidentiality of investigation and freedom of the press should be ensured with certain restrictions.⁴⁴

Getting and reporting news is an inescapable fundamental right. ( Turkish Constitution art.25,26,27,28,29,133) Freedom of the press can be protected against the presumption of innocence only if the press release is lawful. The elements that must be included in a legal report are as follows:

News must;

- be real

- be up to date,

- Include public interest and benefit,

And there must be an intellectual link between the news given and the crime committed.

^{43 Baykan Metin,Basın Özgürlüğü, i: Adalet Yayınevi, İstanbul,2011 ,s.20}

^{44 Yüzer Dilara , BASIN YOLUYLA ADLİ HABERLERİN VERİLİŞİ VE SUÇSUZLUK KARİNESİ, Dergipark, s.2-4.}

Within the limits of objectivity, the press should research and examine everything that appears and known about the event or subject at that moment and publish the events as they are. This requires a greater work for the press. Even the pictures of the relevant people matters, it should not be allowed to take pictures of people by being insulted or any pejorative pictures. Because giving such information and images to the public will cement the opinion about the guilt of these people. As long as the press complies with these criteria, is in reality and does not use accusatory language, it is free to comment. The duty of the press cannot be perceived as merely giving the information and leaving the interpretation to the reader.⁴⁵ What must be understood from reality is not absolute reality. Because the news gathering opportunities of the people who prepared the news consist of the information conveyed to them.⁴⁶ The sought reality is the apparent reality, not the concrete and material reality.⁴⁷ In determining the authenticity of the news, it is taken into account that the news can be considered true at the time it was given.

Thought statements, on the other hand, cannot be qualified as true or false since they are subjective.⁴⁸ Therefore, there are no restrictions on the authenticity of thought statements.

The fact that the news is up-to-date is based on the public interest at the time of the announcement of the concrete event.⁴⁹ The ECtHR has stated that the news is easily perishable and its delay, even for a short time, would lose all its value and attractiveness.⁵⁰ Providing out-of-date news on the agenda, which is very busy in terms of the subject of the news, will pose a problem in this regard. An exception to this is when there is a public interest in the delivery of a news. As long as it is in the public interest, there is no need to seek timeliness in the news.⁵¹ If the outdated event is of historical importance or is about a person with a historical personality, the journalist uses their right to explain historical events.⁵² Prosecutors, law enforcement officers and officials involved in the investigation are a obliged to respect the presumption of innocence.

^{45 Lingens v. Austria,HUDOC, Appl. No:9815/82, 08.97.1986}

^{46 ÖZEN, HAFIZOĞULLARI, s. 233.}

^{47 Arısoy, Mine, “Hakaret”, Türkiye Barolar Birliği Dergisi, S. 72, 2007, s. 176.}

^{48 Koziol, Helmut: “Der Schutz der Persönlichkeitsrechtegegenüber Massenmedien: Zusammenfassungund Ausblick”, Persönlichkeitsschuzgegenüber Massenmedien, Almanya, 2005, s. 666.}

^{49 Kartal, Bilal, ‘’Basın-Yayın Yoluyla Kişilik Haklarına Saldırı ve Hukuki Sorumluluk”, Yargıtay Dergisi, C. XXIII, S. 1-2, Ocak-Nisan 1997, s. 123}

^{50 Sunday Times v. UK,HUDOC, App. No.13166/8, , 26.09.1991 , para.51.}

^{51 Erman, Sahir/Özek, Çetin: Açıklamalı Basın Kanunu ve İlgili Mevzuat, İstanbul, 2000.s. 310.}

^{52 Erman-Özek,s.310.}

In order for the press to fulfill its duty of reporting, it is necessary to give information to the press about judicial events within a framework. As emphasized in the Allenet de Ribemont-France judgment of the ECtHR, the second paragraph of Article 6 of the ECHR does not prevent the authorities from informing the public about a criminal investigation being conducted. However, when it comes to respecting the presumption of innocence, information must be given with full discretion.⁵³ Generally, after an incident occurs, the law enforcement officers who are the first to know about the incident inform the press first. In Turkey,it is unlawful for law enforcement officers to inform the judicial authorities without the instruction of the public prosecutor.⁵⁴ This matter is of great importance. In order to ensure that the public is properly informed since the crime has gained a judicial character from the moment the crime was committed, the public prosecutor appointed by the High Council of Judges and Prosecutors as the spokesperson of the press, on the condition that the Chief Public Prosecutor informs the explanations regarding the investigations.⁵⁵

Public interest and social interest also require publicizing the fact that a person has not committed a crime. Thus, the news of her acquittal should be as loud as the news of their arrest / arrest, which made a lot of noise

It is also a direct violation of the presumption of innocence that the members of the press act ex officio and do research on some crimes that attract the public's attention, try to find the perpetrators of the crime, collect the evidence, and by publishing these, reflect a person whose guilt is not proven to the public as a criminal.⁵⁶

The ECtHR, on the other hand, while accepting that the press may violate the presumption of innocence, follows a tendency to describe the cases that come before it more as freedom of expression. There is no provision in the ECHR that directly concerns the freedom of the press, the content of this freedom is mostly shaped by the jurisprudence of the court.⁵⁷ The ECtHR has subjected the restrictions to a strict control and evaluated the cases regarding the press according to the following three criteria;

-interference with the press must have a legitimate aim,

- the limitation must be determined by law,

- the interference must be necessary in a democratic society

^{53 Allenet de Ribemont v.France , par. 38}

^{54 TBMM İnsan Hakları İnceleme Komisyonu, Medyada Yer Alan Bazı Haberlerin Masumiyet Karinesini İhlal Ettiği İddialarının Araştırılması ile İlgili İnceleme Raporu( Parliment Report), Mart 2010, s. 25}

^{55 HSYK, Sayı: B.03.1.HSK.0.70.12.04-010.06.02-147-2011.}

^{56 Üzülmez İlhan, , s. 54}

^{57 BAYKAN, s.42}

In other words; It can be restricted on the condition that it has a legal basis for reasons such as the protection of national security, public morality, the rights and freedoms of others, the protection of public order, the protection of the presumption of innocence, etc. and is in the nature of mandatory measures in a democratic society. The ECHR explained the elements of the concept of democratic society as pluralism, tolerance and open-mindedness.⁵⁸

It is seen that the ECtHR primarily looks at the words and language used by the press in the conflict between the press and the presumption of innocence.⁵⁹ For this reason, incriminating words such as "murderer, thief, terrorist" should not be used on a suspect whose guilt has not been proven.In order to take a closer look at the court's position on this issue, it would be useful to examine the controversial Bedat decision.

Mr. Bédat wrote an article in the weekly L'Illustré about the criminal proceedings brought for a man (M.B.) hitting pedestrians with his car, killing three and injuring eight. Mr. Bédat's article on the incident included a personal statement by M.B., a summary of questions asked by the police and the investigating judge, and M.B.'s responses. It became clear that Bau Bedat had illegally accessed the documents of the investigation, and more than half a year later, a criminal case was opened by the Public Prosecutor against the journalist for publishing confidential documents in violation of Article 293 of the Swiss Criminal Code. One of the parties emerging from the investigation, M.B. He had lost a copy of his case file at a mall. He was found guilty of making public documents ordering him to pay a fine of 2,667 euros. On 1 July 2014 the ECtHR found, by four votes to three, that the article reported on an important case and that the sanction imposed on Bédat did not respond to an urgent social need and that the sentence was disproportionate.

On 1 July 2014 the ECtHR found, by four votes to three, that the article reported on an important case and that the sanction imposed on Bédat did not respond to an urgent social need and that the sentence was disproportionate.Although the ECtHR stated that Mr Bedat had to collect the information through lawful means, it was accepted that Bedat had not violated either the presumption of innocence or the right to a fair trial. Given the chilling effect of journalists reporting on major crimes and court cases, and the relatively harsh character of the sanction, the majority found that the fine imposed on Mr Bédat violated Article 10 of the ECHR, namely freedom of expression. Moreover, at the time of the news, M.B. He was in prison and mentally vulnerable when the news broke. In fact, the Court considers that similar reasoning should be applied in weighing the rights guaranteed by paragraph 2 of Articles 10 and 6, respectively.

It should be considered normal that the ECtHR, which has a multinational structure and is also supranational, introduces supranational criteria and is more flexible in some debates.

^{58 Handyside v. United Kingdom, HUDOC,Appl. No: 5493/72 , 07/12/1976}

^{59 Goodwin v. United Kingdom, HUDOCAppl. No:17488/90, 27/03/1986}

CONSEQUENCE

European law, which is the pioneer of a constantly developing and universalizing legal world, has been registered with the European Convention on Human Rights. Fair trial, which is still one of the most violated rights in practice, plays a role as the golden rule. The presumption of innocence, which is one of the rights of the accused to be tried, which has been obtained as a result of the struggle that has lasted for centuries, is, by its very nature, susceptible to violation. Another important issue in this context is the right and need to receive information. While the events that are engraved in the memory of the society shape the mentality of the society in the reporting of the judicial events, the proceedings of the accused in the reporting of the judicial events are reasonable only when the public is informed to a certain extent.

Sometimes by misusing the press function, it causes innocent people to gain the public memory as criminals, many fundamental rights of the accused/suspect get violated. There are various criteria and punishment sanctions to prevent this, but it seems that these measures only reduce the number of violations, they cannot stop them.It is not possible to measure the prestige of individuals in front of the society and attach them to a reasonable level condition. Violations must be stopped completely. In a democratic society, stopping this violation should not hinder another right, the right to be informed.

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