In Türkiye, many concepts are interpreted in ways that depart from their essence, and many institutions are assessed contrary to their true nature. The practice of understanding and interpreting these concepts and institutions outside their essential meaning and character has persisted as both a habit and a misguided tradition.
This confusion is also defended by those opposed to the system of freedoms introduced by the Constitution. Through arguments advanced by conservative politicians and has-been professors, unlawful attitudes and practices are preserved as an order directed against the Constitution.
The freedom introduced by our new Constitution sheds light on entirely different questions and presents us with new concepts as constitutional institutions. Yet those who have failed to adapt to this freedom, or whose interests have been harmed by it, continue to use the old and backward understanding of law as though it were still in force, turning it into an instrument for violating the supremacy of the Constitution.
Among the most important freedoms being violated and used against our Constitution are the rules concerning freedom of the press. In countries where the press is silenced or rendered ineffective by indirect means, crises of democracy begin. Traitors to the Constitution and those who evade it prepare the justification for unlawful governments. Before long, a dictator emerges, and freedoms are destroyed for the benefit of a small and privileged minority.
These are not hypothetical events; they have occurred in many countries around the world. For this reason, direct and indirect attacks on freedom of the press must be carefully monitored.
Today in Türkiye, freedom of the press is also being undermined through a misguided understanding of law. Books published under the protection of the Constitution are being seized, in violation of the Constitution, based on a provision of the Code of Criminal Procedure.
What Does the Constitution Say?
Article 24, found in the section of our Constitution headed "Provisions Concerning the Press and Publications," states:
The Right to Publish Books and Pamphlets
Article 24:
"...The publication of books and pamphlets may not be made subject to prior permission or censorship. Books and pamphlets published in Türkiye may not be seized except under the provisions of the fifth paragraph of Article 22..."
The fifth paragraph of Article 22, referred to in Article 24, provides:
"...Newspapers and periodicals published in Türkiye may be seized only by order of a judge and only where an offence has been committed for which the law expressly provides that such measures may be applied..."
According to the conclusions to be drawn from these two constitutional provisions, the following conditions must be met before a book may be seized under our Constitution:
An offence must have been committed.
The provision governing that offence must expressly state that books constituting the subject matter of the offence may be seized when the offence is committed.
A judge must have ordered the seizure of the book.
According to the principles of criminal law, an offence is:
"...an unlawful act corresponding to a statutory definition, arising from an act or omission produced by the culpable will of a person capable of criminal responsibility, and requiring the imposition of a criminal sanction..."
(Alacakaptan, Uğur, Elements of Crime, p. 9)
What does it mean for an offence involving the expression of ideas to be deemed committed?
The mere fact that a public prosecutor has initiated proceedings does not mean that an offence involving ideas has been committed. An offence becomes established only by a final judgment—that is, once the judicial authorities have spoken their final word regarding both the nature of the offence and the identity of the offender. Only then is the offence established, and only then must the accused bear the consequences of being convicted.
Until the judiciary has spoken its final word, the accused is innocent before the law. Such a person cannot be called guilty, nor can the penalties and consequences of guilt be imposed upon them.
A public prosecution begins with the preliminary investigation opened by the public prosecutor and proceeds through the stages of initial and final investigation. Depending on the seriousness and nature of the offence, it is concluded by a final judgment of a magistrates' court, a court of first instance or a high criminal court.
In addition, judgments of the Court of Cassation may be challenged through applications for rectification of judgment or retrial. These, however, are extraordinary legal remedies. The ordinary legal process ends with review by the Court of Cassation.
The preliminary investigation, the initial and final investigations and the legal remedies available before the Court of Cassation form a single whole within the judicial process. An accused person who has passed through only one of these stages cannot therefore be regarded as guilty.
For an offence to be deemed committed, a judgment must have been rendered against the accused, the Court of Cassation must have upheld that judgment, and the ordinary legal remedies must have been exhausted.
Otherwise, a prosecutor who lacks security of tenure and serves under the authority of a partisan minister of justice could, acting on the minister's instructions, open a preliminary investigation and cause an author to be treated as having committed an offence before guilt has been established. The penalties of guilt would then be imposed before the offence itself had even been determined.
Under such circumstances, no opinion opposing the governing party could be defended freely and without fear under the protection of the Constitution.
In other words:
a. An offence must have been committed.
b. The accused must have been tried.
c. The Court of Cassation must have upheld the judgment.
Only after this may the next condition be examined and applied.
The conviction of the accused author alone is not sufficient to justify the seizure of the book forming the subject matter of the offence. As stated in the fifth paragraph of Article 22 of our Constitution, the relevant statutory provision must also expressly provide that books constituting the subject matter of the offence may be seized where that offence is committed.
For example, suppose an offence is committed under one of the provisions in the Turkish Penal Code concerning crimes against the international personality of the state. The Court of Cassation upholds the judgment, and the accused is convicted.
For the book relating to the offence for which the author was convicted to be seized, the provision applied to the accused must also contain a clause stating:
"...Where this offence is committed, books constituting the subject matter of the offence may be seized..."
Yet even the notorious Articles 141 and 142 of the Turkish Penal Code contain no such provision. Under the laws currently in force, the books written by persons convicted of such offences may not be seized.
Even the commission of the offence, the rendering of a judgment, the affirmation of that judgment by the Court of Cassation and the existence of an express statutory provision authorising the seizure of books are not sufficient on their own.
In addition to all these conditions, a separate judicial order authorising the seizure is required.
The Current Practice Is Unconstitutional
Because our Constitution is a reaction against the former order and establishes a system of freedoms, it has made the seizure of books subject to these strict conditions.
Although the 1961 Constitution remains in force and celebrations are held in its honour, the constitutional rule and command examined above are being violated by a provision of the Code of Criminal Procedure.
The Constitution is neither a request issued by the Constituent Assembly nor a collection of memoirs written by its members. It consists of the highest legal obligations, established through fundamental principles governing the organisation of the state.
Those serving in the judicial system must, above all, embrace the Constitution's fundamental principles and apply the law in accordance with them.
The system of freedoms introduced by the 1961 Constitution is alien to the mentality of "I am the law" and to the concept of a police state. Although public prosecutors should be more vigilant than any other citizen regarding the development of democracy, they continue to implement, under the authority of ministers of justice, an understanding that conflicts with the Constitution.
We have examined our Constitution's provision concerning the seizure of books.
Any seizure of books outside these conditions is unconstitutional.
This unconstitutional practice is carried out under Article 86 of the Code of Criminal Procedure. A constitutional provision is thus effectively nullified by a procedural rule lower in the hierarchy of laws.
The provision in question reads as follows:
Article 86 of the Code of Criminal Procedure
Seizure and Search — Preservation and Seizure of Objects Constituting Evidence
"...Objects considered useful as evidence for an investigation, or objects subject to confiscation, shall be preserved or otherwise secured.
Where such an object is in the possession of a person, and that person refuses to surrender it voluntarily, it shall be seized..."
This provision concerns the securing of objects that may serve as evidence useful to an investigation. Its fundamental purpose is to prevent the loss of evidence capable of clarifying an incident.
This may involve, for example, obtaining and examining the instrument used in a murder or theft: a pistol, knife, stone, club, key and so forth.
Where a book is investigated because of the ideas it contains, the evidence is the book in which those ideas are alleged to constitute an offence. There is no other aspect of the incident requiring clarification. The alleged offence is not to be sought outside the book; it is to be sought within the book, between its lines.
Examining a single copy of the book is sufficient to determine whether it contains an offence.
Just as only the pistol or knife used in a murder may be seized under this provision—and not every pistol and knife in the country—only a single copy of a book should be examined before a decision is reached.
Moreover, offences involving ideas possess characteristics that distinguish them from ordinary criminal offences.
Where a murder or theft is discovered in the act, the connection between the offence and the accused is evident. In cases involving ideas, however, it has not yet been determined whether an offence has been committed. The prosecutor's abstract allegation cannot be regarded as evidence or a presumption that the offence has occurred.
The existence of the offence will emerge and become final only after a lengthy judicial process.
Since both the nature of the alleged offence and the identity of the alleged offender can be established through a single copy of the book, the seizure of every published copy under this provision does not comply even with Article 86 of the Code of Criminal Procedure.
The forced application of the law in this manner bears the marks of a fascist tendency.
Articles 22 and 24 of our Constitution are clear. While these provisions remain in force, those who seize books in violation of the Constitution's command are themselves committing an offence against the Constitution.
It is mistaken to believe that the Constitution can be violated only with cannons and rifles.
The Constitution may also be violated through practices that contradict its commands.
It should not be forgotten that the Constitution shows no leniency towards those who disregard it.
