A legal assessment of Ayşe Barım’s detention process

Ayşe Barım first came to the public agenda on September 26, 2024, when a journalist's column alleged that she was at the center of monopolization claims in the acting industry. On January 8, 2025, the Competition Authority launched an investigation into 21 companies, including ID İletişim, the company founded by Ayşe Barım. Although ID İletişim denied the monopolization allegations, the Istanbul Chief Public Prosecutor's Office launched an investigation into the matter on January 10. During the investigation process, a travel ban was imposed on Barım on January 13.

On January 24, 2025, talent manager Ayşe Barım was detained as part of an investigation launched on the allegation that she was one of the planners of the Gezi Park protests, on charges of "attempting to overthrow the Government of the Republic of Turkey or to prevent it from performing its duties." Following Barım, actors such as Halit Ergenç, Dolunay Soysert, Rıza Kocaoğlu, and Mehmet Günsür were also summoned to testify. On January 27, 2025, an arrest warrant was issued for Ayşe Barım. In other words, Ayşe Barım was arrested on the grounds that she participated in the Gezi Park protests 12 years ago. An investigation was launched against actors Halit Ergenç and Rıza Kocaoğlu for the crime of “perjury,” and a public lawsuit was subsequently filed.

The legal system in Turkey is shaped around specific rules regarding crime and punishment. However, recently, serious legal problems have emerged in various aspects and applications of criminal law. In this context, the arrest warrant issued for Ayşe Barım contains significant legal errors in terms of both the constitution and criminal law.

INFLUENCE AGENTING AND LEGAL UNCERTAINTIES

One of the grounds cited for Ayşe Barım’s arrest was the 'influence agenting' charge, which has recently come to the fore in Turkey.

This concept was included in the previous judicial reform draft and began to be discussed by the public in this way. However, as a result of criticisms and the opposition's reactions, this regulation did not gain legal status. Nevertheless, the concept of 'influence agenting' was included in the arrest warrant for Ayşe Barım, relying on a law that is not in effect.

Influence agenting is linked to a clause planned to be added to the 'Crimes Against State Secrets and Espionage' section of the Turkish Penal Code. However, the content of this clause contains serious contradictions with the fundamental principles of the legal system. In the proposal draft referred to as the 9th Judicial Package, the definitions of crimes such as 'crimes committed against the internal and external political interests of the state' or 'crimes committed in line with the strategic interests of an organization', which were intended to be added after Article 339 of the Turkish Penal Code No. 5237, are vague concepts open to political interpretation.

The inclusion of such vague expressions in the text of the law makes the definition of crimes unpredictable, and as a result, grants judicial authorities excessively broad discretionary power. Thus, the ambiguity of the material elements of the crime eliminates legal security and is contrary to the principle of legal predictability in criminal proceedings.

It is obvious that this regulation contains a definition of a crime that carries legal uncertainty and will lead to unpredictable results in terms of punishment. Yet, one of the fundamental principles of a state of law is that crime and punishment must be clearly defined by law. This uncertainty can make court decisions arbitrary and leave defendants facing great difficulty in proving their innocence. However, even though this regulation has not yet entered into force, citing it as the basis for Ayşe Barım’s arrest clearly constitutes a legal error.

USING A NON-EXISTENT REGULATION AS A JUSTIFICATION

The 'influence agenting' charge cited as the basis for Ayşe Barım’s arrest is based on a regulation that is not currently legally valid. This proposal, which was accepted in Parliament and is known to the public as 'influence agenting,' was withdrawn following reactions, and no legal regulation was enacted. In this context, issuing an arrest warrant for a crime that is not in effect is not legally valid. Using such legal ambiguity as a charge contradicts the fundamental principles of criminal law.

CRITICISMS REGARDING AYŞE BARIM’S RELEASE DECISION

Ayşe Barım’s lawyer appealed her client's detention to the Criminal Court of First Instance, and the court decided to release Barım. However, immediately after this decision, the Istanbul Chief Public Prosecutor's Office filed an objection before the decision could be implemented. Upon the objection, the Assize Court ruled for Barım’s re-arrest. The point to be noted here is that, in accordance with Article 271 of the Criminal Procedure Code, the decisions given by the authority are final.

In other words, there is no such path as an objection to the release decision of the Criminal Court of First Instance. Therefore, the Chief Public Prosecutor's Office's objection is null and void. Consequently, the arrest warrant issued by the Assize Court based on the subsequent null and void objection is also null and void. At this point, a grave situation has emerged. Since the arrest warrant for Ayşe Barım is legally null and void, she is essentially being held in prison without a judicial decision.

On the other hand, the Council of Judges and Prosecutors (HSK) has dismissed Fatih Kapan, the judge of the Istanbul 8th Criminal Court of First Instance, who decided to release talent manager Ayşe Barım, who was arrested as part of the investigation into the Gezi Park protests. Kapan was appointed as a consumer court judge. The appointment of the judge who granted the release decision for Ayşe Barım to another court and the initiation of an investigation against him are highly controversial from a legal perspective. Such an application violates judicial independence and the principle of the natural judge. Pressures on court decisions harm the independence of the judiciary and create serious obstacles to the proper administration of justice.

Furthermore, as we have stated in our article, while the release decision granted to Ayşe Barım according to the Criminal Procedure Code is clear and definitive, the law being attempted to be applied to her is based on a regulation that does not exist in the law. Moreover, the 'influence agenting' charge included in the initial arrest warrant for Ayşe Barım is also a completely arbitrary application with no basis in law. This situation reveals that the existing law is not being applied to Ayşe Barım. Law exists to guarantee the rights of individuals, but what is happening here reflects a situation where arbitrariness, not law, prevails.

In conclusion, in light of the issues set forth above, it is already possible to say that the right to a fair trial, guaranteed under Article 6 of the European Convention on Human Rights, has been violated. This legal process that Ayşe Barım is facing will seriously damage not only her rights but also Turkey’s reputation in the international arena. These violations will put our country in a difficult position in both the Constitutional Court and the European Court of Human Rights in the future and will shake confidence in the rule of law.

Attorney Dr. Mehmet Ruşen Gültekin - Attorney Deniz Ali İlkem Demir

News Source: 12punto