Calling someone a 'FETÖ member' is not a crime: Landmark ruling from the Constitutional Court in the Rasim Ozan Kütahyalı case!

The Constitutional Court has evaluated the application of Ömer Faruk Eminağaoğlu, who was sentenced for using the term "FETÖ member" in reference to Rasim Ozan Kütahyalı. The court ruled that this expression falls within the scope of freedom of expression.

Former Judges and Prosecutors Union (YARSAV) President Ömer Faruk Eminağaoğlu had posted on his social media account on November 29, 2019, referencing Rasim Ozan Kütahyalı's article titled "An open letter to Hocaefendi!", stating: "If Nagehan Alçı speaks, can Rasim Ozan Kütahyalı stay silent? Why are these FETÖ members still out... Is there anyone who can explain..."

ROK AND ALÇI DROPPED THE COMPLAINT, BUT THE COURT ISSUED A SENTENCE

Following this post, a lawsuit was filed against Eminağaoğlu at the Istanbul 43rd Criminal Court of First Instance upon the complaint of Rasim Ozan Kütahyalı and Nagehan Alçı. During the process, Nagehan Alçı withdrew her complaint.

However, the court sentenced Eminağaoğlu to a judicial fine of 1,740 liras on the charge of "insult via an audio, written, or visual message."

According to a report by Birgün, Eminağaoğlu took the decision to the Constitutional Court. In his application, he stated, "The complainants were making laudatory remarks in favor of Fethullah Gülen before July 15, and it is natural for them to be criticized." He also argued that his post should be evaluated within the scope of freedom of expression.

The Constitutional Court evaluated the application and ruled that "the freedom of expression guaranteed under Article 26 of the Constitution has been violated."

Speaking about the ruling, Eminağaoğlu noted the following:

"In the past, Kütahyalı had a series of three articles published in Sabah Newspaper titled 'Letter to Hocaefendi'. Because we opposed the actions taken by FETÖ and the AKP through the judiciary by founding YARSAV, I was subjected to many actions such as being exiled twice, tried twice, and investigated numerous times, even being accused of being the head of the judicial branch of FETÖ, in the face of pressure from these two groups up until the date those series of articles were written. Meanwhile, ROK did not refrain from writing some of the most fervent articles on this subject, expressing his loyalty to his Hocaefendi and claiming that what was done to us for being 'Ergenekon members' was justified. When ROK's articles came to the agenda in 2019, I remember sharing the words, 'If Nagehan Alçı speaks, can Rasim Ozan Kütahyalı stay silent? Why are these FETÖ members still out, is there anyone who understands?' on my Twitter social media account.

Then, when the lawsuit was filed, Nagehan Alçı withdrew her complaint. Rasim Ozan Kütahyalı did not withdraw his complaint, and I was sentenced for the crime of insult. The court interpreted the fact that no investigation was opened against Kütahyalı regarding FETÖ and the use of this phrase against me, and issued a conviction against me.

While an investigation should have been opened against Kütahyalı, I was the one who received a sentence as the owner of the Twitter account. In my application, the Constitutional Court stated that the words subject to the indictment remained within the scope of freedom of expression. Given that many lawsuits were filed against me and I was acquitted in all of them, being convicted on the grounds that I used the term 'FETÖ member' for a figure like Rasim Ozan Kütahyalı was not only the most severe attack on my rights and freedoms, but also an exemplary decision showing the state of freedom of expression in Turkey."