The ECHR decision of November 10, 2020 in the case "Sabuncu and Others v. Turkey" (aplication No. 23199/17).
In 2017, the applicants were assisted in preparing the aplication. Subsequently, the aplication was communicated to Turkey.
In the case, an aplication was successfully considered about the prolonged detention of journalists (publishers) in connection with the unjustified equating of the policy of their editorial office, which is subject to the principle of freedom of the press, with the propaganda of the activities of terrorist organizations. The case involved a violation of the requirements of subparagraph " c " of paragraph 1 of article 5, article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicants are journalists of the leading state daily newspaper "Republic" (Cumhuriyet) or managers of the fund, which is the main shareholder of the company publishing the newspaper.
A few weeks after the state of emergency was introduced in the country in July 2016, the applicants were detained and detained for several months on suspicion of "aiding" organizations recognized as terrorist, or spreading "propaganda" on behalf of these organizations. The suspicions were based mainly on articles published in the newspaper, the editorial policy of which the applicants allegedly influenced as managers of this organization, as well as on the reposts of materials by the applicants on social networks.
The applicants were accused of committing "asymmetric military actions" and attempting to manipulate public opinion in order to make the situation in the country unmanageable.
Regarding compliance with article 15 of the Convention. The Court noted that the applicants ' detention was based on Turkish legislation, which was in force after the introduction of a state of emergency in the country.
Regarding compliance with subparagraph " c " of paragraph 1 of Article 5 of the Convention. The Court concluded that at the time under review there was no "reasonable suspicion" that the applicants had committed the aforementioned serious crimes (punishable by imprisonment). In particular, the actions they were accused of committing were an exercise of convention freedoms and did not indicate any intention of the applicants to promote the illegal goals of terrorist organizations, namely, to use violence and terror for political purposes.
(a) As for the facts: how they relate to the applicants, and their plausibility. Whether the newspaper articles that were the subject of the dispute, which allegedly indicated a change in the applicants ' editorial policy, were related to the applicants. The applicants were not the authors of the numerous articles complained of, which were listed in the decisions on the applicants ' detention. In the wording of these decisions, the Turkish authorities did not indicate any specific or special circumstances that suggest that the applicants imposed on the authors of newspaper articles the content of these publications in relation either to questions of facts or to the opinions expressed in the articles, while pursuing the hidden goal of assisting illegal organizations. Instead, the applicants were considered related to the articles solely on the basis of assumptions based on the positions they held in the bodies related to the management and financing of the publishing house.
Without considering this issue specifically, the Court expressed doubt that the applicants could be linked to the published articles.
(ii) Whether the applicants were involved in the activities of illegal organizations. The Turkish authorities were unable to provide any facts or data that would suggest that the illegal organizations mentioned in the case would have sent demands or given instructions to the managers or journalists of the newspaper "Republic" in order for the newspaper to publish specific materials or follow a certain editorial policy in order to assist in the preparation and commission of acts of violence or to legitimize such actions.
(iii) The plausibility of certain actions that did not concern editorial policy. Taking into account other actions for which the applicants were held responsible (for example, telephone calls to persons who were subsequently brought to criminal responsibility), the European Court decided that the logical reasoning applied to equate these actions with assistance to a terrorist organization cannot be considered as an acceptable assessment of the facts.
(b) The criminal law classification of the applicants ' acts. As for the published materials in which the applicants were accused, they had some common characteristics. Firstly, these materials were statements made by journalists of the newspaper "Republic" during various public debates on issues of public interest. They contained a journalistic assessment of the current political changes, their analysis, criticism of various actions of the Turkish authorities, as well as the opinions of journalists regarding the legality and compliance with the rule of law of administrative and judicial measures taken against alleged members of illegal organizations or persons sympathetic to these organizations.
Secondly, these articles or materials did not contain any statements that would incite acts of terrorism, justify the use of violence and encourage rebellion against the legitimate authorities.
Thirdly, the position stated in the articles and materials in a broad sense was an opposition to the policy of the ruling circles.
A detailed examination of the applicants 'alleged acts demonstrates that at first glance they did not differ from the legitimate actions of the political opposition and were within the scope of the applicants' freedoms guaranteed by Turkish law and the Convention. There is nothing in the case file to indicate that the applicants ' actions were part of a general plan and pursued a goal contrary to the legal restrictions applicable to these freedoms.
In this regard, the European Court considered that the actions in question should be subject to the presumption of compliance with the requirements of Turkish legislation and the provisions of the Convention, and they cannot serve as a basis for a "reasonable suspicion" that the applicants committed criminal offenses.
The Turkish courts have mixed the consideration of two issues: on the one hand, criticism of the Government in the context of public debates and, on the other hand, the pretexts used by terrorist organizations to justify their actions. The Turkish courts qualified the above-mentioned criticism of the authorities, which related to the sphere of press freedom, as aiding terrorist organizations or as propaganda of the activities of these organizations.
This interpretation of the norms of the criminal law is not only difficult to correlate with the provisions of Turkish legislation (which recognize public freedoms), but it also poses a significant threat to pluralistic democracy, which can lead to the fact that any person who expresses an opinion that differs from the official position of the authorities will be considered a terrorist or a person who provides assistance to terrorists.
According to the European Court, the reference of the prosecution authorities to " asymmetric military actions "(meaning counter-propaganda in wartime) followed the same logic and carried the same risk.
Consequently, the suspicions against the applicants at the time of their detention and detention did not reach the required minimum level of proportionality. The evidence attached to the case file later, in particular, the indictment, also could not be evidence for the existence of reasonable suspicion. The fact that the Turkish courts found the applicants guilty does not affect this conclusion in any way.
The case involved a violation of the requirements of subparagraph " c " of paragraph 1 of Article 5 of the Convention (adopted unanimously).
Regarding compliance with article 5, paragraph 4, of the Convention. Since the applicants were released after their complaints were examined by the Turkish Constitutional Court, the periods that should be taken into account when assessing compliance with the "urgency" requirement correspond to the time they spent in custody. These periods lasted from six to 16 months and were completely related to the operation of the state of emergency in the country.
Although 16 months was the deadline, the period that the Turkish Constitutional Court took to make decisions on the applicants ' complaints, and this process certainly cannot be called "urgent" under normal circumstances, can be considered permissible in the special context of the present case for the same reasons that were set out by the European Court in the decisions in the cases "Mehmet Hasan v. Turkey" ((Mehmet Hasan v. Turkey) of March 20, 2018, complaint No. 13237/17) and "Sahin Alpay v. Turkey" (Sahin Alpay v. Turkey) dated March 20, 2018, complaint No. 16538/17). The present case should also be distinguished from the case "Kavala v. Turkey" (Judgment of the European Court of 19 December 2019, complaint No. 28749/18), in which the applicant was held in custody as part of the chosen preventive measure for 11 months between the lifting of the state of emergency in the country and the adoption of the decision by the Constitutional Court of Turkey.
There was no violation of the requirements of paragraph 4 of Article 5 of the Convention in the case (adopted unanimously).
Regarding compliance with article 10 of the Convention. The applicants were charged on the basis of the facts that consisted in the policy of the editorial office of the daily newspaper in which the applicants worked, with respect to the presentation and assessment of current political changes.
Given the length of the applicants 'detention (from eight to 16 months), their detention in the context of criminal cases initiated against them for crimes entailing serious penalties and directly related to the applicants' work as journalists was an effective and effective restriction that violated their right to freedom of expression.
A measure in the form of detention, which is not lawful insofar as it interferes with one of the convention freedoms, in principle cannot be considered a restriction of such freedom provided for by Turkish law.
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
Regarding compliance with article 18 of the Convention. The main complaint of the applicants was that they were victims of special attention due to the policy of the editorial office of the newspaper in which they worked. The applicants insisted that their detention had a hidden purpose, namely, to prevent criticism of the Turkish authorities.
The official objectives of the measures applied to the applicants were to investigate campaigns that would have led to an attempted military coup in 2016, and the use of violence by members of separatist or leftist movements, as well as to establish whether the applicants committed the acts they were accused of. It was absolutely legal to investigate these serious and tragic incidents, given that a state of emergency was imposed in Turkey.
The chronology of events did not reveal excessive time intervals between the events of which the applicants were accused (which took place in 2015 and 2016) and the beginning of the investigation (end of 2016), within the framework of which the applicants were detained.
As for the statements of the Turkish President appealed by the applicants, they related to a specific case and were not directed directly at the applicants, but rather at the newspaper as a whole, which at that time was headed by the editor-in-chief C. D.
Moreover, the Constitutional Court of Turkey ruled in favor of C. D. and several other persons who worked as managers at the newspaper at the relevant time, recognizing that the suspicions against them were unconstitutional. Indeed, the statement of the Turkish President that he would not obey the decision of the Constitutional Court of Turkey, was not bound by this decision and would not implement it, clearly contradicted the principle of the rule of law. However, such a manifestation of disagreement was not in itself a confirmation of the purpose for which the two applicants were detained.
As to the fact that the prosecutor in the applicants 'case was himself charged with membership in one of the illegal organizations mentioned in their case and that this prosecutor took part in the proceedings in the applicants' case (including the preparation of the indictment), the European Court decided that these facts were not decisive in themselves. Firstly, the applicants were held in custody within the framework of the preventive measure chosen by them on the basis of decisions of magistrates and assize courts, and not by the prosecutor's office. Secondly, when these circumstances became known, the prosecutor was suspended from participating in the case even before the indictment was presented to the applicants.
In conclusion, the Constitutional Court of Turkey carefully considered the applicants ' complaints, which is confirmed by the large number of dissenting opinions of the judges of this court on the case.
In the Court's opinion, the issues referred to by the applicants, even considered in aggregate, did not form a sufficiently homogeneous array for it to consider it established beyond any reasonable doubt that the applicants ' detention pursued a purpose not provided for by the Convention.
There was no violation of the requirements of article 18 of the Convention in the case (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded each of the applicants 16,000 euros in compensation for non-pecuniary damage.