CASE OF ŞAHİN ALPAY v. TURKEY
Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano
11. The applicant was born in 1944. He is currently detained in Istanbul. 12. The applicant is a journalist who had been working since 2002 for the daily newspaper Zaman, which was viewed as the principal publication medium of the “Gülenist” network and was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016 in connection with the state of emergency (see paragraphs 14-18 below). From 2001 onwards, he also lectured on comparative politics and Turkish political history at a private university in Istanbul. 13. In the years leading up to the attempted military coup of 15 July 2016 the applicant had been known for his critical views on the serving government’s policies. 14. During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey. 15. During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured. 16. The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation. 17. On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President, most recently with effect from 19 January 2018. 18. On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15. 19. On 27 July 2016, in the course of one of the criminal investigations initiated in respect of suspected members of FETÖ/PDY, the applicant was arrested at his home in Istanbul and taken into police custody. 20. On 30 July 2016 the applicant, assisted by his lawyer, was questioned at the Istanbul Security Directorate. During the questioning the applicant denied that he belonged to an illegal organisation. Later that day, the Istanbul public prosecutor sought a judicial order for the applicant’s pre-trial detention on suspicion of belonging to an illegal organisation. 21. On the same day, several editors and columnists of the daily newspaper Zaman, including the applicant, were brought before the Istanbul 4th Magistrate’s Court. The magistrate questioned the applicant about his alleged acts and the accusations against him. The applicant stated that he had joined Zaman in order to be able to express his opinions; that he was in favour of a democratic system corresponding to European standards; that he was a secular person; that he had not been aware of the threat posed by Fetullah Gülen’s movement until after the attempted military coup of 15 July 2016; and that he was opposed to any attack on democracy. 22. At the end of the hearing, the magistrate, taking into account the contents of the articles written by the applicant – and finding that they had promoted the terrorist organisation in question, even after 17 December 2013 – ordered his pre-trial detention. He noted in that connection that although criminal proceedings had been instituted against E.D. (the editor-in-chief of Zaman) before the attempted military coup, the applicant had continued to work for the newspaper and within the organisation’s media structure. In the reasons given for ordering the applicant’s pre-trial detention, the magistrate took the following factors into consideration: the strong suspicions against him; the nature of the alleged offence and the fact that it was among the offences listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences”, for which a suspect’s pre-trial detention was deemed justified in the event of strong suspicion; the risk of absconding; the state of the evidence and the risk of its deterioration; and the risk that alternative measures to detention might be insufficient to ensure the applicant’s participation in the criminal proceedings. 23. On 5 August 2016 the applicant lodged an objection against the order for his pre-trial detention. He argued that there was no justification for detaining him. He also contended that his state of health was incompatible with the conditions in the prison where he was being held. In a decision of 8 August 2016 the Istanbul 5th Magistrate’s Court dismissed the applicant’s objection. 24. On 17 October 2016 the applicant lodged a fresh application for his release. In a decision of 19 October 2016 the Istanbul 10th Magistrate’s Court rejected the application. In his decision, the magistrate stated in particular that it was an established fact that in order to prepare the ground for a military coup, the instigators needed to create the perception that the leaders of the country concerned were dictators. In his view, the applicant’s articles accusing the President of Turkey of being a dictator and calling for him to leave office had contributed to propaganda of that kind. 25. On 10 April 2017 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court in respect of several individuals, including the applicant, who were suspected of being part of the FETÖ/PDY media network, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the Criminal Code (“the CC”), of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it. The public prosecutor sought the imposition of three aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the suspects, including the applicant. As evidence, he produced six articles written by the applicant in 2013 and 2014. 26. The public prosecutor submitted that the articles by the applicants and other individuals being charged in the same criminal proceedings against leading members of FETÖ/PDY’s media wing could not be regarded as an expression of the authors’ opposition to or criticism of the government. In the applicant’s case, the public prosecutor contended that the expressions he had used had gone beyond the limits of freedom of the press in that they had undermined the rights of the official authorities and endangered social peace and public order. The public prosecutor found that the applicant had not hesitated to call for a possible military coup in his articles and, in short, had discharged functions serving the interests of the terrorist organisation in question. 27. During the criminal proceedings, the applicant denied having committed any criminal offence. 28. The criminal proceedings are currently pending before the Istanbul 13th Assize Court. 29. On 8 September 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been placed in pre-trial detention on account of his articles and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press. He also contended that his state of health was incompatible with the conditions of his continued detention since he was suffering from benign prostate hyperplasia, hyperlipidaemia, hyperuricemia, a multinodular goitre and sleep apnoea. On that account he asked the Constitutional Court to indicate an interim alternative measure to detention, thus allowing him to be released pending trial. 30. In a decision of 26 October 2016 the Constitutional Court refused to apply an interim measure of that kind. In reaching that decision, it noted firstly that the applicant’s health had been regularly monitored from the start of his pre-trial detention, and that there was a State hospital inside the prison where he was being held. In that connection, it noted that on 4 October 2016, following a request he had made to that effect the previous day, the applicant had been examined in prison by a general practitioner and had then been transferred to the urology department of the State hospital, where he had undergone a medical examination on 20 October 2016, and that his next appointment had been scheduled for 22 March 2017. In those circumstances, the Constitutional Court found that keeping the applicant in pre-trial detention did not currently constitute a danger to his life or health. It added that should there be a change in his health or the conditions of his detention, he would be entitled to make a further application for an interim measure to secure his release. 31. On 11 January 2018 the Constitutional Court gave a judgment (no. 2016/16092) in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press. 32. With regard to the applicant’s complaint concerning the lawfulness of his pre-trial detention, the Constitutional Court noted firstly that the evidence forming the basis for his detention had included: (i) an article entitled “As if it were a religious war” (“Din Savaşıymış”), published on 21 December 2013; (ii) an article entitled “The President must not remain a spectator” (“Cumhurbaşkanı Seyirci Kalamaz”), published on 24 December 2013; (iii) an article entitled “Between Erdogan and the West” (“Erdoğan ile Batı Arasında”), published on 28 December 2013; (iv) an article entitled “Yes, both the crime and the punishment are individual” (“Evet Suç da Ceza da Şahsidir”), published on 8 February 2014; (v) an article entitled “This nation is not empty-headed” (“Bu Millet Bidon Kafalı Değildir”), published on 1 March 2014; and (vi) an article entitled “The solution is a government without Erdoğan” (“Çıkar Yol Erdoğan’sız Hükûmet”), published on 29 March 2014. After examining the substance of these articles, the Constitutional Court found that they mainly dealt with matters relating to the “17-25 December [2013]” criminal investigations. In them the applicant had set out his opinion that the government members implicated in the criminal investigation in question should be brought to justice and that it was the responsibility of the President and the ruling party’s leaders to take action to that end. He had contended that the government’s reaction to the investigation had been unjust. The Constitutional Court also observed that the applicant had written that if the investigation in question had been carried out on the orders of suspected members of FETÖ/PDY, they too should be the subject of a criminal investigation. However, he had maintained that it was unfair to accuse all members of the Gülenist movement. The Constitutional Court further noted that in the articles in question, the applicant had not argued that the government should be overthrown by force. On the contrary, he had asserted that the ruling party would lose in the next elections. The Constitutional Court also found that the article published one day before the attempted military coup suggested that the applicant was opposed to coups d’état. It held that he had been expressing opinions on a topical issue that were similar to those of the opposition leaders. In the Constitutional Court’s view, the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FETÖ/PDY. It added that the fact that he had expressed his views in Zaman could not in itself be deemed sufficient to infer that the applicant was aware of that organisation’s goals. Accordingly, it concluded that “strong evidence that an offence had been committed” had not been sufficiently established in the applicant’s case. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article 15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency). On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless. Accordingly, it held that the applicant’s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 § 3 of the Constitution, had been breached. 33. Next, with regard to the complaint concerning freedom of expression and of the press, the Constitutional Court observed that the applicant’s initial and continued pre-trial detention on account of his articles amounted to interference with the exercise of that right. Taking into account his arguments regarding the lawfulness of his pre-trial detention, the Constitutional Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant’s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant’s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles (see paragraph 140 of the Constitutional Court’s judgment). Regarding the application of Article 15 of the Constitution, it referred to its findings concerning the lawfulness of his pre-trial detention (as set out in paragraphs 108-10 of the Constitutional Court’s judgment – see paragraph 32 above) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution. 34. With regard to the applicant’s complaint that the conditions of his detention were incompatible with respect for human dignity, the Constitutional Court noted that he had access to the treatment required for his condition within the prison where he was being held, and declared this complaint inadmissible as being manifestly ill-founded. 35. The applicant did not submit a claim for compensation in respect of non-pecuniary damage. Accordingly, the Constitutional Court made no award under that head. The applicant claimed an unspecified sum in respect of the pecuniary damage he had allegedly sustained. The Constitutional Court found no causal link between the violation established and the damage alleged on that account and dismissed the claim. However, it held that the applicant was to be awarded 2,219.50 Turkish liras (TRY – approximately 500 euros (EUR)) in respect of costs and expenses. 36. As the applicant was still in pre-trial detention on the date of delivery of its judgment, the Constitutional Court decided to transmit the judgment to the Istanbul 13th Assize Court so that it could take “the necessary action”. 37. On 11 January 2018 the applicant’s lawyer applied to the Istanbul 13th Assize Court for his client’s release. 38. On the same day, the Istanbul 13th Assize Court rejected the application, on the grounds that it had not yet received official notification of the Constitutional Court’s judgment. 39. On 12 January 2018 the Istanbul 13th Assize Court, having observed that the Constitutional Court’s judgment had been published on its website, examined of its own motion the question of the applicant’s pre-trial detention. Noting firstly that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation, and secondly that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. On that account, the Constitutional Court’s judgment no. 2016/16092 was not in compliance with the law and amounted to usurpation of power (görev gasbı). Regarding the effects of the Constitutional Court’s judgments, the Assize Court added that only judgments that were in accordance with the Constitution and the law should be deemed to be final and binding. It noted, moreover, that more extensive reasoning could be given to justify keeping the applicant in pre-trial detention and that the file contained sufficient evidence against him in that regard. However, this would create the risk of prejudging the case (ihsas-ı rey), seeing that a detailed explanation of the reasons justifying continued detention could be seen as an expression of the judges’ opinions before they had determined the merits of the case. Accordingly, the Assize Court held that it was impossible to accept the Constitutional Court’s judgment. Lastly, reiterating that the judgment in question amounted to usurpation of power, it held, by two votes to one, that there was no need for it to give a decision on the applicant’s pre-trial detention. 40. The judge in the minority observed in his dissenting opinion that he agreed with the majority’s conclusion that the Constitutional Court’s judgment was not in compliance with the law. However, noting that the Constitutional Court’s judgments were final and binding on the Assize Court, he expressed the view that the applicant’s release should be ordered. 41. On 12 January 2018 the applicant lodged an objection with a view to securing his release. 42. In a decision of 15 January 2018 the Istanbul 14th Assize Court unanimously dismissed the applicant’s objection, essentially on the same grounds as the 13th Assize Court had done. 43. On 1 February 2018 the applicant lodged a further individual application with the Constitutional Court. Relying on Articles 5, 6 and 18 of the Convention, he complained mainly that he had been kept in pre-trial detention despite the Constitutional Court’s judgment of 11 January 2018.