Last Updated on November 11, 2020 by LawEuro
Information Note on the Court’s case-law 245
November 2020
Sabuncu and Others v. Turkey – 23199/17
Judgment 10.11.2020 [Section II]
Article 5
Article 5-1-c
Reasonable suspicion
Prolonged detention of journalists/publishers owing to unreasonable equation of their editorial stance, covered by press freedom, with propaganda in favour of terrorist organisations: violation
Article 5-4
Speediness of review
Periods of seven to sixteen months justified by the exceptional caseload of the Constitutional Court following the declaration of the state of emergency: no violation
Article 10
Article 10-1
Freedom of expression
Prolonged detention of journalists/publishers owing to unreasonable equation of their editorial stance with propaganda in favour of terrorist organisations: violation
Article 18
Restrictions for unauthorised purposes
Prolonged detention of journalists/publishers owing to unreasonable equation of their editorial stance with propaganda in favour of terrorist organisations, without an identifiable ulterior purpose: no violation
Facts – The applicants are journalists with Cumhuriyet (“The Republic”), a leading national daily newspaper, or managers of the foundation which is the principal shareholder of the company that publishes the newspaper.
A few weeks after the declaration of the state of emergency in July 2016, the applicants were arrested and detained for several months on suspicion of having “assisted” organisations regarded as terrorist in nature or disseminating “propaganda” on their behalf. The suspicions were grounded mainly on articles published in the newspaper, whose editorial stance they had allegedly influenced in their capacity as managers, and on material shared by some of them on social media.
The prosecuting authorities accused the applicants of attempting, using “asymmetric warfare” tactics, to manipulate public opinion in order to render the country ungovernable.
Law
Article 15: The Court noted that the detention in question had been based on pre-existing legislation which had remained in force after the declaration of the state of emergency.
Article 5 § 1 (c): The Court arrived as follows at the conclusion that, at the relevant time, there had been no “reasonable suspicion” that the applicants had committed these serious offences (punishable by imprisonment). In particular, the acts for which they had been held responsible amounted to the exercise of Convention freedoms and did not indicate any wish on the applicants’ part to contribute to the illegal objectives of terrorist organisations, namely to use violence and terror for political ends.
(a) The facts held against the applicants: attributability and plausibility
i. Attributability to the applicants of the impugned articles allegedly indicating a change in the newspaper’s editorial stance – The applicants were not the authors of the numerous articles referred to and listed in the detention orders. In issuing the orders, the authorities had been unable to cite any concrete or specific fact suggesting that the applicants had imposed the content of those articles on the authors, either with regard to the facts dealt with or the opinions expressed therein, with the undeclared aim of assisting illegal organisations. Instead, the articles had been attributed to the applicants solely on the basis of assumptions stemming from the positions which they occupied within the bodies that managed and funded the newspaper.
Without dwelling on the matter further, the Court expressed doubts as to whether the articles complained of could be attributed to all the applicants.
ii. Attributability to the applicants of activities relating to the illegal organisations in question – The authorities had been unable to cite any specific facts or information suggesting that the illegal organisations in question had issued requests or instructions to Cumhuriyet’s managers or journalists for the newspaper to publish specific items or follow a particular editorial policy with the aim of helping to prepare and carry out a campaign of violence or legitimising such violence.
iii. Plausibility of certain acts other than those concerning the editorial stance – With regard to the other acts for which the applicants had been held responsible (for instance, telephone calls made to persons who were subsequently prosecuted), the Court considered that the logic applied in equating those activities with assisting a terrorist organisation could not be regarded as an acceptable assessment of the facts.
(b) Classification of the facts as criminal conduct
The published materials attributed to the applicants had certain characteristics in common. Firstly, they had constituted contributions by the journalists of Cumhuriyet to various public debates on matters of general interest. They had contained the journalists’ assessment of current political developments, their analysis and criticism of the various actions taken by the government, and their points of view on the legality and compatibility with the rule of law of the administrative and judicial measures taken against the alleged members or sympathisers of the illegal organisations.
Secondly, those articles and messages had not contained any incitement to commit terrorist offences, had not condoned the use of violence and had not encouraged insurrection against the legitimate authorities.
Thirdly, the stance taken by the articles and messages in question had broadly been one of opposition to the policies of the government of the day.
Detailed examination of the applicants’ alleged acts showed that they were indistinguishable at first glance from the legitimate activities of political opposition and fell within the exercise by the applicants of freedoms guaranteed by domestic law and by the Convention. There was nothing to indicate that they had been part of an overall plan pursuing an aim in breach of the legitimate restrictions imposed on those freedoms.
In the Court’s view, the acts in question had therefore enjoyed a presumption of conformity with domestic law and with the Convention and were not, generally speaking, capable of grounding a “reasonable suspicion” that the applicants had committed criminal offences.
The judicial authorities had created confusion between, on the one hand, criticism of the government in the context of public debate and, on the other hand, the pretexts used by the terrorist organisations to justify their violent acts. They had characterised the aforementioned criticisms, which came within the scope of press freedom, as assisting terrorist organisations or disseminating propaganda in favour of those organisations.
Such an interpretation of the criminal law was not only difficult to reconcile with the domestic legislation (which recognised public freedoms), but also posed a considerable risk to pluralist democracy, resulting in any person expressing a view at odds with the views advocated by the official authorities being characterised as a terrorist or a person assisting terrorists.
In the Court’s view, the reference by the prosecuting authorities to the notion of “asymmetric warfare” (denoting a method of counter‑propaganda deployed in wartime) followed a similar logic and entailed a similar risk.
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Accordingly, the suspicions against the applicants at the time of their arrest and placement in detention had not reached the required minimum level of reasonableness. The evidence added to the case file subsequently – in particular in the bill of indictment – likewise appeared incapable of giving rise to reasonable suspicions. The fact that the courts had found the applicants guilty did nothing to alter that finding.
Conclusion: violation (unanimously).
Article 5 § 4: As the applicants had been released pending examination of their applications by the Constitutional Court, the periods to be taken into consideration in assessing the “speediness” requirement corresponded to the time spent in detention. This had ranged from seven to sixteen months and had fallen entirely within the period of the state of emergency.
Although the period of sixteen months was borderline, the time taken by the Constitutional Court to deliver its judgments, which could certainly not be described as “speedy” in an ordinary context, was acceptable in the specific circumstances of the present case, for the same reasons outlined in the Court’s judgments in Mehmet Hasan Altan and Şahin Alpay. The case was to be distinguished from that of Kavala, in which the applicant had remained in pre-trial detention for the eleven months elapsing between the lifting of the state of emergency and the delivery of the Constitutional Court’s judgment.
Conclusion: no violation (unanimously).
Article 10: The applicants had been prosecuted on the basis of facts which consisted in the editorial stance adopted by the daily newspaper for which they worked in its presentation and assessment of current political developments.
Bearing in mind also its length (between eight and seventeen months), the applicants’ detention in the context of the criminal proceedings against them, for offences carrying a heavy penalty and directly linked to their work as journalists, had amounted to an actual and effective constraint in breach of their right to freedom of expression
A detention measure that was not lawful, as long as it constituted interference with one of the freedoms guaranteed by the Convention, could not be regarded in principle as a restriction of that freedom prescribed by national law.
Conclusion: violation (unanimously).
Article 18: The applicants’ main complaint was that they had been specifically targeted because of their newspaper’s editorial stance. They maintained that their detention had pursued an undeclared aim, namely to silence criticism of the authorities.
Nevertheless, the Court did not consider it established that this constituted a fundamental aspect of the case, for the following reasons.
The stated aim of the measures imposed on the applicants had been to carry out investigations into the campaign leading to the attempted military coup in 2016 and the campaigns of violence conducted by members of separatist or leftist movements, and to establish whether the applicants had indeed committed the offences of which they were accused. It had been perfectly legitimate to carry out investigations into these serious and tragic incidents; in addition, a state of emergency had been declared.
The chronology of the events did not disclose an excessive lapse of time between the acts of which the applicants had been accused (which took place in 2015 and 2016) and the opening of the investigation (late 2016) in the context of which they had been placed in detention.
As to the statements by the President of the Republic complained of by the applicants, they had related to a specific affair and had not been directed against the applicants themselves but rather against the newspaper as a whole under the editorial direction of its then publication director, C.D.
Moreover, the Constitutional Court had ruled in favour of C.D. and another of the newspaper’s managers at the time, finding that the suspicions against them were unconstitutional. It was true that the statement by the President of the Republic to the effect that he would not abide by the Constitutional Court’s ruling, was not bound by it and would not comply with it was clearly in contradiction with the basic tenets of the rule of law. However, such an expression of dissatisfaction did not in itself amount to evidence of the aim pursued by the applicants’ detention.
As to the fact that a prosecutor who had himself been charged with membership of one of the organisations in question had participated in the judicial investigation (including the drafting of the bill of indictment), the Court considered that this fact in itself was likewise not decisive. Firstly, the applicants’ pre-trial detention had been based on orders made by magistrates and judges rather than on a decision of the public prosecutor’s office. Secondly, when this situation had come to light the prosecutor in question had been removed from the investigation before the bill of indictment was filed.
Lastly, the Constitutional Court had subjected the applicants’ complaints to thorough scrutiny, as demonstrated by the large number of dissenting opinions.
In the Court’s view, the elements relied on by the applicants, even taken in combination with each other, did not form a sufficiently homogeneous whole for the Court to find it established beyond reasonable doubt that their detention had pursued a purpose not prescribed by the Convention.
Conclusion: no violation (unanimously).
Article 41: EUR 16,000 to each of the applicants for non-pecuniary damage.
(See also Mehmet Hasan Altan v. Turkey, 13237/17, 20 March 2018, Şahin Alpay v. Turkey, 16538/17, 20 March 2018, Kavala v. Turkey, 28749/18, 10 December 2019, Information Note 235, Selahattin Demirtaş v. Turkey (no. 2), 14305/17, 20 November 2018, case referred to the Grand Chamber, Information Note 227, and the Article 18 Case-law guide)
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