1. The article of 14 March 2015 entitled \u201cEither Apo [goes] to Kandil or we [go] to \u0130mral\u0131\u201d<\/em><\/p>\n17. The full text of this article, which comprised an interview with Cemil Bay\u0131k, one of the leaders of the PKK, read as follows:<\/p>\n
\u201cHeading of the article: According to Cemil Bay\u0131k, joint chairman of the KCK\u2019s executive council, only \u00d6calan can persuade the PKK to lay down their weapons.<\/p>\n
We met Cemil Bay\u0131k in Kandil. He told us that [the PKK leaders] needed to meet \u00d6calan for the [peace] process to move forward. \u2018If [the authorities] want\u2019, he said, they could take them to the island of \u0130mral\u0131. \u2018What we want\u2019, he said, \u2018is for Apo no longer to be held in \u0130mral\u0131. [The response to] that request is long overdue\u2019.<\/p>\n
According to Bay\u0131k, the only person who could convince the guerrilla fighters to lay down their weapons is \u00d6calan: \u2018We\u2019ll sit down at the negotiating table with anyone in the government. Those who have resolved issues like this reached agreements, or negotiated agreements, with fascist powers\u2019. Bay\u0131k maintains that Erdo\u011fan is the representative of the dictatorship in Turkey.<\/p>\n
Question: Are you allowed to communicate directly with Abdullah \u00d6calan?<\/p>\n
Answer: We\u2019ve never had any direct communication. We made it clear that we wanted to contact him. During the Oslo process we were told that this was possible, but the promises never came to anything. The HDP delegation goes there [to \u0130mral\u0131], takes note of their discussions and, as the case may be, hands over our letters. It\u2019s the HDP delegation that acts as the intermediary. There\u2019s no other communication.<\/p>\n
Sub-heading: We need to talk face to face.<\/p>\n
Question: Do your demands include … videoconferencing?<\/p>\n
Answer: No. Videoconferencing wouldn\u2019t work. We need to see Abdullah \u00d6calan in person, face to face.<\/p>\n
Question: Abdullah \u00d6calan can\u2019t come to see you. Will you go there? You wouldn\u2019t be allowed…<\/p>\n
Answer: We can go there too. If they want they can take us there, but what we\u2019re really looking for is for our leader Apo no longer to be held in \u0130mral\u0131 Prison, for him to be given back his freedom.<\/p>\n
Question: In an interview with Banu G\u00fcven for the television station IMC you suggested that the decision to lay down weapons could be taken at an annual congress attended by \u00d6calan. Does that mean that \u00d6calan would have to be released?<\/p>\n
Answer: Of course. No one will be able to persuade the guerrilla fighters unless the leader Apo comes and meets them. Although I\u2019m the joint chairman of this movement, even I can\u2019t persuade them. The only person who can do it is Apo. If he comes and meets the guerrilla fighters and their leaders, it would be possible to persuade them. Nobody else can do it.<\/p>\n
Sub-heading: Our influence is limited.<\/p>\n
Question: Would it not be enough for the leaders to pass on \u00d6calan\u2019s decision to lay down weapons to the guerrilla fighters?<\/p>\n
Answer: Our guerrilla force is obviously no ordinary guerrilla force. These are not mere soldiers. They [are fighting for an ideology]. They\u2019ve had ideological training, they\u2019re loyal to our ideals and to our leader Apo. Our influence is limited. They\u2019ll only be convinced if the leader comes to talk to them.<\/p>\n
Question: To what extent is it realistic to demand that Abdullah \u00d6calan be released?<\/p>\n
Answer: In my view, it\u2019s realistic. It\u2019s even overdue.<\/p>\n
Question: How realistic, how likely is it?<\/p>\n
Answer: There are also certain circumstances that are conducive to [this demand] being met. If the will is there, it\u2019s even easy to achieve. That decision lies with the political authorities, with the State. In Turkey, the authorities and the State are effective enough to create the perception they want among the public. If they want, they can easily create the perception that Apo needs to be released, without causing a reaction in society.<\/p>\n
Sub-heading: We\u2019ve done our duty<\/p>\n
Question: Are we to understand that if this condition isn\u2019t met, the armed struggle in Turkey will carry on and the weapons won\u2019t be handed in?<\/p>\n
Answer: The Turkish State and the government need to make significant efforts to put an end to the armed struggle. We began by conducting a political struggle in order to tackle the problems of this people. We never wanted an armed struggle. But we were left with no other option. We were unable to expose this issue, whose existence had been denied by the State. It was the armed struggle that served to highlight the issue in all its dimensions and to create a climate conducive to resolving it. Once we considered the armed struggle to have reached the necessary level, we began making political demands on this issue. We declared a unilateral ceasefire on several occasions to enable the groundwork [to be laid]. We\u2019ve made all the necessary efforts on our side.<\/p>\n
Sub-heading: No further efforts are required before signing<\/p>\n
Question: What are those efforts?<\/p>\n
Answer: We took initiatives that no other force in the world would have taken. If you look at similar problems around the world, you can see that ceasefires were declared under the auspices of a third party, that the guerrilla fighters came out of their trenches, the prisoners were freed and the war ended. Without third-party supervision, without an agreement between the parties, without a document signed by them, these stages would not have happened. Even without these conditions being met we made major unilateral concessions. It\u2019s not up to us to take any more steps \u2013 it\u2019s the turn of the State and the government. If they do it, we\u2019ll do what\u2019s required of us without hesitation. Our leader Apo said that if negotiations began, the parties would need to proceed in parallel, but it hasn\u2019t happened like that. On our side, we\u2019ve made concessions, we\u2019ve even taken numerous steps [in that direction], but the State and the government have not reciprocated as required.<\/p>\n
Sub-heading: Turkey has never wanted [involvement by a] third party<\/p>\n
Question: Is there a third party? Was there one in the past?<\/p>\n
Answer: No, at the moment there isn\u2019t. At one time, during the Oslo process, there was one. But Turkey has never wanted a third party.<\/p>\n
Question: When you say \u2018third party\u2019 are you talking about an independent body or about supervision by a State?<\/p>\n
Answer: We were in touch with the leader Apo through the HDP delegation, before Apo made his historic declaration at the Nevruz [festival] in 2013. We sent the following message to Apo and to the State and the government: if we make a historic declaration proposing a democratic solution to the Kurdish question, then it has to be made clear what the mechanisms [of that solution] are. Our proposal was the presence of a third party.<\/p>\n
Question: Did you mention any third party in particular?<\/p>\n
Answer: No. It could have been the Turkish Parliament or a committee of Turkish non-governmental organisations. We presented several options. They didn\u2019t accept them and instead sought a bilateral solution. They said that they wanted a local, national solution. In reality, they were inventing excuses not to do it (ipe un sermek). Because there\u2019s no precedent for this kind of solution anywhere in the world. Turkey took no steps in this direction. They said that the process wouldn\u2019t work with a third party.<\/p>\n
Sub-heading: It wasn\u2019t realistic<\/p>\n
Answer (continued): As far as we were concerned it wasn\u2019t realistic. In order to find out whether or not they were willing to resolve the issue, we nevertheless accepted their proposal, as they had rejected the alternative [third-party involvement]. Because we want to find a solution. That\u2019s why we also agreed to those conditions. But we then realised that what they called a local or national [solution] wasn\u2019t aimed at finding a solution.<\/p>\n
Sub-heading: They don\u2019t accept the Kurdish question<\/p>\n
Question: Should we infer from your comments that the Turkish government or the State want to solve the problem of the PKK rather than the Kurdish question?<\/p>\n
Answer: That\u2019s it exactly. The State and its government don\u2019t accept the existence of the Kurdish question. They don\u2019t accept that there is a people like the Kurdish people. In reality, this question needs to be addressed and solved as a political issue.<\/p>\n
Sub-heading: Their argument has failed<\/p>\n
Answer (continued): If you characterise the issue as \u2018terrorism\u2019, then your solution will inevitably be war. The Turkish State\u2019s actions are consistent with its argument that there is no Kurdish question, there\u2019s just the issue of terrorism. But that argument has failed. The PKK\u2019s struggle has highlighted the fact that this approach is untenable both in Turkey and internationally. All the countries in the world have also realised this. At the point we\u2019re at now, they can\u2019t leave this issue unresolved.<\/p>\n
Sub-heading: We haven\u2019t committed any crime<\/p>\n
Question: At the negotiating table, did … the AKP regard the members of the PKK as criminals who should be granted amnesty or as important players in the Kurdish question, which extends beyond its borders and also includes international players?<\/p>\n
Answer: Of course, we\u2019re criminals in the eyes of the Turkish government. But we haven\u2019t committed any crime. We\u2019re carrying on a struggle on behalf of the most natural rights of any people, but [the Turkish government] claim that no such people, and no such rights, exist. So we\u2019re regarded as criminals under their laws. If what we\u2019re doing is a crime then, yes, we have committed [that crime] and we\u2019ll continue to commit it. Until we\u2019ve achieved our objective.<\/p>\n
Sub-heading: Ankara\u2019s demands for a local solution are unrealistic<\/p>\n
Question: What is your objective?<\/p>\n
Answer: To secure for this people its natural rights. First of all, the Kurdish question is not just a problem for Turkey. It\u2019s not simply an issue between the Kurds and the Turkish State and its government. We have an issue that transcends those borders. The issue concerns Turkey, but it also concerns the Middle East and even the international community. Kurdistan is a divided country, a divided people, with each part under the sovereignty of a different State. Each State conducts its [own] policy in the part under its control. And those States conduct international relations with various world powers. From that perspective, the whole world is concerned by this issue, but there are also regional particularities which [are at the root] of this issue and which make it more complicated. The United States plays the leading role in the region. Turkey is a member of NATO and at the same time is a member of the Organisation of Islamic Cooperation and a candidate for [accession to] the European Union.<\/p>\n
Sub-heading: All the forces in the world are concerned<\/p>\n
Answer (continued): That\u2019s why this has become a question which concerns every grouping. Resolving an issue with Turkey in fact amounts to resolving an issue with the United States, NATO, the European Union and the Organisation of Islamic Cooperation. In sum, all the forces in the world are concerned by this issue. Turkey\u2019s obstinate insistence on finding a national and local solution is unrealistic.<\/p>\n
Sub-heading: He specifically chose the date of 28 February<\/p>\n
Question: On 28 February, at the meeting between the HDP and the AKP, a ten-point plan proposed by \u00d6calan was announced. Was this \u00d6calan\u2019s final word on the subject of the process?<\/p>\n
Answer: No. Because you say your final word when you\u2019ve achieved your objective. In that situation you get exhaustion and depression, the rot sets in. Apo and the PKK are looking to lead a revolution within the revolution.<\/p>\n
Question: When I mentioned the \u2018final word\u2019, I meant that this ten-point declaration forced the AKP to face up to its responsibilities. What happens if it doesn\u2019t assume those responsibilities?<\/p>\n
Answer: The leader asked us to insist that the declaration be made on 28 February. As we are a movement that is opposed to military coups, we wanted to make the declaration on 28 February. A joint declaration was signed by the parties and the joint text was announced to the public. The government delegation and the delegation of the HDP were photographed together. On the same photograph, in the same frame. That was significant, because it was the first time that the government had shown that it was facing up to its responsibilities. That wasn\u2019t an easy thing for Turkey to do, and it\u2019s very important.<\/p>\n
Question: Indeed, but if the government doesn\u2019t assume its responsibilities, what will happen?<\/p>\n
Answer: \u00d6calan will make an appeal, the PKK will announce that it\u2019s giving up its weapons, and the problem will be solved that way. It\u2019s a superficial trick designed to deceive society. By selling this false perception to society, they hope to win the elections. The Kurdish movement is not fooled.<\/p>\n
Sub-heading: If there were democracy there would be no Kurdish issue<\/p>\n
Question: So why do you stay at the [negotiating] table with the AKP?<\/p>\n
Answer: We sit down at the [negotiating] table with whoever is in power. It\u2019s not surprising. Those who resolved similar problems around the world resolved them with fascist governments or dictators or negotiated with them. That\u2019s what\u2019s happening here too. If there were a democratic government in Turkey, there wouldn\u2019t be a Kurdish issue or a democratic issue.<\/p>\n
Question: Do Erdo\u011fan and the AKP represent fascism in Turkey?<\/p>\n
Answer: It\u2019s Erdo\u011fan who represents AKP hegemony and dictatorship. It\u2019s impossible for the AKP to promote Erdo\u011fan\u2019s dictatorship in Turkey and at the same time to claim to resolve the issue of Kurdistan.<\/p>\n
Question: Is this all a political initiative aimed at nationalist voters?<\/p>\n
Answer: On the one hand [the AKP] addresses the nationalist community, and on the other hand it provokes us and provokes the people, so that we\u2019ll say \u2018Enough is enough\u2019 and leave the negotiating table. If the AKP doesn\u2019t resolve the issue and continues to provoke us and to stall the process, we can move on unilaterally to a certain point in resolving the issue. If we receive further provocation and threats [the AKP] could prompt us to leave the table. It\u2019s made all these efforts, but they haven\u2019t succeeded.<\/p>\n
Sub-heading: The AKP is counting votes<\/p>\n
Question: What interest does the AKP have in all this? What does it stand to gain if you leave the [negotiating] table?<\/p>\n
Answer: Of course [the AKP] stands to gain. It claims that it\u2019s the party that\u2019s addressing the issue while we\u2019re against [finding] a solution. They\u2019re pushing us to tipping point, pushing us to make [concessions]. They\u2019re patient, they work at it. If we leave the [negotiating] table [the AKP will say]: \u2018We wanted to resolve the issue, we were patient, but the PKK didn\u2019t want a solution, they wanted to carry on waging war. They weren\u2019t in favour of peace, they think of nothing but waging war\u2019. That\u2019s how [the AKP] always operates.\u201d<\/p>\n
2. The interview of 31 March 2015 entitled \u201cRemarkable account given by activists to Ahmet \u015e\u0131k half an hour before being killed\u201d<\/em><\/p>\n18. This interview, published on the evening of 31 March 2015 on the website of the newspaper Cumhuriyet, read as follows:<\/p>\n
\u201cHeading: The Cumhuriyet journalist Ahmet \u015e\u0131k spoke to the activists by telephone half an hour before their death. Why did they carry out this action? What do they want? Are they lawyers? What did they talk about to the prosecutor? They answered all these questions.<\/p>\n
The activists B.D. and \u015e.Y. answered Ahmet \u015e\u0131k\u2019s questions by telephone half an hour before being killed in the hostage-taking incident. Ahmet \u015e\u0131k\u2019s questions and their replies are set out here.<\/p>\n
Question: Are you going to put an end to your action? What stage are the negotiations at?<\/p>\n
Answer: We tweeted the service numbers of the police officers concerned taken from the investigation file. According to the file, the criminal bureau [the police inspectorate] found that three police officers out of the 21 officers suspected were especially implicated. We discovered that it was these three officers who may have fired at B.E.[1]. The prosecutor also gave us that information. In the negotiations we\u2019re asking for the identity of these three police officers to be disclosed and broadcast live. The negotiators also told us [that they were 99% sure that] the people who killed B.E. were police officers. We\u2019re asking for the public to be told the names live on air. Here, we\u2019ve studied the files too. We\u2019ve looked at photos of the suspects. In the criminal bureau report the three officers were already circled in red. One of them is called G.T. His service number is … We also provided the service numbers of the other police officers and we want their names to be disclosed live on air.<\/p>\n
Question: Do you think your demand will be met?<\/p>\n
Answer: The names of B.E.\u2019s killers [are known] but haven\u2019t been disclosed. Thanks to our action, the names will be announced and [the police officers] will face trial. The killers in the cases of A.\u0130.K. and E.S. were identified, but we know how that trial ended. The killers are never punished properly. That\u2019s why we want them to be tried by a [lay] jury. That\u2019s our second demand.<\/p>\n
Question: What will happen if your demand isn\u2019t met?<\/p>\n
Answer: Our demand is clear. The names must be announced live on air. The negotiators have to honour their commitments. The identity of the cops has to be disclosed and the officers have to confess to their crimes in a live broadcast. When that demand has been met we can negotiate on the other demands which we\u2019ve already announced. If our [first] demand isn\u2019t met we\u2019ll do what we said at the beginning. We provided the police officers\u2019 service numbers. We want the names to be announced. Once that\u2019s been done we can put an end to our action. Now we\u2019re starting a final negotiation and we\u2019ve given a deadline of half an hour [it\u2019s now 7.40\u00a0p.m.]. [If the police officers] don\u2019t admit to their crimes live on air, the negotiations will end. The telephone calls will end too and we\u2019ll punish the prosecutor.<\/p>\n
Question: Was it also you who demanded that the head of the security directorate and the deputy chief public prosecutor give a live statement at midday?<\/p>\n
Answer: Yes, that statement was made in line with our demand. When we began our action we gave a three-hour deadline. We were able to get in touch with the team of negotiators shortly before that expired. As the authorities promised to announce the identity of B.E.\u2019s killers, we said that if that was done the negotiations would continue. The chief of police and the deputy chief public prosecutor then made a statement live on air and we extended the deadline. If they hadn\u2019t made that announcement the deadline wouldn\u2019t have been extended.<\/p>\n
Question: When you entered the building, did you use lawyers\u2019 IDs? Reports that you were lawyers were also circulating. How did you get into the courthouse with weapons?<\/p>\n
Answer: We\u2019re not saying anything about how we got in. No doubt that will emerge eventually but we\u2019re not giving any explanations at this stage. Rumours of this kind make lawyers a target. In fact, even without us putting on lawyers\u2019 robes or using lawyers\u2019 IDs, lawyers would be targeted in this case. Lawyers in this country have been targeted repeatedly. They\u2019ve been put in prison and even killed because they [were identified to their] clients. So they won\u2019t suddenly become targets because of our action. Anyone who doesn\u2019t support the AKP and the established order in this country is already a target. We\u2019re not lawyers either, we\u2019re DHKP\/C fighters. At the end of the day, we decided to carry out this action and we tried all kinds of methods. This action is a method [that we were forced to use].<\/p>\n
Question: Does armed action deliver justice?<\/p>\n
Answer: The revolutionaries have worked hard for justice in this country. They\u2019ve carried out lots of actions to date. The revolutionaries have protested, the lawyers have insisted. But instead of prosecuting the killers they arrested the protesters. The protesters were investigated and tortured. We\u2019re demanding justice for the killing of B.E. But they only make use of the justice system when the interests of the established order are at stake, and to arrest those who seek justice. We\u2019re here today to deliver justice. The methods we use, and our action, are legitimate.<\/p>\n
Question: You say that if your demand isn\u2019t met you\u2019ll punish the prosecutor. Is that legitimate?<\/p>\n
Answer: We\u2019re trying to avoid that. Meeting our demand and ensuring that nothing happens to the prosecutor, [all that] is in their hands. After all, these are their own prosecutors and police officers. It is these prosecutors and police officers who protect their established order. If they don\u2019t want anything to happen to them, they just have to agree to our demand. We believe that the established order doesn\u2019t respect its own people. They use them and then discard them. It\u2019s up to them to decide what happens now. We\u2019re not making any further demands.<\/p>\n
Question: What condition is the prosecutor in? Can we speak to him?<\/p>\n
Answer: I can\u2019t let you speak to him. But he\u2019s fine. He\u2019s already spoken on the phone to another prosecutor whom he knows and to a senior police officer. He\u2019s in good health, he says so himself.<\/p>\n
Question: Have you spoken to the prosecutor at all? According to [some of the media], this prosecutor has worked hard to find the perpetrators of B.E.\u2019s killing.<\/p>\n
Answer: Yes, we\u2019ve spoken to him. The prosecutor tries to defend himself. But when you look at the file, all you find is the lawyers\u2019 applications. There\u2019s no sign of any efforts by the prosecutor to make progress in the case. We now know how the case has been conducted so far. The prosecutors haven\u2019t dealt with the case. It was the lawyers and the families who tried to find the video recordings. The revolutionaries took action several times to demand [that the case be dealt with]. But they were placed in police custody. They were tortured. They were arrested. No one can name a single step taken by the prosecutors in this case. Everyone knows what the judiciary does in cases like this. They just protect the State and its criminals. In this case as well the prosecutor is responsible for the impunity of the police. We\u2019ve already said that to him.<\/p>\n
Question: The murder of B.E. had already provoked a response among the great majority of the public. Hundreds of thousands of people who attended his funeral protested against that injustice. Does your action not destroy the legitimate basis [of the protests]?<\/p>\n
Answer: B.E. was an ordinary person, but he was our kid. We knew him. We knew him personally, [he was] from our area. B.E. was a kid who grew up [with us]. He was our soul, our brother, our comrade. It was no accident that millions of people attended his funeral. The revolutionaries carried out actions for 360 days to draw attention to that injustice and provoke a public response. Lots of martyrs were killed during the June uprising, but none of the funerals were like that. Of course, B.E.\u2019s age and the fact that he was still a child were a factor, but that huge gathering took place because of our demands for justice. As we said at the start, in deciding on this action [the hostage-taking] we\u2019ve done [everything we could] up till now. We used democratic means to call for action to be taken. But since justice was not done we said that we might deliver justice by taking up our weapons. Our legitimacy comes from our ideology.\u201d<\/p>\n
19. When this interview was published in the print edition of Cumhuriyet on 1 April 2015, under the heading \u201cThis action is a method we were forced to use\u201d, it was preceded by an introduction written by the applicant, worded as follows:<\/p>\n
\u201c[The activist] was on the phone shortly before the bloody operation which put an end to the latest hostage-taking incident without leaving a single witness behind to tell the truth. When I rang the number for the second time without being sure that anyone would answer, a young voice said \u2018Hello\u2019. I don\u2019t know which [of the two] it was. When I introduced myself and began asking my questions one after another, the negotiations could be heard in the background. [The activist] asked me to be quick, but he answered all my questions.<\/p>\n
Although his words showed his determination, he kept repeating the same thing: \u2018If the police officers\u2019 identity is disclosed, our action will end\u2019. That didn\u2019t happen. This simple demand, which the judicial authorities should already have met, was rejected. The operation, which was described as \u2018successful\u2019, resulted in the death of the prosecutor Mehmet Selim Kiraz and of \u015e.Y. and B.D., who said that they had gone there to kill the prosecutor. This last interview is published here as a record.\u201d<\/p>\n
3. Contribution to a seminar held from 23 to 26 September 2014<\/em><\/p>\n20. During a seminar on press freedom organised in Heybeliada (Turkey) in partnership with the European Parliament, the applicant reportedly made the following remarks:<\/p>\n
\u201cWorking in the media wing of an organisation conducting an armed struggle does not make you a member of that organisation. As far as I\u2019m concerned, all my colleagues who work in the PKK\u2019s media wing are journalists.\u201d<\/p>\n
4. Items posted by the applicant on social media from his Twitter account @sahmetsahmet<\/em><\/p>\n21. The post of 28 November 2015:<\/p>\n
\u201cThey chose to slaughter Tahir El\u00e7i instead of arresting him. You\u2019re a mafia, you bunch of murderers.\u201d<\/p>\n
22. The post of 17 February 2016:<\/p>\n
\u201cDo people who try to prove that the PYD is a terrorist organisation, while the United States and the EU refer to it as their ally against jihadist terrorism, not become ordinary suspects?\u201d<\/p>\n
23. The post of 11 December 2016:<\/p>\n
\u201cInstead of comparing the people who were burnt in the cellars of the houses in Cizre and those who were killed by a bomb in Istanbul, speak out against both. Both are acts of violence.\u201d<\/p>\n
24. The post of 14 December 2016:<\/p>\n
\u201cA war has been going on with the PKK since 1984 in a particular region of the country, despite occasional interruptions.\u201d<\/p>\n
25. The post of 20 December 2016 concerning the possibility that the killer of the Russian ambassador in Ankara may have been a member of an organisation:<\/p>\n
\u201cTo the government and its supporters who are trying to prove that the murderer is a member of FET\u00d6, but not of Al-Nusra: what will you do about the fact that the killer is a police officer?\u201d<\/p>\n
A message, the date of which is unknown, invoked by the magistrate\u2019s court, but not taken up either by the indictment or by the Constitutional Court\u2019s judgment:<\/p>\n
\u201cIf the act attributed to S.S.\u00d6. is a crime, shouldn\u2019t there be more suspects, starting with the person who resides in the Palace?\u201d<\/p>\n
5. The articles by the applicant mentioned in the detention order but not expressly referred to by the Constitutional Court<\/em><\/p>\n26. An article published on 8 July 2015 under the heading \u201cWhat we\u2019re doing is journalism; what you\u2019re doing is treason\u201d, and another article published on 9 July 2015 under the heading \u201cM\u0130T had information on the Reyhanl\u0131 massacre but did not share that information with the police\u201d, both reported on remarks made by the public prosecutor \u00d6.\u015e. alleging that the organisation M\u0130T (the national intelligence agency) had concealed the Reyhanl\u0131 explosives attack from the judicial authorities. The prosecutor \u00d6.\u015e. was subsequently arrested in the context of a criminal investigation concerning some judges and members of the security forces who were alleged to be militants of the organisation FET\u00d6, in connection with the affair known as \u201cthe M\u0130T lorries\u201d.<\/p>\n
27. An article was published on 13 February 2015 entitled \u201cThe secret in the lorries revealed\u201d. The article stated, citing recordings of telephone calls between the leaders of the Turkmen forces in Syria, that the consignment of weapons and ammunition transported from Turkey to Syria in lorries belonging to M\u0130T had not been intended for Turkmen militia but for the jihadist organisation Ansar Al-Islam.<\/p>\n
II. PROCEEDINGS ON THE MERITS OF THE ACCUSATIONS AGAINST THE APPLICANT<\/strong><\/p>\nA. The indictment of 3 April 2017<\/strong><\/p>\n28. On 3 April 2017 the Istanbul public prosecutor\u2019s office filed a bill of indictment with the Istanbul 27th Assize Court against seventeen individuals including the applicant. They were accused mainly of lending assistance to terrorist organisations without being members of them (an offence under Article 220 \u00a7 7 of the Criminal Code (\u201cthe CC\u201d)). The public prosecutor considered that, by publishing articles that were glaringly at odds with the world view of its readers (some of which had been written by the applicant), the newspaper Cumhuriyet had conveyed manipulative and destructive information concerning the State. He maintained that the newspaper, in publishing statements by leaders and prominent figures of terrorist organisations, had become the champion of terrorist organisations such as FET\u00d6\/PDY, the PKK\/KCK and the DHKP\/C (People\u2019s Revolutionary Liberation Party\/Front). According to the public prosecutor, the newspaper had not acted within the limits of freedom of expression but had manipulated public opinion and disguised the truth, had acted in accordance with the aims of the terrorist organisations and had thus attempted to create domestic upheaval in order to render the country ungovernable.<\/p>\n
29. In support of the charges against the applicant the Istanbul public prosecutor\u2019s office referred, among other material, to the following published items (the charges that were not subsequently taken into account by the Constitutional Court are not mentioned here).<\/p>\n
(a) The article of 14 March 2015 containing an interview with one of the PKK\u2019s leaders, Cemil Bay\u0131k. The public prosecutor stressed that the applicant had referred to the terrorists several times as guerrilla fighters. He considered that, in view of its content and presentation, the article had pursued an aim that went beyond informing the public, that it contained violence and coercion and that it had been designed to convey to the public manipulative comments made by the PKK, in order to achieve a form of indoctrination. The public prosecutor inferred from this that the article amounted to propaganda in favour of the PKK.<\/p>\n
(b) The articles of 31 March and 1 April 2015 concerning the incident in which a prosecutor had been held hostage in his office by left-wing extremists. In the view of the prosecuting authorities, the articles in question had not criticised the terrorists; instead, owing to their presentation on the front page of the newspaper together with a large photograph taken while the terrorists were holding a gun to the prosecutor\u2019s head, and their use of the adjectives \u201cyoung and determined\u201d to describe one of the terrorists, the articles had conveyed the latter\u2019s message to the public and intensified it with the use of images.<\/p>\n
30. The public prosecutor\u2019s office also cited the applicant\u2019s contribution to a seminar on press freedom held from 23 to 26 September 2014 in Heybeliada (see paragraph 20 above), and, among other materials, the five social media posts referred to in paragraphs 21-25 above.<\/p>\n
31. As to the classification of these acts, the public prosecutor pointed out that Article 220 \u00a7 6 of the CC provided that any person who committed an offence on behalf of an illegal organisation was to be sentenced for belonging to that organisation, even if he or she was not a member of it. In his view the methods employed by individuals, the timing of their actions and the contacts which they established with the leaders of the illegal organisation all constituted evidence of their wish to act in concert with that organisation. He added that the position with regard to persons who were aware of the organisation\u2019s aims and had served it voluntarily should be assessed in the same way, and specified that the fact that the activities actually had a legitimate (legal) basis did not alter that position.<\/p>\n
32. According to the public prosecutor, activities which in normal circumstances would be lawful, in view of the public\u2019s right to receive information and journalists\u2019 right to practise their profession, were subjected in all national and international systems to restrictions based on criteria such as national security, public order and public peace. It was clear that the following acts could not be regarded as lawful: participating, in the context of one\u2019s personal journalistic activities, in a campaign to manipulate public opinion conducted by an illegal organisation; attempting to present the leaders and members of illegal organisations as likeable individuals; publishing statements by the leaders of those organisations containing calls to violence and threats; and giving a platform to the activities of the terrorist organisations by accusing the State of links to international terrorism.<\/p>\n
B. Decisions of the first and second-instance courts on the merits of the accusations<\/strong><\/p>\n33. In the proceedings before the Istanbul Assize Court the applicant submitted his defence against the public prosecutor\u2019s charges. He argued mainly that he was being put on trial for his work as a journalist, and denied the accusations against him.<\/p>\n
34. The applicant then submitted arguments concerning the articles referred to in the detention order and the bill of indictment and taken into consideration by the Constitutional Court.<\/p>\n
35. The applicant submitted that his article of 14 March 2015 containing the interview with Cemil Bay\u0131k had remained within the bounds of ethical journalism, and that he had reproduced the words of the interviewee without adding or subtracting anything, merely correcting grammatical mistakes. In his view, the reason why that article had been referred to in the indictment was in order to establish a link between himself, the newspaper Cumhuriyet and the PKK. What actually troubled the prosecuting authorities was the content of Cemil Bay\u0131k\u2019s message in that interview; an interview like that would have been regarded as newsworthy anywhere in the world, and by publishing it he had simply been practising his profession as a journalist.<\/p>\n
36. As to the interview of 31 March 2015 with the terrorists who had taken the public prosecutor, S.K., hostage and killed him, the applicant maintained that in conducting that interview he had sought to discover the reasons for the militants\u2019 action. As he was a journalist with Cumhuriyet, he was not very familiar with the running of the newspaper\u2019s website, but was aware that the articles published in the newspaper were also posted on the website. As to the form in which the interview had been presented, on the front page and page 6 of the newspaper, the division of tasks within the newspaper and the different job descriptions meant that it was the editors who decided on the presentation of the articles and news items for publication, after making an overall assessment. The person who had written the article was not involved at that stage, in line with the newspaper\u2019s practice. If an attempt was made to establish responsibility on the basis of the way in which the interview had been presented in the newspaper, he was prepared to accept that responsibility.<\/p>\n
37. With regard to his social media posts, the applicant argued that these should not be interpreted without taking into consideration their context and the content of the information to which they related.<\/p>\n
38. In a judgment of 25 April 2018 the Istanbul Assize Court, taking the view that the offences of which the applicant was accused were proven, found him guilty of assisting the terrorist organisations the PKK, the DHKP\/C and FET\u00d6 without being a member of those organisations, under Article\u00a0220 \u00a7 7 of the CC. It sentenced him to seven years and six months\u2019 imprisonment. In giving reasons for its judgment the Assize Court referred to the evidence against the applicant, such as his posts referring to the need to try or punish the State at international level, for instance the posts concerning the \u201cM\u0130T lorries\u201d affair, the interviews he had conducted with senior figures in the PKK\/KCK portraying that organisation as being perfectly respectable or acting in democratic fashion, and his wish to see terrorist organisations like the DHKP\/C and the PKK\/KCK \u201clegalised\u201d and to portray them as innocent organisations.<\/p>\n
39. As to the article of 14 March 2015 containing the interview with Cemil Bay\u0131k, entitled \u201cEither Apo [goes] to Kandil or we [go] to \u0130mral\u0131\u201d, the Istanbul Assize Court noted that the applicant had published it during the period when the newspaper Cumhuriyet had allegedly begun assisting terrorist organisations. It observed that in the course of the interview the link between Abdullah \u00d6calan and the organisation (the PKK) had been mentioned; that the organisation\u2019s terrorists had been described as \u201cguerrilla fighters\u201d and thereby glorified; that the PKK\u2019s so-called expectations had been listed; that the ceasefire declared by the PKK had been portrayed as a concession to the State; and that the views of one of the terrorist organisation\u2019s leaders concerning the President of the Republic had been expounded. In the Assize Court\u2019s view, the interview had depicted the terrorist organisation as a peace-seeking entity which carried out actions merely because it was forced to and which had the capacity to crush the State but refrained from doing so.<\/p>\n
40. As to the applicant\u2019s interview with the activists who had taken a public prosecutor hostage and killed him, the Assize Court considered that the immediate publication of the interview under the heading \u201cThis action is a method we were forced to use\u201d, and its presentation together with a photograph on the newspaper\u2019s front page, constituted an act seeking to legitimise those violent actions and amounted to assisting a terrorist organisation.<\/p>\n
41. The Assize Court further held that the applicant\u2019s social media posts had contained statements claiming that the PYD (a pro-Kurdish armed organisation in Syria) was not a terrorist organisation and that it was the State which was a mafia and a murderer.<\/p>\n
42. Generally, the court noted that the above-mentioned articles and posts were characterised by their tendency to portray these organisations as legitimate and innocent rather than by any effort to inform the public or pursue the public interest.<\/p>\n
43. The Assize Court classified the applicant\u2019s articles and posts as assistance to terrorist organisations, for the following reasons. The applicant had been a journalist and reporter with Cumhuriyet at a time when the newspaper was publishing material in support of terrorist organisations and when the recently recruited managers had encouraged the practice; the applicant\u2019s articles, which were aimed at a wide readership, had contained information and comments in support of the main arguments relied on by the terrorist organisations and their attempted actions against the State; these acts on the part of the applicant, combined with those of the other journalists and of the newspaper\u2019s management, had gone beyond mere propaganda in favour of those organisations; in his defence before the Assize Court, the applicant had adopted an accusatory attitude towards the State and the State system, and had persisted in this attitude despite warnings from the court; his defence before the court had been based chiefly on political statements echoing the main arguments of the terrorist organisations; and a complaint had been made to the prosecuting authorities concerning his remarks during the trial. The Assize Court found that there were no mitigating factors in the applicant\u2019s case, taking the view that he had committed the offence intentionally as he had chosen to interview individuals whom the terrorist organisations considered to be important, the interviews had been destructive and one-sided rather than shocking from the point of view of journalistic information, and the applicant had displayed no remorse.<\/p>\n
44. The applicant and other convicted defendants appealed against the Istanbul Assize Court judgment of 25 April 2018.<\/p>\n
45. In a judgment of 18 February 2019 the Istanbul Court of Appeal (Third Criminal Division) dismissed the applicant\u2019s appeal after examining the case on the merits. It held as follows:<\/p>\n
\u201c… the impugned judgment did not contain any substantive or procedural irregularities. There were no deficiencies in the evidence taken or the other investigative steps carried out by the first-instance court. The impugned acts were correctly characterised in accordance with the types of offences provided for by law. The sentences were fixed in accordance with the convictions and the law. Accordingly, the grounds of appeal advanced by the prosecutor\u2019s office and by the convicted persons are unfounded. …\u201d<\/p>\n
C. The appeals to the Court of Cassation<\/strong><\/p>\n46. In his submissions of 16 July 2019 the chief public prosecutor attached to the Court of Cassation sought the quashing of the judgment convicting the applicant of assisting terrorist organisations and requested that he be re-tried for the offence of disseminating propaganda in favour of terrorist organisations and\/or the offence of denigrating the organs or institutions of the State. The chief public prosecutor sought the quashing of the judgment convicting the other Cumhuriyet journalists and managers on the grounds that there was no basis for their conviction.<\/p>\n
47. In a judgment of 18 September 2019 the Court of Cassation quashed the appeal judgment convicting the applicant and his co-accused, basing its decision on the grounds advanced by the chief public prosecutor. In its reasoned judgment delivered on 27 September 2019 pointing out the particular features of the offence of assisting a terrorist organisation, the Court of Cassation emphasised that persons committing that offence, in addition to a general intentional fault, namely intent to carry out acts punishable under criminal law, had to have committed a specific intentional fault consisting in pursuing a particular objective. The court held that, for the offence of assisting a terrorist organisation to be established, the perpetrator had to have deliberately assisted such an organisation while being aware that the latter pursued the aim of committing criminal offences. The court specified that the expression \u201cwhile being aware\u201d also required direct intent on the part of the perpetrator. Hence, in the court\u2019s view, it was also necessary to ascertain whether the person concerned had acted with the intention of helping to achieve the illegal aims of the organisation in question.<\/p>\n
48. As to the issue of the establishment of the facts on the basis of the evidence for and against the accused, the Court of Cassation referred to the general criminal-law principle whereby the accused should have the benefit of the doubt. The court pointed out that, for any person to be convicted, the commission of an offence had to be proved beyond doubt. A decision to convict could not be arrived at by interpreting to the detriment of the accused facts or allegations that were doubtful or not wholly clarified.<\/p>\n
49. The Court of Cassation therefore concluded that the lower courts had erroneously characterised the offences in issue as \u201cassisting a terrorist organisation\u201d.<\/p>\n
50. However, the Court of Cassation considered that the applicant, unlike the other accused, should be tried for some of the acts in question under criminal-law provisions other than those concerning the offence of assisting a terrorist organisation. With regard to the interview of 31\u00a0March 2015 with the activists of the DHKP\/C who had taken the prosecutor M.S. Kiraz hostage and killed him, the court held that \u201cthe fact of contacting members of the terrorist organisation DHKP\/C by telephone when they were engaged in a violent terrorist act that caused [public] outrage, and publishing statements and explanations by them which sought to legitimise their methods, including violence, force and threats, and encouraged the use of such methods\u201d should be assessed under section 6(2) of the Prevention of Terrorism Act, which made it an offence to print or publish the written or oral statements of a terrorist organisation. As to the items posted by the applicant on Twitter on 17 February 2016 on the subject of the PYD and on 14\u00a0December 2016 on the subject of the \u201cwar\u201d with the PKK, the Court of Cassation ordered the lower courts to assess whether those posts had constituted the offence of disseminating propaganda in favour of a terrorist organisation under Article 220 \u00a7 8 of the CC. The court also instructed the lower courts to examine whether the item posted by the applicant on 28\u00a0November 2015 on the subject of the killing of the lawyer Tahir El\u00e7i was to be regarded as denigrating the institutions and organs of the State, an offence under Article 301 of the CC.<\/p>\n
The case was remitted to the Istanbul Assize Court.<\/p>\n
51. At the first hearing in the case, on 21 November 2019, the newly composed Istanbul Assize Court invited the applicant, like the other accused, to make a final statement before judgment was given. In a judgment of the same day the court departed from the Court of Cassation judgment of 18 September 2019 and confirmed its own judgment of 18\u00a0February 2019 convicting the accused.<\/p>\n
52. The case is still pending before the plenary criminal divisions of the Court of Cassation.<\/p>\n
III. THE INDIVIDUAL APPLICATION TO THE CONSTITUTIONAL COURT<\/p>\n
53. On 30 January 2017 the applicant lodged an individual application with the Constitutional Court. He alleged a breach of his right to liberty and security and his right to freedom of expression and freedom of the press. He also maintained that he had been arrested and detained on grounds other than those provided for by the Turkish Constitution and the Convention.<\/p>\n
54. In a decision of 2 May 2019 the Constitutional Court declared the application inadmissible as being manifestly ill-founded.<\/p>\n
55. With regard to the applicant\u2019s complaint concerning the lawfulness of his initial and continued pre-trial detention, the Constitutional Court, in seeking to ascertain whether there had been a strong suspicion that the applicant had committed the offences with which he was charged, referred to the pre-trial detention order made by the magistrate on 30\u00a0December 2016. It noted the magistrate\u2019s findings to the effect that the applicant had depicted the security forces\u2019 efforts to combat terrorist organisations as terrorism, that he had manipulated the facts in order to present the State as an entity that cooperated with certain terrorist organisations and supplied weapons to them, that he had written articles and posts supporting the actions carried out by the PKK, the DHKP\/C and FET\u00d6\/PDY, and that he had thus sought to legitimise those actions, had gone beyond the aim of informing the public and had ensured that the points of view of the terrorist organisations were disseminated widely among the public.<\/p>\n
56. As to the articles published on 31 March 2015 on the newspaper\u2019s website and on 1 April 2015 in the print edition, concerning the incident in which a public prosecutor had been taken hostage and killed, the Constitutional Court noted that the applicant had interviewed members of the organisation before they killed the prosecutor and while law\u2011enforcement officers were still attempting to dissuade them from continuing with their action, and that he had published the interview on the newspaper\u2019s website on the evening of the killing and on the front page and page\u00a06 of the print edition the following day, together with a photograph showing a gun being held to the prosecutor\u2019s head. The Constitutional Court held that it had been neither arbitrary nor unfounded for the investigating authorities to consider, taking into account the content of the interview and the manner in which it had been presented, that there was a strong suspicion that the applicant was guilty, given that he had interviewed the perpetrators of the action while they were actually committing it and had relayed their message to the public although it was clear that the organisation to which the perpetrators belonged had carried out the action in order to have its voice heard and to remain in the headlines.<\/p>\n
57. The Constitutional Court also noted that the magistrate who had ordered the applicant\u2019s detention had taken into consideration the fact that the applicant, in presenting his interview with Cemil Bay\u0131k, one of the leaders of the PKK, had referred to the terrorists several times as \u201cguerrilla fighters\u201d; that it was clear from the content and presentation of the interview that the applicant, overstepping the limits of his task of informing the public, had relayed to the public the PKK\u2019s rhetoric concerning current events, a rhetoric which contained manipulative messages in support of violence and coercion and was designed to create a particular perception; and that the applicant had thus disseminated propaganda in favour of that organisation. The Constitutional Court also observed that, according to the detention order, the applicant \u2013 in his contribution to a seminar held from 23\u00a0to 26 September 2014 in Heybeliada and in the items he had posted on social media on 17 February 2016 concerning the organisation PYD, on 11\u00a0December 2016 concerning the bomb attacks in Cizre and Istanbul, on 14\u00a0December 2016 concerning the \u201cwar\u201d with the PKK, and on 20\u00a0December 2016 concerning the possibility that the killer of the Russian ambassador was a member of the organisation Al-Nusra or of FET\u00d6 \u2013 had supported the actions of terrorist organisations and had attempted to legitimise those actions. The Constitutional Court held that it had been neither arbitrary nor unfounded for the investigating authorities to consider that there was a strong indication of the applicant\u2019s guilt, in view of the language used in the article, statement and posts in question and the impact that they had had on public opinion at the time of their publication.<\/p>\n
58. On the basis of those suspicions the Constitutional Court considered that the applicant had posed a flight risk in view of the severity of the statutory penalty for the offences of which he had been accused, that not all the evidence had been gathered at the time of his arrest and that protective measures other than detention would have been insufficient.<\/p>\n
59. In the light of its finding that there had been strong suspicions against the applicant and that his pre-trial detention had been a proportionate measure, the Constitutional Court held that there was no reason to reach a different conclusion regarding the applicant\u2019s claim that he had been placed in pre-trial detention solely on account of acts coming within the scope of his freedom of expression and freedom of the press. It therefore dismissed this complaint also.<\/p>\n
60. The Vice-President of the Constitutional Court wrote a dissenting opinion expressing the view that there had been no reasonable or strong suspicion capable of justifying the applicant\u2019s arrest and detention. With regard to the applicant\u2019s interview with one of the perpetrators of the hostage-taking and killing of a public prosecutor, published on 31\u00a0March and 1 April 2015, he considered that, although interviewing terrorists while their action was in progress undeniably resulted in their message being conveyed to the public, a distinction had to be made between the offence of disseminating propaganda in favour of a terrorist organisation and journalism which disregarded professional ethics in search of a scoop. In the view of the Vice-President, the applicant could have been more sensitive in his presentation of the information in terms of the language, style and imagery used. However, conveying information on terrorist acts to the public inevitably involved informing society about the terrorists\u2019 aims. In covering this particular event, virtually all the media outlets concerned had provided the public with information on the terrorists\u2019 aims and the reasons behind their action; this was quite natural in the context of journalistic activity. Were it otherwise, any information concerning terrorist actions was liable to be regarded as propaganda in favour of a terrorist organisation. That would prevent the flow of information and the creation of a climate of healthy discussion in a democratic society on the subject of terrorism.<\/p>\n
61. As to the applicant\u2019s interview with one of the PKK\u2019s leaders, Cemil Bay\u0131k, the dissenting judge considered that the approach taken by the majority \u2013\u00a0which had regarded the interview as possible propaganda in favour of a terrorist organisation owing to the presentation and content of the interview and the use of the term \u201cguerrilla fighters\u201d\u00a0\u2013 was problematic in that such a characterisation would severely restrict free independent journalism on the subject of the terrorist organisations.<\/p>\n
62. The dissenting judge accepted that journalists, when reporting on a vital issue of immediate concern to the public and informing the public about terrorist organisations and terrorists, had to be careful not to use the kind of language and style that legitimised terrorism and terrorists. However, the terminology used in an interview was simply a matter of the editorial choices of the journalist or his or her newspaper. Poor choices were not the result of the offence of disseminating propaganda in favour of terrorism but were simply poor journalism. In the dissenting judge\u2019s view, the existence of propaganda in favour of terrorist organisations could not be inferred solely from a few words used in a text without taking the whole text into consideration. To do so would have a chilling effect on independent interviewing.<\/p>\n
63. The dissenting judge also criticised the approach of the majority, who, in examining the existence of strong suspicions, had taken account of the way in which the articles and posts had been perceived by society at the time of the events, and their impact on people. He argued that it was not possible, on the basis of guesswork and suppositions, to attribute to the articles and posts in question meanings other than those attributed by an objective observer.<\/p>\n
64. The dissenting judge observed that the applicant had not, in any of the impugned articles, news items or posts, used language that expressly incited others to the use of violence or to terrorist acts, even though his style had been sharply critical and even at times problematic from the point of view of journalistic ethics. In the judge\u2019s view the writings in question, which undoubtedly had news value, clearly came within the scope of public debate and were covered by freedom of expression and freedom of the press. He considered that the investigating authorities, by interpreting the applicant\u2019s remarks broadly, had attributed a meaning to them which went beyond their outward meaning.<\/p>\n
65. The dissenting judge also took the view that there had been a breach of the applicant\u2019s freedom of expression and press freedom on account of the applicant\u2019s initial and continued pre-trial detention. In the judge\u2019s view, detaining individuals on the basis of suspicions of disseminating propaganda in favour of a terrorist organisation grounded merely on a few sentences within some articles had a chilling effect on freedom of expression and press freedom, rendering them meaningless and undermining the media\u2019s role as a public watchdog. In a free democratic society the press was expected not just to deliver journalism that had close links to the authorities and simply published official statements, but also to deliver independent journalism that investigated events and explained the background to them.<\/p>\n
RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE<\/strong><\/p>\nI. RELEVANT PROVISIONS OF THE CONSTITUTION<\/strong><\/p>\n66. The relevant parts of Article 19 of the Constitution read as follows:<\/p>\n
\u201cEveryone has the right to personal liberty and security.<\/p>\n
…<\/p>\n
Individuals against whom there are strong presumptions of guilt may be detained only by order of a judge and for the purposes of preventing their absconding or the destruction or alteration of evidence, or in any other circumstances provided for by law that also necessitate their detention. No one shall be arrested without an order by a judge except when caught in flagrante delicto or where a delay would have a harmful effect; the conditions for such action shall be determined by law.<\/p>\n
…<\/p>\n
A person who has been arrested or detained shall be brought before a judge within forty-eight hours at the latest or, in the case of offences committed jointly with others, within four days, not including the time required to convey the person to the court nearest to the place of detention. No one shall be deprived of his or her liberty after the expiry of the aforementioned periods except by order of a judge. These periods may be extended during a state of emergency or a state of siege or in time of war.<\/p>\n
…<\/p>\n
Anyone who has been detained shall be entitled to request a trial within a reasonable time and to apply for release during the course of the investigation or criminal proceedings. Release may be conditioned by a guarantee to ensure the person\u2019s appearance throughout the trial, or the execution of the court sentence.<\/p>\n
Everyone who is deprived of his or her liberty for any reason whatsoever shall be entitled to apply to a competent judicial authority for a speedy decision on his or her case and for his or her immediate release if the detention is not lawful.<\/p>\n
…\u201d<\/p>\n
II. RELEVANT PROVISIONS OF THE CRIMINAL CODE<\/strong><\/p>\n67. The relevant parts of Article 220 of the Criminal Code (\u201cthe CC\u201d), which concerns the offence of forming an organisation with the aim of committing a criminal offence, provide as follows:<\/p>\n
\u201c…<\/p>\n
(6) Anyone who commits an offence on behalf of an [illegal] organisation shall also be sentenced for belonging to that organisation, even if he or she is not a member of it. The sentence to be imposed for membership may be reduced by up to half. This paragraph shall apply only to armed organisations.<\/p>\n
(7) Anyone who assists an [illegal] organisation knowingly and intentionally (bilerek ve isteyerek), even if he or she does not belong to the hierarchical structure of the organisation, shall be sentenced for membership of that organisation. The sentence to be imposed for membership may be reduced by up to two-thirds, depending on the nature of the assistance.<\/p>\n
(8) Anyone who disseminates propaganda in favour of the organisation [formed with the aim of committing offences] by legitimising or condoning methods such as force, violence or threats shall be liable to a term of imprisonment of one to three years.\u201d<\/p>\n
68. Article 314 of the CC, which concerns the crime of belonging to an armed organisation, provides as follows:<\/p>\n
\u201c1. Anyone who forms or leads an organisation with the aim of committing the offences listed in the fourth and fifth parts of this chapter [crimes against the State and the constitutional order] shall be sentenced to ten to fifteen years\u2019 imprisonment.<\/p>\n
2. Any member of an organisation referred to in the first paragraph above shall be sentenced to five to ten years\u2019 imprisonment.<\/p>\n
3. The provisions relating to the offence of forming an organisation with the aim of committing criminal offences shall apply in their entirety to this offence.\u201d<\/p>\n
69. Article 301 of the CC, as amended by Law no. 5759 of 30\u00a0April 2008, reads as follows:<\/p>\n
\u201c(1) Any person who publicly denigrates (a\u015fa\u011f\u0131layan) the Turkish nation, the State of the Republic of Turkey, the Turkish Grand National Assembly, the Government of the Republic of Turkey or the judicial organs of State shall be liable to a term of imprisonment of between six months and two years.<\/p>\n
(2) Any person who publicly denigrates the armed forces or the security forces of the State (Devletin askeri ve emniyet te\u015fkilat\u0131) shall be punished in accordance with the provisions of the first paragraph.<\/p>\n
(3) The expression of critical opinions shall not constitute an offence.<\/p>\n
(4) Prosecution of this offence shall be subject to the authorisation of the Minister of Justice.\u201d<\/p>\n
III. RELEVANT PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE<\/strong><\/p>\n70. Pre-trial detention is governed by Articles 100 et seq. of the Code of Criminal Procedure (\u201cthe CCP\u201d). In accordance with Article 100, a person may be placed in pre-trial detention where there is factual evidence giving rise to strong suspicion that the person has committed an offence and where the detention is justified on one of the grounds laid down in the Article in question, namely: if the suspect has absconded or there is a risk that he or she will do so, and if there is a risk that the suspect will conceal or tamper with evidence or influence witnesses. For certain offences, in particular offences against State security and the constitutional order, the existence of strong suspicion is sufficient to justify pre-trial detention.<\/p>\n
71. Article 101 of the CCP provides that pre-trial detention is ordered at the investigation stage by a magistrate at the request of the public prosecutor and at the trial stage by the competent court, whether of its own motion or at the prosecutor\u2019s request. An objection may be lodged with another magistrate or another court against decisions ordering or extending pre-trial detention. Such decisions must include legal and factual reasons.<\/p>\n
72. Pursuant to Article 108 of the CCP, during the investigation stage, a magistrate must review a suspect\u2019s pre-trial detention at regular intervals not exceeding thirty days. Within the same period, the detainee may also lodge an application for release. During the trial stage, the question of the accused\u2019s detention is reviewed by the competent court at the end of each hearing, and in any event at intervals of no more than thirty days.<\/p>\n
73. Article 141 \u00a7 1 (a) and (d) of the CCP provides:<\/p>\n
\u201cCompensation for damage … may be claimed from the State by anyone …:<\/p>\n
(a) who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law;<\/p>\n
…<\/p>\n
(d) who, even if he or she was detained lawfully during the investigation or trial, has not been brought before a judicial authority within a reasonable time and has not obtained a judgment on the merits within a reasonable time;<\/p>\n
…\u201d<\/p>\n
74. Article 142 \u00a7 1 of the same Code reads as follows:<\/p>\n
\u201cThe claim for compensation may be lodged within three months after the person concerned has been informed that the decision or judgment has become final, and in any event within one year after the decision or judgment has become final.\u201d<\/p>\n
75. According to the case-law of the Court of Cassation, it is not necessary to wait for a final decision on the merits of the case before ruling on a compensation claim lodged under Article 141 of the CCP on account of the excessive length of pre-trial detention (decisions of 16 June 2015, E.\u00a02014\/21585 \u2013 K. 2015\/10868 and E. 2014\/6167 \u2013 K. 2015\/10867).<\/p>\n
IV. CASE-LAW OF THE CONSTITUTIONAL COURT<\/strong><\/p>\n76. In its decision of 4 August 2016 (no. 2016\/12) concerning the dismissal of two members of the Constitutional Court and its decision of 20\u00a0June 2017 (Ayd\u0131n Yavuz and Others, no. 2016\/22169) concerning a person\u2019s pre-trial detention, the Constitutional Court provided information and assessments on the attempted military coup and its consequences. It carried out a detailed examination, from a constitutional perspective, of the facts leading to the declaration of the state of emergency. As a result of this examination, it found that the attempted military coup of 15 July 2016 had been a clear and serious attack both on the constitutional principles that sovereignty was unconditionally and unreservedly vested in the people, who exercised it through authorised organs, and that no individual or body could exercise any State authority not emanating from the Constitution, and also on the principles of democracy, the rule of law and human rights. According to the Constitutional Court, the attempted military coup had been a practical illustration of the severity of the threats posed to the democratic constitutional order and human rights. After summarising the attacks carried out during the night of 15 to 16 July 2016, it emphasised that in order to assess the severity of the threat posed by a military coup, it was also necessary to consider the risks that might have arisen had the coup attempt not been thwarted. It found that the fact that the attempted coup had taken place at a time when Turkey had been under violent attack from numerous terrorist organisations had made the country even more vulnerable and considerably increased the severity of the threat to the life and existence of the nation. The Constitutional Court noted that in some cases it might not be possible for a State to eliminate threats to its democratic constitutional order, fundamental rights and national security through ordinary administrative procedures. It might therefore be necessary to impose extraordinary administrative procedures, such as a state of emergency, until such threats were eliminated. Bearing in mind the threats resulting from the attempted military coup of 15 July 2016, the Constitutional Court accepted the power of the Council of Ministers, chaired by the President, to issue legislative decrees on matters necessitating the state of emergency. In that context, it also emphasised that the state of emergency was a temporary legal regime, in which any interference with fundamental rights had to be foreseeable and the aim of which was to restore the normal regime in order to safeguard fundamental rights.<\/p>\n
V. Council of Europe materials<\/strong><\/p>\n77. On 15 February 2017 the Commissioner for Human Rights published a memorandum on freedom of expression and media freedom in Turkey. The parts of this memorandum directly related to the present case are found at paragraphs 79-89 under the heading \u201cDetentions on remand causing a chilling effect\u201d.<\/p>\n
78. Furthermore, the relevant Council of Europe and international texts on the protection and role of human-rights defenders, including journalists, are set out in the Aliyev v. Azerbaijan judgment (nos.\u00a068762\/14 and\u00a071200\/14, \u00a7\u00a7 88-92, 20 September 2018) and in the Kavala v.\u00a0Turkey judgment (no. 28749\/18, \u00a7\u00a7 74-75, 10 December 2019).<\/p>\n
VI. NOTICE OF DEROGATION BY TURKEY<\/strong><\/p>\n79. On 21 July 2016 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:<\/p>\n
\u201cI communicate the following notice of the Government of the Republic of Turkey.<\/p>\n
On 15 July 2016, a large-scale coup attempt was staged in the Republic of Turkey to overthrow the democratically-elected government and the constitutional order. This despicable attempt was foiled by the Turkish state and people acting in unity and solidarity. The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms.<\/p>\n
The Republic of Turkey is taking the required measures as prescribed by law, in line with the national legislation and its international obligations. In this context, on 20\u00a0July 2016, the Government of the Republic of Turkey declared a State of Emergency for a duration of three months, in accordance with the Constitution (Article\u00a0120) and the Law No. 2935 on State of Emergency (Article 3\/1b). …<\/p>\n
The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. Thus, the State of Emergency takes effect as from this date. In this process, measures taken may involve derogation from the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, permissible in Article 15 of the Convention.<\/p>\n
I would therefore underline that this letter constitutes information for the purposes of Article 15 of the Convention. The Government of the Republic of Turkey shall keep you, Secretary General, fully informed of the measures taken to this effect. The Government shall inform you when the measures have ceased to operate.<\/p>\n
…\u201d<\/p>\n
THE LAW<\/strong><\/p>\nI. PRELIMINARY OBSERVATIONS CONCERNING THE DEROGATION BY TURKEY<\/strong><\/p>\n80. In the Government\u2019s submission, all the applicant\u2019s complaints should be examined with due regard to the derogation of which the Secretary General of the Council of Europe had been notified on 21\u00a0July 2016 under Article 15 of the Convention. They submitted that in availing itself of its right to make a derogation from the Convention, Turkey had not breached the provisions of the Convention. In that context they argued that there had been a public emergency threatening the life of the nation on account of the risks caused by the attempted military coup and that the measures taken by the national authorities in response to the emergency had been strictly required by the exigencies of the situation.<\/p>\n
81. The applicant contested the Government\u2019s argument. In his submission, the application of Article 15 of the Convention could not result in the removal of all the safeguards under Article 5. He submitted that there had been no reasonable suspicion that he had committed an offence.<\/p>\n
82. The Court observes that the applicant\u2019s pre-trial detention took place during the state of emergency. It also notes that the criminal proceedings instituted against him during that period have extended beyond it.<\/p>\n
83. At this stage the Court observes that in its judgment in the case of Mehmet Hasan Altan v. Turkey (no. 13237\/17, \u00a7 93, 20 March 2018) it held that the attempted military coup had disclosed the existence of a \u201cpublic emergency threatening the life of the nation\u201d within the meaning of the Convention. As to whether the measures taken in the present case were strictly required by the exigencies of the situation and consistent with the other obligations under international law, the Court considers it necessary to examine the applicant\u2019s complaints on the merits, and will do so below.<\/p>\n
II. THE GOVERNMENT\u2019S PRELIMINARY OBJECTIONS<\/strong><\/p>\nA. Objection of failure to exhaust domestic remedies on account of the failure to bring a compensation claim<\/strong><\/p>\n84. Regarding the applicant\u2019s complaints concerning his pre-trial detention, the Government stated that a compensation claim had been available to him under Article 141 \u00a7 1 (a) and (d) of the CCP. The Government contended that the applicant could and should have brought a compensation claim on the basis of those provisions.<\/p>\n
85. The applicant contested the Government\u2019s argument. He asserted, in particular, that a compensation claim had not offered any reasonable prospect of success in terms of remedying the unlawfulness of his detention or securing his release.<\/p>\n
86. As regards the period during which the applicant was in detention, the Court reiterates that for a remedy in respect of the lawfulness of an ongoing deprivation of liberty to be effective, it must offer a prospect of release (see Gavril Yosifov v. Bulgaria, no. 74012\/01, \u00a7 40, 6\u00a0November 2008, and Mustafa Avci v. Turkey, no. 39322\/12, \u00a7 60, 23 May 2017). It notes that the remedy provided for in Article 141 of the CCP is not capable of terminating an applicant\u2019s pre-trial detention.<\/p>\n
87. As to the period during which the applicant was released pending trial, the Court notes that he had already submitted his complaints under Article\u00a05 of the Convention in the context of his application to the Constitutional Court. That court examined those complaints on the merits and dismissed them in its judgment of 2 May 2019.<\/p>\n
88. The Court considers that, regard being had to the rank and authority of the Constitutional Court in the Turkish judicial system, and in view of the conclusion reached by that court concerning these complaints, a claim for compensation under Article 141 of the CCP had, and continues to have, no prospect of success (see, to similar effect, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, \u00a7 27, Series A no. 332, and Carson and Others v. the United Kingdom [GC], no. 42184\/05, \u00a7 58, ECHR 2010). Accordingly, the Court considers that the applicant was not required to exercise this compensatory remedy, even after his release.<\/p>\n
89. The objection raised by the Government in this regard must therefore be dismissed.<\/p>\n
B. Objections concerning the individual application to the Constitutional Court<\/strong><\/p>\n90. The Government, relying mainly on the Court\u2019s findings in its decisions in Uzun v. Turkey ((dec.), no. 10755\/13, 30 April 2013) and Mercan v. Turkey ((dec.), no. 56511\/16, 8 November 2016), alleged that the applicant had failed to use the remedy of an individual application before the Constitutional Court.<\/p>\n
91. The applicant contested the Government\u2019s argument.<\/p>\n
92. The Court reiterates that an applicant\u2019s compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court (see\u00a0Baumann v. France, no. 33592\/96, \u00a7 47, ECHR 2001\u2011V (extracts)). Nevertheless, the Court accepts that the last stage of a particular remedy may be reached after the application has been lodged but before its admissibility has been determined (see Karoussiotis v.\u00a0Portugal, no.\u00a023205\/08, \u00a7 57, ECHR 2011 (extracts); Stanka Mirkovi\u0107 and Others v.\u00a0Montenegro, nos. 33781\/15 and 3 others, \u00a7 48, 7 March 2017; and Azzolina and Others v. Italy, nos. 28923\/09 and 67599\/10, \u00a7\u00a0105, 26\u00a0October 2017).<\/p>\n
93. The Court observes that on 30 January 2017 the applicant lodged an individual application with the Constitutional Court, which gave its judgments on the merits on 2 May 2019.<\/p>\n
94. Accordingly, the Court also dismisses this objection raised by the Government.<\/p>\n
III. ALLEGED VIOLATION OF ARTICLE 5 \u00a7\u00a7 1 AND 3 OF THE CONVENTION<\/strong><\/p>\n95. The applicant complained that his initial and continued pre-trial detention had been arbitrary. He alleged, in particular, that the judicial decisions ordering and extending his pre-trial detention had not been based on any concrete evidence grounding a reasonable suspicion that he had committed a criminal offence. In his submission, the facts on which the suspicions against him had been based related solely to acts coming within the scope of his activity as a journalist and, hence, of his freedom of expression.<\/p>\n
96. In this regard he alleged a violation of Article 5 \u00a7\u00a7 1 and 3 of the Convention, the relevant parts of which provide:<\/p>\n
\u201c1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:<\/p>\n
…<\/p>\n
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;<\/p>\n
…<\/p>\n
3. Everyone arrested or detained in accordance with the provisions of paragraph\u00a01\u00a0(c) of this Article … shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\u201d<\/p>\n
97. The Government contested that argument.<\/p>\n
A. Admissibility<\/strong><\/p>\n98. The Court notes that these complaints are not manifestly ill\u2011founded and are not inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.<\/p>\n
B. Merits<\/strong><\/p>\n1. The parties\u2019 submissions<\/em><\/p>\n(a) The applicant<\/p>\n
99. The applicant maintained that there were no facts or information that could satisfy an objective observer that he had committed the offences of which he was accused. The main facts on which the suspicions against him had been based were the articles and interviews he had produced as part of his activity as a journalist with the newspaper Cumhuriyet.<\/p>\n
100. The applicant also pointed to the aspects of his initial and continued detention which he considered to be in breach of the provisions of domestic law and hence unlawful. Firstly, he alleged that the suspicions against him had been beset by uncertainties and inaccuracies. Although he had been arrested on suspicion of disseminating propaganda on behalf of three terrorist organisations (the PKK, FET\u00d6\/PDY and the DHKP\/C), and also of breaching Article 301 of the Criminal Code, the reasons given in the detention orders had referred only to the offence of propaganda in favour of two terrorist organisations (the PKK and FET\u00d6\/PDY). Once the trial had begun, his continued detention had been based, not on suspicion of his having disseminated propaganda on behalf of terrorist organisations, but on suspicion of his having carried out activities on behalf of three terrorist organisations (the PKK, FET\u00d6\/PDY and the DHKP\/C).<\/p>\n
101. Secondly, the applicant submitted that the facts on which the suspicions against him were based had been unclear, as he had also been accused of publishing articles in line with the editorial stance of the daily newspaper Cumhuriyet, which allegedly had close ties to the organisation FET\u00d6\/PDY. In fact, according to the applicant, not only had Cumhuriyet repeatedly condemned FET\u00d6\/PDY as a criminal organisation, the applicant himself had also exposed the illegal acts committed by the members of that organisation, in his book \u201cThe Imam\u2019s Army\u201d. His detention in the context of the criminal proceedings brought against him by judges who were members of FET\u00d6\/PDY, in which he had been accused of assisting the organisation Ergenekon, had been the subject of his previous application to the Court (no. 53413\/11). In a judgment of 8 July 2014 the Court had found a violation of Article 5 and Article 10 of the Convention in that case. The applicant pointed to the obvious contradiction between the accusations in the present case and those which had given rise to a violation of the Convention in 2014.<\/p>\n
102. The applicant also challenged the reasons given by the judicial authorities for keeping him in pre-trial detention.<\/p>\n
(b) The Government<\/p>\n
103. The Government, referring to the principles established in the Court\u2019s case-law in this sphere (they cited Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, \u00a7 32, Series A no.182, and \u0130pek and Others v. Turkey, nos. 17019\/02 and 30070\/02, 3 February 2009), stated at the outset that the applicant had been arrested and placed in pre-trial detention in the course of a criminal investigation instituted in the context of action to combat terrorist organisations.<\/p>\n
104. According to the information in the investigation file, the basis for the investigation concerning the applicant and other suspects in the same proceedings had been the suspicion that the newspaper for which the applicant worked had been acting in accordance with the objectives of terrorist organisations such as FET\u00d6\/PDY, the PKK\/KCK and the DHKP\/C, with a view to provoking civil war and rendering the country ungovernable before and after 15 July 2016.<\/p>\n
105. The Government stressed that the organisation FET\u00d6\/PDY was an atypical terrorist organisation of an entirely new kind. Firstly, the organisation in question had placed its members in all the State organisations and institutions, that is to say, in the judicial apparatus, the law-enforcement agencies and the armed forces, in an apparently lawful manner. Furthermore, it had created a parallel structure by setting up its own organisation in all spheres, including the mass media, the trade unions, the financial sector and education. Secondly, FET\u00d6\/PDY, by insidiously placing its members in sections of the press that were not part of its own organisation, had attempted to steer the material published by them in order to convey subliminal messages to the public and thus manipulate public opinion for its own aims.<\/p>\n
106. In the Government\u2019s submission, the ultimate aim of the terrorist organisation the PKK had been established by Abdullah \u00d6calan and his friends in 1978, when they had founded the organisation. That aim was to establish an independent State of Kurdistan based on Marxist-Leninist principles and covering east and south-east Turkey and parts of Syria, Iran and Iraq. The KCK was a political model for reconstructing Kurdish society through administrative and judicial structures, in accordance with the PKK\u2019s ultimate goal. According to the Government, the PKK and its sub-groups had carried out terrorist activities that had infringed the right to life (several thousand people had been killed and wounded, including civilians and members of the security forces, in the period preceding the attempted coup), the right to liberty and security, the right to respect for one\u2019s home and the right to property, in several regions of Turkey. In particular, these organisations had stepped up the number of terrorist attacks in a bid to declare the supposed autonomy of certain provinces in south-east Turkey and to bring pressure to bear on the population of that region by preventing free movement (digging trenches, installing barricades and planting bombs at the exit and entry points of the towns and cities), and by using military weapons.<\/p>\n
107. The Government further submitted that from the evidence that had been gathered during the criminal investigation, it was objectively possible to conclude that there had been a reasonable suspicion that the applicant had committed the offences of which he was accused. On the strength of the evidence obtained during the investigation, criminal proceedings had been instituted against the applicant and were currently pending before the domestic courts.<\/p>\n
2. The third-party interveners<\/em><\/p>\n(a) The Commissioner for Human Rights<\/p>\n
108. The Commissioner for Human Rights pointed out that excessive recourse to detention was a long-standing problem in Turkey. In that connection he noted that 210 journalists had been placed in pre-trial detention during the state of emergency, not including those who had been arrested and released after being questioned. One of the underlying reasons for the high numbers of journalists being detained was the practice of judges, who often tended to disregard the exceptional nature of detention as a measure of last resort that should only be applied when all other options were deemed insufficient. In the majority of cases where journalists had been placed in pre-trial detention, they had been charged with terrorism\u2011related offences without any evidence corroborating their involvement in terrorist activities. The Commissioner for Human Rights was struck by the weakness of the accusations and the political nature of the decisions ordering and extending pre-trial detention in such cases.<\/p>\n
(b) The Special Rapporteur<\/p>\n
109. The Special Rapporteur noted that since the declaration of a state of emergency, a large number of journalists had been placed in pre-trial detention on the basis of vaguely worded charges without sufficient evidence.<\/p>\n
(c) The intervening non-governmental organisations<\/p>\n
110. The intervening non-governmental organisations stated that since the attempted military coup more than 150 journalists had been placed in pre-trial detention. Emphasising the crucial role played by the media in a democratic society, they criticised the use of measures depriving journalists of their liberty.<\/p>\n
3. The Court\u2019s assessment<\/em><\/p>\n(a) Relevant principles<\/p>\n
111. The Court reiterates firstly that Article 5 of the Convention guarantees a right of primary importance in a \u201cdemocratic society\u201d within the meaning of the Convention, namely the fundamental right to liberty and security (see Assanidze v. Georgia [GC], no. 71503\/01, \u00a7 169, ECHR 2004\u2011II).<\/p>\n
112. All persons are entitled to the protection of that right, that is to say, not to be deprived, or to continue to be deprived, of their liberty (see Weeks v.\u00a0the United Kingdom, 2 March 1987, \u00a7 40, Series A no. 114), save in accordance with the conditions specified in paragraph 1 of Article 5 of the Convention. The list of exceptions set out in Article 5 \u00a7 1 of the Convention is an exhaustive one (see Labita v. Italy [GC], no. 26772\/95, \u00a7 170, ECHR 2000\u2011IV), and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Assanidze, cited above, \u00a7 170; Al\u2011Jedda v.\u00a0the United Kingdom [GC], no. 27021\/08, \u00a7 99, ECHR 2011; and Buzadji v.\u00a0the\u00a0Republic of Moldova [GC], no. 23755\/07, \u00a7 84, ECHR 2016 (extracts)).<\/p>\n
113. Article 5 \u00a7 1 (c) of the Convention does not presuppose that the investigating authorities should have obtained sufficient evidence to bring charges at the point of arrest or while the applicants were in custody. The purpose of questioning during detention under Article 5 \u00a7 1 (c) is to further the criminal investigation by confirming or dispelling the concrete suspicion grounding the arrest (see Brogan and Others v. the United Kingdom, 29\u00a0November 1988, \u00a7 53, Series A no. 145\u2011B). Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom, 28\u00a0October 1994, \u00a7 55, Series A no. 300\u2011A; Metin v. Turkey (dec.), no.\u00a077479\/11, \u00a7 57, 3 March 2015; and Y\u00fcksel and Others v.\u00a0Turkey, nos.\u00a055835\/09 and 2 others, \u00a7 52, 31 May 2016).<\/p>\n
114. However, the \u201creasonableness\u201d of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary detention laid down in Article 5 \u00a7 1 (c) of the Convention. For that reason, the fact that a suspicion is held in good faith is insufficient in itself. There are in fact two aspects to the \u201creasonable suspicion\u201d requirement, which are separate but overlapping: a factual aspect and an aspect concerning the classification as criminal conduct.<\/p>\n
115. Firstly, as regards the factual aspect, the notion of \u201creasonable suspicion\u201d presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as \u201creasonable\u201d will depend upon all the circumstances (see, among other authorities, Fox, Campbell and Hartley v.\u00a0the\u00a0United\u00a0Kingdom, 30 August 1990, \u00a7 32, Series A no. 182, and Merabishvili v. Georgia [GC], no. 72508\/13, \u00a7 184, 28 November 2017), but the Court must be able to ascertain whether the essence of the safeguard afforded by Article 5 \u00a7 1 (c) of the Convention has been secured. It must therefore consider, in assessing the factual aspect, whether the arrest and detention were based on sufficient objective elements to justify a \u201creasonable suspicion\u201d that the facts at issue had actually occurred and were attributable to the persons under suspicion (see Fox, Campbell and Hartley, cited above, \u00a7\u00a7 32-34, and Murray, cited above, \u00a7\u00a7 50-63). Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence.<\/p>\n
116. Secondly, the other aspect of the existence of a \u201creasonable suspicion\u201d within the meaning of Article 5 \u00a7 1 (c) of the Convention, namely the classification as criminal conduct, requires that the facts relied on can be reasonably considered as falling under one of the sections describing criminal behaviour in the Criminal Code. Thus, there could clearly not be a \u201creasonable suspicion\u201d if the acts or facts held against a detained person did not constitute a crime at the time when they occurred (see Kandjov v. Bulgaria, no. 68294\/01, \u00a7 57, 6 November 2008).<\/p>\n
117. Further, it must not appear that the alleged offences themselves were related to the exercise of the applicant\u2019s rights under the Convention (see, mutatis mutandis, Merabishvili, cited above, \u00a7 187). In that regard the Court emphasises that, since the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, N.D. and N.T. v. Spain [GC], nos.\u00a08675\/15 and 8697\/15, \u00a7 171, 13 February 2020), a suspicion cannot be regarded as reasonable if it is based on an approach consisting in \u201cclassifying as criminal conduct\u201d the exercise of the rights and freedoms recognised by the Convention. Otherwise, the use of the notion of \u201creasonable suspicion\u201d to deprive the persons concerned of their physical liberty would risk rendering it impossible for them to exercise their rights and freedoms under the Convention.<\/p>\n
118. In that connection the Court reiterates that any deprivation of liberty should be in keeping with the purpose of Article 5 of the Convention, namely to protect the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 \u00a7 1 and the notion of \u201carbitrariness\u201d in that Article extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see, among other authorities, A. and Others v. the United Kingdom [GC], no. 3455\/05, \u00a7\u00a7 162-64, ECHR 2009, and Creang\u0103 v.\u00a0Romania [GC], no. 29226\/03, \u00a7 84, 23\u00a0February 2012).<\/p>\n
119. The Court also observes that it is at the time of arrest that the suspicions against a person must be \u201creasonable\u201d and that, in cases of prolonged detention, those suspicions must remain \u201creasonable\u201d (see, among many other authorities, St\u00f6gm\u00fcller v. Austria, 10 November 1969, p.\u00a040, \u00a7 4, Series A no. 9; McKay v. the United Kingdom [GC], no.\u00a0543\/03, \u00a7\u00a044, ECHR 2006-X; and Ilgar Mammadov v. Azerbaijan, no.\u00a015172\/13, \u00a7\u00a090, 22 May 2014). Furthermore, the requirement for the judicial officer to give relevant and sufficient reasons for the detention \u2013\u00a0in addition to the persistence of reasonable suspicion that the arrested person has committed an offence\u00a0\u2013 applies already at the time of the first decision ordering pre\u2011trial detention, that is to say \u201cpromptly\u201d after the arrest (see Buzadji, cited above, \u00a7\u00a0102).<\/p>\n
(b) Application of these principles to the present case<\/p>\n
120. The Court observes that the applicant was suspected of disseminating propaganda in favour of organisations considered as terrorist organisations or of assisting them, mainly on account of his articles and interviews published in the newspaper for which he worked and through his posts on social media. These are serious criminal offences which are punishable by imprisonment under Turkish law.<\/p>\n
121. The Court\u2019s task under Article 5 of the Convention is to ascertain whether there were sufficient objective elements to satisfy an objective observer that the applicant could have committed the offences of which he was accused. In view of the seriousness of these offences and the severity of the potential sentence, the facts need to be examined with great care. In that connection it is essential that the facts grounding the suspicion should be justified by verifiable and objective evidence and\u00a0that they can be reasonably considered as falling under one of the sections describing criminal behaviour in the Criminal Code.<\/p>\n
122. The Court notes in that regard that the dispute between the parties in the present case does not concern the wording of the text or headings of the articles and social media posts referred to in the decisions of the judicial authorities responsible for pre-trial detention. Instead it concerns the plausibility of certain, possibly criminal, acts with which the applicant was charged (the factual aspect), as well as the classification of the alleged acts as criminal conduct (aspect concerning the classification under criminal law).<\/p>\n
(i) Factual aspect of the existence of \u201creasonable suspicion\u201d: plausibility of the acts of disseminating propaganda in favour of terrorist organisations or lending assistance to those organisations<\/p>\n
123. The Court considers that the strong suspicion that the applicant had disseminated propaganda in favour of FET\u00d6\/PDY or had lent assistance to that organisation raises an issue as to the plausibility of these criminal acts. In that connection it notes the applicant\u2019s claim that he had been persecuted in\u00a02004\u201105 (by unlawful detention of almost one year) by judges who were allegedly members of FET\u00d6\/PDY, on the grounds that he had criticised the actions of the members of that organisation, and his observation that it would be strange to now accuse him of lending assistance to that organisation (see paragraph 101 above).<\/p>\n
124. The Court observes that, in charging the applicant with the offence of assisting FET\u00d6, the authorities responsible for the detention orders cited, in particular, three articles written by the applicant, namely the article of 8\u00a0July 2015 entitled \u201cWhat we\u2019re doing is journalism; what you\u2019re doing is treason\u201d, the article of 9 July 2015 entitled \u201cM\u0130T had information on the Reyhanl\u0131 massacre but did not share that information with the police\u201d, and the article of 13 February 2015 entitled \u201cThe secret in the lorries revealed\u201d (see paragraphs 26 and 27 above). These articles were not referred to expressly by the Constitutional Court in its judgment of 2 May 2019 dismissing the complaint that there had been no strong suspicion of the applicant\u2019s guilt. The Constitutional Court referred implicitly to these articles by noting the magistrate\u2019s findings to the effect that the applicant had manipulated the facts in order to portray the State as cooperating with certain terrorist organisations and supplying weapons to them; that he had written articles in support of the actions carried out by, among others, FET\u00d6\/PDY; and that he had ensured that the points of view of the terrorist organisations were disseminated widely among the public.<\/p>\n
125. In the Court\u2019s view, it is not inconceivable that a person may be suspected of assisting an illegal organisation which he or she has previously criticised. Nevertheless, it considers that such suspicions should be grounded on convincing and objectively verifiable evidence. It observes that the three articles in question contained material which made a significant contribution to the public debate on current affairs in Turkey at the relevant time. The article of 13 February 2015 concerning the possible destination of a consignment of weapons sent by Turkey to Syria contained a record of the telephone calls between certain leaders of the Turkmen forces in Syria to whom the Turkish authorities claimed to have sent the weapons. The other two articles, concerning the bomb attack in Reyhanli, referred to an interview with the public prosecutor investigating the incident, in which he made comments and criticisms regarding the level of cooperation between the intelligence services in that affair.<\/p>\n
126. The Court considers that, in the normal course of professional journalism, the rights and duties of an investigative journalist include conveying information to the public that is relevant to debates on matters of public interest, as the applicant did in these two articles. The fact that the alleged members of an illegal organisation, FET\u00d6\/PDY, like other opponents of the government, used this type of information in their criticism of the government, or the fact that the public prosecutor investigating the Reyhanl\u0131 incidents was subsequently accused of membership of FET\u00d6\/PDY, do not alter the fact that when they were published the two articles had journalistic information value and contributed to the public debate. Accordingly, those articles did not constitute grounds for charging the applicant with the criminal acts in question (propaganda in favour of that terrorist organisation, or lending assistance to it).<\/p>\n
127. The judges\u2019 findings to the effect that the applicant may have disseminated propaganda simultaneously on behalf of the PKK and FET\u00d6\/PDY, since the two organisations, with support from external forces, had acted in coordinated fashion during and after the coup attempt, were vague and imprecise in scope and do not compensate for the lack of evidence that the applicant lent assistance to FET\u00d6\/PDY.<\/p>\n
128. The Court also notes that the authorities concerned were unable to cite any specific facts or information capable of suggesting that the illegal organisations the PKK, FET\u00d6\/PDY and the DHKP\/C had issued requests or instructions to the applicant, an investigative journalist, so that he would publish this particular material with the aim of helping to prepare and carry out a campaign of violence or legitimising such violence.<\/p>\n
(ii) Aspect of the classification as criminal conduct of the facts grounding the \u201creasonable suspicions\u201d<\/p>\n
129. The Court must also ascertain whether the facts relied on as grounds for the suspicions against the applicant could reasonably amount to an offence provided for by the CC at the time they occurred. It observes that the published material referred to by the judicial authorities in ordering and extending the applicant\u2019s pre-trial detention, as taken into consideration by the Constitutional Court in its judgment of 2 May 2019, can be divided into four groups: (i) criticism of the political authorities\u2019 policies and of certain State institutions (assuming that they amounted to propaganda in favour of a terrorist organisation: the article of 13 February 2015 entitled \u201cThe secret in the lorries revealed\u201d, see paragraph 27 above, and the article of 8 July 2015 concerning the explosives attack in the town of Reyhanl\u0131, see paragraph\u00a026 above); (ii) interviews conveying the statements of alleged representatives of illegal organisations (the article of 14 March 2015 containing an interview with one of the PKK leaders, Cemil Bay\u0131k, on the conditions to be met in order for the PKK to lay down its weapons, see paragraph 17 above); (iii) the applicant\u2019s comments and criticisms concerning the measures taken by the administrative and judicial authorities to combat illegal organisations (the contribution to a seminar held from 23 to 26 September 2014, see paragraph\u00a020 above; the post of 28 November 2015 concerning the death of Tahir El\u00e7i, see paragraph 21 above; the post of 17 February 2016 concerning the PYD, see paragraph 22 above; the post of 11\u00a0December 2016 concerning the incidents in Cizre and Istanbul, see paragraph\u00a023 above; the post of 14 December 2016 concerning the (so-called) war with the PKK, see paragraph 24 above; and the post of 20 December 2016 concerning the possibility that the killer of the Russian ambassador in Ankara was a member of an organisation, see paragraph 25 above); and (iv) delicate and sensitive information of public interest (the articles published on 31 March and 1 April 2015 containing a telephone interview with one of the individuals who had taken a public prosecutor hostage, see paragraphs\u00a018\u201119 above).<\/p>\n
130. The Court observes that the above-mentioned articles and posts grounding the suspicions against the applicant have some characteristics in common.<\/p>\n
131. Firstly, it notes that the articles and posts constituted contributions by the applicant, an investigative journalist with Cumhuriyet, to various public debates on matters of general interest. They contained the applicant\u2019s assessment of current political developments, his analysis and criticism of various actions taken by government bodies, and his point 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. The topics addressed in these posts and articles \u2013 the necessity and proportionality of the measures taken by the government against the prohibited organisations, the appropriateness or otherwise of the government\u2019s domestic and external security policy, including in relation to illegal separatist organisations, and the views expressed by the alleged members of the illegal organisations challenging the accusations made against them \u2013 had already been the subject of wide-ranging public debate in Turkey and beyond, involving political parties, the press, non\u2011governmental organisations, groups representing civil society and public international organisations.<\/p>\n
132. Secondly, the Court notes that those articles and posts did not contain any incitement to commit terrorist offences, did not condone the use of violence and did not encourage insurrection against the legitimate authorities. While some of the published material may have reported points of view voiced by members of prohibited organisations, it remained within the bounds of freedom of expression, which requires that the public has the right to be informed of the different ways of viewing a situation of conflict or tension, including the point of view of illegal organisations (see Nedim \u015eener v. Turkey, no. 38270\/11, \u00a7 115, 8 July 2014; \u015e\u0131k v.\u00a0Turkey, no.\u00a053413\/11, \u00a7 104, 8 July 2014; and G\u00f6zel and \u00d6zer v.\u00a0Turkey, nos.\u00a043453\/04 and 31098\/05, \u00a7 56, 6 July 2010).<\/p>\n
133. As regards the interview conducted by the applicant with one of the persons who had taken the prosecutor hostage, the Court considers it undeniable that the interview, carried out in the midst of a terrorist operation with one of the perpetrators, had news or information value. Taken overall, the interview, which amounted to the broadcasting of statements made by a third party, could not objectively have appeared to have as its purpose the propagation of the ideas of left-wing extremists, but on the contrary sought to expose to the public the violent attitudes of these young militants. Indeed, even if there is no doubt that the remarks made by one of the DHKP\/C militants constituted an attempt to justify the act of terrorism in question, the Court observes that through his antagonistic questions suggesting that the militants\u2019 action was a counterproductive and harmful act in the pursuit of justice for B.E., a demonstrator who had allegedly died during a police operation, the applicant did distance himself from the actions of the DHKP\/C militants, in no way presented them as legitimate and complied with his duties and responsibilities as an investigative journalist (see, to similar effect, Jersild v. Denmark, 23 September 1994, \u00a7\u00a7 33-35, Series\u00a0A no.\u00a0298).<\/p>\n
134. As to the interview with Cemil Bay\u0131k, one of the PKK\u2019s leaders, the Court notes that the questions asked by the applicant sought to establish why the talks between the authorities and the PKK, aimed at ending that organisation\u2019s violent activities and persuading it to lay down its weapons, had failed, and to explore possible means of persuading the PKK to resume disarming. The questions asked by the applicant were dissociated from the remarks made by Cemil Bay\u0131k and did not contain any support for the reasons cited by the latter to justify the PKK\u2019s armed actions. The use of the term \u201cguerrilla fighters\u201d, one of the definitions of which refers to fighters with an illegal organisation, did not in any way mean that the applicant approved of armed terrorist action.<\/p>\n
135. Thirdly, the points of view expressed by the applicant himself in the articles and posts in question \u2013\u00a0considered, of course, separately from the remarks made by the militants of the illegal organisations who were interviewed\u00a0\u2013 were broadly ones of opposition to the policies of the government of the day and corresponded largely to those voiced by the opposition political parties and by groups or individuals whose political views were at variance with those of the political authorities.<\/p>\n
136. Hence, detailed examination of the applicant\u2019s alleged acts, which at first glance were indistinguishable from the legitimate activities of an investigative journalist or a political opponent, shows that those acts fell within the exercise of his freedom of expression and freedom of the press, as guaranteed by domestic law and by the Convention. There is nothing to indicate that they were part of an overall plan pursuing an aim in breach of the legitimate restrictions imposed on those freedoms. The Court therefore considers that the acts in question enjoyed a presumption of conformity with domestic law and with the Convention.<\/p>\n
(iii) Conclusion regarding Article 5 \u00a7 1 of the Convention<\/p>\n
137. In the light of these observations, the Court considers that the applicant could not be reasonably suspected, at the time of his placement in detention, of having committed the offences of disseminating propaganda in favour of terrorist organisations or assisting those organisations. In other words, the facts of the case do not support the conclusion that a reasonable suspicion existed against the applicant. Accordingly, the suspicion against him did not reach the required minimum level of reasonableness. Although imposed under judicial supervision, the contested measures were thus based on a mere suspicion.<\/p>\n
138. Moreover, it has likewise not been demonstrated that the evidence added to the case file after the applicant\u2019s arrest, in particular the evidence in the bill of indictment and the evidence produced while he was in detention, amounted to facts or information capable of giving rise to other suspicions justifying his continued detention. The fact that the first\u2011instance and appeal courts accepted the facts relied on by the magistrate and the prosecution as evidence of the applicant\u2019s guilt does nothing to alter this finding.<\/p>\n
139. In particular, the Court notes that the written material for which the applicant was accused and placed in detention came within the scope of public debate on facts and events that were already known, that it amounted to the exercise of Convention freedoms, and that it did not support or advocate the use of violence in the political sphere or indicate any wish on the applicant\u2019s part to contribute to the illegal objectives of terrorist organisations, namely to use violence and terror for political ends.<\/p>\n
140. As regards Article 15 of the Convention and Turkey\u2019s derogation, the Court notes that the Turkish Council of Ministers, chaired by the President of the Republic and acting in accordance with Article 121 of the Constitution, passed several legislative decrees during the state of emergency placing significant restrictions on the procedural safeguards laid down in domestic law for anyone held in police custody or pre-trial detention. Nonetheless, in the present case, it was under Article 100 of the CCP that the applicant was placed in pre-trial detention on charges relating to the offence set out in Article 220 of the Criminal Code. It should be noted in particular that Article 100 of the CCP, which requires the presence of factual evidence giving rise to strong suspicion that the person has committed an offence, was not amended during the state of emergency. Instead, the measures complained of in the present case were taken on the basis of legislation which was in force prior to and after the declaration of the state of emergency. Consequently, the measures complained of in the present case cannot be said to have complied with the conditions laid down by Article 15 of the Convention, since, ultimately, no derogating measure was applicable to the situation. To conclude otherwise would negate the minimum requirements of Article 5 \u00a7 1 (c) of the Convention.<\/p>\n
141. The Court therefore concludes that there has been a violation of Article\u00a05 \u00a7 1 of the Convention\u00a0in the present case on account of the lack of reasonable suspicion that the applicant had committed a criminal offence.<\/p>\n
142. Having regard to that finding, the Court considers it unnecessary to examine separately whether the reasons given by the domestic courts for the applicant\u2019s continued detention were based on relevant and sufficient grounds as required by Article 5 \u00a7\u00a7 1 (c) and 3 of the Convention (see, to similar effect, \u015eahin Alpay v. Turkey, no. 16538\/17, \u00a7 122, 20\u00a0March 2018).<\/p>\n
IV. ALLEGED VIOLATION OF ARTICLE 5 \u00a7 4 OF THE CONVENTION<\/strong><\/p>\n143. The applicant alleged a violation of Article 5 \u00a7 4 of the Convention on the grounds that the Constitutional Court had not complied with the requirement of \u201cspeediness\u201d in the context of the application he had brought before it to challenge the lawfulness of his pre-trial detention.<\/p>\n
Article 5 \u00a7 4 of the Convention provides:<\/p>\n
\u201cEveryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\u201d<\/p>\n
144. The Government contested that argument.<\/p>\n
A. The parties\u2019 submissions<\/strong><\/p>\n1. The Government<\/em><\/p>\n145. First of all the Government submitted that when the applicant had been released pending trial he had ceased to have victim status for the purposes of Article 5 \u00a7 4 of the Convention. Accordingly, his application to the Court should be rejected in this regard as being incompatible ratione personae with the provisions of the Convention.<\/p>\n
146. Next, referring to statistics on the Constitutional Court\u2019s caseload, the Government stated that in 2012 1,342\u00a0applications had been lodged with that court; in 2013 that number had risen to 9,897, and in 2014 and 2015 respectively there had been 20,578 and 20,376 applications. Since the attempted military coup, there had been a dramatic increase in the number of applications to the Constitutional Court: a total of 103,496\u00a0applications had been lodged with it between 15 July 2016 and 9 October 2017. Bearing in mind this exceptional caseload for the Constitutional Court and the notice of derogation of 21 July 2016, the Government submitted that it could not be concluded that that court had failed to comply with the requirement of \u201cspeediness\u201d.<\/p>\n
2. The applicant<\/em><\/p>\n147. The applicant reiterated his assertion that the Constitutional Court had not ruled \u201cspeedily\u201d within the meaning of Article 5 \u00a7 4 of the Convention. He alleged that, owing to the considerable delay in reviewing the lawfulness of the pre-trial detention measures based on suspicions which he regarded as clearly improbable, an application to that court could no longer be considered effective in respect of these kinds of violations of the right to liberty.<\/p>\n
B. The third-party interveners<\/strong><\/p>\n1. The Commissioner for Human Rights<\/em><\/p>\n148. The Commissioner for Human Rights noted that the Constitutional Court\u2019s case-law concerning Article 5 of the Convention conformed to the principles established by the Court in its own case-law. While acknowledging the scale of the Constitutional Court\u2019s caseload since the attempted coup, he emphasised that it was essential for the proper functioning of the judicial system that that court should give its decisions speedily.<\/p>\n
2. The Special Rapporteur<\/em><\/p>\n149. The Special Rapporteur likewise noted that since the declaration of the state of emergency the Constitutional Court had been faced with an unprecedented caseload.<\/p>\n
C. The Court\u2019s assessment<\/strong><\/p>\n1. Admissibility<\/em><\/p>\n150. The Court reiterates that it has found Article 5 \u00a7 4 of the Convention to be applicable to proceedings before domestic constitutional courts (see, in particular, Ilnseher v. Germany [GC], nos.\u00a010211\/12 and\u00a027505\/14, \u00a7 254, 4 December 2018; see also Smatana v.\u00a0the\u00a0Czech Republic, no. 18642\/04, \u00a7\u00a7 119-24, 27 September 2007, and \u017d\u00fabor v.\u00a0Slovakia, no. 7711\/06, \u00a7\u00a7 71\u201177, 6 December 2011). Accordingly, having regard to the jurisdiction of the Turkish Constitutional Court, the Court has previously concluded that Article 5 \u00a7 4 is also applicable to proceedings before that court (see Ko\u00e7intar v. Turkey (dec.), no. 77429\/12, \u00a7\u00a7\u00a030\u201146, 1\u00a0July 2014).<\/p>\n
151. The Court further reiterates that the primary purpose of Article\u00a05\u00a0\u00a7\u00a04 of the Convention is to secure to a person deprived of his or her liberty a speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The Court considers that the requirement of speediness of the review is therefore relevant while that person\u2019s detention lasts. While the guarantee of speediness is no longer relevant for the purpose of Article 5 \u00a7 4 after the person\u2019s release, the guarantee of efficiency of the review should continue to apply even thereafter, since a former detainee may well have a legitimate interest in the determination of his or her detention even after being released (see \u017d\u00fabor, cited above, \u00a7 83).<\/p>\n
152. In the present case the Court observes that the applicant lodged his individual application with the Constitutional Court on 30 January 2017 and that he was released pending trial on 9 March 2018. His release pending trial put an end to the alleged breach of Article 5 \u00a7 4 of the Convention resulting from the Constitutional Court\u2019s failure to speedily examine his complaint concerning the unlawfulness of his detention (see \u017d\u00fabor, cited above, \u00a7 85, and the references cited therein). The Court is therefore called upon to examine in the present case the applicant\u2019s complaint of failure to comply with the speediness requirement under Article 5 \u00a7 4 in the Constitutional Court proceedings between the date on which the applicant\u2019s constitutional application was lodged and the date of his release pending trial. Accordingly, it rejects the Government\u2019s argument that this complaint is incompatible ratione personae with the provisions of the Convention.<\/p>\n
153. The Court further finds that these complaints are not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n
2. Merits<\/em><\/p>\n154. The Court reiterates the principles arising from its case-law concerning the requirement of \u201cspeediness\u201d within the meaning of Article\u00a05 \u00a7\u00a04 of the Convention, as summarised, in particular, in its judgments in Mehmet Hasan Altan (cited above, \u00a7\u00a7 161-63) and \u015eahin Alpay (cited above, \u00a7\u00a7 133-35) and in its decision in the case of Akg\u00fcn v. Turkey ((dec.), no.\u00a019699\/18, \u00a7\u00a7 35-44, 2 April 2019). In those cases it noted that in the Turkish legal system, anyone in pre-trial detention could apply for release at any stage of the proceedings and could lodge an objection if the application was rejected. It also observed that the question of detainees\u2019 continued detention was automatically reviewed at regular intervals of no more than thirty days. Accordingly, it held that it could tolerate longer periods of review by the Constitutional Court.\u00a0However, in the case of Mehmet Hasan Altan, cited above, the period before the Constitutional Court to be taken into consideration was fourteen months and three days, and in the case of \u015eahin Alpay, cited above, it was sixteen months and three days; and in the case of Akg\u00fcn, cited above, it was twelve months and sixteen days. Bearing in mind the complexity of the applications and the Constitutional Court\u2019s caseload following the declaration of a state of emergency, the Court considered that this was an exceptional situation. Consequently, although periods of twelve months and sixteen days, fourteen months and three days and sixteen months and three days before the Constitutional Court could not be described as \u201cspeedy\u201d in an ordinary context, in the specific circumstances of those cases the Court held that there had been no violation of Article 5 \u00a7 4 of the Convention.<\/p>\n
155. In the present case the Court notes that the period to be taken into consideration lasted for thirteen months and seven days and that it fell within the period of the state of emergency, which was not lifted until 18\u00a0July 2018. It considers that the fact that the Constitutional Court did not deliver its judgment dismissing the applicant\u2019s application until 2\u00a0May 2019, some two years and three months later, is not relevant in calculating the period of time to be taken into consideration from the standpoint of Article\u00a05 \u00a7 4 of the Convention, since the applicant had already been released by that date. The Court therefore considers that its findings in the cases of Akg\u00fcn, Mehmet Hasan Altan and \u015eahin Alpay, cited above, are also applicable in the context of the present application. It emphasises in that connection that the applicant\u2019s application to the Constitutional Court was complex, because this was one of a number of cases raising complicated issues concerning the pre-trial detention of a journalist on account of published material relating to organisations considered to be terrorist organisations, and because the applicant, like other journalists writing for Cumhuriyet, had pleaded his case extensively before the Constitutional Court, arguing not only that his detention had not been based on any valid grounds, but also that the accusations against him were unconstitutional. Moreover, the Court considers that account must also be taken of the exceptional caseload of the Constitutional Court following the declaration of the state of emergency in July 2016 during the state of emergency in force from July 2016 to July 2018, and of the measures taken by the national authorities to tackle the problem of that court\u2019s backlog (see Mehmet Hasan Altan, cited above, \u00a7 165, \u015eahin Alpay, cited above, \u00a7\u00a0137 and Akg\u00fcn, cited above, \u00a7 41). In that connection the Court stresses the distinction to be made between the present case and the case of Kavala v.\u00a0Turkey in which the applicant had remained in pre-trial detention for the eleven months elapsing between the lifting of the state of emergency on 18\u00a0July 2018 and the delivery of the Constitutional Court\u2019s judgment on 28\u00a0June 2019 (see Kavala v. Turkey, no. 28749\/18, \u00a7 195, 10\u00a0December 2019).<\/p>\n
156. In the light of the foregoing considerations, although the review by the Constitutional Court in the present case could not be described as \u201cspeedy\u201d in an ordinary context, in the specific circumstances of the present case the Court considers that there has been no\u00a0violation of Article 5 \u00a7 4 of the Convention.<\/p>\n
V. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/strong><\/p>\n157. The applicant alleged mainly a breach of his right to freedom of expression on account of his initial and continued pre-trial detention. In particular, he complained of the fact that his journalistic output, conveying information and ideas to the public as part of a debate on matters of public interest and sometimes criticising certain government policies, without ever supporting or condoning the use of violence, had been considered as evidence in support of charges of assisting terrorist organisations or disseminating propaganda in favour of those organisations. He relied in that connection on Article 10 of the Convention, which provides:<\/p>\n
\u201c1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.<\/p>\n
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\u201d<\/p>\n
158. The Government contested the applicant\u2019s argument.<\/p>\n
A. The parties\u2019 submissions<\/strong><\/p>\n1. The Government<\/em><\/p>\n159. The Government submitted that the applicant lacked victim status since the criminal courts had not convicted him in a final judgment. For the same reason, the complaint under Article 10 of the Convention should be declared inadmissible for failure to exhaust domestic remedies.<\/p>\n
160. As to the lawfulness of the interference, the Government submitted that the criminal offence in question had been clearly proscribed by the articles of the CC that made it an offence to aid and assist an organisation deemed to be criminal in nature or to disseminate propaganda in favour of such an organisation.<\/p>\n
161. In the Government\u2019s submission, the interference complained of had pursued several aims for the purposes of the second paragraph of Article\u00a010 of the Convention, namely the protection of national security and public safety and the prevention of crime and disorder.<\/p>\n
162. As to whether the interference had been necessary in a democratic society, the Government submitted that the applicant had been detained and tried not for his journalistic activities but in order to answer charges of knowingly assisting organisations deemed to be criminal in nature, mainly the DHKP, the PKK and FET\u00d6\/PDY. The applicant had been suspected of assisting those terrorist organisations by attempting to undermine public support for the proceedings instituted against persons suspected of being members thereof and to exert pressure on the members of the security forces and on judges to ensure that the proceedings did not result in the perpetrators\u2019 conviction.<\/p>\n
2. The applicant<\/em><\/p>\n163. The applicant pointed out that he had been detained for a lengthy period of time. His placement in detention for allegedly assisting terrorist criminal organisations, on the basis of his work as a journalist, constituted in itself a breach of his freedom of expression. That deprivation of liberty had prevented him from carrying on his occupation as a journalist and had resulted, in his case just as in the case of other journalists, in self-censorship in the exercise of his professional activity, particularly when it came to expressing his opinions in public debate concerning the conduct of the political or judicial authorities, including with regard to the proceedings taken against persons suspected of belonging to organisations deemed to be criminal.<\/p>\n
164. The applicant added that the judicial authorities had not adduced any evidence that he had in any way actively contributed to the violent actions allegedly planned and carried out by the illegal organisations in question. Moreover, it was not necessary in a democratic society to protect the judicial authorities against criticisms made in good faith or to imprison journalists who voiced such criticism in monitoring and commenting upon the measures taken against persons suspected of being members of those organisations.<\/p>\n
165. The applicant also complained of the fact that the Government had opted for criminal-law sanctions, in breach of the right to freedom of expression, instead of responding to political criticism through the major communication channels available to them in order to inform the public.<\/p>\n
B. The third-party interveners<\/strong><\/p>\n1. The Commissioner for Human Rights<\/em><\/p>\n166. Relying mainly on the findings made during his visits to Turkey in April and September 2016, the Commissioner for Human Rights observed firstly that he had repeatedly highlighted the widespread violations of freedom of expression and media freedom in Turkey. He expressed the view that Turkish prosecutors and courts interpreted anti-terrorism legislation in a very broad manner.\u00a0Many journalists expressing dissent or criticism against the government authorities had been placed in pre-trial detention purely on account of their journalistic activities, without any concrete evidence. The Commissioner for Human Rights thus rejected the Government\u2019s assertion that the criminal proceedings instituted against journalists were unconnected to their professional activities, finding that it lacked credibility in that often the concrete evidence included in investigation files concerning journalists related to their journalistic activities. He submitted that neither the attempted coup nor the dangers represented by terrorist organisations could justify measures entailing severe interference with media freedom, such as the measures he had criticised.<\/p>\n
167. The Commissioner for Human Rights observed that the illegal organisations FET\u00d6\/PDY and the PKK\/KCK, which the applicant had been accused of assisting, were on opposite ends of the political spectrum.<\/p>\n
2. The Special Rapporteur<\/em><\/p>\n168. The Special Rapporteur submitted that anti-terrorism legislation had long been used in Turkey against journalists expressing critical opinions about government policies. Nevertheless, since the declaration of the state of emergency, the right to freedom of expression had been weakened even further. Since 15 July 2016, 231 journalists had been arrested and more than 150 remained in prison, and the evidence produced against them was very vague or non-existent.<\/p>\n
169. The Special Rapporteur stated that any interference would contravene Article 10 of the Convention unless it was \u201cprescribed by law\u201d. It was not sufficient for a measure to have a basis in domestic law; regard should also be had to the quality of the law. Accordingly, the persons concerned had to be able to foresee the consequences of the law in their case, and domestic law had to provide certain safeguards against arbitrary interference with freedom of expression.<\/p>\n
3. The intervening non-governmental organisations<\/em><\/p>\n170. The intervening non-governmental organisations submitted that restrictions on media freedom had become significantly more pronounced and prevalent since the attempted military coup. Stressing the important role played by the media in a democratic society, they stated that journalists were often detained for dealing with matters of public interest. They complained on that account of arbitrary recourse to measures involving the detention of journalists, which were also designed to ensure self-censorship.<\/p>\n
C. The Court\u2019s assessment<\/strong><\/p>\n1. Admissibility<\/em><\/p>\n171. The Court considers that the Government\u2019s objections set out in paragraph\u00a0159 above, and contested by the applicant, raise issues that are closely linked to the examination of whether there has been an interference with the applicant\u2019s rights and freedoms under Article 10 of the Convention. It therefore decides to join them to the merits.<\/p>\n
172. The Court further notes that these complaints are not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n
2. Merits<\/em><\/p>\n(a) Fundamental principles<\/p>\n
173. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article\u00a010 of the Convention, it is applicable not only to \u201cinformation\u201d or \u201cideas\u201d that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no \u201cdemocratic society\u201d (see Prager and Oberschlick v. Austria, 26 April 1995, \u00a7\u00a038, Series\u00a0A no. 313; Castells v. Spain, 23 April 1992, \u00a7 42, Series A no.\u00a0236; Handyside v. the United Kingdom, 7 December 1976, \u00a7 49, Series A no.\u00a024; and\u00a0Jersild, cited above, \u00a7 37).<\/p>\n
174. Specifically, freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society (see Lingens v. Austria, 8 July 1986, \u00a7\u00a042, Series A no. 103, and Castells, cited above, \u00a7\u00a043).<\/p>\n
175. Although the press must not overstep certain bounds, in particular in respect of the prevention of disorder and the protection of the reputation of others, its duty is nevertheless to impart \u2013 in a manner consistent with its obligations and responsibilities \u2013 information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, 24 February 1997, \u00a7\u00a037, Reports of Judgments and Decisions 1997\u2011I; The Sunday Times v.\u00a0the\u00a0United Kingdom (no. 1), 26 April 1979, \u00a7 65, Series A no.\u00a030; and\u00a0Observer and Guardian v. the United Kingdom, 26 November 1991, \u00a7\u00a059, Series A no. 216). Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, \u00a7 57, Series\u00a0A no.\u00a0204). Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of \u201cpublic watchdog\u201d (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, \u00a7\u00a063, Series\u00a0A no. 239, and Bladet Troms\u00f8 and Stensaas v. Norway [GC], no.\u00a021980\/93, \u00a7 62, ECHR 1999\u2011III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick, cited above, \u00a7 38; Thoma v.\u00a0Luxembourg, no.\u00a038432\/97, \u00a7\u00a7 45-46, ECHR 2001\u2011III; and Perna v. Italy [GC], no.\u00a048898\/99, \u00a7 39, ECHR 2003\u2011V).<\/p>\n
176. Furthermore, there is little scope under Article 10 of the Convention for restrictions on political speech or on debate concerning questions of public interest (see S\u00fcrek and \u00d6zdemir v. Turkey [GC], nos.\u00a023927\/94 and 24277\/94, \u00a7 60, 8 July 1999, and Wingrove v.\u00a0the\u00a0United Kingdom, 25 November 1996, \u00a7 58, Reports 1996\u2011V). Moreover, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media (see Castells, cited above, \u00a7 46).<\/p>\n
177. Freedom of political debate, which is at the very core of the concept of a democratic society, also includes the free expression by prohibited organisations of their views, provided that these do not contain public incitement to commit terrorist offences, or condone the use of violence. The public has the right to be informed of the different ways of viewing a situation of conflict or tension; in that regard the authorities must, whatever their reservations, allow all parties to express their point of view. In order to assess whether the publication of material emanating from prohibited organisations entails a risk of incitement to violence, consideration must be given, first and foremost, to the content of the material in question and the background against which it is published, for the purposes of the Court\u2019s case-law (see, to similar effect, G\u00f6zel and \u00d6zer, cited above, \u00a7\u00a056).<\/p>\n
178. In this connection it is apparent from the Court\u2019s case-law that where the views expressed do not comprise incitement to violence \u2013 in other words unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist offences in pursuit of their supporters\u2019 goals or can be interpreted as likely to encourage violence by expressing deep-seated and irrational hatred towards identified persons \u2013 Contracting States must not restrict the right of the general public to be informed of them, even on the basis of the aims set out in Article 10 \u00a7 2, that is to say the protection of territorial integrity and national security and the prevention of disorder or crime (see S\u00fcrek v. Turkey (no. 4) [GC], no. 24762\/94, \u00a7\u00a060, 8\u00a0July 1999; G\u00f6zel and \u00d6zer, cited above, \u00a7 56; Nedim \u015eener, cited above, \u00a7\u00a0116; and \u015e\u0131k, cited above, \u00a7\u00a0105).<\/p>\n
(b) Whether there was interference<\/p>\n
179. The Court has previously found that certain circumstances which have a chilling effect on freedom of expression do in fact confer on those concerned \u2013 persons who have not been finally convicted \u2013 the status of victim of interference in the exercise of their right to that freedom (see, among other authorities, Dilipak v. Turkey, no. 29680\/05, \u00a7\u00a7\u00a044\u201147, 15\u00a0September 2015). It has made the same finding in relation to the detention of investigative journalists for almost a year under criminal proceedings brought for very serious crimes (see Nedim \u015eener, cited above, \u00a7\u00a7\u00a094\u201196, and \u015e\u0131k, cited above, \u00a7\u00a7\u00a083\u201185).<\/p>\n
180. The Court observes in the present case that criminal proceedings were brought against the applicant for acts characterised as propaganda in favour of terrorist organisations, on the basis of facts which consisted in his presentation and assessment of current political developments in his capacity as an investigative journalist with the daily newspaper Cumhuriyet. This characterisation of the facts also featured in the bill of indictment filed when the applicant was placed in pre-trial detention, in which the prosecuting authorities accused him of aiding and assisting terrorist organisations, an offence carrying a heavy penalty under the Criminal Code.<\/p>\n
181. The Court also notes that the applicant was kept in pre-trial detention for approximately thirteen months in the context of these criminal proceedings. It observes that the judicial authorities which ordered and extended the applicant\u2019s detention considered that there was serious and credible evidence that he was guilty of terrorism-related acts.<\/p>\n
182. The Court considers that the applicant\u2019s pre-trial detention in the context of the criminal proceedings against him, for offences carrying a heavy penalty and directly linked to his work as a journalist, amounted to an actual and effective constraint and thus constituted \u201cinterference\u201d with the exercise by the applicant of his right to freedom of expression guaranteed by Article\u00a010 of the Convention (see Nedim \u015eener, cited above, \u00a7 96, and \u015e\u0131k, cited above, \u00a7 85). On the basis of this finding, the Court dismisses the Government\u2019s objection as regards the applicant\u2019s lack of victim status.<\/p>\n
183. For the same reasons, the Court likewise dismisses the Government\u2019s objection of failure to exhaust domestic remedies in respect of the complaints under Article 10 of the Convention (see, mutatis mutandis, Y\u0131lmaz and K\u0131l\u0131\u00e7 v. Turkey, no. 68514\/01, \u00a7\u00a7 37-44, 17\u00a0July 2008).<\/p>\n
(c) Whether the interference was justified<\/p>\n
184. Such interference will breach Article 10 of the Convention unless it satisfies the requirements of the second paragraph of that Article. It therefore remains to be determined whether the interference was \u201cprescribed by law\u201d, pursued one or more of the legitimate aims referred to in paragraph\u00a02 and was \u201cnecessary in a democratic society\u201d in order to achieve them.<\/p>\n
185. The Court reiterates that the expression \u201cprescribed by law\u201d, within the meaning of Article 10 \u00a7 2 of the Convention, requires firstly that the interference should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences, and that it should be compatible with the rule of law. A law which confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see, among many other authorities, M\u00fcller and Others v. Switzerland, 24 May 1988, \u00a7\u00a029, Series A no. 133; Ezelin v. France, 26 April 1991, \u00a7 45, Series\u00a0A no.\u00a0202; and Margareta and Roger Andersson v. Sweden, 25 February 1992, \u00a7\u00a075, Series A no. 226\u2011A).<\/p>\n
186. In the present case the applicant\u2019s arrest and detention amounted to interference with his rights under Article 10 of the Convention (see paragraph\u00a0182 above). The Court has already found that the applicant\u2019s detention was not based on reasonable suspicion that he had committed an offence for the purposes of Article 5 \u00a7 1 (c) of the Convention, and that there has therefore been a violation of his right to liberty and security under Article\u00a05 \u00a7 1 (see paragraph 141 above). It also notes that according to Article\u00a0100 of the Turkish Code of Criminal Procedure, a person may be placed in pre-trial detention only where there is factual evidence giving rise to strong suspicion that he or she has committed an offence, and considers in this connection that the absence of reasonable suspicion should, a fortiori, have implied an absence of strong suspicion when the national authorities were called upon to assess the lawfulness of the applicant\u2019s detention. The Court further reiterates that sub-paragraphs (a) to (f) of Article\u00a05 \u00a7 1 of the Convention contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and that no deprivation of liberty will be lawful unless it falls within one of those grounds (see Khlaifia and Others v. Italy [GC], no. 16483\/12, \u00a7\u00a088, 15\u00a0December 2016).<\/p>\n
187. The Court further observes that the requirements of lawfulness under Articles 5 and 10 of the Convention are aimed in both cases at protecting the individual from arbitrariness (see paragraphs 112, 114 and\u00a0118 above as regards Article 5, and paragraph 185 above as regards Article\u00a010). It follows that a detention measure that is not lawful, as long as it constitutes interference with one of the freedoms guaranteed by the Convention, cannot be regarded in principle as a restriction of that freedom prescribed by national law.<\/p>\n
188. Accordingly, the interference with the applicant\u2019s rights and freedoms under Article 10 \u00a7 1 of the Convention cannot be justified under Article\u00a010 \u00a7 2 since it was not prescribed by law (see Steel and Others v.\u00a0the United Kingdom, 23 September 1998, \u00a7\u00a7 94 and 110, Reports 1998\u2011VII, and, mutatis mutandis, Huseynli and Others v. Azerbaijan, nos.\u00a067360\/11 and\u00a02\u00a0others, \u00a7\u00a7 98-101, 11 February 2016). The Court is therefore not required to examine whether the interference in question had a legitimate aim and was necessary in a democratic society.<\/p>\n
189. Accordingly, there has been a violation of Article 10 of the Convention.<\/p>\n
VI. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION<\/strong><\/p>\n190. Lastly, the applicant alleged that his detention had been designed to punish him for his criticisms of the government or for the information he had conveyed to the general public which had displeased the political authorities. He contended that the purpose of his initial and continued detention had been to subject him to judicial harassment on account of his journalistic activities. He relied in that regard on Article 18 of the Convention taken together with Articles 5 and 10.<\/p>\n
191. Article 18 of the Convention provides:<\/p>\n
\u201cThe restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.\u201d<\/p>\n
A. Admissibility<\/strong><\/p>\n192. The Government submitted that Article 18 of the Convention did not have an autonomous role and could only be applied in conjunction with other provisions of the Convention. In their view, the complaints under Article\u00a018 of the Convention should be declared inadmissible for the same reasons that they had put forward concerning the applicant\u2019s other complaints.<\/p>\n
193. The applicant contested that argument.<\/p>\n
194. The Court observes that it has found a violation of Article 5 \u00a7 1 of the Convention on account of the applicant\u2019s initial and continued detention in the absence of reasonable suspicion that he had committed the offences of which he was accused (see paragraph 139 above), and also, on the basis of the same facts, a violation of Article 10 on account of the unjustified interference with the applicant\u2019s freedom of expression. Taking the view that the complaint under Article 18 of the Convention is closely linked to the complaints under those provisions, that it is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.<\/p>\n
B. Merits<\/strong><\/p>\n1. The parties\u2019 submissions<\/em><\/p>\n(a) The applicant<\/p>\n
195. In the applicant\u2019s submission, a number of features of the case demonstrated that the undeclared aim of his placement in pre-trial detention for serious offences had in fact been to punish and harass him for his critical commentaries on the actions of the government and its agents, and for the content of the remarks made by the persons he had interviewed, despite the fact that he had in no way subscribed to the ideas expressed by them. He submitted that it was very common practice in Turkey to use pre-trial detention against journalists who criticised government policies. The poor situation with regard to press freedom in the country had been commented on in reports and statements by international observers including the member States and various bodies of the Council of Europe and the European Union. The Commissioner for Human Rights had also criticised the applicant\u2019s placement in detention in his memorandum of 15\u00a0February 2017.<\/p>\n
196. The applicant alleged in particular that one of the undeclared aims of his pre-trial detention had been to punish him, and the newspaper Cumhuriyet for which he worked, for having revealed facts which the government had sought to conceal in a bid to prevent the public from receiving information that did not match the official version presented by the political authorities. The facts referred to in the orders for his detention, and that of his fellow journalists from Cumhuriyet, as the basis for the suspicions had provoked an immediate and vehement response from the members of the government. For instance, when Cumhuriyet had brought to light the affair concerning the lorries belonging to the intelligence services alleged to have transported weapons to armed Islamist groups in Syria (a process to which he had contributed through an article containing an interview with the public prosecutor O.G.), the President of the Republic had accused the newspaper of espionage and had stated: \u201cWhoever wrote that article will pay dearly, I will not let the matter rest there\u201d. He added that Cumhuriyet\u2019s former publication director, C.D., and the head of the newspaper\u2019s Ankara office, E.G., had been arrested for espionage but had been released after a Constitutional Court judgment had found their detention to be unlawful in the absence of strong suspicions of guilt. Following that judgment, the President of the Republic had stated as follows: \u201cI will not comment on the Constitutional Court\u2019s judgment, but I am not obliged to accept it. I will not abide by this judgment, I will not comply with it\u201d.<\/p>\n
197. The applicant submitted that another undeclared reason for his placement in detention was that the judicial authorities regretted the release pending trial of the former publication director, C.D., who had moved abroad after being released. Following an assassination attempt C.D. had left the country, stating that his life was in danger and that he would remain abroad until the state of emergency had been lifted. In the orders concerning the pre-trial detention of the journalists who had been accused, the judges had stated that \u201cthe content of earlier investigation files show[ed] that the suspects [had] fled, by lawful or unlawful means, as soon as an opportunity [had arisen]\u201d.<\/p>\n
198. Furthermore, the public prosecutor in charge of the investigation concerning the journalists and managers of Cumhuriyet, including the applicant, had, from the beginning of the investigation until the filing of the bill of indictment (signed by a different prosecutor), himself faced charges and was being tried for membership of one of the illegal organisations (in this instance, FET\u00d6) which the applicant was accused of assisting. There had been no prospect that this prosecutor, who himself feared being convicted of belonging to that illegal organisation, would conduct the judicial investigation in an objective and fair manner.<\/p>\n
(b) The Government<\/p>\n
199. The Government contested the applicant\u2019s argument. They submitted that the system for the protection of fundamental rights and freedoms under the Convention rested on the assumption that the authorities of the High Contracting Parties acted in good faith. It was for the applicant to demonstrate convincingly that the authorities\u2019\u00a0real aim had differed from the one proclaimed. A mere suspicion was not sufficient to prove that Article\u00a018 had been breached.<\/p>\n
200. The Government argued that the criminal investigation in question had been conducted by independent judicial authorities. The applicant had been placed in pre-trial detention on the basis of the evidence that had been gathered and placed in the case file. Contrary to the applicant\u2019s assertion, that evidence was in no way linked to the fact that he had criticised the government\u2019s policies or that the newspaper for which he worked had adopted an editorial line opposed to those policies. In accordance with the rule of law, no political party or State body, including the government, could intervene or issue instructions when it came to instituting investigations or ordering pre-trial detention, which were matters for the judicial authorities alone.<\/p>\n
201. In the Government\u2019s submission, the applicant had not furnished any evidence to show that his pre-trial detention had been imposed with a hidden intention. Furthermore, the criminal proceedings against the applicant were still pending and the allegations made in that regard would be verified at the end of those proceedings.<\/p>\n
2. The third-party interveners<\/em><\/p>\n(a) The Commissioner for Human Rights<\/p>\n
202. In the view of the Commissioner for Human Rights, it was difficult to see how the use of pre-trial detention against journalists in Turkey could be linked to one of the legitimate aims provided for in the Convention in that regard. Some of the criminal-law provisions concerning State security and terrorism were open to arbitrary application owing to their vague wording and the overly broad interpretation of the concepts of terrorist propaganda and support for a terrorist organisation, with those concepts encompassing statements and articles that clearly did not incite violence. In the aftermath of the attempted coup many journalists had faced unsubstantiated terrorism-related charges under such provisions, in connection with the legitimate exercise of their right to freedom of expression. The detention and prosecution of journalists under such grave charges resulted in a strong chilling effect on wholly legitimate journalistic activities and contributed to self-censorship among those who wished to participate in public debate. In the Commissioner\u2019s view, numerous instances of judicial actions targeting not only journalists but also human rights defenders, academics and members of parliament exercising their right to freedom of expression indicated that criminal laws and procedures were currently being used by the judiciary to silence dissenting voices.<\/p>\n
(b) The intervening non-governmental organisations<\/p>\n
203. The intervening non-governmental organisations submitted that Article\u00a018 of the Convention would be breached where an applicant could show that the real aim of the authorities was not the same as that proclaimed.\u00a0They pointed out that the restriction of freedom of expression and political criticism was not one of the legitimate purposes of pre-trial detention enumerated in Article 5 of the Convention.<\/p>\n
204. According to these organisations, where restrictions on applicants\u2019 freedom of expression formed part of a wider campaign to silence and punish anyone engaged in critical journalism, under problematic criminal laws that were increasingly restrictive of fundamental rights and freedoms, the Court should find a violation of Article 18 of the Convention. An analysis of the comments made by high-ranking State officials and pro\u2011government media could assist in identifying the actual motivation of the State in prosecuting journalists.<\/p>\n
205. The intervening non-governmental organisations further argued that following the attempted military coup on 15 July 2016 the government had misused legitimate concerns in order to redouble its already significant crackdown on human rights, inter alia by placing dissenters in pre-trial detention.<\/p>\n
3. The Court\u2019s assessment<\/em><\/p>\n206. The Court refers to the general principles concerning the interpretation and application of Article 18 of the Convention as they were recently set out, particularly in its judgments in Merabishvili (cited above, \u00a7\u00a7\u00a0287\u2011317) and Navalnyy v. Russia ([GC], nos. 29580\/12 and\u00a04\u00a0others, \u00a7\u00a7\u00a0164\u201165, 15 November 2018).<\/p>\n
207. The Court observes at the outset that the applicant\u2019s main complaint was that he had been specifically targeted because of published materials (press articles and social media posts) which had all been considered to oppose the government. It notes that he also maintained that his initial and continued pre-trial detention had pursued an undeclared aim, namely to silence criticism of the government and prevent the public from receiving information that did not match the government\u2019s official version.<\/p>\n
208. The Court notes that in determining whether the predominant purpose pursued by the applicant\u2019s detention was an \u201culterior purpose\u201d, as alleged by the applicant in this case, it applies its usual test of proof \u201cbeyond reasonable doubt\u201d, examines all the elements in its possession, wherever they may come from, and if necessary, obtains others of its own motion. It also adopts conclusions that are supported by an independent evaluation of all the evidence, including any inferences it may draw from the facts and the submissions of the parties. The Court may also combine these conclusions with circumstantial evidence, such as information on the main facts, contextual facts or a sequence of events from which conclusions may be drawn about the main facts, and with reports and statements by international observers, non-governmental organisations or the media, as well as decisions of other national or international courts (see Merabishvili, cited above, \u00a7\u00a7 311-17, and Navalnyy, cited above, \u00a7 165). The Court must also take into account the sequence and pattern of the events in dispute as a whole, bearing in mind that the predominant purpose of the measures taken against the applicant may change and what might initially appear to be a legitimate aim or purpose may prove less plausible over time, and that corroborating contextual evidence may be indicative of a continuing tendency on the part of the public authorities to restrict the Convention freedoms of persons in political opposition (see Navalnyy, cited above, \u00a7\u00a7\u00a0171\u201172 and \u00a7\u2011175).<\/p>\n
209. On this last point, the Court notes that the measures in question in this particular case, as well as those taken in the context of criminal proceedings against other opposition journalists in Turkey, have been strongly criticised by the third parties involved. However, since the political process and the jurisdictional process are fundamentally different, it must base its decision on evidence, according to the criteria established in its judgments in Merabishvili (cited above, \u00a7\u00a7 310-17) and Navalnyy (cited above, \u00a7\u00a0165), and on its own assessment of the facts specific to the case (see Khodorkovskiy v. Russia, no. 5829\/04, \u00a7 259, 31 May 2011; Ilgar Mammadov, cited above, \u00a7 140; and Rasul Jafarov v.\u00a0Azerbaijan, no.\u00a069981\/14, \u00a7 155, 17 March 2016).<\/p>\n
210. In the present case the Court has concluded above that the charges against the applicant were not based on a \u201creasonable suspicion\u201d within the meaning of Article 5 \u00a7 1 (c) of the Convention. It has found in particular that the measures taken against the applicant were not justified by reasonable suspicions based on an objective assessment of the alleged acts; instead, they were essentially based on written material which could not reasonably be considered as behaviour criminalised under domestic law but was related to the exercise of Convention rights, and in particular the right to freedom of expression. The Court considers, indeed, that detention based on such a serious charge had a chilling effect on the applicant\u2019s willingness to express his views in public and was liable to create a climate of self\u2011censorship affecting him and all journalists reporting and commenting on the running of the government and on various political issues of the day.<\/p>\n
211. Nevertheless, whilst the Government failed to substantiate their argument that the measures taken against the applicant were justified by reasonable suspicions, leading the Court to find a violation of Article 5 \u00a7\u00a01 and Article 10 of the Convention, this would not by itself be sufficient to conclude that Article 18 has also been violated (see Navalnyy, cited above, \u00a7\u00a0166). Indeed, as the Court pointed out in Merabishvili (cited above, \u00a7\u00a0291), the mere fact that a restriction of a Convention right or freedom does not meet all the requirements of the clause that permits it does not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case. There is still a need to examine the question whether \u2013\u00a0in the absence of a legitimate purpose\u00a0\u2013 there was an identifiable ulterior one (see Navalnyy, cited above, \u00a7\u00a0166).<\/p>\n
212. The Court observes in the instant case that the stated aim of the measures imposed on the applicant was to carry out investigations into the campaigns of violence conducted by members of separatist or leftist movements and, to a lesser extent, the campaign leading to the attempted coup in 2016, and to establish whether the applicant had indeed committed the offences of which he was accused. Given the serious disruption and the considerable loss of life resulting from these events, it considers it perfectly legitimate to carry out investigations into these incidents. In addition, it must not be overlooked that the attempted coup led to a state of emergency being declared throughout the country.<\/p>\n
213. The Court observes that there appears to be nothing untoward in the chronological sequence of the acts of which the applicant was accused and the opening of the investigation concerning him. The acts of which the applicant was accused in the investigation which was opened at the end of 2016 had occurred, for the most part, in 2015 and 2016. It cannot therefore be said that an excessive length of time elapsed between the impugned acts and the opening of the criminal investigation in the course of which the applicant was placed in pre-trial detention (see, conversely, Kavala, cited above, \u00a7\u00a7\u00a0225\u201128).<\/p>\n
214. The Court is prepared to accept that statements made in public by members of the government or the President concerning the criminal proceedings against an applicant could, in some circumstances, constitute evidence of an ulterior purpose behind a judicial decision (see Kavala, cited above, \u00a7 229; Merabishvili, cited above, \u00a7 324; and Tchankotadze v.\u00a0Georgia, no. 15256\/05, \u00a7 114, 21 June 2016). However, the Court notes in the present case that the statements by the President of the Republic referred to above related to a specific affair concerning the destination of lorries belonging to the intelligence services and used to transport weapons, and were not directed against the applicant himself but rather against the newspaper Cumhuriyet as a whole under the editorial direction of C.D., its publication director at the time. Moreover, it should be noted that the Constitutional Court ruled in favour of C.D. and another of Cumhuriyet\u2019s managers at the time, finding that the suspicions against them were unconstitutional. It is true that the statement by the President of the Republic to the effect that he would not abide by the Constitutional Court\u2019s 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 does not in itself amount to evidence that the applicant\u2019s detention was ultimately motivated by reasons incompatible with the Convention.<\/p>\n
215. As to the fact that a prosecutor who was himself charged with membership of the organisation FET\u00d6 participated in the judicial investigation concerning the applicant, including the drafting of the bill of indictment, the Court considers that this fact in itself does not constitute decisive evidence of a violation of Article 18 of the Convention, as the applicant\u2019s initial and continued detention was based on orders made by a magistrate or by one or more members of the Assize Court, rather than on a decision of the public prosecutor\u2019s office. Furthermore, when this situation came to light the prosecutor in question was removed from the investigation before the bill of indictment was filed.<\/p>\n
216. That being said, the Court accepts that his detention based on such a serious charge had a chilling effect on the applicant\u2019s willingness to express his views in public and was liable to create a climate of self-censorship affecting him and all journalists reporting and commenting on the running of the government and on various political issues of the day. Nevertheless, this finding is likewise insufficient by itself to conclude that there has been a violation of Article 18.<\/p>\n
217. The Court further observes that the Constitutional Court subjected the applicant\u2019s complaints under Articles 5 and 10 of the Convention to thorough scrutiny and delivered its judgments in the case following in-depth discussion, as demonstrated by the detailed dissenting opinion.<\/p>\n
218. It follows that the elements relied on by the applicant in support of a violation of Article 18 of the Convention, taken separately or in combination with each other, do not form a sufficiently homogeneous whole for the Court to find that the applicant\u2019s detention pursued a purpose not prescribed by the Convention and representing a fundamental aspect of the case.<\/p>\n
219. In the light of the foregoing, the Court considers that it has not been established beyond reasonable doubt that the applicant\u2019s pre-trial detention was ordered for a purpose not prescribed by the Convention within the meaning of Article 18. Accordingly, in the present case there has been no violation of Article 18 of the Convention in conjunction with Articles\u00a05 and\u00a010.<\/p>\n
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n220. Article 41 of the Convention provides:<\/p>\n
\u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n
A. Damage<\/strong><\/p>\n221. The applicant claimed 20,000 euros (EUR) in respect of non\u2011pecuniary damage for each month spent in pre-trial detention.<\/p>\n
222. The Government submitted that the amount claimed was excessive in the light of the Court\u2019s case-law on this issue, and that the claim should be dismissed.<\/p>\n
223. With regard to non-pecuniary damage, the Court considers that the violations of the Convention have indisputably caused the applicant substantial damage. Accordingly, ruling on an equitable basis, it awards him EUR\u00a016,000 under that head.<\/p>\n
B. Costs and expenses<\/strong><\/p>\n224. The applicant did not seek reimbursement of any costs and expenses incurred before the Convention institutions or the domestic courts. That being so, the Court considers that no sum is to be awarded to him on that account.<\/p>\n
C. Default interest<\/strong><\/p>\n225. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n
FOR THESE REASONS, THE COURT,<\/strong><\/p>\n1. Joins to the merits, unanimously, the Government\u2019s preliminary objections in respect of the complaint under Article 10 and dismisses them;<\/p>\n
2. Declares, unanimously, the application admissible;<\/p>\n
3. Holds, unanimously, that there has been a violation of Article 5 \u00a7 1 of the Convention;<\/p>\n
4. Holds, unanimously, that there is no need to examine the complaint under Article 5 \u00a7 3 of the Convention;<\/p>\n
5. Holds, unanimously, that there has been no violation of Article 5 \u00a7 4 of the Convention;<\/p>\n
6. Holds, by six votes to one, that there has been a violation of Article\u00a010 of the Convention;<\/p>\n
7. Holds, by six votes to one, that there has been no violation of Article\u00a018 of the Convention;<\/p>\n
8. Holds, by six votes to one,<\/p>\n
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR 16,000 (sixteen thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n
9. Dismisses, by six votes to one, the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n
Done in French, and notified in writing on 24 November 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n
Stanley Naismith \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u00a0 \u00a0 Jon Fridrik Kj\u00f8lbro
\nRegistrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n
______________<\/p>\n
In accordance with Article 45 \u00a7 2 of the Convention and Rule 74 \u00a7 2 of the Rules of Court, the following separate opinions are annexed to this judgment:<\/p>\n
(a) Partly concurring and partly dissenting opinion of Judge S. Y\u00fcksel;<\/p>\n
(b) Partly dissenting opinion of Judge E. K\u016bris.<\/p>\n
J.F.K.
\nS.H.N.<\/p>\n
PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE Y\u00dcKSEL<\/strong><\/p>\n1. I voted with the majority in the present case in favour of finding a violation of Article\u00a05 \u00a7\u00a01 of the Convention, and voted against the finding of a violation regarding the applicant\u2019s complaint under Article 10 of the Convention.<\/p>\n
2. As regards the applicant\u2019s complaint under Article 5 \u00a7 1 of the Convention, while I agree with the majority\u2019s position on the outcome, I respectfully dissociate myself from certain parts of the reasoning and approach adopted in the judgment, for the reasons set out below.<\/p>\n
3. The case mainly concerns the placement in detention and continued detention of an applicant who is a journalist. In my view, in the present case, it is necessary to distinguish between two facts: the detention of a journalist in the context of criminal proceedings and the opening of criminal proceedings. With regard to the detention of a journalist, I subscribe to the outlines of the judgment and I believe that the use of such a measure must be exceptional unless there are compelling reasons.<\/p>\n
4. The pre-trial detention of the applicant was ordered in December 2016 primarily on suspicion of disseminating propaganda in favour of terrorist organisations (see paragraph 11 of the judgment). Subsequently, his continued pre-trial detention was ordered on suspicion of disseminating propaganda in favour of terrorist organisations or assisting those organisations. I must express my concerns about this new classification of the criminal charges, namely as regards the charge of assisting terrorist organisations. In this connection I simply refer to the judgment of the Court of Cassation concerning the present case (see paragraphs 47-50 of the judgment). Indeed, from the outset the charges against the applicant were poorly classified, particularly in relation to the offence of assisting a terrorist organisation. Taking into account the applicant\u2019s relevant activities, I can accept that there was reasonable suspicion in relation to the offence of disseminating propaganda in favour of terrorist organisations. However, because the present judgment addresses the issue of the existence of reasonable suspicion in relation to both charges \u2013 disseminating propaganda in favour of terrorist organisations and assisting terrorist organisations \u2013 together, without making a distinction (in the light of paragraphs 1 and 3 of Article\u00a05 taken together), and because I have serious doubts as to the presence of reasonable suspicion in relation to the offence of assisting terrorist organisations, I voted with the majority in favour of finding a violation of Article\u00a05 \u00a7\u00a01 of the Convention. Thus, I believe that there was a failure of classification on the part of the domestic courts, and share the view of the majority that the suspicion against the applicant did not reach the required minimum level of reasonableness in relation to the offence of assisting terrorist organisations.<\/p>\n
5. As regards the applicant\u2019s complaint under Article 10 of the Convention, the majority considered that the interference with the applicant\u2019s rights and freedoms under Article 10 of the Convention could not be justified under the second paragraph of that provision, on the ground that it was not \u201cprescribed by law\u201d. In reaching this conclusion, the majority merely relied on the finding of a violation of Article 5 \u00a7 1 of the Convention, without carrying out a further examination under Article\u00a010 (see paragraphs 187-88 of the judgment). I have already expressed my disagreement with this approach in my concurring opinions in the cases of Rag\u0131p Zarakolu v. Turkey (no. 15064\/12, 15 September 2020) and Sabuncu and Others v. Turkey (no. 23199\/17, 10 November 2020). In the present case, however, I voted against the finding of a violation of Article 10, for the following reason.<\/p>\n
The applicant conducted an interview in the midst of a terrorist operation with one of the hostage-takers who had taken a prosecutor hostage and subsequently murdered him, and another interview with one of the PKK\u2019s leaders. In my view, it is understandable that these interviews and some of the applicant\u2019s other activities (certain social media posts, etc.) may not be considered just to be a matter of freedom of the press and may be the subject of a criminal investigation in order to ascertain whether they fall within the scope of that freedom. I accept that an extensive freedom of expression must apply to journalistic activities. But this freedom is also accompanied by duties and responsibilities, resulting in particular from the principle of responsible journalism, which is one of the principles developed in our Court\u2019s established case-law. In this regard, I refer to the following rulings of the Court which emphasise responsible journalism.<\/p>\n
6. In the case of Jersild v. Denmark (23 September 1994, Series\u00a0A no.\u00a0298), the Court found a violation of Article 10 of the Convention after carefully examining the journalist\u2019s attitude during the report in question (see paragraph 31 in fine of that judgment). In the judgments in S\u00fcrek v.\u00a0Turkey (no. 1) ([GC], no. 26682\/95, ECHR 1999-IV) and S\u00fcrek v.\u00a0Turkey (no.\u00a03) ([GC], no. 24735\/94, 8 July 1999), the Court found that there had been no violation of Article 10, emphasising the duties of the journalists, and especially of the editors-in-chief of newspapers (see, in particular, \u00a7\u00a063 of the S\u00fcrek (no. 1) judgment and \u00a7 41 of the S\u00fcrek (no. 3) judgment). In Falakao\u011flu and Sayg\u0131l\u0131 v. Turkey (nos. 22147\/02 and 24972\/03, \u00a7\u00a034, 23\u00a0January 2007), the Court found no violation of Article 10, stressing the danger of providing a forum for leaders of criminal organisations and thus allowing\u00a0the dissemination of terrorist propaganda. In Sayg\u0131l\u0131 and Falakao\u011flu v. Turkey (no. 2) (no. 38991\/02, \u00a7 28, 17 February 2009), the Court found that the publication of statements by terrorist organisations could be subject to penalties if the message given was not a peaceful one.<\/p>\n
7. Having regard to the above-mentioned case-law of the Court, the opening of criminal proceedings against the applicant in the present case could be seen as justified. I do not wish to prejudice the outcome of the criminal proceedings pending before the domestic courts. Thus, in my opinion, it is premature to rule on those charges and there was no need to examine separately the interference with Article 10; accordingly, I do not agree with the majority\u2019s conclusion as to the violation of Article 10 of the Convention. In the light of the above, I consider that it was unnecessary to examine this complaint separately.<\/p>\n
PARTLY DISSENTING OPINION OF JUDGE K\u016aRIS<\/p>\n
My voting against points 7 and 9 of the operative part of the judgment was based on the reasons set out in my partly dissenting opinion in Sabuncu and Others v. Turkey (no. 23199\/17, 10 November 2020).<\/p>\n
____________<\/p>\n
[1]. B.E., a 15-year-old demonstrator who died in hospital after being struck on the head by a teargas canister during the 2013 \u201cGezi Park\u201d demonstrations in Istanbul.<\/p>\n
![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
. The case concerns the placement in detention and continued detention of the applicant, an investigative journalist working for the daily newspaper Cumhuriyet, in the context of criminal proceedings brought against the newspaper\u2019s managers and some of its journalists on account of the newspaper\u2019s editorial stance, which was critical of government policy in general and also of the means used by the authorities to combat illegal organisations. The applicant alleged a violation of Article 5 \u00a7\u00a7 1, 3 and 4, Article 10 and Article 18 of the Convention.<\/p>\n