Individual Application

1. Cases of Ahmet Hüsrev Altan, Ayşe Nazlı Ilıcak, Mehmet Murat Sabuncu, Akın Atalay and Önder Çelik and Others

The Applicants’ Allegations

The applicants maintained that their right to personal liberty and security had been violated due to unlawfulness of their detention, as well as their freedoms of expression and the press in that the charges for which they had been detained were indeed related to the acts falling within the ambit of these freedoms.

The Court’s Assessment

A. Case of Ahmet Hüsrev Altan

It is indicated in the detention order issued by the Magistrate Judge that the applicant, former editor-in-chief of the Taraf newspaper, was consistently giving explanations through the media outlet of the Fetullahist Terrorist Organization (FETÖ) and/or Parallel State Structure (PDY) -the perpetrator of the coup attempt of 15 July 2016- in line with the aims of this organization, thereby fomenting the coup attempt; and that this fact was also plainly revealed by his speech during a TV programme.

Given the applicant’s speeches on a TV programme the day before the coup attempt, his recent articles, his position at the newspaper and the statements of anonymous witnesses indicating the relation of his position with the organization, it is neither unfounded nor arbitrary to consider these facts as a strong indication of guilt in relation to the FETÖ/PDY.

The Magistrate Judge’s conclusion that the applicant’s detention was a proportionate measure and conditional bail would remain insufficient, taking into account the amount of the sentence prescribed for the imputed offence as well as the nature and significance of the offence, was neither arbitrary nor unfounded.

B. Case of Ayşe Nazlı Ilıcak

The applicant, who is a journalist, was detained on remand for her alleged membership of an armed terrorist organization within the scope of the investigation conducted into the FETÖ/PDY’s media formation. Therefore, the applicant’s detention had a legal basis.

As regards the existence of strong suspicion of the applicant’s guilt, it was indicated in the detention order issued by the Magistrate Judge that she had been writing articles and sharing posts through the media outlets of the FETÖ/PDY and in line with its organizational aims.

Therefore, the conclusion by the investigation authorities that the applicant’s expressions were a strong indication of her guilt in relation to the FETÖ/PDY, given the time, content and context of these expressions, cannot be said to be unfounded and arbitrary.

C. Case of Mehmet Murat Sabuncu

The applicant, who was the editor-in-chief of the Cumhuriyet newspaper in the aftermath of the coup attempt, was accused mainly for being responsible for the headlines, news and articles published in the newspaper. It was further alleged that he had argued against the operations conducted by security officers against the FETÖ/PDY’s media outlets and tried to create the impression, through his social media posts, that members of this organization were a victim; and that he had also supported the media outlet making propaganda in favour of the PKK (Kurdistan Workers’ Party) through the messages he had posted, thereby having aided the said terrorist organizations.

Regard being had to the facts that the news, articles and headlines published in the said newspaper within the period when the applicant was the editor-in-chief as well as his social media posts aimed at undermining persistently the State’s struggle against the PKK and the FETÖ/PDY, which went beyond the purpose of criticism and reporting news; that the messages given through these materials was intended to disunite the society; and that an impression was tried to be created to the effect that these organizations were innocent and victim, it is neither unfounded nor arbitrary to consider these facts as a strong indication of the applicant’s guilt.

D. Case of Akın Atalay

It is indicated in the detention order against the applicant that following the replacements in the Board of Directors of the Cumhuriyet Foundation, the newspaper targeted at the State and published many headlines, news and articles which may be regarded as a propaganda of the terrorist organizations and create an impression in favour of these organizations. It has been accordingly concluded that there was strong suspicion of guilt on the part of the suspects sitting in the Foundation’s Board of Directors including the applicant, who was held responsible for these publications in his capacity as the chief executive officer of the newspaper.

The applicant was accused mainly for being responsible for the headlines, news and articles published in the newspaper in his capacity as an official in the management of the Foundation and the Company and as the chief executive officer. He was alleged to have aided the said terrorist organization by arguing against the operations conducted against the FETÖ/PDY’s media outlets, trying to undermine these operations through his social media posts as well as creating the impression that members of this terrorist organization were indeed a victim.

It was neither arbitrary not unfounded for the investigation authorities to consider that there existed a strong indication of guilt, given the language used in the impugned articles, news and social media posts, the public impression that these impugned materials left at the time of their publication as well as their influences on public, when taken together with the context thereof.

E. Case of Önder Çelik and Others

In the detention order issued against the applicants, managers of the Cumhuriyet Foundation, it is indicated that following the replacements in the Board of Directors of the Cumhuriyet Foundation, the newspaper targeted at the State and published many headlines, news and articles which may be regarded as a propaganda of the terrorist organizations and create an impression in favour of these organizations.

It appears that given the applicants’ positions and their long-term offices at the newspaper, they were found to exert an influence on the editorial policy of the newspaper and therefore held responsible for the news and articles published therein.

It was neither arbitrary not unfounded for the investigation authorities to consider that there existed a strong indication of guilt, given the language used in the impugned articles, news and social media posts, the public impression that these impugned materials left at the time of their publication and their influences on public, when taken together with the context thereof.

Regard being had to the severity of the punishment set forth in the law for the imputed offences, it may be concluded that the risk of fleeing exists on the part of all above-mentioned applicants. 

Besides, in all of these cases, there is no circumstance which would compel the Court to depart from the inferior courts’ conclusion in respect of the allegation that the applicants were investigated and subsequently detained on remand merely on account of their acts falling within the scope of the freedoms of expression and the press.

Consequently, in the above-mentioned cases, the Court has found no violations of the right to personal liberty and security safeguarded by Article 19 of the Constitution as well as of the freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution.

2. Case of Ahmet Şık

The Applicant’s Allegations

Maintaining that the impugned news, articles and social media posts fell under the scope of the freedoms of expression and the press as well as involved no criminal element, the applicant alleged that his right to personal liberty and security as well as freedoms of expression and the press had been violated.

The Court’s Assessment

The detention order stated that the applicant had gone beyond reporting news in his texts and articles as well as attempted to ensure that the statements of terrorist organizations reached out to the masses, and concluded that there was evidence indicating the existence of a strong suspicion of the applicant’s guilt.

It was neither arbitrary not unfounded for the investigation authorities to consider that there existed a strong indication of guilt, given the newspaper interviews with the perpetrators and announcement of their message to the public at the very time when an activity was carried out by the organization to create an impression and keep its name on the agenda.

In view of the circumstances in the aftermath of the court attempt, the protective measures other than detention might have remained insufficient in order to ensure the proper collection of evidence as well as the safe conduct of the investigations. The risks of fleeing taking advantage of the turmoil during this period and tampering with evidence are much more when compared to the offences committed during an ordinary period. Therefore, the grounds for the applicant’s detention on remand due to especially the risk of fleeing and tampering with evidence had factual basis, and the detention measure was proportionate.

In addition, there is no circumstance which would compel the Court to depart from the inferior court’s conclusion in respect of the allegation that the applicant was investigated and subsequently detained on remand merely on account of his acts falling within the scope of the freedoms of expression and the press.

Consequently, the Court has found inadmissible the alleged violations of the right to personal liberty and security safeguarded by Article 19 of the Constitution, as well as the freedoms of expression and the press that are respectively safeguarded by Articles 26 and 28 of the Constitution, as being manifestly ill-founded.

3. Cases of Murat Aksoy, Ahmet Kadri Gürsel and Ali Bulaç

The Applicants’ Allegations

The applicants maintained that their right to personal liberty and security had been violated, stating that the elements of the charges against them had not been proven; and that their freedoms of expression and the press had been violated due to their detention on remand for their social media posts and articles.

A. Case of Murat Aksoy

The investigation authorities failed to prove that the applicant’s articles and posts did not fall within the scope of the freedom of expression. The said articles and posts mainly criticized the Government, disparaged its policy and expressed ideas on political events. However, they, by virtue of their wording, did not incite to violence and terrorist acts.

The fact that the opinions put forth by the applicant in his articles showed parallelism with the discourse and ideas of the terrorist organization and coincided with them at some points cannot per se be regarded as a strong indication of guilt.

The applicant’s detention, which was mainly based on his newspaper articles and social media posts, in the absence of strong indication of guilt, was in breach of his freedoms of expression and the press.

B. Case of Ahmet Kadri Gürsel

Although the investigation authorities maintained that the applicant in his capacity as the editorial consultant was responsible for the news and articles published in the Cumhuriyet newspaper, they failed to clarify how his office -only confined to editorial consultancy- had a bearing on the editorial policy of the newspaper.

Although it may be said that the wording of the applicant’s article was harsh and critical, his expressions were not explicitly inciting to violence and terrorist acts.

Besides, a person’s meeting with those who have undergone an investigation due to any offence related to a terrorist organization cannot per se be a reason for his accusation. In this respect, it must be proven that such meetings were held within the scope of an organizational activity. In the present case, the investigation authorities failed to demonstrate for which purposes the applicant had met with these persons. 

In view of all these considerations, the Court has concluded that the inferior court failed to sufficiently demonstrate the existence of strong indication of the applicant’s guilt. The applicant’s detention on the basis of mainly his articles in the newspaper, in the absence of strong indication of guilt, was in breach of the guarantees inherent in the freedoms of expression and the press.

C. Case of Ali Bulaç

It is seen that the facts forming a basis for the applicant’s detention on remand were mainly his articles in the newspaper. The investigation authorities maintained that the applicant had written these articles in accordance with the aims of the FETÖ/PDY.

The applicant’s articles neither contained a call for violence and rebellion or hate speech, nor did they praise or legitimize terrorism. The articles, in general, criticized the Government and its policies and contained subjective ideas on political and social events, which were considered disturbing by some people.

The mere fact that the applicant was a member of the board of trustees of the foundation of journalists and authors does not imply that he had ties with the organization.

Detention, which is a severe measure if not satisfying the condition of lawfulness, cannot be regarded as a necessary and proportionate interference, in a democratic society, in terms of the freedoms of expression and the press.

Consequently, the Court has found violations of the right to personal liberty and security safeguarded by Article 19 of the Constitution, as well as the freedoms of expression and the press that are respectively safeguarded by Articles 26 and 28 of the Constitution.