No matter how strong the European Court’s decisions finding violations of the right to liberty and security and/or freedom of expression, a judgment rendered without determining the motive behind these violations is deficient

 

Att. BENAN MOLU

 

Cumhuriyet newspaper executives and columnists Murat Sabuncu, Akın Atalay, Önder Çelik, Turhan Günay, Mustafa Kemal Güngör, Kadri Gürsel, Hakan Kara, Musa Kart, Güray Öz and Bülent Utku were taken into custody on 31 October and 11 November 2016 for “being a member of" and “making propaganda for the PKK/KCK and FETÖ/PYD,” and subsequently jailed on remand on 5 November and 12 November 2016 on the charge of “aiding a terrorist organization without being its member” under Article 220/7 of the Turkish Penal Code (TCK).

 

Önder Çelik, Turhan Günay, Mustafa Kemal Güngör, Hakan Kara, Musa Kart, Güray Öz, and Bülent Utku were released on 28 July 2017; Kadri Gürsel on 25 September 2017; Murat Sabuncu on 9 March 2018; and finally Akın Atalay on 5 April 2018. On 25 April 2018, Murat Sabuncu was sentenced to 7 years and 6 months; Akın Atalay to 8 years, 1 month, and 15 days; Bülent Utku to 4 years and 6 months; Kadri Gürsel to 2 years and 6 months; Güray Öz, Önder Çelik, Musa Kart, Hakan Kara and Mustafa Kemal Güngör to 3 years and 9 months in prison; and Turhan Günay was acquitted.

 

On 26 December 2016, the applicants lodged an individual application with the Constitutional Court, claiming that their right to liberty and security as well as the freedom of expression and press had been violated. The Constitutional Court issued its judgment on the application of Turhan Günay on 11 January 2018, and of the other applicants on 2 and 3 May 2019. While in the application of Murat Sabuncu, Akın Atalay, Önder Çelik, Mustafa Kemal Güngör, Hakan Kara, Musa Kart, Güray Öz, and Bülent Utku, it was concluded by majority of votes that the right to liberty and security and freedom of expression and press had not been violated, in the applications of Turhan Günay and Kadri Gürsel, the top court found violations.

 

Because of the Constitutional Court’s failure to adjudicate on their application for a long time, the applicants applied to the European Court of Human Rights (ECtHR) on 2 March 2017.

 

On 30 May 2017, the ECtHR announced that it had amended its “priority” policy that had been implemented since 2009, according to which the applications that would bear important consequences in domestic law and in the European law, which have not yet been examined by the ECtHR, as well as the applications on detention of persons, who are deprived of their liberty due to their exercise of rights and freedoms, will have examined with priority as of 22 May 2017. 

 

Following this announcement, the application of Cumhuriyet newspaper’s journalists and executives became the first application among the applications of MPs, human rights defenders, and journalists, who were detained after the coup attempt, which was decided to examine with priority, and then communicated to the Government. 

 

Although the application that was communicated to the Government on 8 June 2017 was the first application in this group of cases, it was concluded on 10 November 2020, years after the judgments concerning Mehmet Altan, Şahin Alpay, Selahattin Demirtaş (and Osman Kavala, although it is out of this group in terms of its period). 

 

The ECtHR ruled that, except for Günay and Gürsel, whose victim status had been lifted by the Constitutional Court, the rights to liberty and security of the journalists, who have been accused of changing the newspaper’s editorial policy with their reports, articles and social media posts, as well as the freedom of expression and press, which are safeguarded under Articles 5 and 10 of the Convention, had been violated.

 

According to this decision finding violation, an acquittal judgment is required to be made in the case before the Court of Cassation.

 

The decision includes two new assessments in terms of admissibility criteria. The first concerns the objection of the Government that the application should have been found inadmissible as per Article 35/2-b of the Convention as the applicants sought another international remedy with the UN’s Working Group on Arbitrary Detention. The applicants stated that they applied to the Working Group not by themselves, but by the Right Livelihood Foundation of Sweden.

 

In its previous judgments, the ECtHR established that, regardless of whether the applicants have knowledge/approval or not, bringing an application with similar facts to another international body is an inadmissibility reason. However, in this decision, the ECtHR overruled an objection of inadmissibility for the first time, by holding that, because of the nature of a case related to the detention of journalists and executives of a newspaper due to its editorial policy, it was in accordance with the natural course of life that non-governmental organizations working in the field of press freedom were worried about these events and took an initiative to end an interference that they believed to be unfair.

 

The Government also brought forward an objection that the application should have been found inadmissible as the applicants did not make a compensation claim under Article 141 of the Code of Criminal Procedure (CMK) after they were released. The ECtHR rejected this objection on the grounds that a compensation request would not provide an effective remedy as the applicants’ claim under Article 5 of the Convention was pending before the Constitutional Court when they were released. 

 

As to the merits, there were complaints other than the ones that were concluded with a decision finding violations of the right to liberty and security and freedom of expression and press. One of them was the claim of violation of Article 5/4 of the Convention based on the Constitutional Court’s noncompliance with the principle of promptness as it had not decided on the application concerning the applicants’ detention. Regarding this claim, unlike the Kavala judgment, where it held for the first time that the Constitutional Court did not conclude a claim on detention in an expeditious manner, the ECtHR repeated its decision in the Altan, Alpay and Demirtaş applications, and did not find a violation due to the complexity of the application and the heavy workload of the Constitutional Court that increased after the state of emergency. 

 

Another claim that was not concluded with a violation finding, which is actually the main problematic part of the judgment, was the claim of Article 18 violation that the applicants were detained with an aim to be silenced and punished due to the newspaper’s editorial policy which is critical of the Government. On grounds to be mentioned below, the ECtHR ruled that the applicants’ detention was not politically motivated. Lithuanian judge Kuris disagreed with this decision rendered by majority, and wrote a comprehensive and striking dissenting opinion that summarizes the ECtHR’s case-law on Article 18, as well as reviewing Turkey’s political and legal situation. Third party human rights organizations highly criticized the decision by emphasizing this dissenting opinion and third party interventions submitted by them. 

 

Regarding the Court’s assessment of Article 18 claim on its admissibility and merits, first of all, it is a great loss that Günay and Gürsel were not included in Article 18 examination. The Constitutional Court, as it has never done in any individual application, did not find an Article 18 violation in Günay and Gürsel’s application. Because of the autonomous nature of Article 18, finding violations of Articles 5 and 10 is not exempted the ECtHR from examining Article 18 claims as the complaints under this provision are not remedied. Therefore, the ECtHR should have examined Günay and Gürsel’s complaints. 

 

As to the merits of the case, although it noted criticism by human rights organizations that submitted third party interventions in criminal trials against dissident journalists in Turkey, the ECtHR held that finding a violation of Articles 5 and 10 of the Convention does not mean that Article 18 has also been violated. It is possible to divide the assertations on which the ECHR was grounded into four groups:

 

First, the ECtHR established that the vast majority of the acts attributed to the applicants within the investigation initiated against them at the end of 2016 occurred before or after the July 15 coup attempt, and thus, there was not a long time between the occurrence of the alleged acts and the opening of the criminal investigation that led to the detention of the applicants.

 

The Turkish President’s statements about Erdem Gül and Can Dündar, who were targeted due to news reports about trucks operated by the National Intelligence Organization (MİT), were subsequently evaluated by the ECtHR. Considering that the statement by the President of the Republic to the effect that he would not abide by the Constitutional Court’s ruling,” was “not bound by it” and would “not comply with it,” was clearly in contradiction with the basic tenets of the rule of law, the ECtHR stated that such an expression of dissatisfaction does not in itself mean that there is a violation of Article 18, and that this statement was about Dündar and Gül and not directed at the applicants. 

 

Lastly, the complaint that the prosecutor who had participated in the criminal investigation against the applicants was accused of being a member of FETÖ is an evidence for violation of Article 18 was not accepted by the ECtHR on the grounds that the prosecutor was removed from the investigation upon being aware of this situation. 

 

Remarking that the Constitutional Court delivered a decision by majority of votes and that this means that the judges had an in-depth deliberation on the individual application, the ECtHR acknowledged that this whole process had a chilling effect on the applicants and dissident journalists, leading to self-censorship; however, it held that these claims, taken separately or in combination with each other, were not sufficient for finding a violation of Article 18.

 

This is not only a very deficient and unsatisfactory judgment, but also one that diverged from the case-law that has developed in recent years, that led to concerns about a return to the old case-law, and that “moved the horizon farther away,” as emphasized by Judge Kuris. 

 

As of 20 November 2020 when this article was written, there have only been 18 judgments by the ECtHR in which the court found violation of Article 18. Among the various reasons why the Court delivers so few decisions finding violations of Article 18 compared to other articles of the Convention, the most effective was the heavy burden of proof and the standard of evidence that the ECtHR applied until 2014 (but actually 2016). After the first decision on the violation of Article 18 in 2004, until 2014 when a turning point occurred, the ECtHR sought the requirement of “undeniable and direct evidence” in its case-law on Article 18, which developed back and forth, as in when the applicants signed an agreement to drop the charges against them.

 

However, following mounting criticism by some judges of the ECtHR, doctrine and practitioners, first with the Mammadov v. Azerbaijan and then with the Merabishvili v. Georgia judgments by the Grand Chamber, this proof and evidence standard was softened, and besides the facts related to the applicants, contextual evidence, such as general situation of human rights and justice system in the country, statements and articles by senior government officials and the pro-government press, and reports of international non-governmental organizations that allow the case to be evaluated as a whole with its background were also started to be taken into account. In the decisions of Selahattin Demirtaş and Osman Kavala, it was decided that Article 18 had been violated by taking these contextual evidence into consideration.

 

So, why has there been a return to old standards in the Cumhuriyet judgment? The decision and other recent Article 18 decisions do not give us a clue about the answer to this question. The judgments to be rendered in the upcoming period may be guiding, but the Grand Chamber application may also be a long-term answer.

 

The judgment on Cumhuriyet newspaper is not final yet. Within three months from the announcement of the judgment, which was on 10 November 2020, the Government may appeal the decision for its finding of a violation of Articles 5 and 10, and the applicants may also appeal for its failure to find a violation of Articles 5/4 and 18 before the Grand Chamber. 

 

According to the Convention, if there is a serious problem of general nature in a case or regarding the interpretation or application of the Convention and its protocols and if the solution of the problem contradicts the previous decisions of the ECtHR, the judgment may be referred to the Grand Chamber.

 

In the last four years, decisions regarding Article 18 of the Convention have been brought before the Grand Chamber three times. Merabishvili v. Georgia and Navalnyy v. Russia applications have been finalized. The application of Demirtaş v. Turkey (no. 2) has been pending before the Grand Chamber since 18 March 2019.

 

The claims of the applicants and Demirtaş concerning violation of Articles 5/4 and 18 are similar. Therefore, as there is an application on the same topic against Turkey pending before the Grand Chamber, it is likely that the applicants' appeal will not be accepted. However, the application to the Grand Chamber concerning Article 18 is worth trying.

 

The ECtHR held in its previous judgment of İsmayilova v. Azerbaijan (no. 2) for the first time that a journalist was detained for their reports on corruption with an aim to be silenced and punished. In reaching this conclusion, in line with the softened standard of proof and evidence mentioned above, the ECtHR took into account the fact that the applicant was targeted because of their reports, the stigmatizing statements of senior state officials and the press about the journalist, the systematic practices of initiating investigations and detaining government critics and human rights defenders by abusing criminal laws in Azerbaijan.

 

As Judge Kuris very correctly emphasized, in the case of Cumhuriyet newspaper, as a body of the Council of Europe, the ECtHR’s preference to ignore the statements and reports of bodies and persons affiliated with the Council of Europe on judicial harassment against journalists in Turkey, and to make an interpretation that can be described as naive, to say the least, regarding that the President's statements will not have an effect on the applicants, demonstrated that there was a problem of interpretation and contradiction with the established case-law and, moreover, that there was a deviation in the jurisprudence of Article 18 that could lead to backward.

 

No matter how strong the Court’s decisions finding violations of the right to liberty and security and/or freedom of expression and press, any judgment rendered without determining the purpose of these violations and without naming the regime that leads to those violations is a deficient judgment. This deviation will not only affect the applicants but also everyone living in "states that have become professional human rights violators." The ECtHR should remember the reason for its existence and the purpose of Article 18 and put an end to this deviation.