The European Court’s insistence on refusing to consider facts of the case separately or find violations under articles other than the right to liberty and security and freedom of expression suppresses the real purpose behind the pressures on journalists in Turkey

 

BENAN MOLU*

 

On 25 January 2022, the European Court of Human Rights (ECtHR or the Court) issued its judgment concerning the pre-trial detention of journalist Deniz Yücel. The ECtHR concluded that the pre-trial detention of Yücel, who was the Turkish correspondent of the German newspaper Die Welt at the time, between 14 February 2017 and 16 February 2018 was in violation of his right to liberty and security and freedom of expression, safeguarded in Article 5 and Article 10 of the European Convention on Human Rights (ECHR or the Convention), respectively.[1] The Court held that Turkey was to pay Yücel 12,300 euros in respect of non-pecuniary damage and 1,000 euros in respect of costs and expenses.

 

Yücel’s application was lodged with the Court following the arrest of a group of journalists, including Yücel, on charges of “making propaganda for a terrorist organization” and “inciting the public to hatred and hostility” based on the allegation that they had access to personal e-mails of Berat Albayrak, the then-Minister of Energy.[2]

 

As may be recalled, the Turkish hacker group RedHack announced in 2016 that it had in its possession personal e-mails from Berat Albayrak, following which the Wikileaks website published a number of e-mails purported to have come from Albayrak’s account. In December 2016, an anonymous letter sent to the police alleged that the hacked e-mails of Albayrak had been sent to another e-mail address, which was subsequently shared with 18 persons, including Deniz Yücel. Consequently, an arrest warrant was issued for Yücel.

 

On 27 February 2017, Yücel was jailed pending trial on the allegation of having committed the crimes of “making propaganda for a terrorist organization” and “inciting the public to hatred and hostility,” relying on his articles concerning the Turkish government’s domestic and international policies, particularly those relating to the Kurdish question. After the indictment against him was accepted by the trial court on 14 February 2018, Yücel was released on 16 February 2018, following which he returned to Germany.

 

On 28 May 2019, Turkey’s Constitutional Court ruled that Yücel’s pre-trial detention violated his right to liberty and security and freedom of expression and the press, and awarded him TL 25,000 in respect of non-pecuniary damage and TL 2,732.50 in respect of costs and expenses.

 

In July 2020, Yücel was sentenced to 2 years 9 months and 22 days in prison on the charge of “making propaganda for a terrorist organization.”

 

Alleged violations

 

On 6 April 2017, Yücel lodged an individual application with the ECtHR, complaining that there had been violations of Articles 5/1-c, 5/3 and 10 of the Convention as he had been detained on account of his activities as a journalist without any plausible reasons; Article 5/4 of the Convention as he had been denied access to the investigation file, and the proceedings before the Constitutional Court failed to comply with the requirement of speediness set out in the ECHR; Article 5/5 of the Convention as he had no effective remedy to obtain compensation for the damage he had sustained on account of his pre-trial detention, and Article 18 of the Convention as he had been detained for political reasons, merely for expressing critical opinions.

 

The ECtHR judgment

 

The ECtHR first assessed whether Yücel could still claim to be a victim of a breach of the Convention, in view of the judgment delivered by the Constitutional Court, which found that there had been a rights violation in the journalist’s application. According to the Turkish government, Yücel could no longer claim to be a victim, because the Constitutional Court ruled on 28 May 2019 that Yücel’s right to liberty and security and freedom of expression and the press had been violated; and awarded the applicant a sum of approximately 3,700 euros in respect of non-pecuniary damage. Yücel did not express a view on the government’s observations.

 

The ECtHR, on the other hand, did not accept this objection and concluded that the sum of approximately 3,700 euros awarded to Yücel in respect of non-pecuniary damage was manifestly insufficient in light of the circumstances of the application, and that Yücel could still claim to be a “victim” within the meaning of Article 34 of the Convention, having regard, in particular, to the length of the journalist’s pre-trial detention.

 

Based on the violations found in the Constitutional Court’s judgment, the ECtHR also held that there had been no factual evidence to justify Yücel’s pre-trial detention due to his activities as a journalist; that such a severe measure could not be considered as a necessary or proportionate interference in a democratic society, and that there had therefore been a violation of his right to liberty and security, as well as freedom of expression and the press.

 

The European Court noted that the period of Yücel’s detention and deprivation of liberty from 14 February 2017, when he had been taken into police custody, to 16 February 2018, when he had been released from prison, amounted to an interference with the exercise of his right to freedom of expression, safeguarded under Article 10 of the ECHR. As regards whether that interference had been prescribed by law, the Court observed that an individual could be placed in pre-trial detention only in the presence of strong evidence suggesting that he has committed a criminal offense, pursuant to Article 100 of the Criminal Procedure Code (CMK), and in the absence of such evidence, the interference with the applicant’s rights and freedoms could not be justified under Article 10 of the Convention, as it had not been prescribed by law.

 

In the Court’s view, placing persons in detention over their critical opinions had numerous negative effects on both the detainee and the society as a whole, since imposing a measure resulting in deprivation of liberty, as in the case of Yücel, had a chilling effect on freedom of expression by intimidating civil society and reducing dissident voices to silence.

 

With regard to Article 5/1 of the Convention, the ECtHR held that there was no need to consider whether the authorities had continued Yücel’s pre-trial detention for an excessive length of time or whether the reasons that justified the applicant’s placement in detention could be deemed “relevant” and “sufficient” within the meaning of Article 5/3 of the ECHR.

 

Again, having regard to the circumstances of Yücel’s case, the ECtHR found that the sum awarded by the Constitutional Court had been manifestly insufficient and the applicant failed to obtain appropriate and adequate compensation. Consequently, the Court held that the right to individual application before the Constitutional Court could not be an effective remedy and that there had therefore been a violation of Article 5/5 of the Convention.

 

Turkish Judge Yüksel and Judge Pejchal expressed a joint partly dissenting opinion. The judges observed that Yücel could no longer claim to be a victim in relation to the complaints he raised under Article 5 and Article 10 since the Constitutional Court had not only recognized those violations but also awarded him redress for them; that the Court could not ignore the applicant’s refusal to express a view on the government’s observations in that regard, and that the application should have been declared inadmissible on the grounds that the complaints made by the applicant were incompatible ratione personae with the ECHR within the meaning of Article 35/3-a of the Convention.

 

The ECtHR found no violation in relation to Yücel’s complaint that his right of access to the investigation file had been violated due to the restriction imposed on his file. According to the Court, Yücel, who was represented by lawyers, had been questioned in detail by the competent authorities regarding the evidence in the file, first by the investigating agencies and later by a criminal judge of peace, and that he had thus had sufficient cognizance of the content of the evidence as had been essential to effectively contest the lawfulness of his pre-trial detention, even though he had not benefited from the right of unlimited access to the evidence on file.

 

Judge Bošnjak expressed a partly concurring opinion, while Judge Koskelo, joined by judges Kuris and Lubarda, expressed a partly dissenting opinion, stating that the established case-law of the ECtHR regarding the right of access to the investigation file contradicted the one followed in a number of cases involving Turkey as a respondent State. In their view, it has become a recurrent problem that the Turkish authorities have adopted the practice of systematically preventing defendants from accessing the investigation file in certain types of cases without offering any specific assessment as to the reasons that justified such a measure in the circumstances of the case, and the Court should no longer tolerate such practices.

 

The Court considered that its case-law in the cases concerning the detentions following the attempted coup -- except for Osman Kavala’s application -- that the Constitutional Court had conducted a speedy judicial review on the lawfulness of their detention also applied to the present application, and held that the complaint as regards the fact that the Constitutional Court delivered its judgment two years and two months after the applicant had lodged his appeal concerning his pre-trial detention was a breach of Article 5/4 of the Convention was manifestly ill-founded.

 

Having regard to its findings under Article 5/1 and Article 10, the ECtHR found it unnecessary to consider the complaint that the applicant had been detained for expressing critical opinions, in violation of Article 18 of the Convention. In their partly dissenting opinion, Judge Kuris and Judge Koskelo disagreed with the majority that there was no need to separately examine the complaint under Article 18, in view of the fact that Yücel’s detention was seen as a retaliation for the German authorities’ refusal to allow political gatherings of high-ranking Turkish politicians prior to the referendum held in Turkey in April 2017; that his retention in pre-trial detention aimed at pressuring the German authorities to arrange an exchange that would witness his release from prison in return for the extradition of certain persons who had taken refuge in Germany, and that the President had publicly called him a “German spy” and “representative of the PKK.”

 

Assessment

 

The ECtHR judgment, which was to be expected in terms of its findings in relation to the right to liberty and security and freedom of expression, came as a surprise in terms of its finding that the right to individual application before the Constitutional Court was not seen as an effective remedy in the present case, and was discouraging due to the Court’s insistence on its negative case-law in terms of its findings in relation to the right of access to the investigation file under Article 5/4 and the obligation of the Constitutional Court to conduct a speedy judicial review, and its decision to consider it unnecessary to examine the complaint that there had been a violation of Article 18 separately.

 

The ECtHR had long avoided rendering decisions on whether the Constitutional Court amounted to an effective domestic remedy in relation to certain complaints due to the increasing emphasis on the principle of subsidiarity, and its finding that individual application before “the Constitutional Court could not have been an effective remedy” in the present case due to the fact that the compensation awarded to Yücel was found to be manifestly inadequate is a first in this regard and particularly important.

 

As vital and gratifying as this development is, the conclusion reached under Article 5/4 and Article 18 of the Convention is just as regrettable. Because the Court refuses to examine the detention orders issued in the wake of the coup attempt to silence and punish the dissidents, apart from the applications of jailed businessperson Osman Kavala and jailed politician Selahattin Demirtaş, under Article 18 and the complaint that the Constitutional Court failed to conduct a speedy judicial review on the lawfulness of these detentions, with the exception of the Osman Kavala application, under Article 5/4. However, for reasons cited by Judge Kuris and Judge Koskelo, the Court should have considered the complaint that there had been a violation of Article 18 in such an application separately, even if it would eventually find no violation.

 

Again, as was stated in the dissenting opinions, this judgment is the latest to demonstrate that the ECtHR has diverged, in its case-law concerning the cases against Turkey, from its case-law in relation to the right of access to the investigation file under Article 5/4 of the Convention with regard to other countries. In the Court’s view, in the past, in line with the A. and Others v. the United Kingdom and subsequent judgments, any restrictions on the right of a detainee and/or his lawyer to have access to the investigation file should be strictly necessary in the light of a strong countervailing public interest, and if the grounds for a strong countervailing public interest was shown to be justified, any difficulties caused to the defendant by a limitation on his rights should be sufficiently counterbalanced by the procedures followed by the judicial authorities.

 

However, despite this case-law, it has been observed that the ECtHR has not found any violation in this regard in the cases against Turkey. As a matter of fact, in the recent judgments concerning the applications of Atilla Taş and Murat Aksoy, judges Bošnjak, Ranzoni and Koskelo, who expressed a joint dissenting opinion, found that the ECtHR followed a different approach in the cases against Turkey from the principles set out in A. and Others v. the United Kingdom (Grand Chamber) judgment.[3]

 

In this context, the judges have, in their dissenting opinion, stressed that it should be the lawyer, and not the public prosecutor, who should have the task of determining what is essential for a person deprived of his liberty to challenge the lawfulness of his detention; that lawyers cannot be required to prepare their defense solely on the basis of questions asked by the authorities, in particular the police, the public prosecutor or others, during questioning; that the evidence which may be important for a lawyer is, indeed, not only that on which their client is questioned, and in some cases, it may be far more important for a lawyer to see what is not in the investigation file, since the observation of a lack of evidence may be a relevant element in effectively contesting a detainee's deprivation of liberty.

 

It is not possible to comprehend that the Court, at first, rejected the request for referral of Taş and Aksoy cases to the Grand Chamber for fresh consideration, and hence, these judgments became final, and now with the Yücel judgment, has developed a distinct case-law in relation to the right of access to the investigation file with regard to Turkey.

 

Although the ECtHR found violations of the right to liberty and security and freedom of expression in the applications of imprisoned journalists, its insistence on refusing to consider it necessary to examine facts of the case separately under other articles or finding any violations suppresses the genuine reason behind the pressures journalists in Turkey are subjected to due to their journalistic activities.

 

In the ECtHR judgment concerning the pre-trial detention of the journalists with the national daily newspaper Cumhuriyet, dated 10 November 2020, Judge Kuris expressed an exceedingly valuable opinion, urging the Court to reverse the aforementioned mistake, and stated that the substantial progress in the treatment of Article 18 complaints was “still somewhere on the horizon.”[4] The Court’s Deniz Yücel judgment has moved that horizon farther away, and it is high time the Court abandoned its insistence in this regard.

 

 

*Human rights lawyer.

 

 

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[1]                İlker Deniz Yücel v. Turkey, no. 27684/17, 25.01.2022.

 

[2]                In respect of two of those journalists, see Öğreten and Kanaat v. Turkey, no. 42201/17 and 42212/17, 18.05.2021.

[3]                Atilla Taş v. Turkey, no: 72/17, 19.01.2021 and Murat Aksoy v. Turkey, no: 80/17, 13.04.2021.

[4]                Sabuncu and Others v. Turkey, no. 23199/17, 10.11.2020.