The Court’s failure to evaluate the circumstances of Ahmet Şık, a journalist who has been threatened and subjected to judicial harassment throughout his career, is more worrying than the ECtHR’s approach concerning evidence and standard of proof
Att. BENAN MOLU
Ahmet Şık, one of the leading investigative journalists in Turkey, was taken into custody on 29 December 2016 as part of an investigation carried out against Cumhuriyet newspaper’s executives and columnists and Cumhuriyet Foundation’s executives and was subsequently jailed on remand for the second time on 30 November 2016 on the charges of “making propaganda for the PKK, FETÖ/PYD, and DHKP-C” and “aiding these organizations without being their member.” After his release on 9 March 2018, he was sentenced to 7 years and 3 months in prison on 25 April 2018.
The Constitutional Court found Ahmet Şık’s individual application lodged on 30 January 2017, where he claimed that his right to liberty and security as well as freedom of press had been violated, “inadmissible” on the grounds that his claims were “manifestly ill-founded.”
Because of the Constitutional Court’s failure to adjudicate on his individual application for a long time, Şık applied to the European Court of Human Rights (ECtHR) on 9 May 2017. This application was communicated to the Government on 3 July 2017 and then concluded on 24 November 2020.
The ECtHR delivered its judgment on 20 November 2020, and as in its recent judgment in Sabuncu and Others concerning Cumhuriyet newspaper executives and columnists, established that Ahmet Şık’s pre-trial detention for his news reports, interviews, and social media posts violated his right to liberty and security and freedom of expression and freedom of press, but did not find a violation in terms of the Constitutional Court’s compliance with the principle of promptness due to the complexity of the application and the unprecedented heavy workload of the Constitutional Court that increased after the state of emergency, and concluded that there had been “no ulterior purpose” behind Ahmet Şık’s detention to silence and punish him.
The following were cited as evidence for Şık’s detention on the charges of “aiding FETÖ” and “making propaganda for PKK, FETÖ/PYD, and DHKP-C”: his articles of 8 July 2015 entitled “What we’re doing is journalism; what you’re doing is treason,” of 9 July 2015 entitled “National Intelligence Organization had information on the Reyhanlı massacre, but did not share that information with the police,” and of 13 February 2015 entitled “Secret about trucks revealed;” his interview with Cemil Bayık titled “Either Apo goes to Kandil or we go to İmralı” that was published at Cumhuriyet newspaper on 14 March 2015; his pieces concerning a phone conversation with one of the people taking a prosecutor hostage that were published on 31 March and 1 April 2015; his statement made at a seminar organized with the European Parliament in Heybeliada on 23-26 September 2014; his Tweets that read, “They preferred to murder Tahir Elçi instead of arresting him. You are a mafia with a horde of killers” dated 28 November 2015; “Wouldn't they be the usual suspects who try to prove that the PYD, whom the US and the EU call as allies against jihadist terrorism, is a terrorist organization?” dated 17 February 2016; “Instead of comparing those burned in the basements of houses in Cizre with those destroyed by a bomb in Istanbul, object to both. Both are violence” dated 11 December 2016; “The war with the PKK has been ongoing since 1984, although there have been intervals in a certain part of the country” dated 14 December 2016; and “What will the political power and their supporters, who are trying to prove that the assassin is not Nusraist but FETÖist, do in the face of the fact that the killer is the police?” dated 20 December 2016.
The ECtHR ruled that there had been a violation of Ahmet Şık’s right to liberty and security on account of the lack of reasonable suspicion that he had committed a criminal offence, by pointing out that it is not conceivable that he is suspected of aiding FETÖ, which he had previously criticized in his book titled İmamın Ordusu, for which he had also been detained, that the judges’ findings that he may had disseminated propaganda simultaneously on behalf of the PKK and FETÖ/PYD were vague and imprecise, and that those articles and posts had not aimed to legitimize the activities of any terrorist organization or to incite violence, with particular emphasis on his interviews with Cemil Bayık and the militants, who killed the prosecutor Mehmet Selim Kiraz.
The ECtHR also established that Şık’s freedom of expression and press had been violated as his detention for about 13 months without reasonable suspicion for his news reports was not prescribed by law.
The evidence examined, and especially the finding of violations based on legality are vital for many cases because so many people are charged, detained and convicted for “multiple terrorist organization membership” due to such expressions, news reports or social media posts.
On the other hand, Turkish judge Saadet Yüksel voted against this conclusion and presented her dissenting opinion that she could not present in Sabuncu judgment on the grounds that “it concerns another application pending before the ECtHR.” Although the dissenting opinions Yüksel has presented since the date she took office on 4 July 2019 deserves a separate study, it can be said that those opinions, which were drafted only in cases related to a detention -- in cases regarding the detention of persons opposed to the Government -- disregard the case-law developed especially since 2017 with judgments such as İmret and Işıkırık, where the ECtHR established that the interference cannot be justified since it was not prescribed by law, and found unnecessary to examine whether the interference had a legitimate aim and was proportionate and necessary in a democratic society, if a justification is given.
Remarking in the dissenting opinions she has presented so far that the detention of these persons do not lead to a violation of rights as long as a justification is given and directing the domestic court in this vein, Yüksel, in this dissenting opinion, again, “did not wish to prejudice the outcome of the criminal proceedings pending before the domestic courts” as, according to her, there had been a problem in the classification the evidence that led to the detention of Ahmet Şık, and said that the news reports of Şık are against certain duties and responsibilities stemming from the principles of responsible journalism, and therefore, did not agree with majority’s conclusion as to the violation of the freedom of expression and press.
Moreover, she stated that “it is premature to rule on those charges and there was no need to examine separately the interference with Article 10.”
To strengthen this argument, she cited a series of judgments, the most recent of which is from 2009. However, these judgments have nothing to do with Ahmet Şık’s circumstances and the content of his reports and tweets. On the contrary, these are judgments that are related to expressions that can actually incite violence or justify violence, and that the Court finds no violation of freedom of expression for this reason. Therefore, they are not suitable examples to explain why Şık's reports and tweets fall outside the scope of freedom of expression.
The argument that it is too early to decide on whether there is a violation of freedom of expression also clearly contradicts the established case-law of the ECtHR. Because in many other judgments, especially in recent exemplary ones where it was established that the continuation of the criminal investigation for many years is itself a violation of freedom of expression and press, even if there was no detention and eventually an acquittal judgment was rendered, as well as in its first judgment of 2014 regarding Ahmet Şık’s detention for being a “member of a terrorist organization” due to his book İmamın Ordusu, although there was no Court of Cassation judgment yet, the ECtHR considered the detention itself an interference with freedom of expression and rejected the Government’s admissibility objections that an examination would be “early” as the domestic remedies have not been exhausted.
Despite the dissenting opinion, this judgment, which is very strong in terms of its findings of violations of Articles 5 and 10, is just as deficient as it refrained from identifying the ulterior purpose behind the detention, as was the case with the Sabuncu and Others judgment. As a matter of fact, Lithuanian judge Kuriş, who criticized this deficiency quite accurately in the Sabuncu application, reminded his dissenting opinion in this application and opposed the conclusion that Article 18 had not been violated.
I wrote an article criticizing how the ECtHR deviated from its case-law on Article 18 in the Sabuncu judgment, so I will suffice to remind these criticisms in order to avoid repetition. There is an issue that needs to be drawn attention to. As mentioned above, this is the second judgment that Ahmet Şık's detention violated his right to liberty and security and freedom of expression / press.
In his application, Ahmet Şık alleged that many persons, from the prosecutor conducting his investigation to high-level state officials, made public statements after his detention that he was detained “not for his journalistic activities but for alleged membership of a terrorist organization,” and that he was detained within the scope of the investigation launched against him in order to prevent him from exercising the investigative journalism profession. The ECtHR questioned itself as to whether the purpose of Şık's detention was rather to prevent all criticism or comments regarding the conduct of a trial that was widely discussed in the public and therefore, whether the interference was pursuing the legitimate aim alleged by the Government. However, as it generally prefers to do, the ECtHR decided that this inquiry should be examined in the section that will discuss whether intervention is necessary.
Although it is understandable that the ECtHR refrained from examining the purpose behind Şık’s detention in 2014 since both the applicants and the ECtHR had not applied to Article 18 of the Convention as often as applied for the last few years, it is not reasonable to continue this attitude in 2020. The ruling finding no violation of Article 18 in Ahmet Şık’s case is exactly the same as the Sabuncu judgment, except for one paragraph. However, the Court’s failure to separately evaluate the circumstances of Ahmet Şık, a journalist who has been openly threatened and subjected to judicial harassment via investigations and imprisonment throughout his career, is more worrying than the court’s approach in evidence and standard of proof.
Sabuncu and Şık judgments were important opportunities for uncovering the real purpose behind the oppression journalists suffer because of their journalistic activities in Turkey. This opportunity is missed for now. However, there are still other applications pending before the ECtHR that may allow it to correct this mistake. As Judge Kuris said in his dissenting opinion, let's keep looking at the horizon.
 Ahmet Şık v. Turkey (no. 2), 36493/17, 24.11.2020. A translation by Molu, Budak, Özcan and Karaman is available at https://anayasagundemi.com/2020/11/29/ihamin-ahmet-sik-v-turkiye-no-2-kararinin-cevirisi-ahmet-sikin-haber-roportaj-ve-tweetleri-nedeniyle-tutuklanmasi-ozgurluk-ve-guvenlik-hakkini-ve-ifade-ozgurlugunu-ihlal-eder/
 Sabuncu and Others v. Turkey, 23199/17, 10.11.2020. A translation by Molu, Budak, Özcan and Karaman is available at https://anayasagundemi.com/2020/11/16/ihamin-sabuncu-ve-digerleri-v-turkiye-kararinin-cevirisi-cumhuriyet-gazetesi-yazar-ve-yoneticilerinin-tutuklanmasi-ozgurluk-ve-guvenlik-hakki-ile-ifade-ozgurlugu-ihlalidir/
 Ahmet Şık v. Turkey (no. 2), para. 141.
 Ahmet Şık v. Turkey (no. 2), para. 124-125.
 Ahmet Şık v. Turkey (no. 2), para. 127.
 Ahmet Şık v. Turkey (no. 2), para. 132-136.
 Ahmet Şık v. Turkey (no. 2), para. 188.
 See cases of Osman Kavala, a businessperson and human rights defender; former judge Hakan Baş, who was dismissed on the grounds of being a member of FETÖ/PYD; author/translator and former BDP political academy lecturer Ragıp Zarakolu; Osman İşçi, who was detained in the KCK operation; Cumhuriyet executives and journalists.
 Ali Gürbüz v. Turkey, 52497/08, 12.03.2019. https://anayasagundemi.com/2019/04/10/ihamin-ali-gurbuz-v-turkiye-kararinin-cevirisi-gazetecileri-sonunda-beraat-de-etseler-yalnizca-orgut-uyelerinin-aciklamalarini-yayimladiklari-icin-uzun-yillar-cok-sayida-davayla-ceza-riski-alt/
 Ahmet Şık v. Turkey, 53413/11, 08.07.2014, para. 80.
 Benan Molu, A criticism of the European Court's Cumhuriyet judgment, 23.11.2020, https://www.expressioninterrupted.com/a-criticism-of-the-european-court-s-cumhuriyet-judgment/.
 Ahmet Şık v. Turkey, para. 105.