Journalist Tunca Öğreten and BirGün staff member Mahir Kanaat remained behind bars for almost a year in 2017 as part of the “RedHack trial,” which is still pending before a criminal court in Istanbul

The European Court of Human Rights (ECtHR) issued its judgment concerning the applications of journalist Tunca Öğreten and BirGün staff member Mahir Kanaat on 18 May 2021, finding multiple violations, including the right to liberty and security and freedom of expression.

In its Chamber judgment, the European Court unanimously ruled that Öğreten and Kanaat’s pre-trial detention for almost a year in 2017 as part of the “RedHack trial” violated their right to liberty and security (Article 5/1 of the European Convention on Human Rights), right to access the investigation file (Article 5/4) and freedom of expression (Article 10).

Öğreten, who was then an editor with the news portal Diken.com.tr, and BirGün’s Kanaat were arrested in December 2016 on the charge of “membership in a terrorist organization.” The accusation stemmed from their respective news outlets’ coverage of former Energy Minister Berat Albayrak’s emails which were allegedly hacked in 2016 by the group RedHack and were subsequently published on Wikileaks in December 2016. The authorities accused Öğreten and Kanaat of having downloaded the emails of Albayrak. Kanaat was additionally accused of “possessing original copies” of investigation reports concerning the “17- 25 December” corruption probe. Öğreten and Kanaat were released by the trial court in December 2017. In the indictment for the “RedHack trial,” Öğreten and Kanaat are charged with “membership of a terrorist organization” under Article 314/2 of the Turkish Penal Code (TCK) and “hindrance or destruction of a data processing system” (TCK 244/2 and 244/4). Öğreten is additionally charged with “committing crimes on behalf of a terrorist organization without being its member” (TCK 220/6).

The European Court held that the applicants’ alleged offences were linked to the exercise of their rights under the Convention, specifically their freedom of expression, and their detention had not been based on a reasonable suspicion that they had committed an offence. In addition, the interpretation and application of the legal provisions relied on by the domestic authorities had been unreasonable to the point of rendering the applicants’ detention unlawful and arbitrary. In the Court’s view, there was no doubt that downloading the emails in question and publishing an article about them were protected by freedom of the press, according to a press release issued on Tuesday by the Court.

As regards Article 5/4 (refusal of access to the case file), the Court considered that neither the applicants nor their lawyers, who were deprived of access to the case file without valid reason, had had an opportunity to properly contest the reasons given to justify the applicants’ pre-trial detention. They had not had access to essential evidence, namely the reports on the content of the IT equipment which had been used to justify their placement in pre-trial detention until such time as the indictment was filed.

Concerning Article 10 (freedom of expression), the Court held that the applicants had been detained on account of their journalistic activities, and that the interference with their right to freedom of expression had not been prescribed by law, since there were no plausible grounds to suspect them of having committed an offence.

The Court also noted that the pre-trial detention of anyone expressing critical views produced a range of adverse effects, both for the detainees themselves and for society as a whole, since the imposition of a measure entailing deprivation of liberty would inevitably have a chilling effect on freedom of expression by intimidating civil society and silencing dissenting voices.

The ECtHR rejected the government’s objection claiming non-exhaustion of domestic remedies with regard to the complaint under Article 10.

The Court ruled for a payment of 5,750 euros to Öğreten in respect of pecuniary damages, an additional 14,000 euros to each applicant in respect of non-pecuniary damages, and 2,250 euros each in costs and expenses.

The “RedHack trial,” overseen by the Istanbul 29th High Criminal Court, is set to resume on 9 July 2021.