Expression Interrupted

Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.

ANALYSIS | ECtHR's Cumhuriyet judgment: Another brick in the wall

ANALYSIS | ECtHR's Cumhuriyet judgment: Another brick in the wall

The ECtHR has shown the gap between its standards and the Turkish judicial bodies’ approach regarding rights and freedoms. However, the Court’s rejection of complaints about the political nature of Cumhuriyet staffers’ detention is worrisome since it lags behind its development of case-law in this area

 

CANAN COŞKUN

 

On 10 November 2020, the European Court of Human Rights (ECtHR) rendered its judgment concerning the application by former executives and staff members of Cumhuriyet newspaper, regarding their detention as part of an investigation initiated in October 2016, through which the government and its followers aimed to silence the newspaper. In its judgment against Turkey, the ECtHR held that Musa Kart, Güray Öz, Bülent Utku, Murat Sabuncu, Akın Atalay, Önder Çelik, Mustafa Kemal Güngör and Hakan Kara’s right to liberty and security and freedom of expression and press had been violated. Although it was established that the rights and freedoms have been violated in Turkey, the decision was deficient. 

 

The ECtHR denied the allegation of the applicants that there had been a violation of Article 18 due to the political reasons that lie behind their detention. In the section where it reviewed this claim, the ECtHR reminded that the former Editor-in-Chief Can Dündar was targeted because of a report on the alleged transfer of weapons to Syria on trucks operated by the National Intelligence Organization (MİT). The judgment included a previous statement by Erdoğan regarding a 2016 Constitutional Court judgment that ordered the release of Can Dündar and Erdem Gül, in which he said, "I do not have to accept it. I do not comply with the judgment, nor do I respect it." Regarding Erdoğan’s words, the following remark was made:

 

“The Court notes in the present case that the statements by the President of the Republic referred to above related to a specific affair concerning the destination of lorries belonging to the intelligence services and used to transport weapons, and were not directed against the applicants themselves but rather against the newspaper Cumhuriyet as a whole under the editorial direction of C.D., its publication director at the time. [...] It is true 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. However, such an expression of dissatisfaction does not in itself amount to evidence that the applicants’ detention was ultimately motivated by reasons incompatible with the Convention.”

 

We understood that this is a shortcoming from the dissenting opinion of ECtHR’s Lithuanian judge, Egidijus Kūris. According to Kūris, who thinks that Article 18 of the Convention, which stipulates that the restriction of rights cannot serve an ulterior purpose, has also been violated, the charges in the Cumhuriyet’s trial were political and this was tried to be covered up with a failing legal guise. Making references to lyrics of songs by Pink Floyd and Bob Dylan, Kūris, in his dissenting opinion, asked questions to the Court that featured the following:

 

“Clumsily camouflaged in legal robes”

 

  • There has clearly been a violation of Article 18 of the Convention. The applicants’ placement in police custody, their continued pre-trial detention and the criminal charges brought against them were of a political nature, only clumsily camouflaged in legal robes, and their conviction was likewise tainted with political interference. The tenets of the rule of law were disregarded. All this resulted from the authorities’ policy. For how else could one assess such measures taken against the journalists, editors or managers of a newspaper critical of the authorities, primarily on the basis that, in the authorities’ reading, the newspaper’s editorial stance had changed and it had published something which, in the authorities’ view, was “glaringly at odds with the world view of its readers”?

 

"Climate of self-censorship affecting all journalists" 

 

  • The Chamber even accepts that the applicants’ detention not only had a chilling effect on them, but was also “liable to create a climate of self‑censorship affecting ... all journalists reporting and commenting on the running of the government and on various political issues of the day.” So what? “All in all, it’s just another brick in the wall.”

 

"The President's statement was anything but innocent"

 

  • The statements of the President of the Republic, one of which is even labelled (rightly so) as being “clearly in contradiction with the basic tenets of the rule of law”, are nonetheless considered justified on the basis that they “were not directed against the applicants themselves but rather against the newspaper Cumhuriyet as a whole under the editorial direction of C.D.” What is that supposed to mean: that the newspaper “as a whole” existed on its own, and its journalists, editors and managers were separate from it? Who would believe that? It is also stated that “such an expression of dissatisfaction [with the Constitutional Court’s decision] does not amount to evidence that the applicants’ detention was ultimately motivated by reasons incompatible with the Convention”. The question is: what was it that was capable of downgrading the clear manifestation of political pressure on the judiciary to an innocent “expression of dissatisfaction”? [...] The relevant public statement by the President of the Republic was anything but innocent, and given the whole course of events it was a declaration of intent, as realistic as one could be – for “you don’t need a weatherman to know which way the wind blows.”

 

“The threat materialized”

 

  • How was it possible to conclude that there was no “hidden agenda” in view of this rogue public statement by the President of the Republic: “Whoever wrote this article will pay dearly, I will not let the matter rest there”? Indeed, the matter was not put to rest. The threat (for what else was it?) materialised. [...] But what about the direct threat from the most powerful political actor on the national stage to the effect that whoever wrote this article would pay dearly? Also a mere “dissatisfaction”? Or was this statement also directed “against the newspaper Cumhuriyet as a whole” but not against the applicants, and could it “constitute evidence of an ulterior purpose behind a judicial decision” only “in some circumstances”?

 

"Worries about stepping back"

 

  • For decades the Court required that, for a violation of Article 18 to be found, it had to be furnished with “incontrovertible and direct proof.” [...] The Court’s overly restrictive approach to “evidence in the legal sense” and the findings of no violation of Article 18 based on it could not fail to contribute to a heightened feeling of impunity within the regimes concerned and a growing apprehension that the Convention was in retreat when confronted with political “bigshots” who persecuted their opponents with all the force of the State machinery. That, in its turn, could of course not leave the Court’s image unimpacted.


 

“The horizon has moved further away”

 

  • Substantial progress in the treatment of Article 18 complaints is still somewhere on the horizon. The present judgment has moved that horizon farther away.

 

“It was too late by the time ECtHR established the unlawfulness”

 

The detained journalists and executives of Cumhuriyet newspaper applied to the ECtHR in March 2017. In its statement, the ECtHR announced that the examination of case will be prioritized. However, nearly four years passed after this announcement and during this period, the journalists were punished in advance. Akın Atalay, the executive president of newspaper at the time, could not be taken into custody during the operations as he was abroad. A few days later, an arrest warrant was issued for Atalay. He return to the country, while knowing that he will be arrested, and subsequently he was detained with the allegation of suspicion of running away and held in prison for nearly one and a half year. We asked Atalay whether the ECtHR decision remedies these injustices. 

 

Akın Atalay: I started my defense in the first hearing of 24 July 2017 as follows: There are two aims of this case: First, changing the executive board of Cumhuriyet newspaper and, intrinsically, its publication policy with the instruction of the Government; second, intimidating the journalists on trial in this case as well as the other journalists and newspapers and showing clearly that they will be punished if they do their duty properly.

 

Both aims have been achieved. That is to say, until the ECtHR determined the injustices and the unlawfulness of our detention, "the ship has already sailed." The current decision, on the one hand, is "bad'el harab-ül basra" (after Basra was destroyed), on the other hand, it confirms those who say that the law is used as a weapon that served the purposes of political power, and that the rights to liberty and security and the freedoms of expression and press in this country are a discourse that remains only on paper and has no equivalent in real life.

 

Two months after our detention, we applied to the Constitutional Court, and three months after that, to the ECtHR. In the meantime, we were imprisoned for at least 11 months and at most 18 months, and our freedom was usurped. The Constitutional Court “could” not examine our individual application against this unlawfulness for a long time. One year after we were convicted and then released, that is to say, when a decision had no effect on the restriction of our freedom, the Constitutional Court put our application on its agenda. Even at that stage, it found the detentions lawful.

 

One and a half year after the Constitutional Court decision, the ECtHR unanimously ruled that the detentions were unlawful and that there was an unlawful interference with the freedom of expression/press. And what is worse, the decision was rendered unanimously… 

 

This situation demonstrates the big gap between the European and ECtHR standards and the approach and mindset of the judicial bodies in Turkey, including the Constitutional Court, to the freedoms of expression and press. 

 

Regarding our claim of Article 18 violation, alleging that these detentions were not carried out due to a legal mistake or a different interpretation and assessment, on the contrary, they were deliberately carried out in order to achieve the political purposes I mentioned at the beginning, and that this is the main purpose that was tried to hide and cover up, the ECtHR held that "there is reasonable suspicion but there is no direct evidence," and found no violation. One judge drafted a detailed and in-depth dissenting opinion where he argued that a violation decision should have been made in terms of Article 18.

 

The tragic aspect of the matter was that the judicial officials, who took part in causing these victimization and violations, were rewarded by the ruling authorities, by being appointed as HSK members, members of the Supreme Court, and the President of the High Criminal Court, in return for their services. It has lately been announced that a justice and legal reform will be conducted with those appointed to these positions. Like a joke.

 

I wish all judges, prosecutors, lawyers, academics, politicians, and everyone read the dissenting opinion to see the state of the judiciary in Turkey.

 

Demirtaş and Kavala judgments 

 

The ECtHR has so far concluded in 18 cases that Article 18 of the Convention has been violated. Two of these were the cases of Selahattin Demirtaş and Osman Kavala. We asked Rıza Türmen, the ECtHR's former Judge and Benan Molu, one of the lawyers who brought the Demirtaş case to the ECtHR, about the conditions that the ECtHR seeks regarding the complaints of Article 18.

 

Rıza Türmen: The ECtHR refused to examine Article 18 complaints for many years. It did this by imposing a heavy burden of proof and by stating that the information provided by non-governmental organizations and third parties working on human rights is "political." However, after the case of Merabishvili v. Georgia, it changed this attitude. In this case, it took the information provided by third parties into consideration. It started to review Article 18 complaints and find violations. The decisions of Demirtaş and Kavala are the examples of this. However, in the case of Sabuncu and others (Cumhuriyet newspaper), we see a regression and a return to its previous attitude. The views of third parties were suppressed, the threatening statement of the President was not considered sufficient. In his dissenting opinion, Kūris pointed out these matters in all conscience. This ruling obscures the fact that these cases are political cases and that the executive has a hand in them. However, it should not be forgotten that the decision is not final, that it can be referred to the Grand Chamber and there is a possibility of reaching a different decision.


 

"Good faith assumption"

 

Benan Molu: As Judge Kūris summarizes briefly in his opinion, if we look at the development of case-law on Article 18, the ECtHR has always highlighted the following: As an international court, it is very difficult for the ECtHR to decide on whether a Contracting State acts with an ulterior motive or a different secret purpose or any other purpose -may it be a political, economic or other reason- that is not stipulated in the Convention.

 

Because the ECtHR had to follow the rules of international law where there is the assumption that states act in good faith. But after a point, especially after the collapse of the Soviet Union, with the rise of populism and the erosion of democratic values in the countries, such as Turkey, Russia, Poland, and Hungary, and with the human rights violations against human rights defenders, opponents, lawyers, parliamentarians, and journalists, Article 18 suddenly began to hit the ECtHR’s radar.

 

“One step forward, two steps back”

 

The ECtHR delivered its first decision on the violation of Article 18 in 2014. After that, until 2016, a violation was found in one of the decisions on the complaints about this article, but not in two. The ECtHR went back and forth like that. The main reason for this is actually the strict burden of proof and the standard of evidence, which was also criticized by Kūris.

 

"States professionalized in violations of rights"

 

Until now, the ECtHR required to have proved the bad faith directly and with undeniable evidence. The first cases in which it found a violation of Article 18 were the examples, which are based on such direct and undeniable evidence. For example, in one of these cases, the prosecutor comes to the applicant in prison and leaves a note that says, "If you give me information about a person or institution, I will release you." Maybe it was possible for states to act like that in the 90's. But now, as the doctrine frequently emphasizes, states have become professional in the commitment of violations of rights. Therefore, no state will leave behind a letter that says “Hello, I will release you if you give me information as evidence. Best, a friend.” It is really difficult to prove the claims of Article 18 in a place where even the applicants – bearing in mind that most of them are in prison and that it is very difficult for their lawyers to access the information in their files – cannot know about the charges bringing against them.

 

“It was to be the first Article 18 judgment in a journalism case”

The decisions of violation of Article 18 so far were either related to the detention of opposition MPs such as Demirtaş or rights defenders such as Kavala. The Cumhuriyet decision was expected to be the first one finding a violation of Artic 18 regarding the arrest and detention of journalists due to their journalism and editorial policies. 

 

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