The ECtHR ruled to strike out Doğan's application after the government acknowledged a violation of the right to presumption of innocence in the course of her imprisonment 

The European Court of Human Rights (ECtHR) has ruled to strike out an application filed by journalist and painter Zehra Doğan after the government acknowledged a violation by the local authorities in the course of her imprisonment and pledged to pay 1350 euros in compensation.

Doğan applied to the ECtHR in September 2020, saying that her right to presumption of innocence was violated as a result of the rejection of her request for her transfer to an open type correctional facility and eventual conditional release. The Tarsus Enforcement Court rejected Doğan’s request in February 2019 on the grounds that she had not made a declaration “ceasing to be a member of the terrorist organization” and given that she was held in the wing designated for terrorist offenders she could not be considered “neutral” so as to warrant her transfer to an open type correctional facility. Her application to the Constitutional Court against the decision was rejected in December 2019 as inadmissible.

Doğan complained to the ECtHR that the impugned reasoning of the Tarsus Enforcement Court is incompatible with her right to presumption of innocence on account of the fact that she was acquitted of the charges of membership of terrorist organization.

Doğan, a former editor of the now-defunct JİNHA news agency, was charged with “membership of a terrorist organization” and “spreading propaganda for a terrorist organization” on the basis of her reports about military operations in Mardin’s Nusaybin district in 2016, her paintings and social media posts. She convicted for disseminating propaganda but acquitted of the membership charge. In June 2017, she was arrested in Diyarbakır and sent to prison after her conviction was upheld by the appeals court and became final. In 2018, she was transferred to Tarsus Women’s Prison. In February 2019, she was released upon execution of her sentence.

In a decision dated 24 February 2022, the ECtHR said it was satisfied by the government’s proposal to make a unilateral declaration acknowledging a violation of Article 6/2 of the European Convention on Human Rights and offering to pay Doğan 1350 euros for pecuniary and non-pecuniary damage and costs and expenses.

Doğan informed the court that she was not satisfied with the terms of the unilateral declaration because the amount of compensation was low and said that the delivery of a judgment by the Court would be a more effective way of resolving the systematic violation of the Convention in Turkey.

The ECtHR, however, said it has a clear and extensive case-law concerning complaints relating to the breach of presumption of innocence on account of the reasoning and wording employed by domestic authorities. It also said the amount of compensation proposed by the Turkish government was consistent with the amounts awarded in similar cases.

“Systematic violation”

Doğan’s lawyer Olguner Olgun pointed out that in practice, inmates convicted of terrorism propaganda are required by the authorities to submit a petition declaring that they ceased to be a member of the terrorist organization and that they want to leave the ward designated for terrorism offenders in order to be transferred to an open type prison and benefit from conditional release.

“The ECtHR decision is important in the sense that it points to the existence of a widespread problem in Turkish prisons and shows that the violations caused by this problem are acknowledged by the government before ECtHR,” Olgun said in an interview with BirGün newspaper. “It was acknowledged by the government that those who are convicted of ‘terrorism propaganda’ cannot be regarded as a terrorist offender or a member of a terrorist organization and that opposite actions of the local authorities constitute a violation of the right to presumption of innocence.”

“This is not an exceptional case or an isolated incident. This is a widespread, systematic and structural violation that has been occurring throughout the execution of sentences regime in prisons,” Olgun further said, adding: “The government has technically prevented a binding judgment by offering a unilateral declaration and compensation. However, we are of the view that the government’s declaration and the ECtHR decision would still provide guidance for prison administrations and judicial authorities in similar situations.”