Illegal pre-trial detention when linked to a prisoner’s political ideology violates his/her freedom of expression

JUDGMENT

Ragıp Zarakolu v. Turkey 15.09.2020 (app. no. 15064/12)

see here 

SUMMARY

Illegal detention and right to freedom of expression.

The ECtHR ruled that when pre-trial detention is not legal, it should not consider whether interfering with freedom of expression has a legitimate purpose and is necessary in a democratic society. Illegal pre-trial detention linked to the political ideology of the detainee violates freedom of expression (Article 10 of the ECHR).

Right to liberty and security, right to access the case.

The applicant is a Turkish national and the director of a publishing house. He was accused of participating in a terrorist organization with the main accusation that he had given a lecture at the BDP Political Academy, which accused him of being a member of the “political front” of the PKK / KCK.

He was temporarily detained from 28.10.2011 to 10.04.2012, without him and his lawyer having access to the case file. The criminal prosecution against him for participation in a terrorist organization is pending before the domestic courts.

Strasbourg reiterated its well-established case-law that Article 5 (1) c of the Convention allows a person to be detained only in criminal proceedings with a view to being referred to the competent judicial authority, where there are reasonable grounds for suspecting that he has committed an offense.

In the present case, the ECtHR found that the domestic authorities had not adduced evidence linking the applicant to a terrorist organization and held that the applicant’s violation of his liberty was arbitrary. It found a violation of Article 5§1 of the ECHR.

Finally, he considered that the applicant and his lawyer did not have access to the evidence in the case file which would allow them to prepare his defense. The ECtHR found a violation of Article 5§4 of the ECHR.

The Court awarded the applicant EUR 6,500 for non-pecuniary damage.

PROVISIONS

Article 5§1

Article 5§4

Article 10

PRINCIPAL FACTS

The applicant, Mr Ragıp Zarakolu, is a Turkish national who was born in 1948 and lives in Solna
(Sweden). At the material time he was the director and owner of a publishing house, an honorary
member of the Turkish branch of PEN International (International Writers’ Association). The case
concerned the applicant’s detention on suspicion of membership of an illegal organisation (KCK).
In 2009 a criminal investigation was initiated against several persons suspected of belonging to an
illegal organisation, the Kurdistan Communities Union (Koma Civakên Kurdistan, KCK). The public
prosecutors leading the investigation brought criminal proceedings against several persons –
politicians, businessmen, lawyers, university professors, students and journalists. According to the
prosecutors, the KCK was the “urban branch” of the Kurdistan Workers’ Party (Partiya Karkerên
Kurdistan, PKK), an illegal armed organisation, pursuing the aim of establishing an independent
Kurdish State based on the principles of “democratic confederalism” advocated by Abdullah Öcalan,
the PKK leader who was convicted in 1999 of acts aimed at bringing about the secession of part of
the Turkish territory and of founding and leading a terrorist organisation for that purpose.

On 27 October 2011, in the framework of a series of operations against the KCK, a judge of the
Istanbul Assize Court ordered a search of the political academy of the Peace and Democracy Party
(Barış ve Demokrasi Partisi, BDP), a pro-Kurdish left-wing party, and the homes of sixty individuals,
including Mr Zarakolu, as well as the arrests of those concerned.

On 28 October 2011 he was arrested and remanded in custody for membership of the KCK. On
31 October 2011 he was heard by the Istanbul public prosecutor regarding his participation in the
activities of the BDP’s political academy. Following that hearing the prosecutor applied to the judge
to order Mr Zarakolu’s placement in pre-trial detention for membership of a terrorist organisation.

On 2 November 2011 Mr Zarakolu appealed against his pre-trial detention and requested his release.
The Assize Court dismissed that appeal.

By bill of indictment of 19 March 2012, the public prosecutor brought criminal proceedings against
one hundred and eighty-three persons, including the applicant. The latter was charged with having
knowingly and deliberately aided and abetted a terrorist organisation. The main charge against him
was that of having lectured at the BDP’s political academy, which had led the prosecutor to conclude
that he was part of the PKK/KCK organisation’s “political front” unit.

On 10 April 2012 the Assize Court ordered Mr Zarakolu’s release.

Following the entry into force of Act no. 6526 of 21 February 2014 amending Act no. 3713 on the
Fight against Terrorism, the trial continued before the Assize Court’s Third Division. The criminal
proceedings against Mr Zarakolu are currently still pending.

Relying in particular on Article 5 § 1 (right to liberty and security), the applicant alleged that there
had been no evidence providing any plausible reasons to suspect him of having committed a criminal
offence or to justify placing him in pre-trial detention. He also submitted that insufficient reasons
had been given for the judicial decisions. Moreover, he complained that he had been unable to
challenge effectively the lawfulness of his pre-trial detention. Furthermore, relying on Article 10
(freedom of expression), he submitted that his pre-trial detention had infringed his right to freedom
of expression.

THE DECISION OF THE COURT…

Article 5 § 1 and 3

The Court recalls that Article 5 (1c) of the Convention allows a person to be detained only in criminal proceedings, with the aim of referring him to the competent judicial authority, where there are reasonable grounds for suspecting that he has committed an offense (Mehmet Hasan Altan v. Turkey , No. 13237/17, § 124, 20 March 2018).

In the present case, the Court noted that, on 28 October 2011, the applicant, suspected of being a member of the KCK, was arrested and remanded in custody as part of a criminal investigation against that organization. After being questioned by the investigator, the applicant appeared on 1 November 2011 before a prosecutor of the Istanbul Criminal Court. He was remanded in custody, which lasted until 10 April 2012, when the applicant was released. The Court also noted that, on 19 March 2012, criminal charges were brought against several persons, including the applicant, who were accused of intentionally providing assistance to a terrorist organization, the PKK / KCK group. It also observed, in the light of the Government ‘s observations and the evidence in the indictment, that the facts on which the applicant was suspected were substantially limited to his activities on behalf of the BDP’ s academic policy, a legal political party at a critical time.

The Government argued that the applicant ‘s deprivation of liberty was in accordance with Article 5 § 1 of the Convention, as the applicant was in contact with the party’ s political academy and some of its members and leaders were associated with that party. due to terrorist organization. The Court was not convinced by this argument. The Government did not provide any evidence linking the applicant to the PKK / KCK. The decision by which the Criminal Court on 1 November 2011 ordered the pre-trial detention also does not reveal the existence of such a link. The allegation that the BDP or some members of the political academy were members of an illegal organization cannot be considered sufficient to convince an objective observer that the applicant could have committed a crime related to terrorism. In the absence of facts, information or evidence adduced by the Government, the evidence did not establish that the applicant was involved in criminal activity. On the contrary, they have found, in the Court ‘s view, that the facts raised against the person concerned were linked to the exercise of rights guaranteed by the Convention, in particular Articles 10 and 11.

In the light of those considerations, the Court considered that, in the present case, the interpretation and application of the legal provisions relied on by the domestic authorities was unreasonable in so far as it attributed the applicant’s infringement to an irregular and arbitrary nature.

Consequently, there has been a violation of Article 5 § 1 of the Convention.

In the light of that finding, the Court held that it was not necessary to consider separately whether the reasons put forward by the national courts to justify the applicant’s continued detention were ‘relevant and sufficient’ to deprive the applicant of his liberty in accordance with with Article 5 § 3 of the Convention.

Article 5§4

The Court recalled that Article 5 §4 of the Convention provides any person arrested or detained with the right to appeal against compliance with the procedural and substantive requirements of “legality” within the meaning of Article 5 § 1 , deprivation of his liberty. While the proceedings instituted under Article 5 § 4 should not always be accompanied by the same guarantees as those required by Article 6 for civil and criminal proceedings – the two provisions pursue different aims (Reinprecht v. Austria, 67175/01,, 39, ECHR 2005 – XII) – must, however, be of a judicial nature and provide guarantees adapted to the nature of the deprivation of liberty (DN v. Switzerland [GC] No 27154/95,, 41, ECHR 2001-III).

In the present case, the Court notes that it is not disputed between the parties that the total restriction of access to the file prevented the applicant and his lawyer from examining the documents until the indictment was lodged on 19 March 2012, ie almost five months after his arrest.

Therefore, neither the applicant nor his lawyer was able to obtain sufficient knowledge of the contents of the documents which were of the utmost importance for challenging the lawfulness of the applicant’s detention. He was therefore not given a sufficient opportunity to challenge the pleas in law relied on to justify his detention (V (k v. Turkey, no. 53413/11,, 75, 8 July 2014, and Mustafa Avci v. Turkey, no. 39322/12, § 92, 23 May 2017).

It thus found a violation of Article 5 § 4 of the Convention.

Article 10

The Court noted in principle that, according to its case-law, defendants who have not been convicted by a final judgment may have the status of victims of a violation of freedom of expression when exposed to certain circumstances which have a deterrent effect on the exercise of that freedom.

In the present case, the applicant was the subject of criminal proceedings because he was suspected of knowingly and intentionally providing assistance to a terrorist organization, and because he was involved in the activities of a political party academy. As part of the criminal proceedings, he was detained from 28 October 2011, the date of his arrest, until 10 April 2012.

The Court held that this deprivation of liberty constituted a genuine and effective restriction and therefore an ‘interference’ by the applicant in the exercise of the right to freedom of expression guaranteed by Article 10 of the ECHR. In that context, the Court noted that, under Article 10, it examined only the detention on remand of the applicant.

For the same reasons, the Court rejected the Government’s objection of non-exhaustion of domestic remedies in respect of allegations of breach of Article 10.

It recalled that an interference constituted a breach of Article 10, unless it met the requirements of paragraph 2 of the provision. It must therefore be determined whether the intervention found in the present case was ‘lawful’, had one or more legitimate objectives in relation to this paragraph and whether it was ‘necessary in a democratic society’.

The Court reiterated that the expression “provided by law”, within the meaning of Article 10 § 2, first implies that the measure complained of is based on domestic law, but also relates to the quality of the law: it requires, on the one hand, to be accessible by the person concerned, who, in addition, must be able to foresee the consequences for him and, on the other hand, be compatible with the rule of law.
In the present case, the applicant ‘s deprivation of liberty amounted to an interference with his rights under Article 10 of the Convention. The Court noted that, under Article 100 of the CCP, as in force at the material time, a person could be placed in pre-trial detention only when there was factual evidence that made him a suspect of an offense.

In that context, it recalled that it had already concluded that the applicant’s detention had not been based on reasonable grounds for suspecting an offense within the meaning of Article 5 1 1c of the Convention and that, therefore, his right to liberty had been violated. and the security provided for in Article 5 § 1 and held that ‘the interpretation and application of the provisions relied on by the domestic authorities were unreasonable to the extent that the deprivation of liberty suffered by the applicant was irregular and arbitrary’.

The Court also recalled that paragraphs (a) to (f) of Article 5 § 1 of the Convention contained a complete list of reasons why a person may be deprived of his liberty. Consequently, the interference with the applicant’s rights and freedoms under Article 10 § 1 of the Convention could not be justified under Article 10 § 2, as it was not provided for by law. The Court is therefore not called upon to examine whether such intervention had a legitimate aim and was necessary in a democratic society.

In the light of the above, the Court found a violation of freedom of expression.

Just satisfaction: The ECtHR awarded an amount of EUR 6,500 for non-pecuniary damage.


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