Pre-trial detention for 13 months of a President of a human rights NGO, without reasonable suspicion of committing crimes! Violations of personal freedom and freedom of expression
JUDGMENT
Taner Kılıç (no. 2) v. Turkey 31.05.2022 ( app. no. 208/18)
SUMMARY
The case concerned the initial and continued pre-trial detention of Mr Kılıç who, at the relevant
time, was Chairperson of the Turkish branch of the NGO Amnesty International. Mr Kılıç was
arrested in June 2017 on suspicion of belonging to the organisation FETÖ/PDY1
. The authorities accused him, in particular, of using the ByLock messaging service, and of other offences.
The European Court of Human Rights held, unanimously, that there had been:
a violation of Article 5 § 1 (lack of reasonable suspicion justifying initial and continued pre-trial
detention) of the European Convention on Human Rights.
The Court held that the Government had been unable to show that, on the date at which the
applicant was initially placed in pre-trial detention or during the subsequent phases of his pre-trial
detention, the evidence cited by the national judges had met the standard of “reasonable suspicion”
required by Article 5 of the Convention, such as to satisfy an objective observer that the applicant
could have committed the offences for which he had been detained. The Court also considered that
the interpretation and application of the legislative provisions relied on by the domestic authorities
had been unreasonable, so as to render Mr Kılıç’s detention unlawful and arbitrary. It concluded that
there was no reasonable suspicion that Mr Kılıç had committed an offence, either on the date that
he was placed in pre-trial detention or when it was extended.
a violation of Article 5 § 3 (failure to provide reasons for decisions concerning pre-trial detention).
The Court reiterated that the persistence of a reasonable suspicion that the detainee had committed
an offence was a sine qua non for the validity of his or her continued detention. In the present case,
in the absence of such reasons, it considered that there had been a violation of Article 5 § 3.
a violation of Article 5 § 5 (no compensatory remedy for unjustified pre-trial detention).
The Court considered that the action for damages provided for in Article 141 of the Code of Criminal
Procedure could not be regarded as a compensatory remedy for the purposes of Article 5 § 5 of the
Convention in respect of complaints alleging a lack of reasonable grounds to suspect a person of
having committed an offence and a lack of relevant and sufficient reasons justifying pre-trial
detention.
a violation of Article 10 (freedom of expression)
The Court considered that Mr Kılıç’s initial placement in pre-trial detention in the context of the
second set of criminal proceedings brought against him, on account of actions that were directly
linked to his activity as a human-rights defender, amounted to a genuine and effective restriction
and thus an “interference” in the exercise of his right to freedom of expression. In the Court’s view,
the interference with the exercise of Mr Kılıç’s rights and freedoms as guaranteed by Article 10 of
the Convention could not be justified, since it had not been prescribed by law.
PROVISIONS
Article 5 par 1
Article 5 par. 3
Article 5 par. 4
Article 5 par. 5
PRINCIPAL FACTS
The applicant, Taner Kılıç, is a Turkish national who was born in 1969. When he lodged his
application, in December 2017, he was detained in İzmir (Turkey).
Mr Kılıç was arrested on 5 June 2017 on suspicion of belonging to the organisation FETÖ/PDY1
. On 9 June 2017 he was brought before the İzmir 3rd Magistrate’s Court which, after hearing the
applicant, decided to place him in pre-trial detention. Mr Kılıç lodged an objection against the order
for his pre-trial detention, but it was dismissed.
The authorities criticised him, among other points, for having allegedly downloaded and used the
ByLock messaging service on his telephone; for subscriptions to certain publications, such as the
Zaman newspaper (allegedly linked to FETÖ/PDY); the fact that his sister was married to the editor of
the Zaman newspaper; the fact that his children were schooled in institutions that were allegedly
run by FETÖ/PDY and had been closed down by decree-laws following the attempted coup of 15 July
2016; and for holding bank accounts with Bank Asya, which was allegedly linked to FETÖ/PDY.
Between June 2017 and August 2018, Mr Kılıç’s pre-trial detention was extended on several
occasions, initially by the magistrate’s courts, then by the İzmir and Istanbul Courts of Appeal, before
which two separate sets of criminal proceedings were brought against the applicant, on 9 August
2017 and 4 October 2017 respectively.
In the context of the second set of criminal proceedings, the authorities charged Mr Kılıç, among
other charges, with membership of several terrorist organisations, not only on account of his alleged
use of the ByLock messaging service but also on the basis of actions related to the defence of human
rights. The two sets of criminal proceedings were later joined.
On 15 August 2018 the Istanbul Assize Court ordered that Mr Kılıç be released. Then, in July 2020, it
convicted him of the offence of belonging to a terrorist organisation and sentenced him to six years
and three months’ imprisonment.
In the meantime, Mr Kılıç lodged an individual application with the Constitutional Court and an
action for damages before the İzmir Assize Court; these were dismissed in 2018 and 2019
respectively. The action for damages is pending before a higher domestic court.
THE DECISION OF THE COURT…
Article 5 § 1: lack of reasonable suspicion that Mr Kılıç had committed an offence
Mr Kılıç’s placement in pre-trial detention: the Court noted that, in contrast to the case of Akgün v.
Turkey, the alleged use of the ByLock messaging service was not the only basis of the suspicions
against Mr Kılıç.
With regard to the charges against Mr Kılıç, apart from his alleged use of ByLock, the Court
considered that these had entailed mere circumstantial evidence which was incapable of giving rise
to a reasonable suspicion that the applicant had committed the offence with which he was charged.
In the Court’s view, the acts in question enjoyed a presumption of lawfulness, in the absence of
other evidence capable of justifying the suspicions in question, such as an intellectual link disclosing
an element of responsibility in the suspect’s conduct. Thus, there could clearly not be a “reasonable
suspicion” if the acts or facts held against a detained person did not constitute a crime at the time
when they occurred.
With regard to the alleged use of the ByLock messaging service, the Court referred to its conclusions
in the Akgün3 case, in which it had found that, in principle, the mere fact of downloading or using a
means of encrypted communication or indeed the use of any other method of safeguarding the
private nature of exchanged messages could not in itself amount to evidence capable of satisfying an
objective observer that illegal or criminal activity was taking place. In the present case, it noted that
the decisions ordering and extending Mr Kılıç’s placement in pre-trial detention did not contain any
evidence concerning the use of the messaging service in question, such as, for example, the content
or context of the messages exchanged.
It also reiterated that the case file indicated that the decisive element underlying the suspicions that
the applicant had committed the offence of membership of the FETÖ/PDY organisation was a brief
document, entitled “result of the analysis”, drawn up by the security directorate, which specified the
date of the first connection. However, this was a blunt finding, without any clear indication of the
basis on which the authorities had reached this conclusion, and particularly what data had been
used. This document did not include the underlying data on which it was based or information on
how it had been collected. In addition, although numerous expert reports had subsequently
concluded that Mr Kılıç had never downloaded or used the messaging system in question, the
national courts had totally ignored this development.
It followed that no factual evidence or information capable of giving rise to suspicions justifying
Mr Kılıç’s placement in detention had been mentioned or presented during the initial proceedings or
in the period prior to the filing of the second bill of indictment on 4 October 2017.
The continued pre-trial detention and the phase following the bill of indictment of 4 October 2017:
a second set of criminal proceedings were brought against the applicant on 4 October 2017, and his
continued detention was ordered on the basis not only of the charges brought in the context of the
investigation opened by the İzmir prosecutor’s office, but also new facts. With regard to the new
facts, the Court noted that, at first sight, these were the ordinary peaceful and legal acts of a human rights defender, namely: being one of the instigators of a “workshop” conducted on 5 July 2017 by members of various non-governmental human-rights organisations; exchanging WhatsApp messages about protest activities concerning a hunger strike by two activists; exchanging messages with a
doctor who was allegedly a member of the PKK and had expressed a wish to join Amnesty
International; participation in filming a video, in the context of an awareness-raising campaign about
an alleged victim of police violence; and conducting awareness-raising activities concerning the Gezi
Park events and human-rights violations allegedly perpetrated after the attempted coup of 15 July
2016. In the absence of other evidence which would establish the wrongfulness of these actions, it
was not clear to the Court how such acts could in themselves justify the suspicions in question.
Accordingly, no facts or information giving rise to a suspicion justifying the applicant’s detention had
been mentioned or produced during this phase of the proceedings.
In conclusion, the Court considered that the Government had been unable to show that, on the date
at which the applicant was initially placed in pre-trial detention, the evidence cited by the national
judges met the standard of “reasonable suspicion” that was required by Article 5 of the Convention,
such as to satisfy an objective observer that the applicant could have committed the offences for
which he had been detained. It also noted that no measure taken to derogate from the Convention
during the state of emergency had been applicable. It also considered that, in the present case, the
interpretation and application of the legislative provisions relied on by the domestic authorities had
been unreasonable, so as to render the applicant’s detention unlawful and arbitrary. There had
therefore been a violation of Article 5 § 1 of the Convention on account of the lack of reasonable
suspicion that the applicant had committed an offence, both on the date when the applicant was
placed in pre-trial detention and after it was extended.
Article 5 § 3: failure to provide sufficient reasons for the decisions concerning pre-trial
detention
The Court referred to its finding that no facts or information capable of giving rise to a suspicion
justifying Mr Kılıç’s pre-trial detention had been put forward by the national courts at any time
during the applicant’s detention, and that there was therefore no reasonable suspicion that he had
committed an offence. It reiterated that the persistence of a reasonable suspicion that the detainee
had committed an offence was a sine qua non for the validity of his or her continued detention. In
the absence of such reasonable suspicions, the Court considered that there had also been a violation
of Article 5 § 3 of the Convention.
Article 5 § 5: absence of a compensatory remedy complying with the requirements of Article 5
The Court specified that, in a situation where the applicant not only complained about the length of
his pre-trial detention, but also alleged an absence of reasonable suspicion that he had committed
an offence or of relevant and sufficient grounds to justify pre-trial detention within the meaning of
Article 5 of the Convention, a claim for damages based on Article 141 § 1 of the Code of Criminal
Procedure could not be considered an effective remedy. In addition, the Government had not
submitted any judicial decision granting compensation, on the basis of the above Article 141 § 1, to
any individual in a similar situation to the applicant. The Court therefore considered that the action
for damages provided for in Article 141 of the Code of Criminal Procedure could not be regarded as a
compensatory remedy for the purposes of Article 5 § 5 of the Convention in respect of complaints
alleging the absence of reasonable suspicions that an individual had committed an offence and a lack
of relevant and sufficient reasons justifying pre-trial detention. The Court further noted that the
applicant’s individual application to the Constitutional Court had been dismissed and that he had
therefore been awarded no compensation by the national courts. It thus noted that, prior to the
present judgment, there existed no remedy which would have enabled the applicant to obtain compensation for the violations of Article 5 §§ 1 and 3 of the Convention. It followed that there had been a violation of Article 5 § 5 of the Convention.
Article 10: freedom of expression
Given the importance of activities in the field of human rights, the Court considered that the
principles regarding the detention of journalists and media professionals could be applied to the
initial and continued pre-trial detention of human-rights defenders or of leaders or activists of such
organisations, where the pre-trial detention had been imposed in the context of criminal
proceedings brought against them for offences that were directly linked to activities for humanrights protection.
In this connection, the Court noted that in the context of the second set of criminal proceedings, the
Istanbul Assize Court had ordered, on 22 November 2017, the applicant’s continued pre-trial
detention, basing that order on all of the evidence concerning the charges brought against the
applicant, including those related to his activities as a human-rights defender.
The Court considered that the applicant’s initial pre-trial detention on account of actions that were
directly linked to his activity as a human-rights defender amounted to a genuine and effective
restriction and thus an “interference” in the exercise of his right to freedom of expression. It
considered that the applicant’s detention had thus represented an interference in his rights under
Article 10 of the Convention. It pointed out that the applicant’s detention had not been justified by a
reasonable suspicion that he had committed an offence within the meaning of Article 5 of the
Convention, and that there had therefore been a violation of his right to liberty and security as
enshrined in Article 5 § 1. It also noted that, under Article 100 of the Turkish Code of Criminal
Procedure, a person could only be placed in pre-trial detention where there existed facts giving rise
to a strong suspicion that her or she had committed an offence. It considered, in this connection,
that the lack of reasonable suspicion should, a fortiori, have implied the absence of strong suspicions
where the national authorities had been invited to review the lawfulness of the detention. It further
reiterated that Article 5 § 1 of the Convention contained an exhaustive list of permissible grounds on
which a person could be deprived of his or her liberty, and no deprivation of liberty would be lawful
unless it fell within one of those grounds. Furthermore, the requirement of lawfulness set out in
Articles 5 and 10 of the Convention was intended to protect the individual from arbitrariness. In
consequence, a measure of detention which was not lawful, where it amounted to an interference
with one of the freedoms protected by the Convention, could not be considered in principle as a
restriction on that freedom provided for by national law. In consequence, the interference with the
exercise of the applicant’s rights and freedoms as guaranteed by Article 10 of the Convention could
not be justified, since it had not been prescribed by law. It followed that there had been a violation
of Article 10 of the Convention.
Article 18: limitation on use of restrictions on rights
The Court noted that the parties’ arguments under Article 18 of the Convention were essentially the
same as their arguments with regard to Articles 5 and 10 of the Convention. In particular, it noted
that, in the context of its assessment of the applicant’s complaints under Article 10 of the
Convention, it had taken sufficient account of the applicant’s position as leader of an NGO and a
human-rights defender. Accordingly, it saw no reason to conclude that the complaint under
Article 18 related to a fundamental aspect of the case. It therefore concluded, by five votes to two,
that there was no need to examine either the admissibility or the merits of this complaint.
Article 5 § 4: right to a speedy decision on the lawfulness of detention
The Court considered that the applicant’s complaints concerning the non-disclosure of the public prosecutor’s opinion and the examination of his objections on the sole basis of the case file and without a hearing were manifestly unfounded.
It also noted that the applicant vaguely asserted that he had been subjected to numerous
restrictions, without explaining how these alleged restrictions had prevented him from challenging
effectively the decisions ordering and extending his pre-trial detention. Equally, in his observations
submitted to the Court, he did not provide details about the reality and potential impact of these
restrictions. It followed that this complaint was not sufficiently substantiated and had to be rejected.
Just satisfaction (Article 41)
The Court held, unanimously, that Turkey was to pay the applicant 8,500 euros (EUR) in respect of
pecuniary damage, EUR 16,000 in respect of non-pecuniary damage and EUR 10,000 in respect of
costs and expenses. It dismissed, by five votes to two, the remainder of the applicant’s claim for just
satisfaction.
Separate opinions
Judges E. Kūris and P. Koskelo expressed a partly dissenting opinion. Judge S. Yüksel expressed a
partly concurring opinion. These opinions are annexed to the judgment.
