Pre trial detention of a journalist for 13 months without any indications of belonging to a terrorist organization and attempting to overthrow the regime. Violation of freedom of expression and personal freedom
JUDGMENT
Murat Aksoy v. Turkey 13.04.2021 (app. no. 80/17)
SUMMARY
A well-known journalist, critical of the government with rich activity in the print and electronic press, was arrested after the coup of July 15, 2016 in Turkey, and was temporarily detained for 13 months. Two criminal charges were brought against him for belonging to a terrorist organization and attempting to overthrow the regime respectively.
The Court observed that the domestic Constitutional Court had found that the applicant had been detained without sufficient evidence of an offense and awarded him compensation. The ECtHR upheld the findings of the Constitutional Court because the provision, which required the presence of factual evidence of a strong offense, was not amended in the state of emergency imposed by the respondent State, but considered compensation. which the Constitutional Court ruled inadequate and therefore ruled by a majority a violation of Article 5§1 of the ECHR.
The ECtHR subsequently found a majority violation of the right to freedom of expression.
On the contrary, the ECtHR found that although the applicant did not have access to the file, he had acquired sufficient knowledge of the content of the relevant evidence and therefore did not find a violation of Article 5 § 4 of the ECHR.
The ECtHR awarded the applicant EUR 11,500 in respect of non-pecuniary damage and EUR 3,175 in respect of costs and expenses.
PROVISIONS
Article 5 par. 1
Article 5 par. 4
Article 10
PRINCIPAL FACTS
The applicant, Murat Aksoy, is a Turkish national who was born in 1968 and lives in Istanbul (Turkey).
Between 2005 and 2016 Mr Aksoy worked for several national newspapers, including Taraf, Millet
and Yeni Hayat. He also wrote articles for the T24 website and had his own website, where he
published his articles. In the years leading up to the attempted coup of 15 July 2016, Mr Aksoy had
become known for his critical views on the policies of the current government. He was arrested and
taken into police custody on 30 August 2016.
He was initially remanded in custody on 3 September 2016 for knowingly and intentionally assisting
a terrorist organisation.
In January 2017 the Istanbul public prosecutor’s office filed an indictment with the Istanbul Assize
Court against 29 people, including Mr Aksoy, who were charged with belonging to a terrorist
organisation.
In March 2017, after a hearing before the Assize Court (twenty-fifth division), the public prosecutor
requested the release of several defendants, including Mr Aksoy. On the same day, the Assize Court
ordered the release of Mr Aksoy and others. A few hours after this decision, the Istanbul public
prosecutor’s office opened a new investigation against the applicant, who was again taken into
police custody and then placed in pre-trial detention, this time on suspicion of having attempted to
overthrow both the constitutional order and the government by force and violence.
In April 2017 the High Council of Justice and Prosecutors suspended, for three months, the judges of
the twenty-fifth division of the Assize Court who had ordered Mr Aksoy’s release, and also the public
prosecutor who had requested that release.
Mr Aksoy was ultimately released on 24 October 2017.
In March 2018 the Istanbul Assize Court (twenty-fifth division) sentenced him to a prison term of
two years and one month for knowingly and intentionally assisting a terrorist organisation under
Article 220 § 7 of the Turkish Criminal Code. This conviction was upheld by the Istanbul Court of
Appeal and the Court of Cassation.
In November 2016 and May 2017 Mr Aksoy lodged two individual applications with the
Constitutional Court, which awarded him compensation for non-pecuniary damage, finding several
violations, including of his right to liberty and security and to freedom of expression and of the
freedom of the press. In a judgment of 2 May 2019 the Constitutional Court found that there had
been breaches of Article 19 § 3 and Articles 26 and 28 of the Turkish Constitution.
Relying on Article 5 §§ 1 and 3 (right to liberty and security) and Article 10 (freedom of expression)
of the Convention, Mr Aksoy complained that his pre-trial detention had been arbitrary and that
there had been no concrete evidence indicating the existence of plausible grounds to suspect him of
having committed a criminal offence.
Mr Aksoy also relied on Article 5 § 4 (right to a speedy decision on the lawfulness of
detention/inability to access investigation file), complaining of the length of the proceedings before
the Constitutional Court and his inability to gain access to the case file. He also relied on Article 18
(limitation on the use of restrictions on rights) in conjunction with Articles 5 and 10.
THE DECISION OF THE COURT…
Mr Aksoy’s victim status
The Court noted that the Constitutional Court had found that Mr Aksoy had been remanded in
custody without it being sufficiently shown that there was any strong suspicion of an offence having
been committed, thus entailing a breach of Article 19 § 3 of the Constitution. That court had further
found that the pre-trial detention imposed on Mr Aksoy for his remarks had also constituted a
breach of the rights to freedom of expression and freedom of the press within the meaning of
Articles 26 and 28 of the Constitution.
However, the Court found that the sums awarded to Mr Aksoy by the Constitutional Court by way of
non-pecuniary damage and costs and expenses had been manifestly insufficient in view of the
circumstances of the case. The Court took account of its practice in similar cases2
The Court thus noted that in spite of the payment by way of reparation for his complaints under Article 5 §§ 1 and 3
and Article 10, Mr Aksoy could still claim to be a victim within the meaning of Article 34 (right of
individual application) of the Convention.
Article 5 §§ 1 and 3 (right to liberty and security)
The Constitutional Court had established, as stated above, that Mr Aksoy had been placed and held
in pre-trial detention in breach of Article 19 § 3 of the Constitution. That finding had amounted in
substance to an acknowledgement that the deprivation of liberty complained of by Mr Aksoy was in
breach of Article 5 § 1 of the Convention. The Court therefore endorsed the conclusions that had
been reached by the Constitutional Court following a thorough examination.
As regards Article 15 of the Convention and Turkey’s derogation from it, the Court noted that Mr
Aksoy had been remanded in custody under Article 100 of the Code of Criminal Procedure. This
provision, which required the presence of factual elements demonstrating the existence of strong
suspicions that an offence had been committed, had not been modified during the state of
emergency. No derogation could therefore have applied to Mr Aksoy’s situation on the basis of
Article 15 (derogation during a state of emergency) of the Convention.
Consequently, there had been a violation of Article 5 § 1 of the Convention in the present case in
view of the absence of plausible grounds for suspecting Mr Aksoy of having committed a criminal
offence.
Having regard to its finding under Article 5 § 1 of the Convention, the Court considered that it was
not necessary to examine whether the authorities had kept the applicant in pre-trial detention on
grounds that could be regarded as “relevant” and “sufficient” in order to justify his detention within
the meaning of Article 5 § 3 of the Convention.
Article 10 (freedom of expression)
The Court emphasised that the deprivation of liberty sustained by Mr Aksoy had constituted an
interference with his rights under Article 10 of the Convention. Under Article 100 of the Code of
Criminal Procedure, a person could be remanded in custody only where there were factual grounds
for a strong suspicion that he or she had committed an offence. In this context, the Court had
already found that Mr Aksoy’s detention was not based on reasonable grounds for such a suspicion,
in breach of Article 5 § 1 (c) of the Convention, and that there had therefore been a violation of his
right to liberty and security.
The Court further observed that Article 5 § 1 of the Convention contained an exhaustive list of cases
where a person could be deprived of his or her liberty. Such a measure would not be lawful if it did
not fall within one of those cases. It followed that the interference with Mr Aksoy’s rights and
freedoms under Article 10 of the Convention could not be justified since it was not prescribed by
law.
Furthermore, the Court observed that the Constitutional Court had concluded that Mr Aksoy’s pretrial detention in connection with his articles and publications could not be regarded as a necessary and proportionate interference in a democratic society. The Constitutional Court had noted that the
content of the offending writings was similar to the views held by a section of public opinion and by leaders of the political opposition. Considering that the competent judicial authorities had not demonstrated that his deprivation of liberty met a pressing social need, it had ruled that the
detention, not being based on any concrete element other than his articles and speeches, could have had a chilling effect on freedom of expression and freedom of the press. It had therefore found a breach of Articles 26 and 28 of the Constitution.
In the light of this reasoning, the Court considered that there was no reason to reach a different
conclusion from that of the Constitutional Court as to the necessity of the interference in a
democratic society.
The Court further noted that the pre-trial detention of critics created numerous negative effects,
both for the person detained and for society as a whole, since to impose a measure resulting in
deprivation of liberty, as was the case here, inevitably had a chilling effect on freedom of expression
by intimidating civil society and silencing dissenting voices.
In the absence of any serious reason to depart from its assessment of the application of Article 15
(derogation during a state of emergency) of the Convention in relation to Article 5 § 1 of the
Convention, the Court considered that its findings also applied in the context of Article 10.
Accordingly there had been a violation of Article 10 of the Convention.
Article 5 § 4 (inability to access investigation file)
The Court observed that on 20 August 2016, the Justice of the Peace of Istanbul had decided to limit
the access of the applicant and his lawyers to the investigation file. Consequently, they had not been
able to see the evidence used to justify Mr Aksoy’s placement in detention until 18 January 2017,
date of the filing of the indictment.
However, the Court noted that Mr Aksoy, assisted by his lawyers, had been questioned in detail on
the evidence by the competent authorities, first by the investigators and then by the Justice of the
Peace, who had put questions to him on this subject. Therefore, even though Mr Aksoy had not
enjoyed unlimited access to the evidence in the file, he had obtained sufficient knowledge of the
content of those items which had been of crucial importance for the purpose of effectively
challenging the lawfulness of his pre-trial detention. Consequently, the Court took the view that
there had been no violation of Article 5 § 4 of the Convention.
Other Articles
The Court found that Mr Aksoy’s complaint under Article 5 § 4 (right to a speedy decision on the
lawfulness of detention) and in particular on the duration of the proceedings in the Constitutional
Court was manifestly ill-founded. It referred in this connection to the conclusions it had reached in
its judgments in Mehmet Hasan Altan v. Turkey3 and Şahin Alpay v. Turkey.
The Court further found that, having regard to its findings under Article 5 § 1 and Article 10 of the
Convention, it was not necessary to examine separately his complaint under Article 18 (limitation on
use of restrictions on rights) of the Convention.
Just satisfaction (Article 41)
The Court held that Turkey was to pay Mr Aksoy 11,500 euros (EUR) in respect of non-pecuniary
damage and EUR 3,175 in respect of costs and expenses.
Separate opinions
Judges Bošnjak, Ranzoni and Koskelo expressed a joint partly dissenting opinion. Judge Yüksel
expressed a partly dissenting opinion. These opinions are annexed to the judgment.
