The pre-trial detention of the singer and columnist Atilla Taş, on account of tweets and articles written by him, was unlawful and arbitrary

Article 10
10/02/2021 19:45
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JUDGMENT

Atilla Taş v. Turkey 19.01.2021 (app. no. 72/17)

SUMMARY

The case concerned the pre-trial detention of the singer and columnist Atilla Taş because of tweets
he posted on his Twitter account and articles and columns he wrote in the daily newspaper Meydan,
between 2011 and 2016, criticising government policies. Mr Taş was prosecuted for terrorismrelated offences.
The European Court of Human Rights held:
– unanimously, that there had been:
a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human
Rights, and
a violation of Article 10 (freedom of expression)
– by a majority (four votes to three), that there had been:
no violation of Article 5 § 4 (inability to consult the investigation file).

The Court found in particular that at the time of Mr Taş’s placement in pre-trial detention there had
been no facts or information that would satisfy an objective observer that he had committed the
offences in question. Although it could be regarded as sharply critical of the policies of the
government and the President of the Republic, the content of the applicant’s articles and tweets was
not capable of satisfying an objective observer of the plausibility of the accusations on which the
order for his pre-trial detention had been based. Furthermore, through his articles and tweets
Mr Taş had expressed his disagreement with the functioning of the political system in Turkey, at
times in satirical fashion, and had mainly expressed views on matters of general interest.

Accordingly, none of the decisions concerning his initial and continued pre-trial detention contained
evidence capable of establishing a plausible link between his actions – namely, his articles and
tweets of a political nature – and the terrorism-related offences of which he was accused. The
interpretation and application of the legal provisions relied on by the domestic authorities had thus
been unreasonable to the point of rendering Mr Taş’s detention unlawful and arbitrary.

The Court also held that the applicant’s detention had amounted to an interference with his right to
freedom of expression that had not been prescribed by law.

The Court further found that, even though Mr Taş had not been allowed unlimited access to the
evidence, he had been sufficiently acquainted with the content of those items of evidence that were
essential in order to effectively challenge the lawfulness of his detention.

Lastly, the Court dismissed the applicant’s complaint concerning the length of the proceedings
before the Constitutional Court.

PROVISIONS

Article 5§1,

Article 5§4,

Article 5 §§ 1 (c) and 3

Άrticle 10,

Article 15,

Article 18

PRINCIPAL FACTS

The applicant, Atilla Taş, is a Turkish national who was born in 1971 and lives in Istanbul (Turkey).
Mr Taş, who is a well-known singer, was also a columnist for the daily newspaper Meydan prior to
the attempted military coup of 15 July 2016. The newspaper was closed down following the
enactment of Legislative Decree no. 668 on 27 July 2016.

During the years preceding the attempted coup of 15 July 2016 Mr Taş had become known for his
critical stance towards the policies of the government of the day. In that context he had posted a
number of tweets on his Twitter account.

On 30 August 2016, when he was in Bursa, he learned through the media that he was a suspect in a
criminal investigation concerning alleged members of FETÖ/PDY (“Fethullahist Terror
Organisation/Parallel State Structure”). The following day he was arrested and taken into police
custody at the premises of the counter-terrorism branch of the Istanbul police, where he was
questioned by police officers. He was then brought before the Istanbul public prosecutor.

On 3 September 2016 Mr Taş appeared before the Istanbul 1st Magistrate’s Court on suspicion of
knowingly and intentionally assisting a terrorist organisation. The magistrate remanded him in
custody.

On 18 January 2017 the Istanbul public prosecutor’s office charged 29 people, including Mr Taş, with
belonging to a terrorist organisation. The applicant was accused of lending support to a television
station which allegedly had links to FETÖ/PDY, of criticising the investigations into alleged members
of that organisation with a view to discrediting the investigations, and of making accusations against
the President of the Republic similar to those made by the members of that organisation.

On 31 March 2017, following a hearing before the 25th Assize Court, the public prosecutor sought
the release of several of the defendants including Mr Taş. On the same day the Assize Court ordered
the release of Mr Taş and some of his co-defendants.

A few hours after this decision the Istanbul public prosecutor’s office commenced a fresh
investigation concerning Mr Taş. The applicant was taken into police custody again, this time on
suspicion of attempting to overthrow the constitutional order and the government by force and
violence.

On 3 April 2017 the High Council of Judges and Prosecutors ordered the three-month suspension of
the judges of the Istanbul 25th Assize Court who had ordered the release of Mr Taş and other
defendants and the public prosecutor who had sought their release.

Several days later, on 14 April 2017, the Istanbul 2nd Magistrate’s Court ordered that Mr Taş and 11
other defendants be returned to detention. On 5 June 2017 the Istanbul public prosecutor’s office
filed a fresh bill of indictment against Mr Taş for attempting to overthrow the constitutional order
and the government by force and violence. The public prosecutor argued that Mr Taş had repeatedly
attempted in the past to manipulate public opinion through the press and that he had taken part in
operations designed to manipulate opinion under the orders of FETÖ/PDY.

Mr Taş was released on 24 October 2017, and on 8 March 2018 was sentenced to three years, one
month and 15 days’ imprisonment for lending assistance to a terrorist organisation without being a
member of it. However, the Court of Cassation overturned his conviction in March 2020 and the
criminal proceedings are still pending.

Lastly, Mr Taş lodged three individual applications with the Constitutional Court, which examined
them together from the standpoint of the lawfulness of his pre-trial detention in the light of
Article 19 § 3 of the Constitution. On 29 May 2019 the Constitutional Court, finding that the
applicant had been placed in pre-trial detention twice, held that there had been no breach of Article
19 § 3 of the Constitution with regard to his initial detention. The court went on to find that the
second period of detention (starting on 14 April 2017) had lacked any legal basis. It dismissed the
applicant’s remaining complaints and made an award in respect of non-pecuniary damage and costs
and expenses.

Relying on Article 5 §§ 1 and 3 (right to liberty and security), Mr Taş complained about his pre-trial
detention, arguing that there had been no evidence grounding a reasonable suspicion that he had
committed a criminal offence. He further contended that the facts giving rise to his detention fell
within the scope of his freedom of expression and that the reasons given for the decisions
concerning his pre-trial detention had been insufficient.

Relying on Article 5 § 4 (complaint concerning the inability to consult the investigation file), Mr Taş
complained of his inability to consult the investigation file in his case, preventing him from
effectively challenging his placement in pre-trial detention.

Also under Article 5 § 4 (right to a speedy review of the lawfulness of detention), the applicant
complained of the length of the proceedings before the Constitutional Court.

Relying on Article 10 (freedom of expression), he alleged a breach of his right to freedom of
expression.

Under Article 18 (limitation on use of restrictions on rights), the applicant contended that he had
been detained for expressing critical opinions.

The application was lodged with the European Court of Human Rights on 21 December 2016.
The Commissioner for Human Rights of the Council of Europe exercised her right to intervene in the
proceedings. The United Nations Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, as well as several non-governmental organisations, were given
leave to intervene in the written procedure.

THE DECISION OF THE COURT…

The period to be taken into consideration in determining the length of the detention
According to the Government, two separate criminal investigations had been conducted against
Mr Taş and he had undergone two distinct periods of detention. In their view, the present
application related only to the period of detention ending on 31 March 2017.

However, the Court noted that Mr Taş had not been released on 31 March 2017 in spite of the ruling
of the Istanbul 25th Assize Court, as on the same day, before Mr Taş could be released, the public
prosecutor had initiated a fresh criminal investigation concerning the same facts, merely altering the
legal classification of the alleged offences. Mr Taş had therefore continued to be deprived of his
liberty without the possibility of actually being released.

In the Court’s view, accepting that the applicant’s pre-trial detention had ended on 31 March 2017,
despite his having had no possibility of release, would be tantamount to permitting a circumvention
of the law that would enable the judicial authorities to continue to detain persons simply by
instituting a fresh criminal investigation concerning the same facts.

Accordingly, the Court found it established that Mr Taş had been taken into police custody again in
order to prevent the Assize Court ruling of 31 March 2017 from being implemented. Consequently,
the applicant’s pre-trial detention had begun on 31 August 2016 (the date on which he had been
taken into police custody) and had ended on 24 October 2017 (the date of his release). It had
therefore lasted for one year, one month and 25 days.

Article 5 § 1 (right to liberty and security)

The lawfulness of the applicant’s initial detention

Mr Taş had been taken into police custody on 31 August 2016. His pre-trial detention had been
ordered on 3 September 2016 by the Istanbul 1st Magistrate’s Court, whose decision had not
mentioned any evidence. Thus, the magistrate had not justified the order for the applicant’s
detention by reference to any concrete item of evidence.

As to the Constitutional Court, it had considered that there had been a strong suspicion, based on
concrete evidence, that Mr Taş had committed the offence of knowingly and intentionally assisting a
terrorist organisation. The court had relied on items of evidence not mentioned in the detention
order of 3 September 2016, which had not specified the facts and evidence giving rise to the
suspicions. The evidence in question had been produced before the courts only after the lodging of
the indictment, more than four months after Mr Taş had first been placed in pre-trial detention.

Consequently, these items of evidence were not to be taken into account in determining the
reasonableness of the suspicions grounding the initial pre-trial detention order, in so far as they had
not been relevant to the issuing of that order. The evidence in question could be taken into
consideration only in assessing whether a reasonable suspicion had persisted or arisen in the context
of the applicant’s continued detention during the criminal proceedings.

As to the lawfulness of the applicant’s initial detention, the Court considered that vague and general
references to the wording of Article 100 of the Code of Criminal Procedure and to the evidence in
the file could not be regarded as sufficient to demonstrate the reasonableness of the suspicion on
which Mr Taş’s detention was supposed to have been based, in the absence either of a specific
assessment of the individual items of evidence in the file, or of any information that could havejustified the suspicion against the applicant or of any other kinds of verifiable material or facts.

Consequently, no specific facts or information giving rise to a suspicion justifying Mr Taş’s placement
in detention had been mentioned or produced during the initial proceedings, which had
nevertheless culminated in a decision to detain the applicant. Hence, at the time of Mr Taş’s
placement in pre-trial detention, no facts or information had existed that could satisfy an objective
observer that he had committed the offences of which he was accused.

The lawfulness of Mr Taş’s continued detention and the evidence against him

In order to assess the lawfulness of the applicant’s pre-trial detention the Constitutional Court had
examined the articles and tweets written by him and found that three sets of evidence should be
taken into account. These were (1) Mr Taş’s participation in a demonstration to protest against the
appointment of an ad hoc trustee to run the newspaper Bugün; (2) the existence of links between
the applicant and a person known by the pseudonym “Fuatavni”; and (3) the articles and tweets in
question. After examining each of these items of evidence in turn, the Court noted the following.

Firstly, regarding Mr Taş’s participation in the above-mentioned gathering, the Government had not
produced any specific evidence indicating that the demonstration in question had been unlawful or
violent. In particular, at the relevant time no court had ruled that the newspaper in question had
been controlled by a terrorist organisation. Consequently, the mere fact that Mr Taş had taken part
in a peaceful gathering to protest against the appointment, by the official authorities, of an
administrator to run a newspaper – regarded at the time of the events as a dissident newspaper –
was not apt to satisfy an objective observer that Mr Taş had committed a terrorist offence. In the
Court’s view, the act of which the applicant was accused was connected to the exercise of his rights
under the Convention, and in particular under Articles 10 (freedom of expression) and 11 (freedom
of assembly and association).

Secondly, with regard to the existence of links between the applicant and the owner of the Twitter
account “Fuatavni”, which was influential at the time and which allegedly disseminated propaganda
on behalf of FETÖ/PDY, the Constitutional Court had failed to explain what tangible links there might
have been between Mr Taş and “Fuatavni”. In the Court’s view, a mere reference to the indictment
could by no means be regarded as sufficient to demonstrate the reasonableness of the suspicions on
which the applicant’s detention was supposed to have been based.

Thirdly, the Constitutional Court had held that Mr Taş’s pre-trial detention had been justified on the
basis of his articles and tweets. Referring in general terms to their content, it found that it was not
arbitrary to consider that Mr Taş had praised FETÖ/PDY and had also sought to legitimise that
organisation and discredit the investigations concerning its alleged members. However, the court
had omitted to specify which articles and tweets written by the applicant had been apt to give rise to
suspicions that he had committed a terrorist offence. The Government referred more specifically to
certain articles and tweets, arguing that they had served as a basis for the attempted military coup
and amounted to incitement to violence, and that by publishing them Mr Taş had furthered the
cause of FETÖ/PDY. In that connection the Court considered that the content of the applicant’s
articles and tweets could in no sense be interpreted as a call to violence, and that his remarks clearly
did not amount to terrorist indoctrination, praise for the perpetrator of a terrorist attack,
denigration of the victims of an attack, a call to fund terrorist organisations, or any other similar
form of conduct. In the Court’s view, although it could be regarded as sharply critical of the policies
of the government and the President of the Republic, the content of Mr Taş’s articles and tweets
was not capable of satisfying an objective observer of the plausibility of the accusations on which
the order for his pre-trial detention had been based. Against that background, the Court considered
that the reasonableness of the suspicions could not be stretched to the point where the applicant’s
right to freedom of expression under Article 10 of the Convention was impaired.

Furthermore, the Constitutional Court appeared to have lent particular weight to the fact that
Mr Taş had published his articles and tweets at a time when the public authorities were taking action
against FETÖ/PDY and that he had continued to publish the material in question until the attempted
military coup of 15 July 2016. The Court noted that the material in question had been written over a
very long period, between 2011 and 2016. During that time the applicant had expressed his views on
political affairs and matters of general interest. Moreover, prior to the declaration of the state of
emergency, no specific action had been taken against Mr Taş for his written remarks. It was only
after the declaration of the state of emergency, several years after publication of most of the articles
and tweets in question, that the judicial authorities had formed the view, without actually seeking to
establish the applicant’s intentions, that this material sufficed to justify a criminal investigation and
the applicant’s pre-trial detention. Through these articles and tweets, Mr Taş had expressed his
disagreement with the functioning of the political system in Turkey, at times in satirical fashion, and
had mainly expressed views on matters of general interest. In the absence of other reasons and
evidence legitimising Mr Taş’s pre-trial detention, the Court was therefore not satisfied that the
articles and tweets referred to by the Government had been sufficient to justify that measure.

Consequently, none of the decisions concerning the applicant’s initial and continued pre-trial
detention contained evidence capable of establishing a plausible link between his actions – namely,
his articles and tweets of a political nature – and the terrorism-related offences of which he was
accused. Thus, the interpretation and application of the legal provisions relied on by the domestic
authorities had been unreasonable to the point of rendering Mr Taş’s detention unlawful and
arbitrary.

Derogation in time of emergency (Article 15 of the Convention)

Mr Taş had been placed in pre-trial detention under Article 100 of the Code of Criminal Procedure.
That provision, which required the presence of factual evidence giving rise to strong suspicion that
the person had committed an offence, had not been amended during the state of emergency.

Hence, no derogating measure had been applicable to the applicant’s situation.

In sum, there had been a violation of Article 5 § 1 of the Convention in view of the lack of a
reasonable suspicion that Mr Taş had committed a criminal offence.

In view of that finding, the Court considered it unnecessary to examine separately whether the
reasons given by the domestic courts for the applicant’s detention had been based on relevant and
sufficient grounds (Article 5 §§ 1 (c) and 3 of the Convention).

Article 5 § 4 (complaint of inability to consult the investigation file)

On 29 August 2016 the Istanbul 3rd Magistrate’s Court had decided to restrict access to the
investigation file by Mr Taş and his lawyers. They had thus been unable to view the evidence used to
justify the applicant’s placement in pre-trial detention until the bill of indictment was filed on
18 January 2017.

The Court noted that the order for Mr Taş’s pre-trial detention had been based mainly on the
remarks made by the applicant in his articles and social-media posts. This was confirmed by the bill
of indictment filed by the Istanbul public prosecutor’s office. The Court also observed that Mr Taş,
assisted by his lawyers, had been asked detailed questions about this evidence by the competent
authorities, first by the investigating authorities and then by the magistrate, and that the content of
the questions had been reproduced in the relevant records. Accordingly, even though Mr Taş had
not been allowed unlimited access to the evidence, he had been sufficiently acquainted with the
content of those items of evidence that were essential in order to effectively challenge the
lawfulness of his pre-trial detention.

There had therefore been no violation of Article 5 § 4 of the Convention.

Article 10 (freedom of expression)

The Court considered that Mr Taş’s detention had amounted to interference with his rights under
Article 10 of the Convention. It noted that, according to Article 100 of the Code of Criminal
Procedure, a person could only be placed in pre-trial detention where there was factual evidence
giving rise to strong suspicion that he or she had committed an offence. In that context it pointed to
its finding that Mr Taş’s detention had not been based on reasonable suspicion that he had
committed an offence. It further observed that Article 5 § 1 of the Convention contained an
exhaustive list of permissible grounds on which persons could be deprived of their liberty and that
no deprivation of liberty would be lawful unless it fell within one of those grounds. Consequently,
the interference with Mr Taş’s rights and freedoms had not been prescribed by law.

There had therefore been a violation of Article 10 of the Convention.

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