Press Release No: Individual Application 4/18
11.01.2018

PRESS RELEASE CONCERNING THE DECISION ON DETENTION OF THE APPLICANT WHO IS A JOURNALIST (ŞAHIN ALPAY)

On 11 January 2018, the Plenary of the Constitutional Court found violations of the right to personal liberty and security and the freedoms of expression and press in the individual application lodged by Şahin Alpay (no. 2016/16092) on the grounds briefly explained below.

The applicant has been detained on remand on account of his articles titled “Din Savaşıymış (It was a War of Religion)”, “Erdoğan ile Batı Arasında (Between Erdoğan and the West)”, “Evet Suçta Cezada Şahsidir (Yes, Both Crime and Punishment are Personal)”, “Bu Millet Bidon Kafalı Değildir (This Nation is not Empty-Headed)”, “Çıkar Yol Erdoğansız Hükümet (Solution is a Government without Erdoğan)” and “Cumhurbaşkanı Seyirci Kalamaz (President cannot Stand as an Onlooker)”.

The investigation authorities maintained that these articles were written in line with the aims of the FETÖ/PDY, relying on the fact that given the information known by the public, the applicant should have been aware that the FETÖ/PDY was an illegal structure and should have foreseen that this structure might have engaged in an armed insurrection, as well as the fact that the applicant had continued writing articles in the daily newspaper Zaman operating on behalf of this structure in spite of the investigations of 17-25 December and detention of the editor-in-chief of the same newspaper within the scope of an investigation into the FETÖ/PDY.

The articles were written in late 2013 and early 2014. These articles relate to the “investigations of 17-25 December” carried out at that time and reactions displayed by the Government to these investigations. Neither the detention order against the applicant nor the indictment include any concrete facts as to the grounds justifying the acknowledgement that the applicant’s articles —through which he conveyed his opinions similar to those of a certain part of the public and the leaders of the opposition on a current issue occupying the country’s agenda for months— were written with a view to serving for the aims embraced by the FETÖ/PDY.   

Therefore, in the present case, it has been concluded that a strong indication of guilt could not be sufficiently demonstrated, and the right to personal liberty and security has been violated.

It has been also concluded that, irrespective of the content of the articles, the applicant’s detention constitutes a breach of the freedoms of expression and press, along with the right to personal liberty and security. 

Given the above determinations concerning the lawfulness of detention and regard being had to the fact that the principal facts relied on in charging the applicant were the  articles, such a strict measure as detention cannot be considered as a necessary and proportionate measure in a democratic society in terms of the freedoms of expression and press.

In addition, the applicant was detained due to articles containing opinions similar to those expressed by a part of the public, which results in breach of the freedoms of expression and press. What “pressing social need” led to such an interference and why it was necessary in a democratic society cannot be understood from the circumstances of the case and the grounds for detention.

Lastly, it is clear that the applicant’s being detained on remand without providing any concrete fact, other than the articles published, may also have a deterrent effect on the freedoms of expression and press.

Therefore, it has been concluded that there have been violations of the freedoms of expression and press.

The Facts

The applicant is a well-known journalist and author.

On the night of 15 July 2016, Turkey faced a military coup attempt. Therefore, a state of emergency was declared countrywide on 21 July 2016. The public authorities and the investigation authorities stated, relying on facts, that the Fetullahist Terrorist Organization (FETÖ) and/or Parallel State Structure (PDY) was the plotter/perpetrator of the coup attempt.

In this scope, investigations have been conducted against the structures of the FETÖ/PDY in various fields such as education, health, trade, civil society and media in public institutions, and many persons have been taken into custody and detained.

The Istanbul Chief Public Prosecutor’s Office initiated an investigation in relation to the media structure of the FETÖ/PDY against forty three suspects, including the applicant, many of whom were journalists, authors and academicians.

The investigation authorities maintained that notably in the aftermath of the “investigations of 17-25 December”, the applicant wrote articles praising the structure and serving to undermine the investigations conducted into the Zaman newspaper, which was operating on behalf of the FETÖ/PDY, in line with the aims of this structure.

On 30 July 2016, the Magistrate Judge’s Office ordered the detention of six suspects including the applicant for their alleged membership of a terrorist organization.

In its indictment of 10 April 2017, the Istanbul Chief Public Prosecutor’s Office noted that the suspects including the applicant were involved in the media branch of the FETÖ/PDY; and that they committed the imputed offences by fulfilling their roles within the organizational strategy and hierarchy with a view to overthrowing the constitutional order, the Grand National Assembly of Turkey (“the GNAT”) and the Government of the Republic of Turkey, which are the general strategy of the organization. The applicant was indicted for attempting to overthrow the constitutional order, the GNAT or prevent it from performing its duties, attempting to overthrow the Government of the Republic of Turkey or prevent it from performing its duties and committing crime on behalf of a terrorist organization without being a member of it.

The case was pending before the first instance court as of the date when the individual application is examined.

The Applicant’s Allegations

The applicant maintained that he was a journalist and working as a columnist in return for royalty fee; that his articles fell into the scope of the freedoms of expression and press, and that he was detained on remand without the submission of any concrete facts as to the grounds thereof. He accordingly alleged that his right to personal liberty and security and his freedoms of expression and press were violated.

Asserting that his health was at serious risk and was not convenient for prison terms, the applicant also maintained that there was a breach of the prohibition of ill-treatment. 

The Constitutional Court’s Assessment

Alleged Unlawfulness of Detention

In brief, the Constitutional Court made the following assessments:

The examination of the Constitutional Court will be limited to the assessment of the lawfulness of the applicant’s detention on remand, independently of investigation and criminal procedures against the applicant and the possible results. In addition, the issue as to whether Article 19 § 3 of the Constitution have been violated is to be examined in the specific circumstances of each application.

In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. In Article 19 §§ 2 and 3, it is provided that individuals may be deprived of liberty under the circumstances set forth therein and with due process of law. Therefore, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists.

Moreover, an interference with the right to liberty and security constitutes a breach of Article 19 of the Constitution unless it also complies with the conditions set out in Article 13 of the Constitution in which the criteria with respect to the restriction of fundamental rights and freedoms are specified. It is therefore necessary to determine whether the restriction complies with the requirements enshrined in Article 13 of the Constitution; i.e., the requirements of being prescribed by law, relying on one or more valid reasons specified in the relevant articles of the Constitution, and not being contrary to the principle of proportionality.  

Pursuant to Article 19 § 3 of the Constitution, the detention measure can be applied only for “individuals against whom there is a strong indication of guilt”. In other words, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. Therefore, in every concrete case, it must be assessed whether this prerequisite has been fulfilled or not prior to making an examination as to the other requirements of detention. Strong indication of guilt is acknowledged only in cases where the accusation is supported with convincing evidence likely to be regarded as strong.    

In every concrete case, it falls in the first place upon the incumbent courts deciding detention cases to determine whether the prerequisites for detention, i.e., the strong indication of guilt and other grounds exist, and whether the detention is a proportionate measure. As a matter of fact, those authorities which have direct access to the parties and evidence are in a better position than the Constitutional Court in making such determinations. However, it is the Constitutional Court’s duty to review whether the judicial authorities have exceeded the discretion conferred upon them. The Constitutional Court’s review pertains especially to the detention process and the grounds of detention order within the scope of the circumstances of the concrete case.

In line with these general principles, it must be primarily assessed whether there is a strong indication of guilt on the part of the applicant in the present case.

In the detention order, a general assessment was provided for all suspects in respect of the conditions for detention including the strong indication of guilt. In this respect, in concluding that there was strong indication of guilt on the part of the suspects, the following facts were relied on: the FETÖ/PDY’s members within the Turkish Armed Forces (“the TAF”) attempted to stage the coup, the suspects were publishing articles praising this organization and serving to undermine the investigations into —especially in the aftermath of the investigations of 17-25 December— the Zaman newspaper operating for the FETÖ/PDY. They were also sharing posts via their social media accounts to that end. Thereby, the suspects engaged in propaganda activities in line with the organizational aims. They were aware of the fact the FETÖ/PDY was an armed organization on the grounds that a criminal case had been brought against E.D., editor-in-chief of the same newspaper, for his alleged membership of an armed terrorist organization and that, before the coup attempt, there had been hearsay that this organization would perform an armed insurrection. However, the suspects maintained taking role within and contributing to this organization.

In the detention order, there is no assessment as to which article or social media post of the applicant was considered to fall into this scope. The applicant’s articles considered to constitute an offence are indicated in the indictment; however, his social media posts are not specified therein.

Accordingly, the assessment as to whether there was strong indication of guilt on the part of the applicant is limited to merely the applicant’s articles which are referred to in the indictment. These articles are the ones titled “It was a War of Religion”, “Between Erdoğan and the West”, “Yes, Both Crime and Punishment are Personal”, “This Nation is not Empty-Headed”, “Solution is a Government without Erdoğan” and “President cannot Stand as an Onlooker”.

The impugned articles were written in late 2013 and early 2014 and discussed the reactions shown by the Government to the “investigations of 17-25 December”, which were being conducted at the relevant time.   

In his articles, the applicant stated in brief that the Government members whose names were mentioned in these investigations must be brought before the courts, that due to the Government’s failure to take necessary steps in this respect, the President or certain persons within the ruling party should take an action, and that the Government’s reactions to these investigations were unjustified. He further indicated that in case of revealing the fact that these investigations had been conducted by the members of the FETÖ/PDY in line with an organizational instruction, a legal action must be taken against these members; and that however, it would be unlawful to target everyone being a member of this structure called as the “hizmet movement”. In these articles, there is no statement indicating that the Government must be overthrown by use of force. On the contrary, the applicant argued that the ruling party had been losing votes and accordingly forecasted that the Government would change by way of elections. In his article written one day before the coup attempt, the applicant also expressed that he was opposed to coup.

The investigation authorities maintain that the articles were written in line with the aims ofy the FETÖ/PDY. In so doing, the investigation authorities relied on the considerations that, given the information known by the public, the applicant should have known that the FETÖ/PDY was an illegal organization which might have engaged in armed insurrection; and that he continued writing articles in the Zaman daily newspaper in spite of the “investigations of 17-25 December” and detention of the editor-in-chief of the same newspaper within the scope of the FETÖ/PDY.

However, the detention order or the indictment does not provide any concrete facts as to the grounds justifying the consideration that the applicant’s articles in which he expressed opinions similar to those of a certain section of the public and leaders of the opposition were written in order to serve for the aims of the FETÖ/PDY. The fact that the applicant had expressed such opinions in his articles published in the Zaman cannot be per se considered to be sufficient to reach the conclusion that these articles were written by knowing of, and in line with, the aims of the FETÖ/PDY.

In this respect, it has been concluded that “the strong indication of guilt” could not be sufficiently demonstrated, and the right to personal freedom and security was violated in the present case.

It has been further considered that nor does Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a “state of emergency”, justify the interference with the applicant’s right to personal liberty and security in breach of the safeguards set out in Article 19 § 3 of the Constitution.

For these reasons, it has been concluded that, also taken in conjunction with Article 15 of the Constitution, the applicant’s right to personal liberty and security was breached.

Alleged Violation of the Freedom of Expression

The freedom of expression enshrined in Article 26 of the Constitution and the freedom of press, another form of the freedom of expression which is subject to special safeguards and enshrined in Article 28 of the Constitution, constitutes one of the mandatory pillars of a democratic society and conditions sine qua non for the progress of the society and the improvement of each individual.

In spite of their significance in a democratic society, the freedoms of expression and press are not absolute and may be subject to certain restrictions, provided that the safeguards set out in Article 13 of the Constitution are complied with. Unless it complies with the requirements of Article 13 of the Constitution concerning the restriction of fundamental rights and freedoms, an interference with the freedoms of expression and press would be in breach of Articles 26 and 28 of the Constitution in addition to Article 13. Therefore, it must be determined whether the interference in question complies with the requirements of being prescribed by law, relying on one or more justified grounds specified in the relevant provisions of the Constitution, and not being contrary to the requirements of a democratic society, as well as the principle of proportionality, which are enshrined in Article 13 of the Constitution.

It is obvious that public authorities enjoy a margin of appreciation in assessing the criteria of a democratic society and the principle of proportionality. However, in interfering with the freedoms of expression and press within this margin of appreciation, the public authorities must show “relevant and sufficient” grounds. It is for the Constitutional Court to make the final assessment as to whether an interference to be made within this framework complies with the safeguards enshrined in the Constitution. The Constitutional Court makes such an assessment on the basis of the grounds given by the public authorities and especially the inferior courts.

Regard being had to the questions directed to the applicant by the investigation authorities and the grounds of his detention order, it appears that the applicant is charged principally on account of his articles in the newspaper. Accordingly, it has been revealed that, irrespective of the content of the articles, the applicant’s detention also constitutes a breach of the freedoms of expression and press, along with the right to personal liberty and security. As to the alleged violation of the freedoms of expression and press, it has been observed that the interference fulfilled the requirement of being prescribed by law. In addition, the applicant has been detained on remand for allegedly writing articles in line with the aims of the FETÖ/PDY, which has carried out activities against the national security and is the organization behind the coup attempt. Therefore, it has been concluded that the interference with applicant’s freedoms of expression and press achieved legitimate aim, depending on the grounds specified in the Constitution.

Having a legal basis and achieving a legitimate aim, however, do not suffice for the interference to comply with the Constitution. For an assessment as to whether the applicant’s detention has constituted a breach of the freedoms of expression and press, the present case must be examined also in terms of the requirement of being necessary in a democratic society and the principle of proportionality. The Constitutional Court makes this examination over the detention process and the reasoning of the detention order. 

Regard being had to the above-mentioned findings with respect to the lawfulness of the detention and the fact that the main basis for the accusations against the applicant is the articles, a severe measure such as detention —lacking the lawfulness requirement— cannot be regarded as a necessary and proportionate interference in a democratic society in terms of the freedoms of expression and press.

Moreover, a measure interfering with the freedoms of expression and press must meet a pressing social need and must be a measure of last resort. A measure failing to achieve these requirements cannot be considered to comply with the requirements of a democratic society. It cannot be comprehended, from the circumstances of the present case and reasoning of the detention order, due to which “pressing social need” the applicant’s freedoms of expression and press were interfered considering that he expressed opinions similar to those of a certain part of the public at the relevant time.

Besides, in making an assessment as to the requirement of being necessary in a democratic society and proportionality, possible “deterring effect” of the interferences with the freedoms of expression and press on the applicants and generally on the press must also be taken into consideration. In the present case, it is explicit that the applicant’s being detained on remand without providing any concrete fact, other than the articles published, may also have a deterrent effect on the freedoms of expression and press.

For these reasons, it has been concluded that resorting to detention measure in respect of the applicant mainly on the basis of his articles and without establishing strong indications of guilt is contrary to the safeguards are set out in Articles 26 and 28 of the Constitution with respect to the freedoms of expression and press.

It has been considered that nor does Article 15 of the Constitution, which prescribes the suspension and restriction of fundamental rights and freedoms in time of a “state of emergency”, justify this interference.

For these reasons, it has been held that, also taken in conjunction with Article 15 of the Constitution, the applicant’s freedoms of expression and press were violated.

Alleged Violation of the Prohibition of Ill-Treatment

The information and documents provided by the prison authority reveals that the applicant, who has been detained on remand, suffers certain health problems; however, he is provided with necessary medical examinations and treatments. It has been accordingly concluded that his detention does not amount to ill-treatment in the particular circumstances of the present incident. Therefore, the Constitutional Court declared this complaint inadmissible for being manifestly-ill founded.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
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