Article 5§3, 5§4 and 10 European Convention on Human Rights and Holding Two Investigative Journalists in Pre-Trial Detention for Over a Year Breached the Convention ECHR 08.07.2014 (Second Section) appl. no. 38270/11 (Nedim Şener v. Turkey)

AİHS Madde 5§3, 5§4 ve 10 Nedim Şener v. Turkey ve Ahmet Şik v. Turkey/ Soruşturma Altındaki İki Gazetecinin Bir Yıldan Uzun Süre Tutuklu Yargılanmasına Karar Verilerek, Sözleşme Kurallarının İhlal Edilmesi

Ezgi KANÇAL

In today’s Chamber judgments in the cases of Nedim Şener v. Turkey and Şık v. Turkey, the European Court of Human Rights held, unanimously, that there had been: a violation of Article 5 § 3 (right to liberty and security) of the European Convention on Human Rights; a violation of Article 5 § 4 (right to have the lawfulness of detention decided speedily); and a violation of Article 10 (freedom of expression). The cases concerned the continued pre-trial detention of investigative journalists accused of aiding and abetting the criminal organisation Ergenekon, whose members were convicted in 2013 of fomenting a coup d’état. The Court held that the authorities had kept the journalists Mr Şener and Mr Şık in pre-trial detention for reasons that were neither “relevant” nor “sufficient” to justify its length, which exceeded one year. It considered that neither the journalists nor their lawyers had had an opportunity to challenge in a satisfactory manner the reasons given to justify that detention. Indeed, custodial measures of this kind were liable to create a climate of self-censorship for any investigative journalist wishing to conduct research and comment on the conduct and actions of State bodies.

Article 5§3 ECHR, Article 5§4 ECHR, Article 10 ECHR, Right to Liberty and Security, Right to Have the Lawfulness of Detention Decided Speedily, Freedom of Expression, Violation of Pre-Trial Detention.

Avrupa İnsan Hakları Mahkemesi, Nedim Şener - Türkiye davası (başvuru no. 38270/11) ve Şık / Türkiye (53413/11 no.lu başvuru) davalarında oybirliği ile: Avrupa İnsan Hakları Sözleşmesinin Madde 5§3 (özgürlük ve güvenlik hakkı); Madde 5§4 (tutukluluğun yallığında hızla karar verilmesi hakkı) ve Madde 10’nun (ifade özgürlüğü) ihlal edildiğine karar vermiştir. Davalar, 2013 yılında üyeleri bir darbe önergesi yapmaktan hüküm giyen suç örgütü Ergenekon’a yardım ve yataklık etmekle suçlanan araştırmacı gazetecilerin tutukluluk hallerinin devam etmesiyle ilgilidir. Mahkemeye göre, yetkililer gazeteci Şener ve Şık’ı, bir yılı aşan tutukluluklarının süresini haklı çıkarmak için “uygun” ve “yeterli” olmayan nedenlerle tutuklu yargılanmalarına devam etmiştir. Gazeteciler ve avukatları, tutuklamayı haklı çıkarmak için gösterilen nedenlere, tatmin edici bir şekilde meydan okuma fırsatı bulamamışlardır. Nitekim, bu tür gözaltı tedbirleri, Devlet organlarının davranış ve eylemleri hakkında araştırma yapmak ve yorum yapmak isteyen araştırmacı bir gazeteci için sansür ortamı yaratır.

AİHS Madde 5§3, AİHS Madde 5§4, AİHS Madde 10, Özgürlük ve Güvenlik Hakkı, Tutukluluğun Yasallığında Hızla Karar Verilmesi Hakkı, İfade Özgürlüğü, Duruşma Öncesi Tutukluluğun İhlali.

Preface

Relying on Article 3 (prohibition of torture and inhuman or degrading treatment), Mr Şener alleged that his arrest amounted to degrading treatment. Under Article 5 § 3 (right to liberty and security), both applicants complained that the judicial decisions concerning their pre-trial detention and rejecting their applications for release had not been based on any specific evidence. Relying on Article 5 § 4 (right to have lawfulness of detention decided speedily), they alleged that they had been unable to contest effectively the lawfulness of their pre-trial detention, and maintained that the judicial authorities that had refused to inform them of the evidence against them had infringed the principle of equality of arms and the adversarial principle. Relying on Article 10 (freedom of expression), the applicants complained of an infringement of their right to freedom of expression on account of the decisions ordering and extending their pre-trial detention.

Case of Nedim Şener v. Turkey & Ahmet Şık v. Turkey (38270/11 & 53413/11)

The applicant in the first case; Nedim Şener is an investigative journalist whose work has focused mainly on misappropriation by politicians and businessmen, the links of certain members of the security forces with Mafia-type and terrorist organisations, offences committed by the intelligence services and the influence of religious circles on the police.

The applicant in the second case; Ahmet Şık is an investigative journalist, a freelance reporter, photographer and writer. His articles deal with freedom of expression, a number of unsolved killings, problems with the operation of the judicial system, police violence and Kurdish issues.

Both applicants have received numerous awards for their journalism. In 2007 the Istanbul public prosecutor’s office commenced a criminal investigation into the suspected. On 3 March 2011 the police searched the homes and work premises of Mr Şener and Mr Şık. The two journalists were taken into police custody. Mr Şık’s arrest produced an immediate reaction and protests both nationally and internationally, including from the Commissioner for Human Rights of the Council of Europe and the organisation Reporters without Borders. On 5 March 2011 the judge of the Istanbul Assize Court remanded the two journalists in custody on suspicion of membership of the terrorist organisation Ergenekon. The same day Mr Şener was questioned first by the police, then by the prosecutor and lastly by the judge of the Istanbul Assize Court. On 26 August 2011 the prosecuting authorities indicted Mr Şener and Mr Şık before the Assize Court on charges of aiding and abetting the criminal organisation Ergenekon and participating or assisting in the production of two books which accused the government of promoting the infiltration of Islamists into State structures. The books also insinuated that the Ergenekon trial had been diverted from its proper purpose by the same Islamist leaders, seeking to stifle opposition to the government. These proceedings against the applicants are still pending. Mr Şener and Mr Şık lodged several applications for release which were all rejected. The applicants were released on 12 March 2012. The applicants relied on Article 3 (prohibition of torture and inhuman or degrading treatment) because of their arrests amounted to degrading treatment. Under Article 5 § 3 (the right to liberty and security), both applicants complained that the judicial decisions concerning their pre-trial detention and rejecting their applications for release had not been based on any specific evidence. Furthermore, Relying on Article 5 § 4 (right to have lawfulness of detention decided speedily), they alleged that they had been unable to contest effectively the lawfulness of their pre-trial detention, and maintained that the judicial authorities that had refused to inform them of the evidence against them had infringed the principle of equality of arms and the adversarial principle. Relying on Article 10 (freedom of expression), the applicants complained of an infringement of their right to freedom of expression on account of the decisions ordering and extending their pre-trial detention. Mr Şener’s application was lodged with the European Court of Human Rights on 1 July 2011. Mr Şık’s application was lodged on 25 August 2011.

Decision of the Court

The court had rejected the application referring to Article 3. On the other hand they had accepted the violations of paragraphs 3 and 4 of Article 5 and Article 10 of the European Convention on Human Rights. Paragraphs 3 and 4 of the Article 5 about right to liberty and security and right to have the lawfulness of detention decided speedily. The Court further noted that Mr Şener and Mr Şık had been accused of using “black propaganda” methods to insidiously undermine public confidence in the judiciary. The Court observed that this act as such was not punishable under the Criminal Code. Even if the books in question had contained assertions that were untrue, the Court pointed out that the offences of defamation or bringing pressure to bear on the judiciary were less serious in nature than the crimes of belonging to or assisting a terrorist organisation, and did not warrant such a long period of pre-trial detention. Contrary to the general legal principle that no one’s own case can be judged, it is understood that the aim of measure is to punish those who criticize the Ergenekon case, rather than bringing the suspected terrorist suspects to justice. And finally, a violation of Article 10; The Court considered that, in detaining the applicants for such a long period without relevant or sufficient reasons, the judicial authorities had had a chilling effect on the applicants’ willingness to express their views on matters of public interest. According to the Court, there is a possibility of creating an environment of auto cencorship for any investigative journalist and applicants, who are planning to implement such a measure, conduct research and comment on the operation and management of the State bodys.

The Court held that Turkey was to pay EUR 20.000 to Mr. Şener and EUR 10.000 to Mr. Şık in respect of non-pecuniary damage.