Ahmet Hüsrev Altan v. Turkey (Application no. 13252/17)

A selection of key paragraphs can be found below the judgment.

140. … The domestic courts considered that in his capacity as the editor-in-chief of the Taraf newspaper, the applicant had published news based on fictitious documents fabricated and provided by members of FETÖ/PDY which suggested that certain high-ranking members of the military had been planning a coup. 

141.  Nevertheless, the Court notes that the “Balyoz” case took place in 2012, and that the detention of the applicant as a suspect, more than four years after the events in issue, cannot be regarded as a necessary measure. Moreover, at no stage of the investigation proceedings had the domestic authorities any concrete evidence capable of suggesting that the Taraf newspaper or, in particular, the applicant had acted under the instructions of the illegal organisation to publish specific news stories or to follow a particular editorial policy with the aim of manipulating public opinion in favour of a coup. 

143.  As to these [the] articles, in which the applicant had expressed his views about Government policies, the Court considers it important that the applicant’s remarks in the three articles should be viewed in their entirety. The metaphors used by the applicant cannot be taken as an unequivocal indication that he had prior knowledge about the coup and sought to manipulate public opinion. The messages conveyed in the three articles concerned an ongoing public debate in relation to which the applicant made an assessment of the potential risk of a military coup. In his analysis of the political situation, the applicant raised concerns and strongly criticised the Government. In the Court’s view, on the basis of those remarks, the applicant cannot be regarded as having supported a campaign of violence or legitimised such violence, but instead, as a dissident writer, he can reasonably be seen as voicing criticism against the Government. The contents of the applicant’s articles can be viewed as very harsh and may be regarded as offensive, shocking or disturbing by the State or a sector of the population. However, in the Court’s view, they would not satisfy an objective observer that the applicant may have committed the offences for which he was placed in pre-trial detention, unless other grounds and evidence justifying his detention were put forward. The notion of “reasonable suspicion” cannot be interpreted so extensively as to impair the applicant’s right to freedom of expression under Article 10 of the Convention (see Selahattin Demirtaş, cited above, § 328). 

145. The Court considers that the applicant’s remarks on the TV programme should not be taken out of their context and must be viewed in their entirety. It finds no elements to conclude that these remarks did not remain within the limits of freedom of speech, in so far as they cannot be construed as a call for violence. The fact that the applicant warned the public about a potential coup or civil war cannot justify the applicant’s pre‑trial detention in relation to the offences in question.

147. Taken overall, the analysis of the applicant’s acts shows that they fell within the exercise of his freedom of expression and freedom of the press, as guaranteed by domestic law and by the Convention. The Court finds no elements in the case file allowing it to conclude that the acts of the applicant were part of a plan pursuing an aim in breach of the legitimate restrictions imposed on those freedoms. It thereforeconsiders that the acts in question cannot be regarded as capable of grounding a “reasonable suspicion” that the applicant had committed the alleged criminal offences. 

151. In the light of the foregoing, the Court concludes that there has been a violation of Article 5 § 1 of the Convention in the present case on account of the lack of reasonable suspicion that the applicant had committed a criminal offence.

165. As to Article 15 of the Convention and the derogation submitted by Turkey, the Court recalls that the decision to restrict access to the investigation file was based on Article 3 § 1 of the Legislative Decree no. 668, which had entered into force during the state of emergency. Thus, this part of the application strictly involves a measure taken to derogate from the Convention. Having said that, the restriction to access the case file was based on the general order of the Istanbul Public Prosecutor regarding the criminal investigation in respect of suspected FETÖ/PDY members and it was issued before the applicant was arrested (see paragraph 18 above). Moreover, the restriction to the investigation file was lifted with the indictment which was filed while the state of emergency was still in force. In the Court’s view, even in the framework of a state of emergency, the fundamental principle of the rule of law must prevail. It therefore considers that this general order cannot be regarded as an appropriate response to the state of emergency, and such an interpretation would negate the safeguards provided by Article 5 of the Convention (seeBaş v. Turkey, no. 66448/17, § 160, 3 March 2020). 

166. The Court therefore concludes that there has been a violation of Article 5 § 4 of the Convention under this head.

224. In the present case, the applicant’s arrest and detention amounted to an interference with his right under Article 10 of the Convention (see paragraph 220 above). The Court has already found that the applicant’s detention was not based on reasonable suspicion that he had committed an offence for the purposes of Article 5 § 1 (c) of the Convention, and that there has therefore been a violation of his right to liberty and security under Article 5 § 1 (see paragraph 152 above). It also notes that according to Article 100 of the Code of Criminal Procedure, a person may be placed in pre-trial detention only where there is factual evidence giving rise to strong suspicion that he or she has committed an offence, and considers in this connection that the absence of reasonable suspicion should, a fortiori, have implied an absence of strong suspicion when the national authorities were called upon to assess the lawfulness of the applicant’s detention. The Court reiterates in this regard that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and that no deprivation of liberty will be lawful unless it falls within one of those grounds (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 88, 15 December 2016). 

225. The Court further observes that the requirements of lawfulness under Articles 5 and 10 of the Convention are aimed in both cases at protecting the individual from arbitrariness. It follows that a detention measure that is not lawful, as long as it constitutes interference with one of the freedoms guaranteed by the Convention, cannot be regarded in principle as a restriction of that freedom prescribed by national law. 

227. Accordingly, there has been a violation of Article 10 of the Convention.