Şik v. Turkey (No. 2) (Application no. 36493/17)

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

3. III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION
4. 137.  In the light of these observations, the Court considers that the applicant could not be reasonably suspected, at the time of his placement in detention, of having committed the offences of disseminating propaganda in favour of terrorist organisations or assisting those organisations. In other words, the facts of the case do not support the conclusion that a reasonable suspicion existed against the applicant. Accordingly, the suspicion against him did not reach the required minimum level of reasonableness. Although imposed under judicial supervision, the contested measures were thus based on a mere suspicion.

138.  Moreover, it has likewise not been demonstrated that the evidence added to the case file after the applicant’s arrest, in particular the evidence in the bill of indictment and the evidence produced while he was in detention, amounted to facts or information capable of giving rise to other suspicions justifying his continued detention. The fact that the first‑instance and appeal courts accepted the facts relied on by the magistrate and the prosecution as evidence of the applicant’s guilt does nothing to alter this finding.

139.  In particular, the Court notes that the written material for which the applicant was accused and placed in detention came within the scope of public debate on facts and events that were already known, that it amounted to the exercise of Convention freedoms, and that it did not support or advocate the use of violence in the political sphere or indicate any wish on the applicant’s part to contribute to the illegal objectives of terrorist organisations, namely to use violence and terror for political ends.

140.  As regards Article 15 of the Convention and Turkey’s derogation, the Court notes that the Turkish Council of Ministers, chaired by the President of the Republic and acting in accordance with Article 121 of the Constitution, passed several legislative decrees during the state of emergency placing significant restrictions on the procedural safeguards laid down in domestic law for anyone held in police custody or pre-trial detention. Nonetheless, in the present case, it was under Article 100 of the CCP that the applicant was placed in pre-trial detention on charges relating to the offence set out in Article 220 of the Criminal Code. It should be noted in particular that Article 100 of the CCP, which requires the presence of factual evidence giving rise to strong suspicion that the person has committed an offence, was not amended during the state of emergency. Instead, the measures complained of in the present case were taken on the basis of legislation which was in force prior to and after the declaration of the state of emergency. Consequently, the measures complained of in the present case cannot be said to have complied with the conditions laid down by Article 15 of the Convention, since, ultimately, no derogating measure was applicable to the situation. To conclude otherwise would negate the minimum requirements of Article 5 § 1 (c) of the Convention.

141.  The Court therefore 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.

V. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 

186. In the present case the applicant’s arrest and detention amounted to interference with his rights under Article 10 of the Convention (see paragraph 182 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 141 above). It also notes that according to Article 100 of the Turkish 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 anoffence, 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 further reiterates that sub-paragraphs (a) to (f) of Article 5 § 1 of the Convention 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). 

187. 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 (see paragraphs 112, 114 and 118 above as regards Article 5, and paragraph 185 above as regardsArticle 10). 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. 

188. Accordingly, the interference with the applicant’s rights and freedoms under Article 10 § 1 of the Convention cannot be justified under Article 10 § 2 since it was not prescribed by law (see Steel and Others v. the United Kingdom, 23 September 1998, §§ 94 and 110, Reports 1998‑VII, and, mutatis mutandis,Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 98-101, 11 February 2016). The Court is therefore not required to examine whether the interference in question had a legitimate aim and was necessary in a democratic society. 

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