December 14, 2020
Matteo Mastracci, Ph.D. Researcher at Koç University, and reporter for Oxford Reports on International Law (ORIL)
In a long-awaited decision, the European Court of Human Rights finally ruled on 10 November 2020 on the case of Sabuncu and Others v. Turkey. The case, better known as the Cumhuriyet trial, named after the newspaper in which the applicants were working as journalists, concerned the detention of ten individuals on terrorism-related charges. The Court, in a much ado about nothing decision, found a violation of Article 5 §1 (right to liberty and security) and Article 10 (freedom of expression) of the Convention. However, upon closer inspection, both the legal argumentation and the concrete outcome of the judgment are only partially satisfactory.
Facts of the case: Turkey’s Cumhuriyet trial
In November 2016, the ten applicants (Mehmet Murat Sabuncu, Akın Atalay, Önder Çelik, Turhan Günay, Mustafa Kemal Güngör, Ahmet Kadri Gürsel, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz and Bülent Utku), all journalists of Cumhuriyet newspaper, were placed in pre-trial detention by the Istanbul 9th Magistrate’s Court. The magistrate considered that there were strong suspicions of committing offences consisting in promoting and disseminating propaganda on behalf of two terrorist organizations, the PKK/KCK (Kurdistan Workers’ Party / Kurdistan Communities Union) and FETÖ/PDY (Fethullahist Terror Organisation / Parallel State Structure). In particular, the provisional detention was justified by the domestic authorities with the risk of absconding, the deterioration of the evidence and the insufficiency of alternative measures that would achieve the same aims. Following the dismissal of the applicants’ objection, in December 2016 and January 2017, the Istanbul 12th Magistrate’s Court ordered the extension of the pre-trial detention of all the applicants.
On 3 April 2017, the public prosecutor filed a bill of indictment with the Istanbul 27th Assize Court in respect of all the applicants alleging that they had influenced Cumhuriyet’s change of editorial stance over three years before the attempted coup of 15 July 2016. According to the prosecutor, by deploying the tactics of ‘asymmetric warfare’, the newspaper attempted to undermine Turkey’s international credibility and since 2013 has become the champion of terrorist organizations such as FETÖ/PDY, the PKK and the DHKP/C (People’s Revolutionary Liberation Party/Front).
On 28 July 2017, at the end of the first hearing, the Istanbul 27th Assize Court ordered the release of seven applicants. The Court found that the evidence was already gathered and the risk of absconding was no longer relevant. In the same day, the Court ordered the extension of the pre-trial detention of the applicants Mehmet Murat Sabuncu and Akın Altay. Nevertheless, the three remaining applicants were also released by the Istanbul 27th Assize Court on similar grounds on the dates of 25 September 2017 (Ahmet Kadri Gürsel), 9 March 2018 (Mehmet Murat Sabuncu) and 25 April 2018 (Akın Atalay).
A separate proceeding was initiated by the applicants who lodged an individual application with the Constitutional Court on 26 December 2016. They alleged, in particular, a breach of their right to liberty and security and their right to freedom of expression and press. On 11 January 2018 and 2 and 3 May 2019, the Supreme Court delivered its judgments confirming, on the one hand, the violation of those rights with regards to two of the applicants and, on the other, rejecting the appeals lodged by the remaining applicants.
The applicants’ submission
The application was submitted before the European Court of Human Rights on 2 March 2017, where the applicants raised their complaints under four separate headings:
On Article 5, §1 and 3 of the Convention (a reasonable suspicion)
The Court first reaffirmed the importance of the ‘reasonable suspicion’ requirement within the meaning of Article 5 §1 (c) of the Convention that must serve as an essential guide against any form of arbitrariness. The ‘reasonable suspicion’ requirement is made up of two separate but overlapping elements: the first is factual and the second is the classification of the conduct as criminal. While the former invokes the objective observer’s perspective on the commission of the crime, the latter requires that the criminal conduct can reasonably be ascribed to a legal norm. Next, the Court reiterated the principle indirectly implied by the Grand Chamber in the case of Merabishvili v. Georgia that suspicion cannot be regarded as reasonable when the alleged offences were related to the exercise of another right established by the Convention [para. 148].
When applying these principles to this case, the Court disputed, on the one hand, the factual aspect of the existence of ‘reasonable suspicion’, noting that the national authorities were unable to cite any concrete or specific facts, and had based their allegations solely on hypotheses stemming from the positions occupied by the applicants. [para. 154]. Thus, the Court concluded that the suspicion did not reach the minimum level of reasonableness as the custody was based on a mere suspicion [para. 180]. On the other hand, the Court affirmed that the applicants’ conduct, which could be divided into four groups, were within the scope of public debate on facts and events already known, and as such related to the exercise of a right guaranteed by the Convention [para. 182].
Consequently, the Court, without further examining the eight applicants’ complaint under Article 3 (Turhan Günay and Ahmet Kadri Gürsel were excluded from the claim as the Turkish Constitutional Court in its judgment of 11 January 2018 had already found a violation of their rights and, thus, they could no longer claim victim status), found a violation of Article 5 § 1 of the Convention because the domestic authorities had failed to adequately prove the existence of the requirement of ‘reasonable suspicion’ against the applicants.
On Article 5, §4 of the Convention (right to a speedy remedy)
The right to have the lawfulness of detention speedily examined by a judicial authority, as the Court once again emphasised, encompasses proceedings before constitutional courts. As regards the period of detention, the Court clarified that it was between the dates of the filing of the constitutional applications and the dates of the provisional release [para. 195]. This was 16 months for Akın Atalay, 14 months and 11 days for Mehmet Murat Sabuncu, 8 months and 29 days for Ahmet Kadri Gürsel and 7 months and 2 days for the remaining seven applicants.
However, all these custodial periods were operational during the state of emergency which lasted almost two years after being lifted on 18 July 2018. This resulted in an unexpected workload of the Turkish Constitutional Court that was described by the Court as an ‘exceptional situation’ [para. 197]. In that connection, the Court emphasized the distinction between the case at hand and Kavala v. Turkey. In Kavala, a case concerning the arrest and pre-trial detention of the businessman and human-rights defender Mr Mehmet Osman Kavala, the applicant remained in pre-trial detention for 11 months between the lifting of the state of emergency on 18 July 2018 and the delivery of the Constitutional Court’s judgment on 28 June 2019. Therefore, the Court concluded in Sabuncu that although the review by the Constitutional Court was not ‘speedy’ in an ordinary context, considering the exceptionality of the present case there had been no violation of Article 5 §4 of the Convention.
On Article 10 of the Convention (freedom of expression)
As one of the pillars of the Convention, the Court reaffirmed that freedom of expression under Article 10 has a broad scope and application encompassing not only information or ideas but also covering exaggeration or even provocation [para. 220]. The Court, then, recalled the Grand Chamber judgment of Sürek and Özdemir v. Turkey favouring a narrower scope under Article 10 §2 of the Convention for restrictions on political speech or debate on questions of public interest.
The Court, then, moved to analysing whether there was an interference with the applicants’ right and concluded that their pre-trial detention had amounted to an actual and effective constraint. Therefore, the pre-trial detention ordered by domestic authorities constituted an ‘interference’ with the applicants’ right to freedom of expression guaranteed by Article 10 of the Convention [para. 226]. Further, the Court next enquired whether the interference was prescribed by law. The Court, preliminary, clarified that Article 100 of the Turkish Code of Criminal Procedure requires a strong suspicion for ordering the pre-trial detention. At the same time, the Court noted that there was not a reasonable suspicion as discussed under Article 5 § 1. As a result, the Court stated that the interference with the applicants’ rights and freedoms was not prescribed by law and thus there had been a violation of Article 10 of the Convention [para. 230-231].
On Article 18 of the Convention (the ulterior purpose doctrine)
The final part of the Court’s reasoning assessed the limitation on the use of restrictions on rights under Article 18 of the Convention. In doing such an evaluation, the Court recalled the criteria laid down by Merabishvili v. Georgia and Navalnyy v. Russia and clarified that in the absence of a legitimate purpose the Court itself should have identified an ulterior one [para. 252-255]. However, after examining the factual elements, the Court concluded that the elements relied on by the applicants did not form a sufficient homogeneous whole to find that the applicants’ detention had pursued an ulterior purpose and, therefore, there had been no violation of Article 18 of the Convention [para. 256].
Partly Concurring Opinion of Judge Yüksel
Judge Yüksel contended that the Court’s reasoning, under Article 5 §1 of the Convention, should have been limited to the question of the attributability of the acts to the applicants. Judge Yüksel also argued that the Court’s analysis on whether the interference was prescribed by law, under Article 10 of the Convention, should have required a separate examination. Judge Yüksel contested that the violation of Article 10 was a kind of automatism merely based on the earlier findings under Article 5.
Partly Dissenting Opinion of Judge Kūris
Judge Kūris argued that the criminal charges against the applicants were of political nature and that there was a violation of Article 18 of the Convention. Kūris described the Court’s references to its previous case-law (Khodorkovskiy, Merabishvili, Ilgar Mammadov and Rasul Jafarov) as essentially misleading since those judgments should not be placed on equal footing as they represent different approaches and standards. Indeed, Judge Kūris pointed out that the Court progressively opened to the admission of indirect and contextual evidence of a ‘hidden agenda’ behind the violations. In addition, he recalled that the proof of an alleged ulterior purpose could also be furnished by other persons and not necessarily by the applicants. Finally, Judge Kūris called into question the Court’s methodology on the general contextual evidence and in assessing other contextual facts placed outside the criminal trial. In particular, he emphasized that the present case was not an isolated one, but part of a series of cases aimed at ‘silencing, in post-military coup Turkey…civil society in general and the media in particular’.
Even though the Court’s main findings are, in general, satisfactory, there are at least two aspects of the Court’s legal reasoning which should be cause for concern. First, when the Court came to analyse the substance of the applicants’ main claim, on whether a violation had occurred under Article 10 of the Convention, it employs a legal argumentation per relationem. The Court merely asserted that the interference with the applicants’ rights to freedom of expression and press was not prescribed by law because it was based on a mere suspicion that they had committed the offence under Article 5 §1 (c) of the Convention. As Judge Yüksel wisely pointed out, in her concurring opinion, the Court’s analysis under this heading should have required a separate examination covering either the proportionality test or the concept of ‘necessity in a democratic society’.
Second, the Court’s legal argumentation on the ‘ulterior purpose’ under Article 18 of the Convention is highly unsatisfactory as it relies solely on a statement made by the President of the Republic in quite a specific context without going further into detail. In this regard, the Court did not appear to engage with the general context argument. This is at odds with the Court’s usual approach where it has repeatedly carried out an in-depth assessment of the evidence, both inside and outside the criminal trial. What is more, the general contextual evidence seems not to have been employed even indirectly, as the Court has done in other cases. For instance, in Kavala v. Turkey, the Court took into account the length of the applicant’s detention and two presidential speeches which cited the applicant’s name, when it acknowledged the existence of an ulterior purpose because the effect was to ‘reduce [the applicant] to silence as an NGO activist and human-rights defender, to dissuade other persons from engaging in such activities and to paralyze civil society in the country’ (para. 224). In other words, the Court in the latter case indirectly applied the notion of ‘general context’ although not expressly mentioned it in the judgment. In a similar vein, as Judge Kūris emphasized in his dissenting opinion (para. 17), theCourt in Rasul Jafarov v. Azerbaijan examined ‘the general context of the increasingly harsh and restrictive legislative regulation of NGO activity and funding [which could not] be simply ignored’. This means that, all of a sudden, the ‘general context’ doctrine that the Court had already employed in a large number of cases against Azerbaijan (Rasul Jafarov v. Azerbaijan, §§156-163; Mammadli v. Azerbaijan, §§99-104; Ilgar Mammadov v. Azerbaijan §§133-144) vanished without a convincing explanation of a reason why. In this sense, the Court’s approach in Sabuncu and Others was clearly cautious and overly timid.
Conclusion: yet another KO of media freedom in Turkey?
Turkey is by far the ‘heavyweight’ in ECHR violations under Article 10 of the Convention with 356 judgments (the second one, Russia, has “only” 72 violations). The Cumhuriyet trial is clearly not an ‘ordinary’ case of freedom of expression. The trial, indeed, represents a very worrying chapter in Turkey’s de-democratization process which, as emphasized by Bertil Emrah Oder, demonstrates the advanced practices of controlling independent media, chilling effect, and judicial arbitrariness under massive constitutional transgression. In the words of Harlem Désir, the OSCE Representative on Freedom of the Media (RFoM), the Cumhuriyet trial ‘is a terrible setback and detrimental to Turkey’s commitments to free speech and independent media’. In that connection, the Court seems to be aware of the utmost importance of the case when it noted that ‘detention based on such a serious charge may have a chilling effect and create a widespread climate of self-censorship which can affect all journalists reporting and commenting on the running of the government and on various political issues of the day’ [para. 256]. Unfortunately, that was not enough to convince the Court for an ulterior purpose. After all, the Cumhuriyet trial was anything but a mere case of freedom of expression. Turkey, once again, knocked out the independent media.