CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 novembre 2020

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color:#2f2f2f } .sF24A8B01 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:16pt } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s25F5CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   SECOND SECTION CASE OF SABUNCU AND OTHERS v. TURKEY (Application no. 23199/17)     JUDGMENT Art 15 • Derogation • Limits Art 5 § 1 (c) • Lack of reasonable suspicion • Prolonged detention of journalists/publishers owing to unreasonable equation of their editorial stance, covered by freedom of the press, with propaganda in favour of terrorist organisations • Alleged offences coming within scope of legitimate political opposition and exercise of Convention freedoms • Interpretation of criminal law resulting in anyone expressing a view opposed to those promoted by the authorities being characterised as a terrorist or a person assisting terrorists • Prosecuting authorities’ reference to the notion of “asymmetric warfare” entailing a similar risk Art 5 § 4 • “Speediness” • Periods of seven to sixteen months justified by the exceptional caseload of the Constitutional Court following the declaration of the state of emergency Art 10 • Freedom of expression • Unlawful nature of detention impacting on lawfulness of interference Art 18 (+ 5 and 10) • Existence of an ulterior purpose not demonstrated   STRASBOURG 10 November 2020   FINAL   19/04/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sabuncu and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Marko Bošnjak,   Egidijus Kūris,   Ivana Jelić,   Arnfinn Bårdsen,   Saadet Yüksel,   Peeter Roosma, judges, and Hasan Bakırcı, Section Deputy Registrar, Having deliberated in private on 29 September 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 23199/17) against the Republic of Turkey lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by ten Turkish nationals, Mr Mehmet Murat Sabuncu, born in 1969, Mr Akın Atalay, born in 1963, Mr Önder Çelik, born in   1956, Mr   Turhan Günay, born in 1946, Mr Mustafa Kemal Güngör, born in   1959, Mr   Ahmet Kadri Gürsel, born in 1961, Mr Hakan Karasinir, born in   1963, Mr   Hacı Musa Kart, born in 1954, Mr Güray Tekin Öz, born in 1949, and Mr   Bülent Utku, born in 1955 (“the applicants”), on 2   March 2017. 2.     The applicants were represented by Mr F. İlkiz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 8 June 2017 the Government were given notice of the application. 4.     The applicants and the Government each filed written observations on the admissibility and merits   of the case. 5.     The Council of Europe Commissioner for Human Rights (“the Commissioner for Human Rights”) exercised his right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2 of the Rules of Court). 6.     In addition, written comments were submitted to the Court by the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (“the Special Rapporteur”), and also by the following non-governmental organisations acting jointly: ARTICLE   19, the Association of European Journalists, the Committee to Protect Journalists, the European Centre for Press and Media Freedom, the European Federation of Journalists, Human Rights Watch, Index on Censorship, the International Federation of Journalists, the International Press Institute, the International Senior Lawyers Project, Media Defence, PEN International and Reporters Without Borders (“the intervening non-governmental organisations”). The Section President had granted leave to the Special Rapporteur and the organisations in question to intervene under Article   36 §   2 of the Convention and Rule 44 § 3. 7.     The Government replied to the intervening parties’ comments. 8.     In correspondence of 11 July 2019 the Government informed the Court that the Constitutional Court had delivered its judgment on the applicants’ individual applications. The applicants submitted comments on that judgment. THE FACTS THE CIRCUMSTANCES OF THE CASE 9.     The applicants are journalists with the national daily newspaper Cumhuriyet (“The Republic”) or managers of the Cumhuriyet Foundation, the principal shareholder of the company that publishes the newspaper. 10.     Cumhuriyet was established in 1924 and is one of the oldest newspapers in Turkey. It is known for its critical stance towards the current government and for its particular attachment to the principle of secularism. It is regarded as a serious newspaper of the centre-left. The applicants’ placement in detention Police custody 11.     On 31 October 2016 the applicants, with the exception of Akın Atalay, who was abroad at the time, were taken into police custody by the Istanbul police. They were suspected of committing offences on behalf of organisations considered by the Government to be terrorist organisations, including, in particular, the PKK/KCK (the Kurdistan Workers’ Party / Kurdistan Communities Union) and an organisation referred to by the Turkish authorities as “FETÖ/PDY” (“Fethullahist Terror Organisation / Parallel State Structure”), and of disseminating propaganda on their behalf. 12.     The same day, on the instructions of the Istanbul public prosecutor’s office, the Istanbul police carried out searches at the applicants’ homes and seized computers and other IT equipment belonging to them. 13.     Still on 31 October 2016, the applicants in police custody lodged an objection challenging their detention and seeking their release. In a decision of 2 November 2016 the Istanbul 4th Magistrate’s Court dismissed the objection. 14.     The applicants concerned were questioned at the police station about their alleged acts. They denied belonging to or assisting any illegal organisation. 15.     On 4 November 2016 the nine applicants in police custody appeared before the Istanbul public prosecutor (“the public prosecutor”) and were again questioned about their alleged acts. The public prosecutor asked them questions relating mainly to articles published in Cumhuriyet and to the newspaper’s editorial stance. He asked the applicants whether they had been instructed by the leaders of illegal organisations, and in particular FETÖ/PDY, to align the newspaper’s editorial stance with criticisms directed by alleged members of the latter organisation against the political authorities. He also questioned them about the newspaper’s funding and its advertising revenue. 16.     During questioning the applicants concerned rejected the allegations that they had acted in concert with outside sources in publishing articles in the newspaper, and denied belonging to any illegal organisation. They contended that the criminal investigation – which, in their view, called into question the assessment of political events and the defence of public freedoms carried out by the journalists of Cumhuriyet – amounted to a breach of freedom of expression and freedom of the press. 17.     Following this questioning the public prosecutor requested the competent judge to place the applicants, with the exception of Akın Atalay, in pre-trial detention, on the grounds that they were suspected of assisting criminal organisations without being members of them and of disseminating propaganda in favour of those organisations (offences under Article   220 §§   7   and   8 of the Criminal Code (“the CC”)), while acting in full association with them from a moral and factual point of view. 18.     On 11 November 2016 the applicant Akın Atalay returned to Turkey. On his arrival in the country he was taken into police custody. On the following day, 12 November 2016, he was brought before the Istanbul magistrate. Placement in pre-trial detention (a)    Regarding all the applicants 19.     On the night of 4 November 2016 the applicants, with the exception of Akın Atalay, appeared before the Istanbul 9th Magistrate’s Court and were questioned about their alleged acts and the suspicions against them. At the end of the hearing, on 5 November 2016, the magistrate, echoing the approach taken in the public prosecutor’s observations and on the basis of the latter’s allegations, and taking into consideration the content of several articles that had appeared in Cumhuriyet and some comments made on social media, ordered the pre-trial detention of the applicants concerned. The applicant Akın Atalay was placed in pre-trial detention at the close of the hearing on 12 November 2016, on the same grounds. The magistrate considered, in relation to all the applicants, that articles containing implicit propaganda in favour of the armed terrorist organisations FETÖ and the PKK had been published in the daily newspaper Cumhuriyet , and that there were strong suspicions that the suspects had been responsible for the newspaper’s ongoing activities consisting in promoting and disseminating propaganda on behalf of those terrorist organisations. The magistrate considered in that connection that the applicants were under investigation for offences including assisting illegal organisations (Article 220 § 7 of the CC) and disseminating propaganda in favour of them (Article 220 § 8 of the CC) and for acts potentially coming within the scope of the offence of carrying out activities on behalf of terrorist organisations without being members of them, an offence under Article   220 § 6 of the CC. The magistrate referred to the fact that this offence was among those listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences” – for which a suspect’s pre-trial detention was deemed justified in the event of strong suspicion. 20.     The magistrate also considered that if the applicants were released pending trial they were liable to abscond. He observed in that connection that in the previous investigations concerning Cumhuriyet journalists the suspects had fled, by lawful or unlawful means, as soon as an opportunity had arisen. The magistrate also referred to the risk of deterioration of the evidence if the applicants were released pending trial, and the risk that alternative measures to detention might be insufficient to ensure the suspects’ participation in the criminal proceedings. (b)    Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz, Bülent Utku, Ahmet Kadri Gürsel and Turhan Günay 21.     Regarding these eight applicants the Istanbul magistrate considered, like the public prosecutor, that their placement in pre-trial detention was justified by the existence of strong suspicions that they had committed the alleged offences. The magistrate noted at the outset that the applicants Güray Tekin Öz, Hakan Karasinir, Hacı Musa Kart and Mustafa Kemal Güngör were members of the board of management of the Cumhuriyet Foundation; Bülent Utku was a member of the board of management and a level   2 authorised signatory of the media company Yenigün; Önder Çelik was a member of the board of management of the Cumhuriyet Foundation and of the board of Yenigün; Ahmet Kadri Gürsel was an editorial adviser to the newspaper Cumhuriyet ; and Turhan Günay was a member of the board of Yenigün. The magistrate observed that according to the statements of the applicant Önder Çelik, the media company Yenigün was the company responsible for publishing Cumhuriyet , and that the Cumhuriyet Foundation ranked above Yenigün and the newspaper Cumhuriyet in the institutional hierarchy. In other words, the foundation was the institution which held the trademark and publishing rights in relation to the newspaper, and leased the right to use the name Cumhuriyet to the media company Yenigün. In the light of these observations the magistrate considered that the articles and news items published in the daily newspaper Cumhuriyet indeed came under the responsibility of the members of the board of management of the Cumhuriyet Foundation and the board of the media company Yenigün, and hence of the applicants in question. 22.     The magistrate further noted that, when the eight suspects had joined the board of the foundation and that of the media company following the elections in 2013 and early 2014, Cumhuriyet ’s editorial stance had changed noticeably. The newspaper, contrary to the foundation’s aims, had then engaged in manipulation against the State; had attempted to influence public opinion in a manner at odds with the world view of its usual readership; had published false information resulting from the machinations of destructive separatist movements and from the statements of the leaders of terrorist organisations containing calls to violence; had attempted to portray the terrorist organisations as legitimate; and had alleged that the State had links to terrorist organisations. 23.     Without accusing any of the applicants of writing a specific article, the magistrate, like the public prosecutor, referred to certain articles written by other journalists allegedly under the influence of the applicants and published during the period when the latter had occupied managerial positions in the Cumhuriyet Foundation. The articles referred to were the following. (i)     An article dated 14 March 2015 containing an interview with one of the leaders of the PKK and allegedly amounting to propaganda in favour of that organisation, describing its militants as “guerrilla fighters” and reporting on the comments made by the PKK leaders concerning certain topical issues (and in particular the PKK’s conditions for laying down its weapons). (ii)     Articles published on 1 April 2015 entitled “Remarkable account given by activists half an hour before being killed (by police officers)” and “This action [the kidnapping] is a method we were forced to use”. The articles had consisted solely of an interview with one of a group of left-wing extremists who had taken a public prosecutor hostage in his office in a bid to expose the law-enforcement officers who had killed a demonstrator. After hearing the demands of the militants for the identity of the police officers who had allegedly killed the demonstrator B. to be disclosed in a live television broadcast and for the police officers concerned to face trial and not benefit from impunity, the reporter, A.S., had challenged the interviewee by questioning whether violence by the militants would solve the problem. Shortly afterwards, the militants concerned and the public prosecutor whom they had taken hostage died during a rescue operation by the security forces. It was alleged that the articles in question had conveyed the terrorists’ message to the public by printing a large photograph of them (taken while they were holding a gun to the head of their hostage) and by using the adjectives “young and determined” to describe one of the terrorists after interviewing one of the militants who had been involved in the kidnapping. (iii)     An article published on 2 June 2015 concerning Selahattin Demirtaş, which stated that the PKK was mindful of environmental and gender equality issues. (iv)     An article published on 25 July 2015 entitled “War at home, war in the world”, in which the security forces’ actions to combat terrorist organisations were described as “war”. (v)     An article published on the day of the attempted military coup of 15   July 2016, entitled: “He went missing for a week ... we’ve discovered where Erdoğan   was”, which gave details of the place where the President had been on holiday. (vi)     An interview with one of the PKK’s leaders, M. Karayilan, published on 21 December 2015 under the heading “If they don’t agree to autonomy, we’ll consider separation”, which reported that Mr Karayilan described the PKK’s terrorist acts as “resistance” and the State’s anti ‑ terrorist action as a “civil war that the State can’t win”. (vii)     An article of 18 July 2016 entitled “Danger on the streets”, referring to the presence of radical groups among the persons protesting against the coup attempt and reporting that, during the demonstrations against the attempted coup, some demonstrators had damaged monuments commemorating the victims of violence against minorities or had attacked members of the Alevi minority. It was alleged that the article had attempted to divide society by provoking distrust towards the demonstrators. (viii)     An article of 19 July 2016 entitled “The witch hunt has begun”, reporting on the criticisms and proposals of the main opposition political party, the CHP ( Cumhuriyet Halk Partisi – People’s Republican Party). The latter had stated that any action against possible supporters of the coup should be carried out in compliance with the rule of law, that all the political parties should take a critical look at their own conduct in order to ascertain how a religious sect could have infiltrated the State apparatus to such an extent, and that political leaders should refrain from stirring up hostility in society. The article had also criticised the dismissal of large numbers of civil servants suspected of belonging to the Gülenist movement. It was alleged that the article had questioned the extent and legitimacy of the action against the instigators of the attempted coup. (ix)     An article of 19 July 2016 entitled “No one at the rallies is talking about democracy”, reporting on the demonstrators’ anti-democratic demands. The article was alleged to have denigrated citizens voicing their reactions to the attempted coup. (x)     An article of 8 July 2015 entitled “What we’re doing is journalism; what you’re doing is treason”, reporting on remarks made by the public prosecutor Ö.Ş. alleging that the organisation MİT (the national intelligence agency) had concealed the Reyhanli attack from the judicial authorities, in the following terms: “MİT had information on the Reyhanli massacre but did not share that information with the police”. The prosecutor Ö.Ş. had subsequently been arrested in connection with a criminal investigation concerning some judges and members of the security forces who were alleged to be militants of the organisation FETÖ, and relating to the affair known as “The MİT lorries”. (xi) An article dated 13 February 2015 entitled “The secret in the lorries revealed” which stated, citing recordings of telephone calls between the leaders of the Turkmen forces in Syria, that the consignment of weapons and ammunition transported from Turkey to Syria in lorries belonging to MİT had not been intended for Turkmen militia but for the jihadist organisation Ansar Al ‑ Islam. (c)    Mehmet Murat Sabuncu 24.     In the case of the applicant Mehmet Murat Sabuncu, the magistrate noted that he was the editor-in-chief of the daily newspaper Cumhuriyet . The magistrate considered, like the public prosecutor’s office, that his placement in pre-trial detention was justified on the basis of strong suspicions that he had committed the alleged offences. 25.     The magistrate referred, in particular, to his findings concerning the change in the editorial stance of the newspaper Cumhuriyet following the election of the other applicants to the board of management of the Cumhuriyet Foundation and the board of the media company Yenigün in 2013 and early 2014. In the magistrate’s view the applicant Mehmet Murat Sabuncu should be held responsible for the articles and headings published in Cumhuriyet , in his capacity as the newspaper’s publication director. (The publication director was appointed by the board of management of the Cumhuriyet Foundation.) By way of example the magistrate cited the same materials relied on in relation to the other applicants (see paragraph   23 above). According to the magistrate, this material had been aimed at persistently undermining the State’s efforts to combat the PKK and FETÖ/PDY; had gone beyond the aim of criticism and reporting; had conveyed false information resulting from the machinations of destructive separatist movements and from the statements of the leaders of terrorist organisations containing calls to violence; had attempted to portray the terrorist organisations as legitimate, innocent and victims of the authorities’ actions; and had alleged that the State had links to terrorist organisations. (d)    Akın Atalay 26.     On 12 November 2016, the day after his return to Turkey, the applicant Akın Atalay was brought before the Istanbul 9th Magistrate’s Court. The magistrate ordered his pre-trial detention on the same grounds as those cited in the case of the other applicants. Like the public prosecutor, the magistrate considered that Akın Atalay’s placement in pre-trial detention was justified by the existence of strong suspicions that he had committed the offences alleged by the public prosecutor. Reiterating the considerations outlined in the order he had issued for the detention of the applicants Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı   Musa Kart, Güray Tekin Öz, Bülent Utku, Ahmet Kadri Gürsel, Turhan Günay and Mehmet Murat Sabuncu (see paragraphs   21   and   25 above), the magistrate found that, following the changes to the composition of the board of management of the Cumhuriyet Foundation, including Akın Atalay’s appointment as chairman of the executive committee, the newspaper Cumhuriyet had begun targeting State institutions and had published a large number of articles that could be regarded as propaganda in favour of terrorist organisations and were liable to give the public a favourable impression of those organisations. In the magistrate’s view, even if the investigation did not relate to any articles written by Akın Atalay himself, there was a strong suspicion of guilt on the part of the senior members of the foundation’s board of management, including the applicant, on account of their influence over the impugned material. The magistrate referred in that connection to the articles published in Cumhuriyet which had likewise been mentioned in his order for the detention of the applicants Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz, Bülent Utku, Ahmet Kadri Gürsel and Turhan Günay (see paragraph   23 above). (e)    The applicants’ objection 27.     On 14 November 2016 the applicants collectively lodged an objection against the orders for their pre-trial detention. 28.     In a decision of 18 November 2016 the Istanbul 10th Magistrate’s Court dismissed the objection. The magistrate considered that the suspects could be held responsible for the propaganda activities in favour of terrorist organisations because they had allegedly assisted the latter in achieving their aims. Extension of the pre-trial detention 29.     On 2 December 2016 the applicants, with the exception of Akın   Atalay, lodged an application for release pending trial. In a decision of the same day the Istanbul 7th Magistrate’s Court refused the application. On 12   December 2016 the applicants concerned lodged an objection against that decision which was dismissed by the Istanbul 8th Magistrate’s Court on 16   December 2016. 30.     In the meantime, on 12 December 2016, the applicant Akın Atalay had lodged an application for release pending trial. The Istanbul 6th Magistrate’s Court refused the application on the same day. On 19   December 2016 the applicant lodged an objection against that decision which was dismissed on 21 December 2016 by the Istanbul 7th Magistrate’s Court. 31.     On 30 December 2016 and 30 January 2017 the Istanbul 12th Magistrate’s Court, on the basis of the examination of the file (a procedure permitted during the state of emergency), ordered the continued pre-trial detention of all the applicants. The magistrate considered that the case file contained specific evidence demonstrating the existence of strong suspicions that the applicants had committed the alleged offences. He noted that the evidence had not yet all been gathered and that the offences of which the applicants were accused were among those listed in Article   100 §   3 of the CCP (the so-called “catalogue offences”). The magistrate further considered that, in view of the seriousness of the alleged offences, there was a risk that the applicants would abscond if they were released pending trial. He also took into consideration the risk of deterioration of the evidence, noting that the claimants and victims of the incidents in issue had not yet all been identified and/or that statements had not yet been taken from them. 32.     On 11 January and 1 February 2017 the applicants lodged appeals against the orders of 30 December 2016 and 30 January 2017 for their continued pre-trial detention. The appeals were dismissed on 17 January and 3   February 2017 respectively by the Istanbul 13th Magistrate’s Court. The magistrate found that the impugned orders had complied with the procedure and the law, that the reasons for the orders continued to apply and that no new evidence had been added to the file capable of leading to reconsideration of the applicants’ continued detention. 33.     On 6 April 2017, after the public prosecutor’s office had filed the bill of indictment with the Istanbul 27th Assize Court on 3 April 2017, the applicants applied to that court for release pending trial. On 19 April 2017 the Assize Court rejected their application and ordered their continued pre ‑ trial detention. The court considered that the case file contained specific evidence demonstrating the existence of strong suspicions that the applicants had committed the alleged offences, and that it was even likely that those suspicions would be reinforced by further evidence. The Assize Court considered that the applicants were liable to abscond if they were released, that their continued pre-trial detention complied with the criteria laid down by the Court with regard to Article 5 of the Convention, that their detention was proportionate, and that no new evidence had been added to the file capable of leading to reconsideration of their continued pre-trial detention. On 25 April 2017 the applicants lodged an objection against that order and applied for release pending trial. On 28 April 2017 the Istanbul 27 th   Assize Court rejected the applications for release   on the grounds that the order of 19 April 2017 had not contained any irregularities and had complied with the procedure and the law. It transferred the objection to the Istanbul 1st Assize Court. In a decision of 4 May 2017 that court dismissed the applicants’ objection, finding that the case file contained specific evidence demonstrating the existence of strong suspicions that the applicants were guilty, that there was a risk that they would abscond, and that the current length of their pre-trial detention was not disproportionate in view of the prison sentences they were liable to incur. 34.     On 25 April and 17 May 2017 the applicants applied to the Istanbul 27 th   Assize Court for release pending trial. In an order of 18 May 2017 the Assize Court, taking into consideration the nature and content of the offences of which the applicants were accused and the state of the evidence against them, ordered their continued pre-trial detention and rejected the applications of 25 April and 17 May 2017. 35.     On 28 July 2017, at the close of the first hearing, held from 24   to 28   July 2017, the Istanbul 27th Assize Court ordered the release pending trial of the applicants Önder Çelik, Turhan Günay, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz and Bülent Utku, after taking statements in their defence against the charges filed by the public prosecutor’s office on 3 April 2017. The court considered that there was sufficient information in the case file concerning their responsibility in their capacity as members of the board of management of the Cumhuriyet Foundation and the board of the media company Yenigün, and that these accused had no connection with the other accused who had been summoned but who had failed to appear for trial. The court therefore considered that all the relevant evidence in the case concerning these applicants had been gathered and that, in view of the sentences to which the applicants were liable, the risk of their absconding was no longer relevant. 36.     Also on 28 July 2017, the Istanbul 27th Assize Court ordered the continued pre-trial detention of the applicants Mehmet Murat Sabuncu and Akın Atalay. The court held that the offence of which they were accused in the indictment, namely assisting an armed organisation, could take a variety of forms and that the evidence in the case file should be assessed as a whole, bearing in mind that the activities of these applicants, acting in collaboration with the accused who were absent (those who had been summoned but had failed to appear, including C.D., former publication director of Cumhuriyet ), were at odds with the values laid down in the constitution of the Cumhuriyet Foundation. The objections lodged by the applicants Mehmet Murat Sabuncu and Akın Atalay against the order of 28 July 2017 were rejected by the Istanbul 28th Assize Court in a final decision of 23 August 2017. The court held that “the impugned order complied with the procedure and the law”. 37.     At the close of the second hearing on 11 September 2017, the third hearing on 25 September 2017, the fourth hearing on 31 October 2017, and the fifth hearing on 25 December 2017, the Istanbul 27th Assize Court ordered the continued pre-trial detention of the applicants Mehmet Murat Sabuncu and Akın Atalay, on exactly the same grounds as those set out in its order of 28 July 2017 (see paragraph 36 above). The two applicants lodged objections against the orders of 11 September, 25 September and 31   October 2017. Their objections were rejected by the Istanbul 28 th   Assize Court in final decisions dated 12 October and 17 November 2017. The Assize Court referred to “the evidence demonstrating the existence of strong suspicions of guilt, the nature and content of the offences in question, the state of the evidence and the fact that there [had] been no change in the state of the evidence”. 38.     In the meantime, at the close of the third hearing on 25   September 2017, the Istanbul 27th Assize Court ordered that the applicant Ahmet Kadri Gürsel be released pending trial. The court found that the evidence relating to him had been gathered and that there were no grounds to suspect that he would put pressure on the accused who had failed to appear or on the witnesses whose evidence had not yet been heard. 39.     At the close of the hearing held on 9 March 2018, the Istanbul 27 th   Assize Court ordered the release pending trial of the applicant Mehmet Murat Sabuncu. The court found that the evidence concerning the accused had been gathered; that there was no longer a risk that he would tamper with the evidence; that there was no longer a strong suspicion that he would put pressure on the accused who were absent or on the witnesses who had not yet been heard; that his continued pre-trial detention would be a disproportionate measure for the accused; and that the same benefits would be achieved by judicial supervision in the form of an order barring the applicant from leaving the country. 40.     On conclusion of the hearing of 24 and 25 April 2018 the Istanbul 27 th   Assize Court, after convicting the applicant Akın Atalay, among others, of the offence of assisting armed terrorist organisations under Article   220 §   7 of the CC, ordered his release until such time as his conviction became final, and issued an order barring him from leaving the country. The court considered that the reasons for his continued detention referred to in the previous orders no longer applied and that, in view of the sentence imposed on the applicant, the risk of his absconding was no longer relevant. The indictment of 3 April 2017 Regarding all the accused 41.     On 3 April 2017 the Istanbul public prosecutor’s office filed a bill of indictment with the Istanbul 27th Assize Court against nineteen individuals including the applicants. They were accused mainly of lending assistance to terrorist organisations without being members of them (offence under Article   220 § 7 of the CC). With regard to the applicants it was primarily alleged that, over a period of three years leading up to the attempted coup of 15   July 2016, the editorial stance of Cumhuriyet had changed as a result of their influence, running counter to the editorial principles to which the newspaper had adhered for ninety years. 42.     The public prosecutor considered that, by publishing articles which were glaringly at odds with the world view of its readers, the newspaper had conveyed manipulative and destructive information about the State. He maintained that the newspaper had published statements by leaders and prominent figures of terrorist organisations and had attempted to undermine Turkey’s credibility internationally, in particular by alleging that the government had ties to international terrorist organisations and that the National Intelligence Organisation (MİT) had supplied arms to extremist groups in Syria. In the view of the prosecutor’s office, since 2013 and under the leadership of C.D., former editor-in-chief of Cumhuriyet , the newspaper had become the champion of terrorist organisations such as FETÖ/PDY, the PKK and the DHKP/C (People’s Revolutionary Liberation Party/ Front). According to the public prosecutor, the newspaper had not acted within the bounds of freedom of expression since its managers had attempted, deploying the tactics of “asymmetric warfare”, to manipulate public opinion in order to slander the government and the President of the Republic. The prosecutor maintained that the newspaper, by manipulating and disguising the truth, had acted in accordance with the aims of the terrorist organisations and had thus attempted to create domestic upheaval in order to render the country ungovernable. 43.     In order to demonstrate that the publication of the articles and headings in question had resulted from a process whereby teams with close links to the above-mentioned illegal organisations had taken control of the newspaper’s editorial policy, the public prosecutor’s office referred to the witness evidence which it had gathered against the applicants. That evidence, given either by former Cumhuriyet journalists who had left the newspaper following the change of management after the events referred to in the bill of indictment, or by journalists who still worked for the newspaper but currently occupied non-managerial positions, indicated in general that following the death in 2010 of the publication director I.S. (who had socialist leanings), the newspaper’s management had gradually been changed by the foundation, with Kemalist and nationalist journalists being replaced by journalists who shared the vision of the Gülenist movement and the United States, that the new management had had no hesitation in publishing articles containing points of view similar to those defended by organisations such as FETÖ and the PKK, and that the management had had the final say over the titles of articles, sometimes changing the titles proposed by the authors. The great majority of these witnesses took over the management of the newspaper Cumhuriyet following the applicants’ placement in detention. The relevant parts of the main witness statements against the applicants can be summarised as follows. (i)     A.K. (news coordinator of the newspaper Cumhuriyet ): This witness had worked as the newspaper Cumhuriyet ’s news coordinator since 1994. In a statement to the public prosecutor he said that the board of management of the Cumhuriyet Foundation appointed the publication director, who in turn appointed the editor-in-chief. A body known as the executive committee, which did not feature in the foundation’s constitutive instrument, had been created by the new board of management. [The applicant] Akın Atalay had been appointed as chairman of the committee. The publication director was the only person authorised to intervene in an article due to be published in the newspaper and was responsible for choosing the article headings. As a rule, the journalists were not responsible for the headings. The heading “Incomplete democracy” had been added by the then publication director. A.K. explained that the publication of the statements of leaders of the PKK’s armed terrorist organisations had reflected the preferences of the publication director. A.K. himself had not been in favour. He considered it possible that the articles on the “MİT lorries” and the “former prosecutor C.K.”, published under the name of the previous publication director, C.D., may have demonstrated that the “ cemaat ” (the Gülenist community) regarded Cumhuriyet under its publication director, C.D., as the most appropriate newspaper in which to air their views following the closure, or loss of credibility, of their own media outlets. (ii)     The witness A.A. (a journalist with the newspaper Cumhuriyet ): This witness stated that he had joined the newspaper in 2006 and had been working as a journalist in its social and political affairs department for about ten years. He explained that even if the text of an article had been written by a journalist, the heading could be changed by the editors. In his article published by the newspaper under the heading “Incomplete democracy” he had emphasised the fact that the main political forces had been present at the pro-democracy gathering held in Yenikapı, and that during the gathering there had been a call to join forces against the military coup. The editorial team had given the article the heading “Incomplete democracy” because the Peoples’ Democratic Party (“the HDP”, a pro-Kurdish party) had not been invited to take part. He had thought that the heading might offend people and might give rise to legal liability, and had said this to the publication director. A.A. added that he had occasionally received criticism from readers regarding, for instance, the increase in the number of news items relating to the political party the HDP, which upset some readers. As a Kemalist, he too had felt uncomfortable with the news items published by the newspaper concerning the PKK. He explained that the publishing policy was determined by the board of management of the foundation and the newspaper’s editorial board. In particular, the foundation’s board of management had the authority to determine the “oppositional” nature of the newspaper’s editorial stance. (iii)     M.İ. (a journalist with the newspaper Cumhuriyet ): This witness said that he had worked as a journalist with Cumhuriyet since 1993. He stated that the executive committee of the Cumhuriyet Foundation’s board of management did not intervene directly in journalists’ work but could do so through the publication director. When I.T. had begun working for the newspaper, the witness had gathered from his articles that he had close links to the “ cemaat ”. He would have preferred not to work with I.T., but that had been the choice of the management at that time. Sensitive articles written by the journalists were published in the newspaper after being assessed by the editors. The articles on the “MİT lorries” and the “former prosecutor C.K.” had been published in Cumhuriyet because FETÖ/PDY’s own newspapers had no longer enjoyed a good reputation. (iv)     R.Z. (journalist and editor): This witness stated that after the death of İ.S. in 2010 the newspaper Cumhuriyet had changed direction as a result of the changes in the composition of the foundation’s board of management. Kemalist and nationalist journalists had been dismissed and journalists with ties to the Gülenists and susceptible to American influence had been recruited. (v)     M.F. (journalist and editor): This witness stated that the turning-point in the change of the newspaper’s editorial policy had been the death of İ.S in   2010. The recent coverage concerning Fethullah Gülen and Kandil was the result of that change. (vi)     İ.Y. (former editor-in-chief and former publication director of Cumhuriyet ): This witness explained that he had been the newspaper’s editor-in-chief from 1992 to 2000. He had resigned in 2000 and had been publication director until 2014. In his view, the articles published after C.D.’s appointment as publication director had been at odds with the publishing principles set out in the foundation’s constitution. He said that it was Akın Atalay who had recommended C.D. as publication director. The foundation was responsible for appointing the journalists, after consultation with the editors-in-chief. (vii)   A.C. (former member of the foundation’s board of management): This witness stated that one of the newspaper’s principles had been violated when the remarks made by the head of the terrorist organisation FETÖ, Fethullah Gülen (“[They] called my humble home a mansion”), had been published together with his photograph on the newspaper’s front page, above the Cumhuriyet logo. (viii)     T.A. (journalist and editor): This witness stated that a comparison of the headings used by the newspapers associated with FETÖ/PDY and those printed in Cumhuriyet could create the impression that they had been written in coordination with each other. (ix)     L.E. (journalist and editor): This witness stated that the interview by H.Ç. (a journalist with Cumhuriyet ) published by the newspaper Zaman under the heading “I would not describe the Gülenist community as a terrorist organisation” was one of the most tangible pieces of evidence that the newspaper Cumhuriyet had been taken over by that organisation. The fact that the newspapers Zaman and Cumhuriyet had printed the headings “The knotty problem of Azaz” and “Bomb at the heart of the State” within a day of each other had been arranged entirely by Fethullah Gülen. Persons who had not been appr