CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 novembre 2020

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page-break-inside:avoid; page-break-after:avoid } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   SECOND SECTION CASE OF ŞIK v. TURKEY (No. 2) (Application no. 36493/17)     JUDGMENT   Art 5 § 1 (c) • Lack of reasonable suspicion • Detention of journalist in the absence of reasonable suspicion of disseminating propaganda in favour of terrorist organisations or assisting them, through newspaper articles and interviews and social media posts • Alleged offences coming within scope of public debate on facts and events already known, and of the exercise of Convention freedoms • No support for or advocacy of use of violence in the political sphere • No indication of wish to contribute to illegal objectives of terrorist organisations entailing the use of violence and terror for political ends Art 15 • No derogating measure applicable to the situation Art 5 § 4 • “Speedy review” • Period of thirteen months and seven days justified by exceptional caseload of the Constitutional Court following 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 24 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 Şık v. Turkey (no. 2), The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Marko Bošnjak,   Valeriu Griţco,   Egidijus Kūris,   Branko Lubarda,   Arnfinn Bårdsen,   Saadet Yüksel, judges, and Stanley Naismith, Section Registrar, Having regard to: the application (no.   36493/17) 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 a Turkish national, Mr Ahmet Şık (“the applicant”), on 9 May 2017; the decision to give notice of the application to the Turkish Government (“the Government”) on 3 July 2017; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the written comments received from the Council of Europe Commissioner for Human Rights (“the Commissioner for Human Rights”), who exercised his right to intervene in the proceedings (Article 36 § 3 of the Convention and Rule 44 § 2 of the Rules of Court); the comments received from the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (“the Special Rapporteur”), and also from 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. Having deliberated in private on 13 October 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the placement in detention and continued detention of the applicant, an investigative journalist working for the daily newspaper Cumhuriyet , in the context of criminal proceedings brought against the newspaper’s managers and some of its journalists on account of the newspaper’s editorial stance, which was critical of government policy in general and also of the means used by the authorities to combat illegal organisations. The applicant alleged a violation of Article 5 §§ 1, 3 and   4, Article   10 and Article 18 of the Convention. THE FACTS 2.     The applicant was born in 1970 and lives in Istanbul. He was represented by Mr F. İlkiz, a lawyer practising in Istanbul. 3.     The Turkish Government (“the Government”) were represented by their Agent. 4.     At the material time the applicant was an investigative journalist and writer. He worked as a journalist and reporter on the national daily newspaper Cumhuriyet (“The Republic”). 5.     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 applicant’s placement in detention Judicial rulings 6.     On 29 December 2016 the applicant was arrested at his home and taken into police custody by the Istanbul police. He was suspected of disseminating propaganda in favour of organisations considered by the Government to be terrorist organisations, including, in particular, the PKK (the Kurdistan Workers’ Party), FETÖ/PDY (“Fethullahist Terror Organisation/Parallel State Structure”) and the DHKP/C (People’s Revolutionary Liberation Party/Front), through articles and interviews published in the daily newspaper Cumhuriyet and items posted on social media. The applicant was also accused of having, through his writings, denigrated the organs of the State, an offence under Article 301 of the Criminal Code. 7.     On 30 December 2016 the applicant, accompanied by his lawyers, was questioned by the Istanbul public prosecutor about the accusations against him. The public prosecutor questioned him mainly about eleven tweets which he had posted on the Twitter social network and five articles which he had written and published on the Cumhuriyet website and in the newspaper’s print edition. 8.     The applicant replied that he had been placed in pre-trial detention in   2011 in connection with a criminal investigation which, in his view, was very similar to that being conducted in the present case. He alleged that the judges hearing that case had been members of the network of Fethullah Gülen (FETÖ/PDY) who had deprived individuals of their liberty on the basis of charges founded on falsified evidence. He maintained that, as in   2011, the reason why he had been brought before the public prosecutor was unrelated to the possible existence of any criminal offences. He added that he regarded his questioning as interference with his activity as a journalist. The applicant’s lawyers pointed out that the judicial authorities were not empowered to institute criminal proceedings under Article   301 without first obtaining the approval of the Minister of Justice. 9.     Following the questioning, the public prosecutor sought a judicial order for the applicant’s pre-trial detention on suspicion of disseminating propaganda on behalf of terrorist organisations such as the PKK, FETÖ/PDY and the DHKP/C. The prosecutor also took into consideration the nature of the offence, the state of the evidence and the maximum sentence for the offence. 10.     Still on 30 December 2016, the applicant appeared before the Istanbul 8th Magistrate’s Court and was questioned about his alleged acts and the suspicions against him. The applicant denied committing any offence. He maintained that his articles in Cumhuriyet and his posts on social media had not contained any propaganda in favour of a terrorist organisation or any call to violence, but had simply amounted to journalistic activity conveying information to the public on actual events in the context of freedom of expression. 11.     At the close of the hearing the magistrate, taking into account the content of eight tweets posted by the applicant and five articles written by him, ordered his pre-trial detention. The magistrate considered, firstly, that there were strong suspicions that the applicant had committed the offence of disseminating propaganda in favour of two terrorist organisations, the PKK/KCK and FETÖ/PDY. He noted in that regard that the applicant had expressed views similar to those voiced by the members of terrorist organisations, describing those organisations’ terrorist activities as a “war” or “struggle”; that he had presented those organisations as legitimate entities while seeking to portray Turkey as a State that supported terrorist organisations; that he had described the security forces’ efforts to combat the terrorist organisations as illegal and even as terrorism, referring to the State agents as “murderers, mafiosi, violent [individuals]” while terrorist activities were continuing in south-east Turkey, with armed attacks being carried out targeting State officials, trenches being dug, barricades being erected and bombs being planted; and that the applicant had disseminated propaganda in favour of terrorist organisations by stating in his posts that the security forces were setting off bombs and inciting others to war while the terrorist organisations took responsibility for the attacks. In the magistrate’s view, there was no contradiction in the claims that the applicant had disseminated propaganda in favour of two very different, even rival, terrorist organisations, namely the PKK and FETÖ/PDY, since the investigations carried out following the attempted military coup and the information in the public domain showed that the two organisations, with the support of external forces, had acted in coordinated fashion during and after the attempted coup. He further noted that the applicant, in his defence submissions, had continued to make accusations against the State and its leaders. As justification for the applicant’s placement in pre-trial detention the magistrate then referred to the nature of the alleged offence, the severity of the penalty laid down by law, the fact that the offence had been committed through the press, and the fact that protective measures other than pre-trial detention would clearly be inadequate since the applicant showed no remorse for his remarks and had continued throughout his questioning to employ the same rhetoric as the members of the above ‑ mentioned terrorist organisations. 12.     On 1 January 2017 the applicant lodged an objection against the order for his pre-trial detention. In a decision of 3 January 2017 the Istanbul 9th Magistrate’s Court dismissed the objection, reiterating the reasons given in the impugned order. Extension of the pre-trial detention (a)    By the magistrates’ courts 13.     On 30 January 2017, at the public prosecutor’s request, the Istanbul 3rd Magistrate’s Court ordered the applicant’s continued pre-trial detention. The magistrate considered that the applicant’s posts on his Twitter account and his articles in Cumhuriyet were apt to amount to propaganda in favour of the armed terrorist organisations the PKK/KCK and FETÖ/PDY and that there were therefore strong suspicions that the applicant had committed the alleged criminal offences. The magistrate also took into account the fact that the evidence had not yet all been gathered and that there was no fresh evidence favourable to the applicant that would justify ending his pre-trial detention, given the length of the sentence liable to be imposed if the offence was established and the period already spent in detention. Lastly, the magistrate considered that the applicant’s release pending trial would be insufficient. On 9 February 2017 the applicant lodged an objection against the order of 30 January 2017, arguing that there was no evidence grounding a suspicion that he had disseminated propaganda in favour of a terrorist organisation, and maintaining that the articles and posts in question had formed part of his journalistic activities protected by freedom of expression. On 14 February 2017 the Istanbul 10th Magistrate’s Court dismissed the objection, finding that the impugned order had complied with the law and the proper procedure and that there was no fresh evidence favourable to the applicant that would require his pre-trial detention to be ended. On 2 March 2017 the Istanbul 10th Magistrate’s Court examined of its own motion the lawfulness of the applicant’s pre-trial detention and ordered its extension, reproducing verbatim the reasons given in the previous orders. On 20 March 2017 the applicant lodged an objection against the order of 2   March 2017, reiterating his grounds of objection and arguing that the fact of copying the reasons for a previous order was contrary to judicial ethics. On 24 March 2017 the Istanbul 11th Magistrate’s Court dismissed the objection. (b)    By the Istanbul Assize Court 14.     Beginning on 19 April 2017, the date of acceptance of the bill of indictment filed by the public prosecutor’s office accusing the applicant of assisting terrorist organisations without being a member of them (an offence under Article 220 § 7 of the Criminal Code (“the CC”)), the Istanbul Assize Court, which was hearing the case, reviewed the lawfulness of the applicant’s pre-trial detention at maximum intervals of thirty days. The judges concerned noted that the offence of which the applicant was accused was among the offences listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences”. They took the view that if the applicant were released pending trial he was liable to abscond. They 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 judges also took into consideration the risk of the deterioration of 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. 15.     At the close of the hearing of 9 March 2018 on the merits of the case, the Istanbul Assize Court ordered the applicant’s release pending trial. The court considered that all the relevant evidence concerning the applicant had been gathered, that there was no longer any evidence concerning him that was liable to be concealed, and that there were no strong suspicions that he would put pressure on the witnesses or the other accused who had not yet given evidence. It concluded that pre-trial detention was henceforth a disproportionate measure and that a judicial supervision measure would be adequate and sufficient. Content of the impugned articles and posts 16.     The articles written by the applicant and published in the daily newspaper Cumhuriyet and the items posted by him on social media –   as referred to by the public prosecutor in ordering the applicant’s arrest and by the magistrate in ordering his pre-trial detention, and as taken into consideration by the Constitutional Court when called upon subsequently to rule on the lawfulness of the detention measure   – are as follows. The article of 14 March 2015 entitled “Either Apo [goes] to Kandil or we [go] to İmralı” 17.     The full text of this article, which comprised an interview with Cemil Bayık, one of the leaders of the PKK, read as follows: “Heading of the article: According to Cemil Bayık, joint chairman of the KCK’s executive council, only Öcalan can persuade the PKK to lay down their weapons. We met Cemil Bayık in Kandil. He told us that [the PKK leaders] needed to meet Öcalan for the [peace] process to move forward. ‘If [the authorities] want’, he said, they could take them to the island of İmralı. ‘What we want’, he said, ‘is for Apo no longer to be held in İmralı. [The response to] that request is long overdue’. According to Bayık, the only person who could convince the guerrilla fighters to lay down their weapons is Öcalan: ‘We’ll sit down at the negotiating table with anyone in the government. Those who have resolved issues like this reached agreements, or negotiated agreements, with fascist powers’. Bayık maintains that Erdoğan is the representative of the dictatorship in Turkey. Question: Are you allowed to communicate directly with Abdullah Öcalan? Answer: We’ve never had any direct communication. We made it clear that we wanted to contact him. During the Oslo process we were told that this was possible, but the promises never came to anything. The HDP delegation goes there [to İmralı], takes note of their discussions and, as the case may be, hands over our letters. It’s the HDP delegation that acts as the intermediary. There’s no other communication. Sub-heading: We need to talk face to face. Question: Do your demands include ... videoconferencing? Answer: No. Videoconferencing wouldn’t work. We need to see Abdullah Öcalan in person, face to face. Question: Abdullah Öcalan can’t come to see you. Will you go there? You wouldn’t be allowed... Answer: We can go there too. If they want they can take us there, but what we’re really looking for is for our leader Apo no longer to be held in İmralı Prison, for him to be given back his freedom. Question: In an interview with Banu Güven for the television station IMC you suggested that the decision to lay down weapons could be taken at an annual congress attended by Öcalan. Does that mean that Öcalan would have to be released? Answer: Of course. No one will be able to persuade the guerrilla fighters unless the leader Apo comes and meets them. Although I’m the joint chairman of this movement, even I can’t persuade them. The only person who can do it is Apo. If he comes and meets the guerrilla fighters and their leaders, it would be possible to persuade them. Nobody else can do it. Sub-heading: Our influence is limited. Question: Would it not be enough for the leaders to pass on Öcalan’s decision to lay down weapons to the guerrilla fighters? Answer: Our guerrilla force is obviously no ordinary guerrilla force. These are not mere soldiers. They [are fighting for an ideology]. They’ve had ideological training, they’re loyal to our ideals and to our leader Apo. Our influence is limited. They’ll only be convinced if the leader comes to talk to them. Question: To what extent is it realistic to demand that Abdullah Öcalan be released? Answer: In my view, it’s realistic. It’s even overdue. Question: How realistic, how likely is it? Answer: There are also certain circumstances that are conducive to [this demand] being met. If the will is there, it’s even easy to achieve. That decision lies with the political authorities, with the State. In Turkey, the authorities and the State are effective enough to create the perception they want among the public. If they want, they can easily create the perception that Apo needs to be released, without causing a reaction in society. Sub-heading: We’ve done our duty Question: Are we to understand that if this condition isn’t met, the armed struggle in Turkey will carry on and the weapons won’t be handed in? Answer: The Turkish State and the government need to make significant efforts to put an end to the armed struggle. We began by conducting a political struggle in order to tackle the problems of this people. We never wanted an armed struggle. But we were left with no other option. We were unable to expose this issue, whose existence had been denied by the State. It was the armed struggle that served to highlight the issue in all its dimensions and to create a climate conducive to resolving it. Once we considered the armed struggle to have reached the necessary level, we began making political demands on this issue. We declared a unilateral ceasefire on several occasions to enable the groundwork [to be laid]. We’ve made all the necessary efforts on our side. Sub-heading: No further efforts are required before signing Question: What are those efforts? Answer: We took initiatives that no other force in the world would have taken. If you look at similar problems around the world, you can see that ceasefires were declared under the auspices of a third party, that the guerrilla fighters came out of their trenches, the prisoners were freed and the war ended. Without third-party supervision, without an agreement between the parties, without a document signed by them, these stages would not have happened. Even without these conditions being met we made major unilateral concessions. It’s not up to us to take any more steps – it’s the turn of the State and the government. If they do it, we’ll do what’s required of us without hesitation. Our leader Apo said that if negotiations began, the parties would need to proceed in parallel, but it hasn’t happened like that. On our side, we’ve made concessions, we’ve even taken numerous steps [in that direction], but the State and the government have not reciprocated as required. Sub-heading: Turkey has never wanted [involvement by a] third party Question: Is there a third party? Was there one in the past? Answer: No, at the moment there isn’t. At one time, during the Oslo process, there was one. But Turkey has never wanted a third party. Question: When you say ‘third party’ are you talking about an independent body or about supervision by a State? Answer: We were in touch with the leader Apo through the HDP delegation, before Apo made his historic declaration at the Nevruz [festival] in 2013. We sent the following message to Apo and to the State and the government: if we make a historic declaration proposing a democratic solution to the Kurdish question, then it has to be made clear what the mechanisms [of that solution] are. Our proposal was the presence of a third party. Question: Did you mention any third party in particular? Answer: No. It could have been the Turkish Parliament or a committee of Turkish non-governmental organisations. We presented several options. They didn’t accept them and instead sought a bilateral solution. They said that they wanted a local, national solution. In reality, they were inventing excuses not to do it ( ipe un sermek ). Because there’s no precedent for this kind of solution anywhere in the world. Turkey took no steps in this direction. They said that the process wouldn’t work with a third party. Sub-heading: It wasn’t realistic Answer (continued): As far as we were concerned it wasn’t realistic. In order to find out whether or not they were willing to resolve the issue, we nevertheless accepted their proposal, as they had rejected the alternative [third-party involvement]. Because we want to find a solution. That’s why we also agreed to those conditions. But we then realised that what they called a local or national [solution] wasn’t aimed at finding a solution. Sub-heading: They don’t accept the Kurdish question Question: Should we infer from your comments that the Turkish government or the State want to solve the problem of the PKK rather than the Kurdish question? Answer: That’s it exactly. The State and its government don’t accept the existence of the Kurdish question. They don’t accept that there is a people like the Kurdish people. In reality, this question needs to be addressed and solved as a political issue. Sub-heading: Their argument has failed Answer (continued): If you characterise the issue as ‘terrorism’, then your solution will inevitably be war. The Turkish State’s actions are consistent with its argument that there is no Kurdish question, there’s just the issue of terrorism. But that argument has failed. The PKK’s struggle has highlighted the fact that this approach is untenable both in Turkey and internationally. All the countries in the world have also realised this. At the point we’re at now, they can’t leave this issue unresolved. Sub-heading: We haven’t committed any crime Question: At the negotiating table, did ... the AKP regard the members of the PKK as criminals who should be granted amnesty or as important players in the Kurdish question, which extends beyond its borders and also includes international players? Answer: Of course, we’re criminals in the eyes of the Turkish government. But we haven’t committed any crime. We’re carrying on a struggle on behalf of the most natural rights of any people, but [the Turkish government] claim that no such people, and no such rights, exist. So we’re regarded as criminals under their laws. If what we’re doing is a crime then, yes, we have committed [that crime] and we’ll continue to commit it. Until we’ve achieved our objective. Sub-heading: Ankara’s demands for a local solution are unrealistic Question: What is your objective? Answer: To secure for this people its natural rights. First of all, the Kurdish question is not just a problem for Turkey. It’s not simply an issue between the Kurds and the Turkish State and its government. We have an issue that transcends those borders. The issue concerns Turkey, but it also concerns the Middle East and even the international community. Kurdistan is a divided country, a divided people, with each part under the sovereignty of a different State. Each State conducts its [own] policy in the part under its control. And those States conduct international relations with various world powers. From that perspective, the whole world is concerned by this issue, but there are also regional particularities which [are at the root] of this issue and which make it more complicated. The United States plays the leading role in the region. Turkey is a member of NATO and at the same time is a member of the Organisation of Islamic Cooperation and a candidate for [accession to] the European Union. Sub-heading: All the forces in the world are concerned Answer (continued): That’s why this has become a question which concerns every grouping. Resolving an issue with Turkey in fact amounts to resolving an issue with the United States, NATO, the European Union and the Organisation of Islamic Cooperation. In sum, all the forces in the world are concerned by this issue. Turkey’s obstinate insistence on finding a national and local solution is unrealistic. Sub-heading: He specifically chose the date of 28 February Question: On 28 February, at the meeting between the HDP and the AKP, a ten-point plan proposed by Öcalan was announced. Was this Öcalan’s final word on the subject of the process? Answer: No. Because you say your final word when you’ve achieved your objective. In that situation you get exhaustion and depression, the rot sets in. Apo and the PKK are looking to lead a revolution within the revolution. Question: When I mentioned the ‘final word’, I meant that this ten-point declaration forced the AKP to face up to its responsibilities. What happens if it doesn’t assume those responsibilities? Answer: The leader asked us to insist that the declaration be made on 28 February. As we are a movement that is opposed to military coups, we wanted to make the declaration on 28 February. A joint declaration was signed by the parties and the joint text was announced to the public. The government delegation and the delegation of the HDP were photographed together. On the same photograph, in the same frame. That was significant, because it was the first time that the government had shown that it was facing up to its responsibilities. That wasn’t an easy thing for Turkey to do, and it’s very important. Question: Indeed, but if the government doesn’t assume its responsibilities, what will happen? Answer: Öcalan will make an appeal, the PKK will announce that it’s giving up its weapons, and the problem will be solved that way. It’s a superficial trick designed to deceive society. By selling this false perception to society, they hope to win the elections. The Kurdish movement is not fooled. Sub-heading: If there were democracy there would be no Kurdish issue Question: So why do you stay at the [negotiating] table with the AKP? Answer: We sit down at the [negotiating] table with whoever is in power. It’s not surprising. Those who resolved similar problems around the world resolved them with fascist governments or dictators or negotiated with them. That’s what’s happening here too. If there were a democratic government in Turkey, there wouldn’t be a Kurdish issue or a democratic issue. Question: Do Erdoğan and the AKP represent fascism in Turkey? Answer: It’s Erdoğan who represents AKP hegemony and dictatorship. It’s impossible for the AKP to promote Erdoğan’s dictatorship in Turkey and at the same time to claim to resolve the issue of Kurdistan. Question: Is this all a political initiative aimed at nationalist voters? Answer: On the one hand [the AKP] addresses the nationalist community, and on the other hand it provokes us and provokes the people, so that we’ll say ‘Enough is enough’ and leave the negotiating table. If the AKP doesn’t resolve the issue and continues to provoke us and to stall the process, we can move on unilaterally to a certain point in resolving the issue. If we receive further provocation and threats [the AKP] could prompt us to leave the table. It’s made all these efforts, but they haven’t succeeded. Sub-heading: The AKP is counting votes Question: What interest does the AKP have in all this? What does it stand to gain if you leave the [negotiating] table? Answer: Of course [the AKP] stands to gain. It claims that it’s the party that’s addressing the issue while we’re against [finding] a solution. They’re pushing us to tipping point, pushing us to make [concessions]. They’re patient, they work at it. If we leave the [negotiating] table [the AKP will say]: ‘We wanted to resolve the issue, we were patient, but the PKK didn’t want a solution, they wanted to carry on waging war. They weren’t in favour of peace, they think of nothing but waging war’. That’s how [the AKP] always operates.” The interview of 31 March 2015 entitled “Remarkable account given by activists to Ahmet Şık half an hour before being killed” 18.     This interview, published on the evening of 31 March 2015 on the website of the newspaper Cumhuriyet , read as follows: “Heading: The Cumhuriyet journalist Ahmet Şık spoke to the activists by telephone half an hour before their death. Why did they carry out this action? What do they want? Are they lawyers? What did they talk about to the prosecutor? They answered all these questions. The activists B.D. and Ş.Y. answered Ahmet Şık’s questions by telephone half an hour before being killed in the hostage-taking incident. Ahmet Şık’s questions and their replies are set out here. Question: Are you going to put an end to your action? What stage are the negotiations at? Answer: We tweeted the service numbers of the police officers concerned taken from the investigation file. According to the file, the criminal bureau [the police inspectorate] found that three police officers out of the 21 officers suspected were especially implicated. We discovered that it was these three officers who may have fired at B.E. [1] . The prosecutor also gave us that information. In the negotiations we’re asking for the identity of these three police officers to be disclosed and broadcast live. The negotiators also told us [that they were 99% sure that] the people who killed B.E. were police officers. We’re asking for the public to be told the names live on air. Here, we’ve studied the files too. We’ve looked at photos of the suspects. In the criminal bureau report the three officers were already circled in red. One of them is called G.T. His service number is ... We also provided the service numbers of the other police officers and we want their names to be disclosed live on air. Question: Do you think your demand will be met? Answer: The names of B.E.’s killers [are known] but haven’t been disclosed. Thanks to our action, the names will be announced and [the police officers] will face trial. The killers in the cases of A.İ.K. and E.S. were identified, but we know how that trial ended. The killers are never punished properly. That’s why we want them to be tried by a [lay] jury. That’s our second demand. Question: What will happen if your demand isn’t met? Answer: Our demand is clear. The names must be announced live on air. The negotiators have to honour their commitments. The identity of the cops has to be disclosed and the officers have to confess to their crimes in a live broadcast. When that demand has been met we can negotiate on the other demands which we’ve already announced. If our [first] demand isn’t met we’ll do what we said at the beginning. We provided the police officers’ service numbers. We want the names to be announced. Once that’s been done we can put an end to our action. Now we’re starting a final negotiation and we’ve given a deadline of half an hour [it’s now 7.40   p.m.]. [If the police officers] don’t admit to their crimes live on air, the negotiations will end. The telephone calls will end too and we’ll punish the prosecutor. Question: Was it also you who demanded that the head of the security directorate and the deputy chief public prosecutor give a live statement at midday? Answer: Yes, that statement was made in line with our demand. When we began our action we gave a three-hour deadline. We were able to get in touch with the team of negotiators shortly before that expired. As the authorities promised to announce the identity of B.E.’s killers, we said that if that was done the negotiations would continue. The chief of police and the deputy chief public prosecutor then made a statement live on air and we extended the deadline. If they hadn’t made that announcement the deadline wouldn’t have been extended. Question: When you entered the building, did you use lawyers’ IDs? Reports that you were lawyers were also circulating. How did you get into the courthouse with weapons? Answer: We’re not saying anything about how we got in. No doubt that will emerge eventually but we’re not giving any explanations at this stage. Rumours of this kind make lawyers a target. In fact, even without us putting on lawyers’ robes or using lawyers’ IDs, lawyers would be targeted in this case. Lawyers in this country have been targeted repeatedly. They’ve been put in prison and even killed because they [were identified to their] clients. So they won’t suddenly become targets because of our action. Anyone who doesn’t support the AKP and the established order in this country is already a target. We’re not lawyers either, we’re DHKP/C fighters. At the end of the day, we decided to carry out this action and we tried all kinds of methods. This action is a method [that we were forced to use]. Question: Does armed action deliver justice? Answer: The revolutionaries have worked hard for justice in this country. They’ve carried out lots of actions to date. The revolutionaries have protested, the lawyers have insisted. But instead of prosecuting the killers they arrested the protesters. The protesters were investigated and tortured. We’re demanding justice for the killing of B.E. But they only make use of the justice system when the interests of the established order are at stake, and to arrest those who seek justice. We’re here today to deliver justice. The methods we use, and our action, are legitimate. Question: You say that if your demand isn’t met you’ll punish the prosecutor. Is that legitimate? Answer: We’re trying to avoid that. Meeting our demand and ensuring that nothing happens to the prosecutor, [all that] is in their hands. After all, these are their own prosecutors and police officers. It is these prosecutors and police officers who protect their established order. If they don’t want anything to happen to them, they just have to agree to our demand. We believe that the established order doesn’t respect its own people. They use them and then discard them. It’s up to them to decide what happens now. We’re not making any further demands. Question: What condition is the prosecutor in? Can we speak to him? Answer: I can’t let you speak to him. But he’s fine. He’s already spoken on the phone to another prosecutor whom he knows and to a senior police officer. He’s in good health, he says so himself. Question: Have you spoken to the prosecutor at all? According to [some of the media], this prosecutor has worked hard to find the perpetrators of B.E.’s killing. Answer: Yes, we’ve spoken to him. The prosecutor tries to defend himself. But when you look at the file, all you find is the lawyers’ applications. There’s no sign of any efforts by the prosecutor to make progress in the case. We now know how the case has been conducted so far. The prosecutors haven’t dealt with the case. It was the lawyers and the families who tried to find the video recordings. The revolutionaries took action several times to demand [that the case be dealt with]. But they were placed in police custody. They were tortured. They were arrested. No one can name a single step taken by the prosecutors in this case. Everyone knows what the judiciary does in cases like this. They just protect the State and its criminals. In this case as well the prosecutor is responsible for the impunity of the police. We’ve already said that to him. Question: The murder of B.E. had already provoked a response among the great majority of the public. Hundreds of thousands of people who attended his funeral protested against that injustice. Does your action not destroy the legitimate basis [of the protests]? Answer: B.E. was an ordinary person, but he was our kid. We knew him. We knew him personally, [he was] from our area. B.E. was a kid who grew up [with us]. He was our soul, our brother, our comrade. It was no accident that millions of people attended his funeral. The revolutionaries carried out actions for 360 days to draw attention to that injustice and provoke a public response. Lots of martyrs were killed during the June uprising, but none of the funerals were like that. Of course, B.E.’s age and the fact that he was still a child were a factor, but that huge gathering took place because of our demands for justice. As we said at the start, in deciding on this action [the hostage-taking] we’ve done [everything we could] up till now. We used democratic means to call for action to be taken. But since justice was not done we said that we might deliver justice by taking up our weapons. Our legitimacy comes from our ideology.” 19.     When this interview was published in the print edition of Cumhuriyet on 1 April 2015, under the heading “This action is a method we were forced to use”, it was preceded by an introduction written by the applicant, worded as follows: “[The activist] was on the phone shortly before the bloody operation which put an end to the latest hostage-taking incident without leaving a single witness behind to tell the truth. When I rang the number for the second time without being sure that anyone would answer, a young voice said ‘Hello’. I don’t know which [of the two] it was. When I introduced myself and began asking my questions one after another, the negotiations could be heard in the background. [The activist] asked me to be quick, but he answered all my questions. Although his words showed his determination, he kept repeating the same thing: ‘If the police officers’ identity is disclosed, our action will end’. That didn’t happen. This simple demand, which the judicial authorities should already have met, was rejected. The operation, which was described as ‘successful’, resulted in the death of the prosecutor Mehmet Selim Kiraz and of Ş.Y. and B.D., who said that they had gone there to kill the prosecutor. This last interview is published here as a record.” Contribution to a seminar held from 23 to 26 September 2014 20.     During a seminar on press freedom organised in Heybeliada (Turkey) in partnership with the European Parliament, the applicant reportedly made the following remarks: “Working in the media wing of an organisation conducting an armed struggle does not make you a member of that organisation. As far as I’m concerned, all my colleagues who work in the PKK’s media wing are journalists.” Items posted by the applicant on social media from his Twitter account @sahmetsahmet 21.     The post of 28 November 2015: “They chose to slaughter Tahir Elçi instead of arresting him. You’re a mafia, you bunch of murderers.” 22.     The post of 17 February 2016: “Do people who try to prove that the PYD is a terrorist organisation, while the United States and the EU refer to it as their ally against jihadist terrorism, not become ordinary suspects?” 23.     The post of 11 December 2016: “Instead of comparing the people who were burnt in the cellars of the houses in Cizre and those who were killed by a bomb in Istanbul, speak out against both. Both are acts of violence.” 24.     The post of 14 December 2016: “A war has been going on with the PKK since 1984 in a particular region of the country, despite occasional interruptions.” 25.     The post of 20 December 2016 concerning the possibility that the killer of the Russian ambassador in Ankara may have been a member of an organisation: “To the government and its supporters who are trying to prove that the murderer is a member of FETÖ, but not of Al-Nusra: what will you do about the fact that the killer is a police officer?” A message, the date of which is unknown, invoked by the magistrate’s court, but not taken up either by the indictment or by the Constitutional Court’s judgment: “If the act attributed to S.S.Ö. is a crime, shouldn’t there be more suspects, starting with the person who resides in the Palace?” The articles by the applicant mentioned in the detention order but not expressly referred to by the Constitutional Court 26.     An article published on 8 July 2015 under the heading “What we’re doing is journalism; what you’re doing is treason”, and another article published on 9 July 2015 under the heading “MİT had information on the Reyhanlı massacre but did not share that information with the police”, both reported on remarks made by the public prosecutor Ö.Ş. alleging that the organisation MİT (the national intelligence agency) had concealed the Reyhanlı explosives attack from the judicial authorities. The prosecutor Ö.Ş. was subsequently arrested in the context of a criminal investigation concerning some judges and members of the security forces who were alleged to be militants of the organisation FETÖ, in connection with the affair known as “the MİT lorries”. 27.     An article was published on 13 February 2015 entitled “The secret in the lorries revealed”. The article 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. PROCEEDINGS ON THE MERITS OF THE ACCUSATIONS AGAINST THE APPLICANT The indictment of 3 April 2017 28.     On 3 April 2017 the Istanbul public prosecutor’s office filed a bill of indictment with the Istanbul 27th Assize Court against seventeen individuals including the applicant. They were accused mainly of lending assistance to terrorist organisations without being members of them (an offence under Article 220 § 7 of the Criminal Code (“the CC”)). The public prosecutor considered that, by publishing articles that we