CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 avril 2021

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margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .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 AHMET HÜSREV ALTAN v. TURKEY (Application no. 13252/17)   JUDGMENT   Art 5 § 1 (c) • Unlawful pre-trial detention of journalist, accused without reasonable suspicion of involvement in illegal organisation and attempted coup Art 5 § 4 • Procedural guarantees of review • Inappropriate restriction on investigation file access during state of emergency, preventing effective challenge to pre-trial detention • Speediness of review • Period of more than fifteen months justified by exceptional caseload of the Constitutional Court following declaration of the state of emergency Art 15 • Derogation in time of emergency • Not “strictly required” Art 5 § 5 • Lack of access to effective remedy to obtain compensation Art 10 • Freedom of expression • Unlawful nature of detention impacting on lawfulness of interference Art 18 (+ Art 5) •     Existence of an ulterior purpose not established   STRASBOURG 13 April 2021 FINAL   13/07/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ahmet Hüsrev Altan v. Turkey, 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,   Carlo Ranzoni,   Saadet Yüksel, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to: the application (no.   13252/17) 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 Hüsrev Altan (“the applicant”), on 12 January 2017; the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning Article 5 §§ 1, 3, 4 and 5 of the Convention and Articles 10 and 18 of the Convention and to declare the remainder of the application inadmissible; the observations submitted by the Government and the observations in reply submitted by the applicant; the written comments submitted by 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 written comments submitted 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, PEN International and Reporters Without Borders (“the intervening non-governmental organisations”), who were granted leave to intervene by the President of the Section (Article 36 § 2 of the Convention and Rule 44 § 3); Having deliberated in private on 16 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant, who is a well-known novelist and journalist, alleged that his pre-trial detention had breached Articles 5, 10 and 18 of the Convention. THE FACTS THE CIRCUMSTANCES OF THE CASE 2.     The applicant was born in 1950 and is detained in Istanbul. He was represented by Ms F. Albuga Çalıkuşu, a lawyer practising in Antalya. 3.     The Government were represented by their Agent. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s professional career, his alleged involvement in the “Balyoz” (Sledgehammer) case, and the newspaper articles that he had written prior to the attempted coup of 15 July 2016 Professional career 5.     The applicant is a well-known journalist and novelist and has written columns in many newspapers and produced a number of television programmes. In 2007 he became one of the founders of the daily newspaper Taraf , and he was its editor-in-chief until his resignation in 2012. On 7   October 2015 the applicant started writing articles about current issues on a website called “haberdar.com”. The “Balyoz” (Sledgehammer) case 6.     In 2010, the daily newspaper Taraf published a news story in which it was alleged that in 2002 and 2003 certain high-ranking military officers had plotted a military coup against the Government. In preparing the story, a journalist from Taraf relied on allegedly classified information and documents. On the basis of this piece of news, in 2010 the Istanbul public prosecutor’s office opened a criminal investigation in respect of several high-ranking military officers alleged to be members of a criminal organisation called “Balyoz” (Sledgehammer). The officers were accused of planning a military coup in 2002 and 2003, aimed at the forcible overthrow of the democratically elected Government, an act punishable under Article   147 of the former Criminal Code as in force at the time of the events (for more detailed information on the “Balyoz” case, and the action plans relating thereto, see Doğan v. Turkey (dec.), no. 28484/10, 10 April 2012, and Çakmak v. Turkey (dec.), no. 58223/10, 19 February 2013). The accused officers were subsequently discharged from the army. In a judgment of 21 September 2012, the Assize Court delivered its verdict in the “Balyoz” case, finding the accused guilty as charged and sentencing them to various terms of imprisonment. By a decision of 9 October 2013, the Court of Cassation upheld the convictions of the 237 accused. 7.     In a judgment of 18 June 2014 on an individual application lodged by the accused military officers, the Constitutional Court ruled that their complaint relating to the right to a fair trial was well founded. It stated that the digital documents which had been used as the basis of the convictions had turned out to have been created or falsified in order to have large numbers of high-ranking army officers convicted and eliminated. The Constitutional Court thus concluded that there had been a violation of the right to a fair trial and decided to notify the Assize Court of its judgment so that it could do “what was necessary”. 8.     On an unspecified date, the Anadolu Assize Court decided to reopen the criminal proceedings against the accused military officers. By a judgment of 10 March 2015, it rendered its verdict in the “Balyoz” case. The accused officers were all acquitted. Finding that the evidence in the file had been falsified, the court also decided that action should be taken against those responsible for the alleged falsification. Accordingly, criminal proceedings were brought against the applicant, in his capacity as the editor-in-chief of Taraf , for divulging classified documents in the “Balyoz” case. The applicant categorically asserted that the documents had not been falsified and persistently maintained that the sources on which they had been based were genuine. According to the information in the case file, the criminal proceedings against the applicant are still pending before the domestic authorities. Articles written by the applicant which subsequently constituted the basis of his detention and the ensuing criminal proceedings (a)    Article entitled “Absolute fear” ( Mutlak Korku ) , published on the news website haberdar.com on 12 May 2016 9.     This article reads as follows: “Part of a famous quote by Lord Acton reads: ‘... absolute power corrupts absolutely’. I assume it is possible to make an addition to that. Absolute power brings with it absolute fear. Tayyip Erdoğan, who does not ‘abide by the Constitution’, and who violates all laws, and who, after taking control of the judiciary – in the words of his own party’s Members of the Parliament – has taken full control of the executive, legislative and judicial powers, now unlawfully holds all the authority and power a dictator holds. From the colour of the carpet to be laid for a State ceremony to the minaret of a mosque to be built in Çamlıca, and from the persons to whom the most profitable undeveloped land should be sold to what should be talked about on TV food shows, he meddles in almost everything and he gets everything he wants done. People he points fingers at during his regular grand meetings with his beloved neighbourhood heads ( muhtarlar ) either get arrested or become the target of an armed assault. More often, they face both. Apparently, each party among his supporters acts in whichever way they take his instructions to be. The media are under his command. The majority of the media are directly under his control. Nationalist media, along with Ergenekon, have sided with Erdoğan. Save for several decent newspapers and news websites that never give up resisting, and the brave people who work there, there is no one left in the media. The AKP [Justice and Development Party] in the meantime has all but given up being a political party and has turned into a group of ‘office boys’ running Erdoğan’s errands. There is not a single State official in the country who can object to his orders, no matter how irrational they may be. If he believes it will help boost his vote, he will get any city demolished to the ground. He has burned people to death, he has people killed. Just recently, the United Nations High Commissioner for Human Rights stated that there were witness reports from Cizre claiming that more than 100   people had been besieged and burned to death and urged that a team of independent investigators conduct an investigation in that region. He always gets his own way, he meddles in everything, from advising people to drink a yogurt drink at night, to telling women to have three children. And yet there is no one as scared as this man in the entire country. He is scared of everything and everyone. He holds absolute power and lives in absolute fear at the same time. Just imagine, he suspected his Prime Minister Davutoğlu and he fired the man, he literally dismissed him, without compensation. We are talking about Davutoğlu here, the man who retracted every single word he had said the following day whenever Erdoğan corrected him, the man who became an accomplice in all crimes committed for the sake of his party’s founding leader. Someone who has agreed to take responsibility for what is perhaps the bloodiest period in the history of Turkey. Erdoğan is so full of fear that he even suspected Davutoğlu and dismissed him ... I think Erdoğan’s political decline will be brought on by this absolute fear. Gradually, he will start suspecting and getting rid of every single person around him, replacing them with more and more inadequate people each time. Just like a vacuum cleaner fitted with a combine harvester, he will destroy whoever is close by. Those who are not close are already being destroyed. He is ripping the country apart. I guess this is a common trait shared by all law-defying people. There is a TV show called Narcos . It tells the story of the notorious Colombian drug trafficker Escobar. ... At some point he wants to become the President of Colombia and he sincerely believes he can run the country better than anyone else. The road that leads to his disastrous end begins with his ambition to become President. Not only Colombia but also the rest of the world becomes aware of the possible consequences of such a man becoming the Colombian President. So they go after Escobar. But he is still powerful. He makes an unprecedented deal with the government in which he agrees to surrender on condition that he gets to design his own prison and choose his own guards and no State official can approach within three kilometres of the prison. The government is forced to agree. But this absolute power, capable of even bringing a government to heel, gradually starts transforming into a state of absolute paranoia. ... He then begins to suspect two of his very old friends who are running the business while he is in prison. ... He has them both killed. And from that point on, it only gets worse. His thirst for absolute power, his absolute fear, and its inevitable consequence, paranoia, tears down the entire empire. ... Absolute power creates absolute fear. The political arena in our country is currently going through a period of lawlessness, corrupted power and wealth, absolute power, absolute fear, and the elimination of companions has already begun. I have said this before, and I will say it one more time. This is not going to stop. This spiral of violence will continue to escalate, gaining momentum day by day. He will not only dispose of his rivals but his friends as well. We will go through a huge wave of paranoia and violence. Ever since the day Erdoğan declared he would not abide by the Constitution, Turkey has been fast heading towards a catastrophe. But on the other hand, Erdoğan is running fast towards the end of his political career. No good usually comes out of panic, fear, and the desire for absolute submission, but these characteristics are no good for those who possess them either. The best thing that could happen for both Erdoğan and Turkey would be for him to return to the constitutional limits of his power, but probably it is too late for that by now. I guess we are watching the final act of a badly written stage play. The cost may be too heavy but it is still good to know that it will somehow end.” (b)    Article entitled “Crushing through” ( Ezip Geçmek ) , published on the news website haberdar.com on 27 June 2016 10.     This article reads as follows: “Upon reading it for the first time, it felt like I was hearing the deep, mechanical voice of Darth Vader, dressed in his black cape and with his black helmet on, giving orders for a planet to be destroyed. Destroy, he said, destroy. Have you seen what L.G. told H.K. during a recent interview for the Özgür Düşünce daily? These were his exact words: ‘I am not going to say who, but a very high-profile bureaucrat paid a farewell visit to Mr Tayyip before his retirement. When Mr Tayyip told the bureaucrat about his forthcoming plans, the bureaucrat told him: “If you carried out half of these, civil war would break out in this country.” Mr Tayyip replied: “Maybe, but we would walk all over them”. I heard about this dialogue in person from the bureaucrat himself. So there is a leader who is ready to face up to a civil war. And for what reason? Individual ambitions.’ The man who runs Turkey is ready to face up to civil war; he says they would walk over the people. When a country’s constitution-defying ruler says a civil war may break out, civil war does indeed break out. As it is, we are fast headed in that direction. Just like in the case of Darth Vader, who is unaware that he has just ordered the destruction of his own planet, Erdoğan is unaware that he has actually given the go-ahead for a civil war that will destroy his own country and moreover his very own life. Just like when he mistakenly thought that he would be greeted with enthusiasm as the leader of all Muslims but embarrassed both himself and Turkey when he went to the United States to attend the funeral of Muhammad Ali, he will wreck both himself and Turkey with a civil war , which he consents to because he wrongly believes that he will crush his opponents. Erdoğan is detached from reality. It’s clear that in order to be able to evade a legal probe, he is ready to start a civil war, and moreover, he wants to start it, as we can understand from his words ‘we would walk all over them’. He has no clue as to what civil war entails. When the walls of his palace come down with artillery fire, when people holding guns kill each other in the corridors, he will understand what a civil war is, but by then, it will already be too late. A civil war is the worst calamity that can ever happen to a community, no one can avoid becoming a victim of its tragedies. It is far more horrible than a war. You would never know where your enemy is, or who your enemy is; a horrible hatred turns everyone into a monster; people do not just kill each other, they even dismember the corpses of those they murder; they rape children, wives, lovers, sisters; they burn down each other’s homes. Presumably, the media pool that supports a leader who says civil war may break out, the administrators and owners of those media outlets and their relatives assume they are safe. No one can be safe in a civil war. Even if some manage to escape, their relatives will remain behind to become victims. They would lose not just their loved ones or relatives; even their neighbours would be murdered. AKP supporters who vote for a man who says civil war may break out are probably assuming that they would crush the others in such a war. They think that a civil war is using tanks and artillery to kill youths who dig ditches in Kurdish neighbourhoods. Civil war is when the man you greet every morning comes to your house to slit your throat. When he rapes your wife in front of your eyes. When your child is shot in the head, the minute he walks out on your doorstep, by a sniper hiding nearby. In the event that civil war breaks out in this country, do AKP supporters believe the only victims will be the others? They presumably do, but they are wrong. A civil war would pull everyone, the entire country, into a bloody vortex. Furthermore, right now, the amount of hatred and rage pumped into society is very close to the point of an explosion. The hatred is not just between Kurds and Turks. A terrible hatred is also growing between those who call those who don’t pray animals, those who view people who don’t pray as creatures that must be slaughtered, and those who are branded by the former as animals. Erdoğan and the adherents of the AKP are assuming that in the event of civil war, the army will remain under their command. Perhaps they would be able to keep some of the commanders to whom they have allegedly been paying huge sums, but in civil wars, armies too get split; from a single army are born several armies that are enemies of each other. Massacres will happen. Just look at what happened in Bosnia. Look at what happened in Rwanda. Look at what happened in Syria. If you are too lazy to read a book, check out the movies about these incidents. And see where a man who is blinded by his anger and who says that if a civil war breaks out, we will walk over our opponents, is dragging you. ... This is what civil war is. It is brothers shooting brothers. You think it would not happen here? Only yesterday photos showing an ISIS decapitator shooting a bullet at his brother’s head got published. These are tragedies that would happen in a civil war, which Erdoğan says may break out. Those tiny bubbles that indicate that a pot of water sitting atop a stove is ready to boil are gradually becoming more visible: a bullet is launched at the leader of the main opposition party; preparations are being made to imprison the leader of another opposition party ; the legislation that is meant to protect the safety of the community is obliterated; a horrible storm of anger and hatred is being created in the name of religion and patriotism. And the President of this country says a civil war may break out. If the man ruling the country says a civil war may erupt, then civil war does erupt. The country would get torn into pieces, millions of people would die, hunger and poverty would be all around, people would literally rip each other apart to be able to escape and move to another country. And eventually they would tear down Erdoğan’s palace. What remains would be a bloody desert torn into pieces. And no one can escape. This is not a horror story; many countries have been through these events before, their rulers too had said a civil war could erupt, there too events escalated step by step into civil war. All opposition parties have to devise their plans in accordance with what is imminent in Turkey, with what Erdoğan is ready to face up to. We are not face to face with a kind of trouble that can be slurred over with several statements. There is a serious disaster coming our way. Adherents of the AKP should also take this seriously. In the event that a civil war erupts in this country, they too will encounter it all, along with the rest of us. Running away will be no good because they will be tried as war criminals. We have heard Darth Vader’s instruction to destroy the planet. Beware that the planet to be destroyed is your own country. Darth Vader might not know it, but you should. Behave accordingly.” (c)    Article entitled “Montezuma” , published on the news website p24blog.org on 10 July 2016 11.     This article reads as follows: “We are face to face with an incomprehensible situation. A man who has declared he would not abide by the Constitution is running the country singlehandedly in defiance of the Constitution. He has taken – to quote his supporters – the judiciary under his control, placed his adherents at almost every level of government, the media controlled by him adopts and supports all of his contradictory remarks without even questioning them, the political party that he once led has committed some kind of political suicide to turn into a crowd of servants, he can crush anyone who disagrees with him, administrative posts in universities are packed with those who fully submit to him, he can seize the property of businessmen who annoy him, opposition parties are watching all that is happening in a strange state of surrender, and moreover, they even support him when it comes to the most crucial matters. In the administration of this man who holds such immense and unlawful power, the wildest fantasies of the military tutelage which he used to say he was opposed to are being realised; all the aspirations of this tutelage that it could never achieve on its own are now becoming real. Kurdish cities are being razed to the ground with tanks and artillery; people are being burned to death in basements. Kurdish neighbourhoods are being wiped off the map. Kurdish deputies’ parliamentary immunity is being lifted. All religious people who are thought to be members of the movement ( cemaat ) are being fired from their jobs, monitored, profiled, imprisoned. Laws that ban military officials from being prosecuted even if they commit a crime are being passed. The authority of the generals is made to outweigh civilian authority. The road is being paved for the military tutelage to seize back authority by way of legislation. Together, all of these make up an incomprehensible situation. Why would a man who seemingly holds power alone help realise all the aspirations of an establishment that seems to be his biggest enemy? It is difficult to come up with a reasonable answer. But a very similarly unreasonable situation does exist in history. In the 1520s the Spaniard Hernán Cortés and his men set foot in Mexico. He had an army of 40,000 men. He arrived in the Aztec Empire’s capital city, which had a population of 200,000. The Aztecs were ruled by the Emperor Montezuma. The Aztecs were of course much greater in number than the Spanish. But Cortés had an unbelievably wicked plan. Accompanied by a group of his men, he went to Montezuma’s palace, where they took the emperor captive. But he did not declare that the emperor was now a prisoner in his own palace. The Aztecs would not take orders from Cortés but they would if the orders came from their emperor. So Cortés had everything he wanted done through the emperor, which created an incomprehensible situation. ... A while later the Aztecs rebelled upon discovering that their empire had been conquered by the Spanish. Huge clashes took place. Some claim Montezuma was murdered by Cortés, while others argue that it was the Aztecs who killed him upon finding out about his treachery. The empire fell into turmoil, but the mystery was never solved. Now we too are living with a similar mystery. How come at a time when Erdoğan seems so powerful, when he has seized all power alone by way of a constitutional violation, all the wishes of the military tutelage are becoming real? It seems as though all these were instructions given by Erdoğan, he is the one who is making the remarks. But when you take a closer look, they are all in fact the desires of the military tutelage. Is it really Erdoğan who is running the country with unlawful methods? Or has another unlawful establishment taken Erdoğan captive? Is Erdoğan, who has declared that he would not abide by the Constitution, in reality ruling his party and the country as the pawn of another force? Is this the reason why the nationalists, who are not as secretive as the Spaniards, have lately been bragging that the patriots have taken hold of Erdoğan? What is going on? Who is in control of whom inside the palace? Are we going through a case of the mystery of Montezuma? Does anyone know the answer? Or should I put it this way, is there anybody who wonders what lies behind this mystery?” The attempted coup of 15 July 2016 and the declaration of a state of emergency 12 .     During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup to seize power in the country and to overthrow the democratically elected government. 13.     During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured . 14.     The day after the attempted military coup, the national authorities blamed Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) who was considered to be the leader of a terrorist organisation described by the Turkish authorities as the “ Fetullahist Terrorist Organisation/Parallel State Structure ” ( Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması ), hereinafter referred to as “FETÖ/PDY”. During and after the attempted coup, in order to dismantle the infiltration within the government and to eliminate the continuous threat to the government, public prosecutors’ offices all around Turkey initiated criminal proceedings against those who had been directly involved in the attempted coup, and also against those who had not been directly involved but were suspected of being part of the structural organisation of FETÖ/PDY in various public, health, educational, commercial and media institutions. In the course of these criminal investigations, many people were arrested and subsequently placed in pre-trial detention. 15.     On 20 July 2016 the Government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President. 16.     On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15. 17 .     On 18 July 2018 the state of emergency was lifted. The applicant’s arrest and pre-trial detention and the ensuing criminal proceedings The applicant’s arrest 18 .   On an unspecified date, the Istanbul public prosecutor initiated a criminal investigation in respect of suspected members of FETÖ/PDY. In addition, on the basis of Article   3 §   1   (l) of Legislative Decree no. 668, he ordered restrictions on the right of the suspects’ lawyers to inspect the contents of the investigation file or to obtain copies of documents in the file. In the course of the criminal investigation, on 9 September 2016 an arrest and search warrant in respect of the applicant was issued by the Istanbul Chief Public Prosecutor, as it was considered that he was part of the structural organisation of the media wing of FETÖ/PDY. In this connection, it was pointed out that in a television broadcast that had aired one day prior to the attempted coup of 15 July 2016, the applicant, along with the two other hosts, had disseminated subliminal messages to the public that were evocative of a coup . The search and arrest warrant stated: “The day prior to the attempted coup, which was organised by members of FETÖ/PDY, Ahmet Altan participated in a television talk show called Free Thought that was broadcast on the Can Erzincan TV channel via YouTube. In this programme, Ahmet Altan and the other two participants disseminated subliminal messages and threatened the Republic of Turkey and the President, and implied that a coup would take place. It is thus understood that they knew that a coup would take place and raised this topic specifically to influence public opinion in favour of a coup attempt. In no democratic society can supporting a coup attempt or threatening an elected government with a coup be covered by freedom of expression.” The prosecutor further argued that the applicant had committed the alleged offence jointly with the military officers who had participated in the attempted coup. 19.     On 10 September 2016 the applicant was arrested at his home and taken into police custody on suspicion of having links to the media wing of the organisation in question. His home was also searched by the police officers. On the same day, the applicant lodged an objection against his arrest. Having examined the objection, on 12 September 2016 the Magistrate’s Court rejected it. 20.     The applicant remained in police custody for twelve days at the Istanbul police anti-terrorist branch. 21.     On 20 September 2016, while at the police station, the applicant stated that he was asserting his right to remain silent. The applicant’s questioning by the public prosecutor and the investigating judge, and the decision regarding his pre-trial detention (a)    The applicant’s questioning by the public prosecutor 22.     On 21 September 2016 the applicant, in the presence of his lawyer, was questioned by the Istanbul public prosecutor on suspicion of attempting to overthrow the government or to prevent it from discharging its duties (Article   312 of the Criminal Code), and of being a member of the FETÖ/PDY terrorist organisation (Article 314 of the Criminal Code). 23.     Before the questioning commenced, the offences of which the applicant was accused were explained to him. During the questioning, the public prosecutor asked the applicant: (i) whether he knew any of the military officers who were members of the FETÖ/PDY terrorist organisation and who had taken part in the attempted coup; (ii) about his comments during a television programme aired on Can Erzincan TV on 14   July 2016, when he had alleged that the President of the Turkish Republic, by his unconstitutional actions, had been inciting a coup and that his departure from the government was imminent; (iii) whether he had known about the attempted coup beforehand; (iv) about three articles he had written, namely “Absolute fear”, “Montezuma” and “Crushing through”; (v)   who had decided which news story would be published in the daily newspaper Taraf , of which the applicant had been a founder and the editor-in-chief; (vi) why, in his capacity as the editor-in-chief of Taraf , he had attempted to discredit an investigation into an alleged coup (the “Balyoz” case) by publishing news stories in that newspaper, and why Taraf had been the first newspaper to report on the purported coup on the basis of fabricated documents; (vii) whether Taraf had been acting under the instructions of the FETÖ/PDY terrorist organisation to manipulate public opinion; (viii) about his comments whereby he had sought to create an understanding that M.B., one of the journalists working for Taraf , had been convicted on account of his journalistic activities and by disseminating the view that freedom of expression did not exist in Turkey; (ix) who had provided financial support to Taraf , noting that the newspaper had been closed down by presidential decree following the attempted coup, as it was considered to be one of the media organisations used by the FETÖ/PDY terrorist organisation; and (x) for clarification of his remarks in two articles, one published on 3 March 2005 in the daily newspaper Cumhuriyet , entitled “I am here, talk to me”, and another one in Taraf , entitled “The Prime Minister of his pasha”. 24.     In reply, the applicant denied all the accusations against him. He stated that he did not know any of the military officers who had links with the attempted coup. He explained that in the three articles referred to by the public prosecutor, he had merely been criticising the President, who was a politician who had come to power by means of a democratic election and who would leave following a democratic election as well. Those comments were within his right to freedom of expression. Stating that a person who criticised a politician was attempting a military coup would amount to a total disregard for freedom of thought. The applicant further explained that at the material time when newspaper articles had been published regarding the “Balyoz” case, many politicians had also believed that the allegations made in that context were true and that even members of the Government at the time had made similar statements. He stated that he had sincerely believed that the documents regarding the “Balyoz” affair were genuine. The applicant further stated that he had resigned from Taraf in 2012, and that at the time when he had been the editor-in-chief, the newspaper had had no connections with the FETÖ/PDY organisation. The newspaper had been financially supported by B.A. and it was the editors who decided together which news items would be published each day in the newspaper. (b)    The applicant’s questioning by the Istanbul 10 th Magistrate’s Court and the initial decision ordering his release 25.     On the same day, following the applicant’s questioning, the public prosecutor transferred the applicant to the Istanbul 10 th Magistrate’s Court in criminal matters, asking the court to place him in pre-trial detention. The prosecutor based his request on the fact that the applicant had attempted to justify the “Balyoz” affair, which had eventually turned out to be a plot against the Government; that he had created the impression amongst the public that there was no freedom of speech in Turkey by stating that the imprisonment of journalists who had in fact leaked government secrets had breached freedom of expression, and by doing so he had created an atmosphere conducive to a military coup; and that in his articles he had referred to the President as a dictator and had stated that his departure was imminent, thus influencing public opinion in favour of a military coup. 26.     On 22 September 2016 the applicant appeared before the Istanbul 10 th   Magistrate’s Court and was questioned about his alleged acts and the accusations against him. At the end of the hearing, the court ordered the applicant’s release and placed him under judicial supervision. In its decision, the court held that there was already an ongoing investigation into the applicant’s offending articles in the Taraf newspaper regarding the “Balyoz” case, and that conducting a separate investigation for the same acts would breach procedural provisions. As to the accusation of being a member of a terrorist organisation, and of attempting to overthrow the Government or to prevent it from fulfilling its duties, the court decided that there existed no strong suspicion that the applicant had committed those offences. Accordingly, the applicant was released. (c)    Objection of the public prosecutor to the applicant’s release, and decision of the Istanbul 1 st Magistrate’s Court placing him in pre-trial detention 27.     Following the applicant’s release, the public prosecutor lodged an objection and requested that the applicant be placed in pre-trial detention. 28.     On 23 September 2016 the Istanbul 1 st Magistrate’s Court re ‑ examined the applicant’s case, and at the end of the hearing the magistrate ordered his pre-trial detention. In his decision, the magistrate had regard in particular to the fact that the criminal proceedings that were pending against the applicant before the Istanbul Assize Court concerning the “Balyoz” case did not involve any charge relating to an attempt to overthrow the government or any accusation of being a member of a terrorist organisation, but instead concerned an alleged offence of being in possession of classified documents. 29.     In its decision, the Istanbul 1 st Magistrate’s Court pointed out that the Taraf daily newspaper, of which the applicant was one of the founder members, had started its journalistic activities in order to implement the aims of FETÖ/PDY and to manipulate public opinion to that end. The newspaper had been reporting news stories in line with the orders and instructions of the terrorist organisation. News concerning the “Balyoz” coup plan had also been included in the headlines of the newspaper as part of this arrangement. The Magistrate’s Court also noted that in the course of its journalistic activities, Taraf had reported many news stories on the “Balyoz”, “Ergenekon”, “Military Espionage”, “Poyrazköy”, “Assassination of Admirals”, “OdaTV”, “Headquarters” and other similar cases in order to shape public opinion in line with the organisation’s aims. The applicant, as editor-in-chief of the newspaper, had determined its editorial policy and thereby engaged in acts which had caused several members of the army to be discharged following the “Balyoz” case. The falsely initiated investigations and proceedings had paved the way for members of FETÖ/PDY to obtain promotions in the army and to become more influential within the armed forces. By defining the editorial policy of Taraf as such, the applicant had participated in the crimes committed by FETÖ/PDY. Noting that although pursuant to Law no. 5187, the applicant’s criminal liability for the articles he had written at the time when he was still the editor-in-chief of Taraf had expired, the statutory time-limit for his alleged offences of attempting to overthrow the government and being a member of a terrorist organisation had yet to be reached. The court also noted that Taraf had eventually been closed down by presidential decree following the attempted coup, as it was considered that the newspaper was one of the media organisations used by the FETÖ/PDY terrorist organisation. 30.     The Magistrate’s Court further referred to the fact that the judiciary wing