Individual Application

The Facts

The security directorate received an e-mail that a hacker group named Redhack had hacked a minister’s e-mail account; and that the hacked e-mails had been forwarded to a new e-mail account created by the terrorist group.  It was further maintained that a person in relation with this terrorist group opened up a chat room on Twitter where certain persons including the applicant were involved in the chat, the hacked e-mails were transferred and these persons discussed how to disclose the e-mails.

At the end of the inquiries conducted by the security directorate, the applicant was identified to be among those who were using the chat room. Thereafter, these persons were taken into police custody upon the public prosecutor’s instruction.

The prosecutor’s office indicted the applicant for contributing to the initiatives to legalize the terrorist organization, namely PKK/KCK, by interviewing with one of its heads Cemil Bayık, for not criticizing the acts performed by the terrorist organization in his articles as well as for giving an unfavourable impression as to the operations and acts carried out by the security forces.

The magistrate judge ordered his detention for disseminating terrorist propaganda and inciting the people to hatred and enmity. The applicant’s appeal against his detention order was dismissed.

A decision of non-prosecution was issued in respect of the applicant. Nevertheless, a criminal case was opened against him. At the hearing conducted by the incumbent assize court, his release was ordered. His case is still pending at first instance.

The Applicant’s Allegations

The applicant maintained that there had been violations of the right to personal liberty and security as he had been detained in the absence of a reasonable suspicion of his guilt as well as of the freedoms of expression and the press as his detention was solely based on news and articles which were indeed in the form of journalistic activities.

The Court’s Assessment

1. Alleged Unlawfulness of Detention

In the detention order, it was indicated that the applicant had interviewed with Cemil Bayık, one of the heads of the said terrorist organization; that the PKK had been reflected as a legitimate organization through the impugned interview; and that the applicant had disseminated terrorist propaganda and incited the people to hatred and enmity also through his certain articles.

News reporting based on interviews constitutes one of the important means whereby the press is able to play its vital role of public watchdog. The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest.

As a result of its examinations, the Court cannot reach the conclusion that the applicant maintained an attitude affirming the interviewee’s expressions and asked questions guiding the interviewee for the purpose of enabling him to disseminate the terrorist propaganda. The inferior court failed to demonstrate that the applicant’s motivation in making the interview was to disseminate propaganda of the terrorist organization.  

It has been further observed that the other articles relied on as a ground in ordering the applicant’s detention were in the form of a political criticism, thereby being under the protection of the freedom of expression; and that they cannot be regarded as a strong indication of criminal guilt.

Journalists may hold interviews with various news sources as many as possible with a view to making news. To establish contacts with members of terrorist organization may constitute a criminal offence only when it is intended to serve any purpose other than journalism.  In such a case, it must be demonstrated with concrete facts that the contact has been established for any purpose other than journalism. However, in the present case, the investigation authorities failed to demonstrate any such facts.

Consequently, the Court has found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution.

2. Alleged Violations of the Freedoms of Expression and the Press

It appears that the grounds underlying the applicant’s detention are mainly the newspaper articles written by him. Any detention which does not satisfy the lawfulness requirement, which amounts to a severe measure, cannot be considered as a necessary and proportionate interference in a democratic society within the meaning of the freedoms of expression and the press.

In the present case, it cannot be comprehended what pressing social need justified the interference imposed on the applicant’s freedoms of expression and the press by ordering his detention as he had expressed, through his articles, views similar to those voiced by a certain section of the society and leaders of the opposition parties at the time when the impugned articles were published.

Besides, his detention in the absence of any concrete fact other than the articles published may undoubtedly have a deterrent effect on the freedoms of expression and the press.

Consequently, the Court has found violations of the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution.