CASE OF AKAT v. TÜRKİYE

 

 

SECOND SECTION

CASE OF AKAT v. TÜRKİYE

(Application no. 45874/19)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

12 May 2026

This judgment is final but it may be subject to editorial revision.

In the case of Akat v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Oddný Mjöll Arnardóttir, President,
 Gediminas Sagatys,
 Juha Lavapuro, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 45874/19) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 May 2019 by a Turkish national, Ms Ayla Akat (“the applicant”), who was born in 1976, lives in Istanbul and was represented by Mr R. Demir and Ms G. Özbek, lawyers practising in Istanbul and Diyarbakır respectively;

the decision to give notice of the complaints concerning Article 5 §§ 1, 3 and 4, Article 10 and Article 11 of the Convention to the Turkish Government (“the Government”), represented by their Agent at the time, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare the remainder of the application inadmissible;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 7 April 2026,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the pre-trial detention of the applicant on suspicion of establishing or leading an armed terrorist organisation under Article 314 § 1 of the Criminal Code. She relied on Articles 5, 10 and 11 of the Convention.

2.  The applicant is a political figure who is known for her engagement with the “Kurdish question” (for more details, see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 28-61, 22 December 2020). She was elected to the Turkish Parliament as a deputy of the Batman province in the 2007 and 2011 legislative elections. At the time of her arrest and detention, she was a member of the Peoples’ Democratic Party (HDP) but not a member of parliament.

3.  On 26 October 2016 the applicant was arrested by the authorities at a press event in front of the Diyarbakır Metropolitan Municipality building, in relation to a criminal investigation initiated by the Diyarbakır chief public prosecutor’s office into her alleged links to the activities of an illegal armed organisation – namely, the PKK/KCK (Workers’ Party of Kurdistan/Kurdistan Communities Union).

4.  On 30 October 2016 the Diyarbakır 1st Magistrate’s Court ordered that the applicant be placed in pre-trial detention on suspicion of establishing or leading an armed terrorist organisation. The magistrate found that there was a strong suspicion that she had committed the offence in question on the basis of the following:

(i)  her membership of the coordination board of the Democratic Society Congress (DTK – an entity which, according to the authorities, had been established on the orders of Abdullah Öcalan, the leader of the PKK, and presented itself as operating legally while pursuing illegal activities), and her leadership role in the DTK, as established by statements made by several witnesses and suspects in the same investigation;

(ii)  records of meetings between Abdullah Öcalan and his lawyers allegedly showing that the former had ordered the establishment of the DTK, together with the findings of wiretaps and technical/physical surveillance;

(iii)  her participation in more than 20 unlawful demonstrations, during which slogans had been chanted in favour of Abdullah Öcalan, and deceased members of the PKK had been referred to as “martyrs”; and

(iv)  statements made by the applicant in which she had allegedly praised the PKK and its convicted leader, described the PKK’s violent acts as acts of “resistance” and referred to deceased militants as “martyrs”.

5.  Several objections lodged by the applicant against decisions extending her pre-trial detention, which were based on the same elements as the decision ordering her pre-trial detention, were dismissed by the magistrates’ courts.

6.  On 23 January 2017 the public prosecutor filed an indictment against the applicant, accusing her of the offences of establishing or leading an armed terrorist organisation, disseminating propaganda in favour of a terrorist organisation, and participating in unlawful meetings and demonstrations. In the indictment, it was alleged that the applicant had taken part in the establishment of the DTK – which (according to the authorities) had been established to expand the base of the PKK/KCK terrorist organisation – and had also participated in numerous events organised by it. Additionally, the prosecutor noted that the applicant had been a director of the Association of the Free Women’s Congress (Kongreya Jinen Azad – “the KJA”) and the publisher of a periodical entitled Kovara Jinen Azad (KJA) issued by it. It was further alleged that propaganda on behalf of the PKK had been disseminated by way of the activities and publications of the KJA, and that the applicant, in her capacity as the director of the association and the publisher of its periodical, bore responsibility for the acts constituting criminal offences which had been committed within that context. Lastly, the prosecutor submitted that, on various dates, the applicant had disseminated propaganda in favour of the PKK/KCK via her personal Twitter account and had acted in breach of Law no. 2911 on Meetings and Demonstrations.

7.  On 23 January 2017 the applicant lodged an individual application with the Constitutional Court, complaining of violations of Articles 5 and 10 of the Convention.

8.  On 3 February 2017 the Diyarbakır 8th Assize Court accepted the indictment and extended the applicant’s pre-trial detention, which kept being based on the suspicion that she had established or led an armed terrorist organisation. She was eventually released on 4 May 2017.

9.  On 11 October 2018 the Constitutional Court declared the applicant’s individual application inadmissible for being manifestly ill‑founded. The applicant was notified of that decision on 7 December 2018.

10.  In assessing whether there was a reasonable suspicion that the applicant had committed an offence, the Constitutional Court noted that the investigating authorities had referred to speeches in which she had described acts committed by certain PKK members as acts of resistance and defence, and had characterised the killing of those members as an act of war and an atrocity, thus praising and legitimising the PKK’s armed struggle. Noting that those speeches had been delivered in Diyarbakır, one of the places where the campaign of trench‑digging had been at its most intense (for a detailed description of the “trench events”, see Selahattin Demirtaş, cited above, §§ 28-54), the Constitutional Court held that it was not unreasonable that the investigating authorities – having taken into account the applicant’s political position and the times and places at which the speeches had been delivered, as well as their content and context – had considered that her statements indicated that a terrorism-related offence had been committed. The Constitutional Court further observed that the applicant had also shared on her Twitter account photographs of women wearing t-shirts bearing a printed image of Abdullah Öcalan, accompanied by a caption praising those engaged in hunger strikes, as well as photographs related to the deaths of members of the YPG (People’s Protection Units, founded in Syria and regarded as a terrorist organisation by Türkiye on account of its links with the PKK) and YPJ (Women’s Protection Units), and found that it was not unreasonable for the investigating authorities to have treated such posts as indications of a terrorism-related offence.

THE COURT’S ASSESSMENT        Government’s OBJECTION AS TO THE ADMISSIBILITY OF THE APPLICATION

11.  The Government invited the Court to declare the application inadmissible for being manifestly ill-founded, arguing that the allegations relating to the applicant’s pre-trial detention had been examined by the domestic courts in line with the Court’s case-law.

12.  The Court considers that the arguments put forward by the Government in support of their assertion that the application is manifestly ill‑founded raise issues requiring an examination of the merits of the complaints under Articles 5 and 10 of the Convention, rather than of their admissibility (compare Durukan and Birol v. Türkiye, nos. 14879/20 and 13440/21, § 45, 3 October 2023, with further references).

13.  This general objection by the Government must therefore be dismissed.

      ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

14.  Relying on Article 5 §§ 1 and 3 of the Convention, the applicant complained that she had been detained in the absence of a “reasonable suspicion” that she had committed a criminal offence. She further complained that the domestic courts had failed to provide relevant and sufficient reasons justifying the necessity of her continued detention.

   Admissibility

15.  The Government asserted that the applicant had not explicitly raised her complaints under Article 5 § 3 of the Convention in her individual application before the Constitutional Court. Additionally, she had failed to properly lodge a compensation claim under Article 141 of the Code of Criminal Procedure. The applicant rejected the Government’s arguments.

16.  The Court observes, on the basis of a copy of the individual application form submitted to the Constitutional Court, that the applicant explicitly complained of the lack of relevant and sufficient reasoning in the decisions ordering and extending her pre-trial detention. As to a compensation claim under Article 141 of the Code of Criminal Procedure, the Court has already examined and dismissed identical preliminary objections by the Government in Selahattin Demirtaş v. Turkey (no. 2) ([GC], no. 14305/17, §§ 205-14, 22 December 2020). Having reviewed the parties’ submissions, the Court sees no reason to depart from its findings in that case.

17.  The Government’s objections of non-exhaustion of domestic remedies must therefore be dismissed. The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

   Merits     Alleged lack of a reasonable suspicion that the applicant committed a criminal offence (Article 5 § 1 of the Convention)

18.  The applicant submitted in respect of her complaint under Article 5 § 1 that the prosecution and the domestic courts had failed to provide reasonable evidence that she had committed the criminal offence notably of establishing or leading an armed terrorist organisation of which she had been suspected. She asserted that the decisions taken against her had been based solely on her political activities, such as the speeches she had delivered at public events and the demonstrations she had attended.

19.  The Government argued that the applicant had been placed in detention on the basis of concrete evidence that she had committed the offence of establishing or leading an armed terrorist organisation. They stated that, throughout her pre-trial detention, there had been sufficient evidence to convince an objective observer that she had been a leading figure within the DTK, that she had had an extensive and effective role in its activities, and that the DTK had acted in accordance with orders given by PKK leaders. Furthermore, the Government emphasised that the applicant’s complaints under Article 5 should be examined with due regard to the derogation of which the Secretary General of the Council of Europe had been notified on 21 July 2016 under Article 15 of the Convention.

20.  In respect of the general principles established in its case-law, the Court refers to Selahattin Demirtaş (cited above, §§ 311‑21).

21.  The Court notes that the crux of the matter is whether, at the time of the applicant’s detention, there was a reasonable suspicion that she had committed the offence which she had been detained for, within the meaning of sub-paragraph (c) of Article 5 § 1 of the Convention. The Court observes that the applicant was suspected of having committed the offence of establishing or leading an armed terrorist organisation under Article 314 § 1 of the Criminal Code (see for the wording of that provision Selahattin Demirtaş, cited above, § 143).

22.  The suspicion against the applicant was based on two main elements: (i) her leadership position and her participation in events organised by the DTK, and the fact that the DTK, in the authorities’ view, formed part of the PKK, an armed terrorist organisation; and (ii) speeches given by the applicant at numerous events in south‑east Türkiye in which she had, inter alia, referred to Abdullah Öcalan in a respectful manner and to deceased members of the PKK as “martyrs”, frequently used separatist terms, and described the PKK’s violent acts and attempts to establish autonomous administrations as acts of “resistance”. It was alleged that the content of those speeches demonstrated that she had adopted and endorsed the aims of the PKK. In its examination of the lawfulness of the applicant’s detention, the Constitutional Court also took into consideration several posts shared by the applicant on Twitter.

23.  As regards the first element, the Court observes that the domestic authorities cited the applicant’s role within the DTK as one of the main reasons for the suspicion against her. In that connection, it refers to the finding in Tuğluk v. Türkiye (no. 71757/17, §§ 98-102, 14 October 2025) that the assertion that the DTK had been an unlawful entity or was involved in any criminal activity was not supported by sufficiently concrete evidence. It further held that the judicial decisions submitted by the Government did not examine the nature of the DTK’s activities or assess any allegedly unlawful conduct attributed to it (ibid, § 101). Noting that the Government’s submissions in this respect are identical to those examined in Ms Tuğluk’s case, the Court sees no reason to depart from its conclusions in that judgment. Accordingly, in the present case, the accusations concerning the fact that the applicant had been in the leadership of the DTK and her involvement and participation in events organised by the DTK cannot be considered capable of convincing an objective observer that she had established or led an armed terrorist organisation.

24.  Concerning the second element, the Court observes that the statements in question were principally political speeches given during her participation in certain public demonstrations and meetings. The Court further observes that the domestic authorities merely listed events the applicant had attended, the posts she had shared on Twitter, and some parts of speeches she had delivered, without providing any reasons as to how those elements substantiated or reinforced the suspicion of her having led an armed terrorist organisation. In numerous judgments, the Court found that similar statements made by politicians, which did not amount to an incitement to violence, fell within the scope of Article 10 of the Convention and could not be considered sufficient to convince an objective observer that a terrorism-related offence had been committed (see Selahattin Demirtaş, cited above, §§ 274-80; Yüksekdağ Şenoğlu and Others v. Türkiye, nos. 14332/17 and 12 others, §§ 541-45, 8 November 2022; Yüksek v. Türkiye, no. 4/18, §§ 112‑15, 22 October 2024; and Tuğluk, cited above, §§ 110-15).

25.  Regarding the Government’s argument that the applicant, on the orders of the PKK, had attended numerous demonstrations and delivered separatist speeches to further its aims, the Court observes that the authorities were unable to produce any concrete evidence indicating that the applicant had received direct or indirect orders from the PKK/KCK to attend meetings, participate in demonstrations or deliver speeches in order to disseminate the organisation’s policies. Furthermore, the Court finds no indication in the domestic decisions of how the applicant’s participation in the above‑mentioned events, her social media posts, or her public statements could be construed as constituting a terrorism-related offence (compare also Tuğluk, cited above, § 109). Having reviewed the statements in question, the Court considers that there is no reason to depart from its conclusions in the above-mentioned judgments, as the applicant’s speeches and her participation in public meetings were of a political nature and cannot be considered to have amounted to encouraging violent action.

26.  Concerning the allegations relating to the applicant’s role within the KJA (see paragraph 6 above), the Court notes at the outset that neither the initial detention order nor the subsequent decisions extending the applicant’s detention contained any assessment of those allegations. Although the Constitutional Court made reference to the applicant’s role within the KJA when assessing the bill of indictment, it did not engage in an analysis of whether such a role, in the circumstances of the case, could substantiate a reasonable suspicion against her. Furthermore, while the bill of indictment referred in general terms to the activities of the KJA and to the dissemination of propaganda on behalf of the PKK, no sufficiently precise facts or evidence were adduced to demonstrate that the applicant had personally engaged in such conduct via her involvement in the association. In any event, the Court observes that the domestic authorities did not provide any explanation as to how the applicant’s activities within that association could give rise to a reasonable suspicion that she had engaged in the offence of establishing or leading an armed terrorist organisation.

27.  As regards Article 15 of the Convention and the notice of derogation given by Türkiye to the Secretary General of the Council of Europe following the attempted coup d’état in July 2016, the Court reiterates its findings in Parıldak v. Türkiye (no. 66375/17, § 88, 19 March 2024) and Tuğluk (cited above, § 116). In particular, it held that the measures complained of in those cases could not be regarded as having met the requirements of Article 15 of the Convention, since, ultimately, no derogating measure had been applicable to the applicants’ situations.

28.  For the reasons set out above, the Court considers that, in the present case, none of the decisions on the applicant’s initial and continued pre-trial detention cited evidence that indicated a clear link between her actions – mainly her political speeches and participation in events organised by the DTK – and the offence of establishing or leading a terrorist organisation, on suspicion of which she had been detained. There has accordingly been a violation of Article 5 § 1 of the Convention.

     Whether the decisions concerning the applicant’s pre-trial detention were sufficiently reasoned (Article 5 § 3 of the Convention)

29.  The applicant further submitted in respect of her complaint under Article 5 § 3 that the domestic authorities had not provided relevant and sufficient reasons for her initial and continued pre-trial detention. They had not taken into consideration her submissions that there was no risk of her absconding or tampering with evidence, nor had they considered the availability of less restrictive measures to ensure her presence in the criminal proceedings instituted against her.

30.  The Government submitted that the applicant’s attendance at demonstrations, meetings and press events, and the content of her speeches delivered during those events, had demonstrated her links with the PKK. Additionally, the Government submitted that the domestic courts had provided relevant and sufficient reasons to justify the applicant’s pre-trial detention. This complaint should equally be examined with due regard to Türkiye’s derogation under Article 15.

31.  The Court refers to the general principles under Article 5 § 3 of the Convention concerning the justification of detention, as set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 87-91, 5 July 2016) and Merabishvili v. Georgia ([GC], no. 72508/13, §§ 222-25, 28 November 2017).

32.  In the present case the Court has already found that no specific facts or information capable of giving rise to a suspicion justifying the applicant’s pre-trial detention were put forward by the national courts at any time during her detention, and that there was therefore no reasonable suspicion that she had committed an offence. The persistence of a reasonable suspicion that a detainee has committed an offence is a condition sine qua non for the validity of his or her continued detention (see Merabishvili, cited above, § 222, with further references). As regards Article 15 of the Convention and the notice of derogation given by Türkiye, the above considerations equally apply (see paragraph 27). The Court therefore considers that there has also been a violation of Article 5 § 3 of the Convention (compare also Selahattin Demirtaş, cited above, §§ 353-56, and Tuğluk, cited above, §§ 120-24).

    ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

33.  Relying on Article 5 § 4 of the Convention, the applicant submitted that, owing to the restriction on her access to the investigation file, she had not been able to properly challenge the lawfulness of her deprivation of liberty.

34.  The Government submitted that the applicant had failed to duly substantiate her complaint under Article 5 § 4 before the Constitutional Court. The applicant contested the Government’s submissions.

35.  The Court notes that the applicant did not submit to either the Constitutional Court or the Court a copy of the decision by the competent authority restricting her and her lawyers’ access to the case file. At no stage did she claim that such a decision had not been served on her, nor did she provide any explanation for failing to include a copy of it in her submissions. The Constitutional Court further observed that the competent authorities had informed the applicant and her counsel of the grounds for the accusations, thereby affording her an opportunity to challenge them.

36.  As the applicant’s failure to provide the Court with a copy of the decision in question prevents an assessment of whether the restriction was based on legitimate grounds (compare Yüksekdağ Şenoğlu and Others, cited above, § 577), the Court concludes that she has failed to substantiate her claims. Accordingly, this complaint must be declared inadmissible for being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention (compare also Tuğluk, cited above, §§ 125-30).

   alleged violation of article 10 of the convention

37.  The applicant alleged a violation of her right to freedom of expression and to freedom of peaceful assembly as guaranteed by Articles 10 and 11 of the Convention on account of her initial and continued pre-trial detention. She argued that a criminal investigation had been opened against her on the basis of statements she had made during DTK meetings, demonstrations she had attended, and posts she had published on social media.

38.  Being the master of the characterisation to be given in law to the facts of the case, the Court will consider these complaints under Article 10 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018, and Tuğluk, cited above, §§ 131‑34).

   Admissibility

39.  The Government invited the Court to declare the complaint under Article 10 inadmissible as being incompatible ratione materiae with the provisions of the Convention, arguing that the applicant’s acts had fallen within the scope of Article 17 of the Convention. In the alternative, the Government invited the Court to declare the complaint inadmissible as being manifestly ill-founded. The applicant contested those arguments.

40.  The Court has already examined and dismissed identical preliminary objections by the Government in Tuğluk (cited above, §§ 135-40). Having reviewed the parties’ submissions, the Court sees no reason to depart from its findings in that case. It further notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

   Merits

41.  For the general principles under Article 10 of the Convention concerning the detention of politicians on the basis notably of speeches they gave at political events, the Court refers to its judgment in Tuğluk (cited above, §§ 145-54, and the references cited therein).

42.  In the present case, the Court considers that the applicant’s initial and continued detention on account, in particular, of statements made by her amounted to an interference with the exercise of her freedom of expression.

43.  In determining whether that interference was “prescribed by law”, the Court notes that it has already found that the applicant’s detention was not based on a reasonable suspicion that she had committed an offence for the purposes of Article 5 § 1 (c) of the Convention, and that there has therefore been a violation of her right to liberty under Article 5 § 1 (see paragraph 28 above). The Court reiterates that no deprivation of liberty will be lawful unless it falls within one of the sub-paragraphs (a) to (f) of Article 5 § 1 and that a detention measure that is not lawful, as long as it constitutes an interference with one of the freedoms guaranteed by the Convention, such as Article 10, cannot, in principle, be regarded as a restriction of that freedom prescribed by law (compare Sabuncu and Others v. Turkey, no. 23199/17, § 230, 10 November 2020, and Tuğluk, cited above, § 151). It follows that the interference with the applicant’s rights and freedoms under Article 10 § 1 of the Convention cannot be justified under Article 10 § 2, since it was not prescribed by law.

44.  As regards Türkiye’s notice of derogation, the Court refers to its findings set out in paragraph 27 above. It considers that those conclusions also apply in the context of its examination under Article 10 of the Convention.

45.  Accordingly, there has been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

46.  The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage and EUR 15,000 in respect of pecuniary damage. She also claimed EUR 8,000 in respect of costs and expenses.

47.  The Government argued that the applicant’s claims in respect of non‑pecuniary damage were unsubstantiated, excessive and did not correspond to the Court’s case-law.

48.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 8,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. As regards her claim for pecuniary damage, the Court notes that she has not submitted any supporting documents to demonstrate that she actually incurred the alleged losses. It therefore rejects her claim in that regard.

49.  It also awards the sum of EUR 1,000 to the applicant in respect of the costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to her.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,     Declares the complaints concerning Article 5 §§ 1 and 3 and Article 10 of the Convention admissible and the remainder of the application inadmissible;     Holds that there has been a violation of Article 5 §§ 1 and 3 of the Convention;     Holds that there has been a violation of Article 10 of the Convention;     Holds  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:  EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;     Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 May 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Dorothee von Arnim Oddný Mjöll Arnardóttir
 Deputy Registrar President

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