Communicated on 7 September 2016
SECOND SECTION
Application no. 24011/12
Ziya ÇİÇEKÇİ against Turkey
and 16 other applications
(see list appended)
STATEMENT OF FACTS
1. The applicants are Turkish nationals. They are represented before the Court by Mr Ö. Kılıç and Ms A.D. Taşdemir, lawyers practising in Istanbul. A list of the applicants is set out in the appendix.
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. Between 2009 and 2011, a number of criminal investigations were initiated against alleged members of an organisation called the KCK (Koma Civakên Kurdistan – the Union of Communities in Kurdistan).
4. Within the context of one of those investigations, on 20 and 21 December 2011 the applicants – owners, editors, correspondents, distributers and others working for a number of media outlets and a distribution company – were arrested on suspicion of membership of the KCK along with approximately thirty other people.
5. On 20 December 2011 the security forces conducted searches on the premises of the Özgür Gündem newspaper and at the printing house where the newspaper in question was printed, as well as at the head office and four branches of the Dicle News Agency. Computers, hard discs, cameras, technical items and written material found on the premises were seized by the police.
6. On 20 December 2011 a judge at the Ninth Division of the Istanbul Assize Court, assigned under Article 250 of the Code of Criminal Procedure, in force at the material time, ordered that the applicants and the other suspects be prevented from having access to their legal representatives for twenty-four hours and that the latter be denied access to the entire content of the investigation file in accordance with sections 10 (b) and (d) of the Prevention of Terrorism Act (Law no. 3713), in force at the material time.
7. Between 20-21 December and 23 December 2011 the applicants were kept in police custody. During their detention in police custody, the applicants did not make any statement about the charges against them.
8. On 22 December 2011 three lawyers lodged petitions with the Ninth Division of the Istanbul Assize Court on behalf of three of the applicants and a fourth suspect, requesting, inter alia, access to the investigation file. They also requested that the material seized on the premises of the media outlets on 20 December 2011 be returned.
9. On 23 December 2011 the Ninth Division of the Istanbul Assize Court dismissed those requests.
10. On 23 December 2011 the applicants were brought before the Istanbul public prosecutor assigned under Article 250 of the Criminal Procedure Code in force at the material time. In their statements to the public prosecutor, the applicants denied the veracity of the charges against them. They contended that they had not carried out any activities other than those related to journalism and the distribution of newspapers.
11. On 23 and 24 December 2011 the applicants were questioned at the Istanbul Assize Court by judges assigned under Article 250 of the Code of Criminal Procedure, who ordered that they be held on remand. They all denied the charges against them before the judges.
12. On 28 and 29 December 2011 the applicants’ lawyers filed petitions with the Istanbul Assize Court on behalf of the applicants, except Ömer Çelik and Zeyneb Ceren Kuray. In their petitions, the lawyers objected to the decision of 24 December 2011 to remand the applicants in custody.
13. On 2 January 2012 the Istanbul Assize Court dismissed the applicants’ objections.
14. On 27 April 2012 the Istanbul public prosecutor filed a bill of indictment against forty-four persons, including the applicants. The public prosecutor noted that according to the “KCK Agreement”, the document setting out the ideological foundations of the KCK, the aim of the KCK was to establish an independent Kurdish state and a new society. He further noted that the KCK was a part of the PKK, an illegal armed organisation. The public prosecutor observed that the “KCK Agreement” envisaged setting up a Media Committee within the KCK. According to the public prosecutor, the committee in question was to work towards the goals of establishing the media policies of the KCK and controlling the media outlets which disseminated information and ideas in support of the KCK/ PKK and had strong financial resources. The members of the committee were to work in line with the instructions of the leader of the PKK, Abdullah Öcalan, and a number of other leading members of the organisation. The Istanbul public prosecutor stated that the subject matter of the bill of indictment was the media activities of the KCK/PKK.
15. In the bill of indictment, the public prosecutor charged the applicants with leading the KCK/PKK (Nevin Erdemir and Semiha Alankuş) and membership of the KCK/PKK (the remaining applicants) under Article 314 §§ 1 and 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713). The first applicant, Ziya Çiçekçi, was further charged with a breach of the Meetings and Demonstration Marches Act (Law no. 2911). In charging the applicants, the public prosecutor relied on some of the applicants’ travel records, certain telephone conversations, news articles written by the applicants who had worked as journalists, books, notebooks and documents found in some of the applicants’ homes, and statements by anonymous witnesses.
16. On 10 September 2012 the applicants’ trial began at the Istanbul Assize Court.
17. On various dates between 16 November 2012 and 26 March 2014 the applicants were released pending trial.
18. According to the information in the case file, the criminal proceedings against the applicants are currently pending before the Istanbul Assize Court.
COMPLAINTS
19. The applicants complain under Article 5 § 1 of the Convention that they were arrested and held in police custody and pending trial in the absence of any tangible evidence and reasonable grounds for suspicion that they had been involved in illegal activities. According to the applicants, the arrest and detention of journalists were part of the Government’s policy to oppress political opponents. They also submit that they were arrested and detained in police custody and pending trial solely on account of their journalistic activities. Lastly, the applicants allege under this head that the prosecuting authorities did not follow the procedure set out in Article 98 of the Code of Criminal Procedure, according to which they should have been asked to make statements to the public prosecutor and that their arrest could have been ordered if they had failed to appear before the public prosecutor.
20. The applicants complain under Article 5 § 2 of the Convention that they were not informed of the reasons for their arrest and detention. They complain, in particular, about the decision of 20 December 2011 denying their representatives access to the content of the investigation file.
21. The applicants complain under Article 5 § 3 of the Convention that the length of their detention in police custody and of their detention pending trial was excessive.
22. The applicants complain under Articles 5 § 4 and 13 of the Convention that their objections to the decision of 24 December 2011 to detain them was rendered in the absence of adversarial proceedings and without a hearing. They submit that they were unable effectively to challenge the detention order as they were denied access to the investigation file, whereas the public prosecutor, whose observations were taken into account by the court, had access to the file.
23. The applicants complain under Article 10 of the Convention that they were arrested, detained and charged with membership of the KCK/PKK on the basis of their journalistic activities, and that the materials used for their journalistic activities were seized by the police.
24. The applicants complain under Article 13 of the Convention, in conjunction with Article 10 of the Convention, that the remedies provided for in domestic law were not effective.
25. Lastly, the applicants complain under Article 1 of Protocol No. 1 to the Convention that they were deprived of their income and sustained pecuniary damage as a result of the events giving rise to the present application.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular, was individual application to the Constitutional Court an effective remedy within the meaning of this provision in respect of the applicants’ complaints under Article 5 §§ 1 and 3 and Article 10 of the Convention?
2. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular:
a. Were the authorities under an obligation to follow the procedure set out in Article 98 of the Code of Criminal Procedure before effecting the applicants’ arrest?
b. Did the investigation file contain facts and information which would satisfy an objective observer that the applicants might have committed the alleged offences?
The Government are requested to submit all documents relating to the reasons for the applicants’ arrest, detention in police custody and remand.
3. Was the length of the applicants’ detention on remand in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
4. Did the applicants have at their disposal a remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular,
a. Is the remedy provided in Article 91 § 5 of the Code of Criminal Procedure an effective remedy within the meaning of Article 5 § 4 of the Convention?
b. Does the decision of the judge at the Ninth Division of the Istanbul Assize Court dated 20 December 2011 restricting the applicants’ access to their lawyers and the latter’s access to investigation files pursuant to former sections 10(b) and 10(d) of the Prevention of Terrorism Act (Law no. 3713) have a bearing on the applicants’ exercise of the right enshrined in Article 5 § 4?
The Government are invited to submit a copy of the file of investigation no. 2011/521 in so far as it concerns the applicants as well as the file of the case brought against the applicants and their co-accused.
5. Has there been an interference with the applicants’ freedom of expression, in particular their right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention, on account of their arrest, detention in police custody, their being held on remand and the criminal proceedings brought against them?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
Appendix
No.
Application no.
Applicant
Date of birth
Name of the media outlet/news agency,
Applicant’s position
Date of arrest
Date of detention on remand
Date of release pending trial
24011/12
Ziya ÇİÇEKÇİ
10/05/1974
Özgür Gündem,
Owner and editor-in-chief
20/12/2011
24/12/2011
08/02/2013
46520/13
Nevin ERDEMİR
10/12/1976
Özgür Gündem,
Journalist and editor
20/12/2011
24/12/2011
26/03/2014
46523/13
Zuhal TEKİNER
09/09/1980
Dicle News Agency,
Head of the executive board and finance
20/12/2011
24/12/2011
08/02/2013
46524/13
Fatma KOÇAK
01/01/1975
Dicle News Agency,
News director
20/12/2011
24/12/2011
27/09/2013
46528/13
Semiha ALANKUŞ
01/01/1966
Dicle News Agency,
Reporter
20/12/2011
24/12/2011
26/03/2014
46529/13
Nilgün YILDIZ
30/08/1986
Dicle News Agency,
Reporter
21/12/2011
24/12/2011
06/12/2013
46530/13
Sadık TOPALOĞLU
09/04/1985
Dicle News Agency,
Reporter
20/12/2011
24/12/2011
26/04/2013
46531/13
Ömer ÇELİK
25/10/1982
Dicle News Agency,
Reporter
20/12/2011
24/12/2011
19/06/2013
46532/13
Çağdaş KAPLAN
28/06/1986
Dicle News Agency,
Reporter
20/12/2011
24/12/2011
08/02/2013
46534/13
Oktay CANDEMİR
15/03/1976
Dicle News Agency,
Reporter
20/12/2011
24/12/2011
16/11/2012
46535/13
Pervin YERLİKAYA BABİR
08/04/1982
Dicle News Agency,
Accountant
20/12/2011
24/12/2011
08/02/2013
46536/13
Çiğdem ASLAN
20/03/1984
Fırat Printing and Distribution,
Accountant and director of finance
20/12/2011
24/12/2011
16/11/2012
46537/13
İrfan BİLGİÇ
16/03/1987
Fırat Publishing House and Distribution,
Employee
20/12/2011
24/12/2011
27/09/2013
46539/13
Ömer ÇİFTÇİ
18/09/1986
Demokratik Modernite,
Owner
20/12/2011
24/12/2011
08/02/2013
46540/13
Selahattin ASLAN
10/01/1980
Demokratik Modernite,
Editor
21/12/2011
24/12/2011
19/06/2013
46543/13
Zeyneb Ceren KURAY
10/02/1978
Birgün and Fırat News Agency,
Reporter
20/12/2011
24/12/2011
26/04/2013
46547/13
Nahide ERMİŞ
12/04/1977
Demokratik Modernite,
Editor
20/12/2011
24/12/2011
14/01/2014
Full & Egal Universal Law Academy