Communicated on 7 September 2016
SECOND SECTION
Applications nos. 46519/13 and 46548/13
Hatice BOZKURT AND Sultan Güneş ÜNSAL
against Turkey
lodged on 29 March 2012
STATEMENT OF FACTS
1. The applicants, Ms Hatice Bozkurt and Ms Sultan Güneş Ünsal, are Turkish nationals who were born in 1979 and 1965 respectively and live in Istanbul. They are represented before the Court by Mr Ö. Kılıç and Ms A. Taşdemir, lawyers practising in Istanbul.
2. The facts of the case, 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. As part of one of those investigations, on 20 December 2011 the applicants, a translator working for Dicle News Agency and an editor working for Özgür Gündem, a daily newspaper, along with approximately fifty other people working for various newspapers and news agencies, were arrested on suspicion of membership of the KCK Media Committee. It is to be noted that the reports concerning the applicants’ arrests were not submitted to the Court by the applicants.
5. On the same day a judge at the Ninth Division of the Istanbul Assize Court, assigned under Article 250 of the Code of the Criminal Procedure, in force at the material time, ordered that the applicants and the other suspects be denied access to their legal representatives and that the latter be prevented from having access to the investigation file in its entirety, in accordance with sections 10(b) and 10(d) of the Prevention of Terrorism Act (Law no. 3713), in force at the material time.
6. Between 20 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.
7. On 22 December 2011 one of the applicants’ lawyers lodged a petition with the Ninth Division of the Istanbul Assize Court on behalf of the second applicant and two other persons and requested, inter alia, to be allowed to have access to the investigation file. Some other lawyers also lodged petitions containing similar requests on behalf of other persons arrested at the same time as the applicants. On 23 December 2011 the Ninth Division of the Istanbul Assize Court dismissed those requests.
8. 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 her statements to the public prosecutor, the first applicant stated that she was an editor at the Özgür Gündem newspaper. She contended that she did not know what the KCK Media Committee was. The second applicant stated before the public prosecutor that she was a translator working for Dicle News Agency. She said that she translated articles from English to Turkish and that those articles were published on the agency’s website. She stated that she did not have any involvement with the KCK Media Committee. The second applicant was asked whether she knew a number of other journalists. She replied that she knew some of them as they had professional relations.
9. After their questioning by the public prosecutor, the first applicant was released. The second applicant was sent before a judge at the Istanbul Assize Court, where she repeated her previous statement. On 24 December 2011 the judge ordered the second applicant’s release.
10. On 27 April 2012 the Istanbul public prosecutor filed a bill of indictment against forty-four journalists, including the second applicant, and charged them with membership of the KCK/PKK. 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 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 media policies for 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.
11. As regards the second applicant, the Istanbul public prosecutor noted that when she had been arrested on 20 December 2011, the following items had been found in her apartment: a book, periodicals, a hard disc, a computer, a mobile telephone, documents, a notebook, an address book, and her identity card. According to the public prosecutor, the second applicant had had telephone conversations with eight people where she had received information regarding Abdullah Öcalan’s situation and about a number of other politicians who had been detained and had asked for photographs of some PKK members. The prosecutor argued that those conversations demonstrated that the second applicant had been involved in activities in support of the PKK. The public prosecutor alleged that the second applicant had been in contact with lawyers who visited Abdullah Öcalan. Referring to videos of interviews found in her mobile telephone, to an article which had allegedly contained propaganda in support of the PKK found on a hard disc and to articles published on the agency’s website, the public prosecutor argued that the second applicant had disseminated propaganda in favour of the PKK. The public prosecutor further noted that telephone numbers of a number of persons who had been charged with membership of the PKK and the KCK had been found in the second applicant’s address book. She was therefore charged with membership of the KCK/PKK.
12. According to the information in the case file, the criminal proceedings against the second applicant and her co-accused are currently pending before the Third Division of the Istanbul Assize Court.
COMPLAINTS
13. The applicants complain under Article 5 § 1 of the Convention that they were arrested and detained in police custody without any tangible evidence and reasonable grounds to suspect 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 suppress political opponents. They also submit that they were arrested and placed in police custody solely on account of their journalistic activities. The applicants finally 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.
14. The applicants complain under Article 5 § 2 of the Convention that they were not informed of the reasons for their arrest and detention in police custody. They maintain that they were only told that they were being arrested on suspicion of carrying out activities for the KCK/PKK. They complain, in particular, about the decision of 20 December 2011 preventing their representatives from having access to the investigation file.
15. The applicants complain under Article 5 § 3 of the Convention that the length of their detention in police custody was excessive.
16. Relying on Article 10 of the Convention, the applicants complain that they were arrested, detained in police custody and charged with membership of the KCK/PKK on the basis of their journalistic activities and that as a result their right to freedom of expression was breached.
17. The applicants complain under Article 13 of the Convention, in conjunction with Article 5 §§ 1 and 2 and Article 10 of the Convention, that the remedies provided in domestic law were not effective.
QUESTIONS TO THE PARTIES
1. 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. At the time of their arrest, was there a reasonable suspicion of them having committed an offence, as required by subparagraph (c) of that Article?
2. 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 the 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 decisions by judicial authorities in response to objections challenging the lawfulness of detention in comparable situations.
The Government are invited to submit a copy of the files of investigation no. 2011/521 as well as the case brought against the second applicant and her co-accused in so far as the documents concern the second applicant.
3. 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 and the criminal proceedings brought against the second applicant?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
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