Open letter from former ECtHR judge Rıza Türmen to the Cumhuriyet trial judges: The result will be grave

In the ruling you passed on 11 September, you stressed the existence of strong suspicion of guilt. Strong suspicion of guilt is dependent on the existence of concrete facts that would convince a third person that they had committed the crime. Were you impartial third persons and were you asked, “This newspaper changed its editorial principles. It thus committed the crime of aiding an organisation,” would you be convinced?

If the European Court of Human Rights rules that detention is unlawful, the government will have to implement this ruling. Implementing the decision will amount to eliminating the cause of the violation, i.e. ending detention. Will the Cumhuriyet staffers gaining their freedom under a European Court of Human Rights ruling not be a grave result for Turkey?

Dear Judges,

I, as one of your colleagues who served as a judge on the European Court of Human Rights for ten years, wish to share certain of my views with you on the trial against Cumhuriyet newspaper’s columnists and employees. In doing so, I will endeavour not to state an opinion on the merits of the case and to restrict myself to the ruling you passed on 11 September for detention to continue.

The ECHR has supremacy

1. Initially, let us commence with the place of the European Convention on Human Rights (ECHR) within the hierarchy of norms in Turkish law. Turkey accepted through the amendment it made in 2004 to Article 90 of the Constitution that, where laws come into conflict with international treaties on basic rights and freedoms, the provisions of international treaties will prevail. Through this amendment, Turkey incorporated the ECHR into its own legal system. This undoubtedly also includes ECHR case law. This amendment has given the ECHR and associated rulings supremacy in the hierarchy of norms in Turkish law. Hence, just as European Court of Human Rights decisions can be adduced by the parties in the course of proceedings, judges must also of their own motion give consideration to European Court of Human Rights decisions. This is what the constitution demands.

Indeed, had the constitutional amendment not even been made, the ECHR is an international treaty to which Turkey is party. Turkey must fulfil its obligations arising out of this Convention. Article 1 of the Convention states that each state must secure to everyone within their jurisdiction the rights and freedoms envisaged in the Convention. In other words, first-degree responsibility for implementing the Convention rests with national authorities. If national authorities fail to fulfil these responsibilities of theirs and individuals’ rights and freedoms are violated by virtue of this, this then becomes a matter for the European Court of Human Rights. What ensues from this, dear judges, is that you are not obliged to apply Turkish laws alone. You are at the same time the implementers of the ECHR in Turkey. Hence, in ruling, you must give consideration to and act in accordance with the ECHR and the principles in ECHR-related rulings.

The Ahmet Şık ruling

2. Dear judges, one of the defendants whose continued detention you ordered in the ongoing trial is Ahmet Şık. Ahmet Şık was previously detained for a book he wrote and was tried while in detention along with journalist Nedim Şener. The European Court of Human rights, in its decision of 08.07.2014, ruled that the detaining of Ahmet Şık and Nedim Şener violated Article 5 of the Convention on personal liberty and their being held in pretrial detention violated Article 10 thereof on freedom of expression and the press. You have most certainly read this decision because it has immediate bearing on the trial your court is conducting.

As press freedom is very closely related to democracy, the European Court of Human Rights attaches great importance to this matter. According to the European Court of Human Rights, the press is the guardian of democracy. It thus only consents to depriving journalists of their liberty under extremely exceptional circumstances such as incitement to violence or hate speech. Apart from this, it views the imprisoning of journalists or their being subjected to penal proceedings as a violation of press freedom in that it will have an intimidatory, terrorising and daunting effect on the press and this will impact negatively on society. When it comes to detaining journalists while on trial, this is a very serious violation of press freedom.

You can find these opinions of the European Court of Human Rights in Nedim Şener and Şık/Turkey, Campana and Mazare/Romania (Grand Chamber Decision, 2004, paragraphs 114-115), Dammann/Switzerland (2006, paragraph 57) and many other rulings. In the Akçam/Turkey (2011) ruling, the European Court of Human Rights went even further and ruled that, even if the investigation launched into Akçam ended with the charges being dropped, there had been a violation of the freedom of expression and the press due to the intimidatory and daunting effect caused by the opening of an investigation.

In the interim decision you passed on 11 September, you make reference to Article 10/2 of the ECHR which sets out the circumstances under which freedom of expression can be restricted. However, we can gain insight into how the European Court of Human Rights interprets and applies this article from the above-mentioned rulings. As will be seen in these rulings, the European Court of Human Rights’ understanding of Article 10/2 is in stark contradiction to the understanding in the 11 September interim decision.

Becoming pro-regime while in opposition

3. Dear judges, in the sections concerning Akın Atalay, Murat Sabuncu, Kadri Gürsel and Ahmet Şık of the interim ruling you passed ordering the continuation of detention on 11 September, you stressed the existence of strong suspicion of guilt that is a prerequisite for detention. The most important basis in the decision for the strong suspicion of guilt is the departure from the newspaper’s principles laid down in the Cumhuriyet Foundation. In accordance with European Court of Human Rights’ criteria, strong (or “reasonable” in European Court of Human Rights terminology) suspicion of guilt is dependent on the existence of concrete facts that would convince a third person that they had committed the crime. Dear judges, were you impartial third persons and were you asked, “This newspaper changed its editorial principles. It thus committed the crime of aiding an organisation,” would you be convinced? All newspapers and TV stations that were forced to become pro-regime press organs when they were opposition organs changed their editorial principles, too. “Under assessment of the evidence of a whole, the departure from the principles in the Foundation Deed ...” as included in the ruling are general notions. However, for “strong suspicion” to come about, it is necessary to adduce concrete facts. In fact, in the Şener and Şık/Turkey cases, the European Court of Human Rights found the general grounds the court cited for detention to be inadequate in that they lacked concreteness and ruled that there had been a violation of Article 5/3 of the Convention.

The two decisions cannot be identical

4. Discussion as to the existence of reasonable or strong suspicion has bearing on the legality of detention. However, following the passage of a period close to one year (324 days), the initial existence of reasonable suspicion is inadequate. For continuation of detention there must be other reasons over and above reasonable suspicion. Consequently, as opposed to the order for detention to continue rendered in July, different grounds are to be sought in the decision passed three months later. However, absolutely no difference was observed between the two decisions. Both rulings are identical.

Dear judges, the grounds cited for continuation of detention in your decision are “protection of the evidence” and preventing witness intimidation. However, in European Court of Human Rights case law, such general and abstract grounds are inadequate for the continuation of detention. Support with concrete evidence is sought. Indeed, it is inconceivable for the evidence to remain ungathered at the stage reached by the judicial proceedings. It is stated in the dissenting opinion on Kadri Gürsel that the witnesses had to a large extent been heard and there was no possibility of tampering with the evidence as it had been observed that the evidence had been gathered. There is no reason to think that the same reasons do not apply to the other detainees, too. You may find the Clooth/Belgium (1991) ruling to be of interest in this respect. It is stated in this decision (paragraphs 42, 43 and 44) that reliance on the needs of an investigation in an abstract manner does not justify continuation of detention and that, as the period gets longer, the risks entailed by ending detention lessen. You can also find similar opinions in Becceiev/ Moldova (2005) and other rulings.

General and abstract statements

5. On the other hand, it is stated in your interim ruling that conditional release measures would be inadequate. Such a general and abstract statement cannot serve as grounds for the continuation of detention. It is necessary to set out in concrete terms why the conditional release measures in Article 109 of the Code of Criminal Procedure are inadequate. The Cahit Demirel/Turkey (2009) ruling makes a useful summary of the problems arising from detention in Turkey. I imagine this has been brought to your attention. It is stated in this decision that such cliched grounds as “The nature of the offence, the evidentiary status and the contents of the file” will be incapable of justifying the continuation of detention and, along with this, the failure for other conditional release measures to be included will lead to a violation of Article 5/3 covering detention of the Convention. I am afraid, learned judges, that the European Court of Human Rights’ grounds for violation in the Cahit Demirel case will also apply to this trial.

Grave result for Turkey

6. Dear judges, it must not be forgotten that detainees are people over whom judgment has not been passed and who benefit from the presumption of innocence. There must exist very serious concrete grounds for such people to be deprived of their liberty for a long time. I am obliged to say that the grounds you cited in your interim decision of 11 September were not of this nature. The issue also has a press freedom aspect. It is in any case an unacceptable situation for journalists to be held in detention while on trial. Dear judges, if the European Court of Human Rights rules that detention is unlawful and constitutes a violation of press freedom, the government will have to implement this ruling. Implementing the ruling will amount to eliminating the cause of the violation, i.e. ending detention. Will this not be a grave result for Turkey? I leave this issue to your discretion. A former Constitutional Court Chair says, “Every time I enter the courtroom, I imagine that I am on trial.” I think that these words apply to all judges.

Yours sincerely,