Human RightsPress Freedom

Speaking out in the void: Article 18 as a clamp on the ECtHR

ZELAL PELİN DOĞAN*

The European Court of Human Rights (ECtHR) has recently delivered two notable judgements on the freedom of expression and press. The first judgement was Sabuncu and Others/Turkey, in the application lodged on the detention of Cumhuriyet newspaper staffers, and the second one was Şık/Turkey (No.2), in the application lodged on the detention of journalist Ahmet Şık in December 2016.

Although it is very clear that the actual purpose of the pressure upon and measures taken for depriving journalists of their liberty is to silence them, the ECtHR has avoided making such findings in these cases. I am saying that it has avoided, because Article 18 of the European Convention on Human Rights (ECHR), which is used to determine whether their initial and continued pre-trial detention pursued an undeclared aim, has clearly been violated in these cases as stated by Judge Kūris in his partly dissenting opinion [1]. However, the ECtHR has on its fore another opportunity to make such findings: The case of Yücel/Turkey.

The secret aim behind the journalists’ detention

The ECtHR has found violations of the right to liberty and security and the right to freedom of expression of journalists Akın Atalay, Bülent Utku, Hacı Musa Kart, Güray Tekin Öz, Hakan Karasinir, Mehmet Murat Sabuncu, Mustafa Kemal Güngör and Önder Çelik in the Cumhuriyet case. Similarly, the ECtHR has also found that journalist Ahmet Şık’s right to liberty and security and the right to freedom of expression were violated. In both of these cases, the Turkish Constitutional Court had not found any violations.

The findings made in these cases regarding the rights to liberty and security and freedom of expression and press —although they contain a few important points regarding the admissibility criteria and the claim for compensation due to protection measures— are not too different from other judgements of the ECtHR. There is also a common point in both Cumhuriyet and Şık rulings: No violation of Article 18 of the ECHR.

Article 18 of the ECHR prohibits the abuse of powers by the judicial authorities in the limitation on the use of restrictions on rights. This article becomes applicable if a restriction has been applied for a purpose not prescribed by the ECHR, such as the deprivation of liberty of a person with an ulterior or political purpose. In many cases, the ECtHR required that, for a violation of Article 18 to be found, it had to be furnished with incontrovertible and direct proof. If an applicant alleged that his or her rights and freedoms had been limited for an improper reason, he or she had to convincingly show that the real aim of the authorities was not the same as that proclaimed [2]. In time, the required proof for the violation of Article 18 ceased to be limited to the evidence presented by the applicant. Various opinions and third-party interventions were also taken into consideration, in determining whether the detention had an underlying secret purpose [3]. The ECtHR applied its case-law of Article 18 in Selahattin Demirtaş and Osman Kavala cases. In these cases the ECtHR noted that Selahattin Demirtaş’s detention, pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate, which is at the very core of the concept of a democratic society [4]; and that Osman Kavala’s detention pursued to silence him as a non-governmental organization (NGO) activist and human-rights defender, and to dissuade others from taking part in such activities and to paralyze Turkey’s civil society [5].

In spite of the principles above and its recent judgements against Turkey, the ECtHR concluded that the detention of journalists in Cumhuriyet and Şık cases were not executed with an ulterior or political purpose. However, as was made in other cases, the ECtHR could have concluded that the detention of journalists had a secret purpose and the aim in question was to silence them. Because as Judge Kūris reminds us, how could it be possible to conclude that there was no secret aim in view of the following rogue public statement by the President of Turkey: “Whoever wrote this article will pay dearly, I will not let the matter rest there”? As a conclusion, the threat materialized with the detention of journalists [6]. However, the ongoing oppression of opponent voices and undemocratic government policies have been reflected in the reports of various institutions, civil society and intergovernmental organizations such as the Council of Europe and United Nations. Considering that the ECtHR is aware of these, it would not be too difficult to make these findings.

Judge Kūris made an unusual and literary interpretation in the last paragraph of his partly dissenting opinion in the Cumhuriyet and Şık cases. He stated that the ECtHR’s substantial progress in the treatment of Article 18 complaints remains somewhere on the horizon and that these judgements have moved that horizon farther away [7]. But the ECtHR has an important opportunity to close that horizon: The case of Deniz Yücel, whose application remains before the ECtHR.

Another possibility 

Journalist Deniz Yücel was detained on 27 February 2017, based on a number of charges. On 27 March 2017, he applied to the Turkish Constitutional Court, and on 6 April 2017 to the ECtHR. On 28 May 2019, the Constitutional Court ruled that Die Welt Turkey correspondent Yücel’s year-long detention had violated his right to liberty and security, as well as his right to freedom of expression. But the local court sentenced him to 2 years 9 months and 22 days in prison, for “making terrorist propaganda” based on his articles and interviews, and ruled for the filing of additional lawsuits against him. When the ECtHR reviewed the case in 2017, one of the questions asked to the state was whether the detention of Yücel carried a purpose other than the ones specified by the ECHR, contrary to Article 18.

So, will the ECtHR find that there has been no violation of Article 18 in the Deniz Yücel case as it did in the Cumhuriyet and Şık cases? It is again very clear that the detention of Yücel pursued political purposes. Because the President had stated that “It will not happen in any way, for as long as I am in this post, never” about the return of Deniz Yücel to Germany. The evidence presented by the applicant in the case, as well as the third-party interventions and reports, clearly demonstrate that the government abused its powers against imprisoned journalists in an extraordinary way, and aimed to silence all dissenting voices since the military coup attempt in July 2016. The ECtHR is now expected to deliver a judgement in the application. It should also be noted that the same expectations from the ECtHR stand, regarding the application made on behalf of Ahmet Altan.

As can be seen in all three cases, these pressures upon and measures taken against journalists, civil society professionals and human rights defenders are not isolated ones. The most important thing is that all these are a part of the political chain built after the military coup attempt, aiming to silence independent press and dissenting voices. Although these findings were not made in the above-mentioned cases, there is another possibility for the ECtHR to note the pressure on freedom of expression and press. There is no knowing how it will utilize this opportunity, however it has long been known and frequently mentioned by both the national and international community that this system now runs in an absolutely antidemocratic way. Besides, “When, in a void such as this, someone has the courage to speak out, his voice is heard.” [8]

* Human rights lawyer. zelalpd@gmail.com

[1] Sabuncu and Others v. Turkey, no. 23199/17, 10/11/2020, Partly Dissenting Opinion of Judge Kūris, § 2.
[2] Khodorkovskiy v. Russia, no. 5829/04, 31/05/2011, § 260.
[3] Ilgar Mammadov v. Azerbaijan, no. 15172/13, 22/05/2014, § 142; Rasul Jafarov v. Azerbaijan, no. 69981/14, 17/03/2016, § 158; Merabishvili v. Georgia [GC], no. 72508/13, 28/11/2017, § 317.
[4] Selahattin Demirtaş v. Turkey (No. 2), no. 14305/17, 20/11/2018, § 273.
[5] Kavala v. Turkey, no. 28749/18, 10/12/2019, § 232.
[6] Sabuncu and Others v. Turkey, no. 23199/17, 10/11/2020, Partly Dissenting Opinion of Judge Kūris, § 34.
[7] Ibid, § 36.
[8] Althusser, L. (1993), The Future Lasts Forever: A Memoir, New York: The New Press, p. 224.