European Court of Human Rights found on 31 May 2022 that the pretrial detention of lawyer Taner Kılıç then president of Amnesty Turkey between June 2017 and August 2018 breached his several rights envisaged in the European Convention on Human Rights.
The case concerned the initial and continued pre-trial detention of Mr Kılıç who, at the relevant time, was Chairperson of the Turkish branch of the NGO Amnesty International. Mr Kılıç was arrested on 5 June 2017 on suspicion of belonging to the organisation called FETÖ/PDY by the Turkish government.
The authorities accused him, among other points, for having allegedly downloaded and used the ByLock messaging service on his telephone; for subscriptions to certain publications, such as the Zaman newspaper (allegedly linked to FETÖ/PDY); the fact that his sister was married to the editor of the Zaman newspaper; the fact that his children were schooled in institutions that were allegedly run by FETÖ/PDY and had been closed down by decree-laws following the attempted coup of 15 July 2016; and for holding bank accounts with Bank Asya, which was allegedly linked to FETÖ/PDY.
Between June 2017 and August 2018, Mr Kılıç’s pre-trial detention was extended on several occasions, initially by the magistrate’s courts, then by the İzmir and Istanbul Courts of Appeal, before which two separate sets of criminal proceedings were brought against the applicant, on 9 August 2017 and 4 October 2017 respectively. In the context of the second set of criminal proceedings, the authorities charged Mr Kılıç, among other charges, with membership of several terrorist organisations, not only on account of his alleged use of the ByLock messaging service but also on the basis of actions related to the defence of human rights. The two sets of criminal proceedings were later joined.
The court found that his pretrial detention had breached Article 5 § 1 (lack of reasonable suspicion justifying initial and continued pre-trial detention), Article 5 § 3 (failure to provide reasons for decisions concerning pre-trial detention), Article 5 § 5 (no compensatory remedy for unjustified pre-trial detention) and Article 10 (freedom of expression).
Accusation concerning Bylock App
The Court stated: With regard to the charges against Mr Kılıç, apart from his alleged use of ByLock, the Court considered that these had entailed mere circumstantial evidence which was incapable of giving rise to a reasonable suspicion that the applicant had committed the offence with which he was charged.
In the Court’s view, the acts in question enjoyed a presumption of lawfulness, in the absence of other evidence capable of justifying the suspicions in question, such as an intellectual link disclosing an element of responsibility in the suspect’s conduct. Thus, there could clearly not be a “reasonable suspicion” if the acts or facts held against a detained person did not constitute a crime at the time when they occurred.
With regard to the alleged use of the ByLock messaging service, the Court referred to its conclusions in the Akgüncase, in which it had found that, in principle, the mere fact of downloading or using a means of encrypted communication or indeed the use of any other method of safeguarding the private nature of exchanged messages could not in itself amount to evidence capable of satisfying an objective observer that illegal or criminal activity was taking place. In the present case, it noted that the decisions ordering and extending Mr Kılıç’s placement in pre-trial detention did not contain any evidence concerning the use of the messaging service in question, such as, for example, the content or context of the messages exchanged. It also reiterated that the case file indicated that the decisive element underlying the suspicions that the applicant had committed the offence of membership of the FETÖ/PDY organisation was a brief document, entitled “result of the analysis”, drawn up by the security directorate, which specified the date of the first connection. However, this was a blunt finding, without any clear indication of the basis on which the authorities had reached this conclusion, and particularly what data had been used. This document did not include the underlying data on which it was based or information on how it had been collected. In addition, although numerous expert reports had subsequently concluded that Mr Kılıç had never downloaded or used the messaging system in question, the national courts had totally ignored this development.
It followed that no factual evidence or information capable of giving rise to suspicions justifying Mr Kılıç’s placement in detention had been mentioned or presented during the initial proceedings or in the period prior to the filing of the second bill of indictment on 4 October 2017.
Article 10: freedom of expression
Given the importance of activities in the field of human rights, the Court considered that the principles regarding the detention of journalists and media professionals could be applied to the initial and continued pre-trial detention of human-rights defenders or of leaders or activists of such organisations, where the pre-trial detention had been imposed in the context of criminal proceedings brought against them for offences that were directly linked to activities for human rights protection.
In this connection, the Court noted that in the context of the second set of criminal proceedings, the
Istanbul Assize Court had ordered, on 22 November 2017, the applicant’s continued pre-trial detention, basing that order on all of the evidence concerning the charges brought against the applicant, including those related to his activities as a human-rights defender.
The Court considered that the applicant’s initial pre-trial detention on account of actions that were directly linked to his activity as a human-rights defender amounted to a genuine and effective restriction and thus an “interference” in the exercise of his right to freedom of expression. It considered that the applicant’s detention had thus represented an interference in his rights under Article 10 of the Convention. It pointed out that the applicant’s detention had not been justified by a reasonable suspicion that he had committed an offence within the meaning of Article 5 of the Convention, and that there had therefore been a violation of his right to liberty and security as enshrined in Article 5 § 1.