EVALUATION OF THE ECtHR’s DECISION OF NAZLI ILICAK IN TERMS OF ITS EFFECTS ON THE ONGOING TEROR TRIALS IN TURKEY

ECtHR: In its decision, stated that “The logic established by the government based on associating Ilıcak’s questioning of the identities of the possible perpetrators of the coup attempt through her journalistic activities in some media outlets and messages on social media is unacceptable.” Based on this finding, the Court decided that Article 5 of the European Convention on Human Rights (ECHR), which regulates the right to freedom and security, and Article 10, which regulates the freedom of expression was violated and that 16,000 Euros of non-pecuniary damage shall be paid.

The decision is the application of the case-law of the ECHR for years to the case, and in this respect, it is an expected decision. In addition, the decision also includes aspects that directly concern the current judicial proceedings based terror allegations.

The ECHR in its decisions it rendered after July 15 basically reminds the principles of international law, the scope and application of the rights and freedoms protected by the Convention, and includes the following issues;

Conversations in Which No Crime was Detected Does Not Form a Ground for Criminal Accusation

ECtHR: found that, “Phone calls made with people who are subjected to criminal proceedings after the date of the speech and content of which was unknown cannot be made a basis for criminal accusations (P.152).” According to the court, an arrest warrant cannot be issued without the content of the conversations, which contain concrete evidence of the alleged crime, was committed. It is clear that a conviction cannot be imposed beforehand for a reason for which even an arrest warrant cannot be given.

The decision of the ECtHR becomes more meaningful when it is considered that HTS recordings, whose caller is not even known, receiving/transmitting signals from the same base station and phone calls made in the past with people who are under investigation or prosecuted are considered as evidence of crime in the current proceedings. These trials have turned the crime of membership of an organization, which can be committed with special criminal intent, into a crime where even negligence is not sought, and they have produced terrorism from the completely innocent actions of people.

Working for a Legal Organization Does Not Form a Ground for a Criminal Accusation

The decision also included issues that directly concern tens of thousands of people accused of membership of an organization due to the institution they work for. First of all, the ECtHR decided that newspapers and magazines listed in the decision and declared to be affiliated to the alleged terror organisation which were included in the indictments and decisions as “media structuring”, were completely legal mass media at the time of the accusations (P.137) and stated that the financial documents regarding the payment of the applicant’s wages by the media organs for which she worked for would not prove the existence of a connection no other than the ordinary and normal nature of their amount that bind a professional journalist with their employer (P.153).

What could be inferred from these paragraphs is that people who work in a legal institution and organization (association, trade union, media organization, school, private teaching institution, etc.) and for whom no other ties with their employer can be determined apart from the salary they receive, cannot be charged with membership of an organization.

Legitimate Activity of a Journalist or a Political Opponent Does Not Constitute a Basis for Criminal Accusation

ECtHR; After finding that “It is understood that the reasoning followed by the authorities that ordered the applicant’s detention and in this case to identify his work as a journalist in some mass media and his only articles and interviews on matters of public concern with activities within the scope of a terrorist organization cannot be regarded as an acceptable assessment of the facts (P.143)”, it further stated that the facts of the nature of the legitimate activities of an investigative journalist or a political dissident fall within the scope of “the applicant’s exercise of the freedom of expression and press” guaranteed by national law and the Convention, and in no way constitute a purposeful integrity that goes beyond the legitimate restrictions on these freedoms. (P. 158).

As it can be inferred from these paragraphs, there is no legal basis for making legitimate actions within the scope of every dissenting discourse and journalistic activity grounds for punishment which have turned into a general judicial practice in Turkey,.

Being Mentioned in Name In Bylock Message Exchanges Does Not Form A Ground For Accusation

According to the ECtHR, In the opinion of the prosecutor’s office on the merits, it was stated that the description of the applicant in the Bylock correspondence between third parties as “an influential person who can convey a message to the people” which within the scope of freedom of the press cannot be an indication that the applicant is a member of an illegal organization (P.156).

In consequence the ultimate purpose of the Convention, which is the initial ground for the existence of the ECtHR, is to prevent especially totalitarian and authoritarian regimes from re-emerging in the European continent and to prevent serious human rights violations to be conducted by these regimes. With the ILICAK decision, the Court once again reminded its interlocutors of this duty.