Şık v. Turkey (no. 2), No. 36493/17, ECtHR (Second Section), 24 November 2020

Arbitrary pre-trial detention of an investigative journalist in the absence of reasonable suspicion of disseminating propaganda in favour of terrorist organisations. Violation of the rights to liberty and security, and freedom of expression.

Art. 5 ECHR
Art. 10 ECHR

1. The ‘reasonableness' of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary detention laid down in article 5, paragraph 1 (c) of the Convention. For that reason, the fact that a suspicion is held in good faith is insufficient per se. There are in fact two aspects to the ‘reasonable suspicion’ requirement, which are separate but overlapping, a factual aspect and an aspect concerning the classification as criminal conduct. Firstly, the notion of ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as ‘reasonable’ will depend upon all the circumstances, but the Court must be able to ascertain whether the essence of the safeguard afforded by article 5, paragraph 1 (c) has been secured, that is whether the arrest and detention were based on sufficient objective elements to justify a ‘reasonable suspicion’ that the facts at issue had actually occurred and were attributable to the persons under suspicion. Secondly, the classification as criminal conduct requires that the facts relied on can be reasonably considered as falling under one of the sections describing criminal behaviour in the Criminal Code. 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.

2. In the normal course of professional journalism, the rights and duties of an investigative journalist include conveying information to the public that is relevant to debates on matters of public interest, as in the present case. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. It gives politicians the opportunity to reflect and comment on the preoccupations of public opinion, by enabling everyone to participate in the free political debate which is at the very core of the concept of a democratic society. This includes also the free expression by prohibited organisations of their views, provided that these do not contain public incitement to commit terrorist offences or condone the use of violence.
(The applicant was a journalist convicted for terrorist propaganda having published a series of articles on a national daily newspaper, on the website of the newspaper and on items posted on social media from his Twitter account. He complained about the violation of his rights to liberty and security, and to freedom of expression under articles 5 and 10, claiming that his pre-trial detention had been arbitrary, without any concrete evidence grounding a reasonable suspicion that he had committed a criminal offence. The Court found breaches of both rights, amounting the detention to an unlawful interference with the applicant’s freedom of expression and having the national authorities produced no sufficient basis for a reasonable suspicion that the applicant had committed the crime).