Communicated on 7 September 2016

SECOND SECTION

Application no. 54594/12 Dilek DEM Ä° RAL against Turkey and 15 other applications (see list appended)

STATEMENT OF FACTS

1. The applicants are Turkish nationals. They are represented before the Court by Mr Ö. Kılıç , Ms A.D. Ta ş demir , Mr Veysel Ok and Mr O. Y ı ld ı z , lawyers practising in Istanbul. A list of the applicants is set out in the appendix.

2. The facts of the cases, as submitted by the applicants, may be summarised as follows.

3. Between 2009 and 2011, a number of criminal investigations were initiated against alleged members of an organisation called the KCK ( Koma Civakên Kurdistan – the Union of Communities in Kurdistan).

4. As part of one of those investigations, on 20, 21 and 30 December 2011 the applicants – editors, reporters, distributors and other workers working for a number of media outlets and a distribution company – were arrested on suspicion of membership of the KCK along with approximately thirty other people.

5. On 20 December 2011 the security forces conducted searches on the premises of the Özgür Gündem newspaper and at the printing house where the newspaper in question was printed, as well as at the head office and four branches of the Dicle News Agency. Computers, hard discs, cameras, technical items and written material found on the premises were seized by the police.

6. On 20 December 2011 a judge at the Ninth Division of the Istanbul Assize Court, assigned under Article 250 of the Code of Criminal Procedure, in force at the material time, ordered that the applicants and the other suspects be prevented from having access to their legal representatives for twenty-four hours and that the latter be denied access to the investigation file in its entirety, in accordance with sections 10(b) and 10(d) of the Preve ntion of Terrorism Act (Law no. 3713), in force at the material time.

7. Between 20-21 December and 23 December 2011 the applicants were kept in police custody. During their detention in police custody, the applicants did not make any statement about the charges against them.

8. On 22 December 2011 three lawyers lodged petitions with the Ninth Division of the Istanbul Assize Court on behalf of one of the applicants, Mr Davut U ç ar , and four other people. They requested, inter alia , to be allowed to have access to the investigation file. They also requested that the material seized on the premises of the media outlets on 20 December 2011 be returned.

9. On 23 December 2011 the Ninth Division of the Istanbul Assize Court rejected those requests.

10. On 23 December 2011 the applicants were brought before the Istanbul public prosecutor assigned under Article 250 of the Criminal Procedure Code, in force at the material time. In their statements to the public prosecutor, the applicants denied the charges against them. They contended that they had not carried out any activities other than those related to journalism and the distribution of newspapers.

11. On 23 and 24 December 2011 the applicants were questioned at the Istanbul Assize Court by judges assigned under Article 250 of the Code of the Criminal Procedure, who ordered that they be held on remand. They all denied the charges against them before the judges.

12. On 28 and 29 December 2011 the applicants ’ lawyers filed petitions with the Istanbul Assize Court on behalf of the applicants. In their petitions, the lawyers objected to the decision of 24 December 2011 to remand the applicants in custody.

13. On 2 January 2012 the Istanbul Assize Court dismissed the applicants ’ objections.

14. On 27 April 2012 the Istanbul public prosecutor filed a bill of indictment against forty-four persons, including the applicants. The public prosecutor noted that according to the “KCK Agreement”, the document setting out the ideological foundations of the KCK, the aim of the KCK was to establish an independent Kurdish state and a new society. He further noted that the KCK was part of the PKK, an illegal armed organisation . The public prosecutor observed that the “KCK Agreement” envisaged setting up a Media Committee within the KCK. According to the public prosecutor, the committee in question was to work towards the goals of drawing up media policies for the KCK and controlling the media outlets which disseminated information and ideas in support of the KCK/PKK and had strong financial resources. The members of the committee were to work in line with the instructions of the leader of the PKK, Abdullah Öcalan , and a number of other leading members of that organisation . The Istanbul public prosecutor stated that the subject matter of the bill of indictment was the media activities of the KCK/PKK.

15. In the bill of indictment, the public prosecutor charged Yüksel Genç , Nurettin Fırat , Ramazan Pekgöz , Turabi Kişin , Kenan Kırkaya , Ertuş Bozkurt, Mazlum Özdemir , Davut Uçar and Hüseyin Deniz with leading the KCK/PKK. Dilek Demiral , Sibel Güler , Ayşe Oyman , Haydar Tekin , Safet Orman , Mehmet Emin Yıldırım and İsmail Yıldız were charged with membership of the KCK/PKK (the remaining applicants) under Article 314 §§ 1 and 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713). Safet Orman was further charged with breach of the Meetings and Demonstration Marches Act (Law no. 2911). In charging the applicants, the public prosecutor relied on the following evidence:

- Documents found in the computer of a certain C.K., a suspected KCK member, containing information that some of the applicants had participated in meetings organised by the PKK in northern Iraq;

- Results of the surveillance of some of the applicants which showed they had access to e-mail accounts which were accessible only by members of the PKK and through which PKK members communicated;

- Documents found during the search of the house of a certain M.A., a suspected KCK member, which showed that some of the applicants had organised illegal meetings;

- Records of the applicants ’ travel;

- The applicants ’ telephone conversations;

- Articles written by the applicants who had worked as journalists;

- Documents, books, notebooks and documents found in some of the applicants ’ homes;

- Incriminating statements by anonymous witnesses about the applicants;

16. On 10 September 2012 the applicants ’ trial began at the Istanbul Assize Court.

17. On various dates between 8 February 2013 and 12 May 2014 the applicants were released pending trial.

18. According to the information in the case file, the criminal proceedings against the applicants are still pending before the Istanbul Assize Court.

COMPLAINTS

19. The applicants complain under Article 5 § 1 of the Convention that they were arrested and held in police custody and pending their trial without any tangible evidence and reasonable grounds to suspect that they had been involved in illegal activities. According to the applicants, the arrest and detention of journalists were part of the Government ’ s policy to suppress political opponents. They also submit that they were arrested and detained in police custody and pending trial solely on account of their journalistic activities . Lastly, the applicants allege under this head that the prosecuting authorities did not follow the procedure set out in Article 98 of the Code of Criminal Procedure, according to which they should have been asked to make statements to the public prosecutor and that their arrest could have been ordered if they had failed to appear before the public prosecutor.

20. The applicants complain under Article 5 § 2 of the Convention that they were not informed of the reasons for their arrest and detention. They complain, in particular, about the decision of 20 December 2011 denying their representatives access to the investigation file.

21. The applicants complain under Article 5 § 3 of the Convention that the length of their detention in police custody and of their detention pending trial was excessive.

22. The applicants complain under Articles 5 § 4 and 13 of the Convention that their objections to the decision of 24 December 2011 to detain them was delivered without adversarial proceedings and without a hearing. The applicants submit that they were unable effectively to challenge the detention order as they were denied access to the investigation file whereas the public prosecutor, whose observations were taken into account by the court, had access to the file.

23. The applicants complain under Article 10 of the Convention that they were arrested, detained and charged with membership of the KCK/PKK on the basis of their journalistic activities and that the materials used for their journalistic activities were seized by the police.

24. The applicants complain under Article 13 of the Convention, in conjunction with Article 10, that the remedies provided for in domestic law were not effective.

25. Lastly, the applicants complain under Article 1 of Protocol No. 1 to the Convention that they were deprived of their income and sustained pecuniary damage as a result of the events that gave rise to the present application.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, was individual application to the Constitutional Court an effective remedy within the meaning of this provision in respect of the applicants ’ complaints under Article 5 §§ 1 and 3 and Article 10 of the Convention?

2. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular:

a. Were the authorities under an obligation to follow the procedure set out in Article 98 of the Code of Criminal Procedure before effecting the applicants ’ arrest?

b. Did the investigation file contain facts and information which would satisfy an objective observer that the applicant s might have committed the alleged offences?

The Government are requested to submit all documents relating to the reasons for the applicants ’ arrest, detention in police custody and remand.

3. Was the length of the applicants ’ detention on remand in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

4. Did the applicants have at their disposal a remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular,

a. Is the remedy provided in Article 91 § 5 of the Code of Criminal Procedure an effective remedy within the meaning of Article 5 § 4 of the Convention?

b. Does the decision of the judge at the Ninth Division of the Istanbul Assize Court dated 20 December 2011 restricting the applicants ’ access to their lawyers and the latter ’ s access to investigation files pursuant to former sections 10(b) and 10(d) of the Prevention of Terrorism Act (Law no. 3713) have a bearing on the applicants ’ exercise of the right enshrined in Article 5 § 4?

The Government are invited to submit a copy o f the file of investigation no. 2011/521 in so far as it concerns the applicants as well as the file of the case brought against the applicants and their co-accused.

5. Has there been an interference with the applicants ’ freedom of expression, in particular their right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention, on account of their arrest, detention in police custody, their being held on remand and the criminal proceedings brought against them?

If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

Appendix

No

Application No

Applicant

Date of birth

Name of the media outlet/news agency,

Applicant ’ s position

Date of arrest

Date of detention on remand

Date of release pending trial

54594/12

Dilek DEMÄ°RAL

01/01/1977

Ö zg ü r G ü ndem ,

Reporter (until 2005)

20/12/2011

24/12/2011

03/03/2014

55669/12

Sibel GÃœLER

12/07/1977

Freelance journalist

20/12/2011

24/12/2011

03/03/2014

46515/13

Yüksel GENÇ

20/06/1973

Ö zg ü r G ü ndem ,

Columnist

20/12/2011

24/12/2011

12/05/2014

46516/13

Nurettin FIRAT

02/03/1982

Ö zg ü r G ü ndem ,

Journalist and editor

20/12/2011

24/12/2011

12/05/2014

46517/13

Ramazan PEKGÖZ

30/05/1979

Dicle News Agency,

Editor

20/12/2011

24/12/2011

12/05/2014

46518/13

Turabi KİŞİN

12/09/1965

Ö zg ü r G ü ndem ,

Journalist and editor

30/12/2011

02/01/2012

12/05/2014

46521/13

AyÅŸe OYMAN

05/07/1978

Ö zg ü r G ü ndem ,

Journalist and editor

20/12/2011

24/12/2011

03/03/2014

46525/13

Kenan KIRKAYA

05/03/1979

Dicle News Agency,

Editor and Ankara correspondent

20/12/2011

24/12/2011

26/03/2014

46526/13

ErtuÅŸ BOZKURT

04/03/1985

Dicle News Agency,

Editor

20/12/2011

24/12/2011

12/05/2014

46527/13

Mazlum ÖZDEMİR

10/03/1979

Dicle News Agency,

Editor and Iraq correspondent

20/12/2011

24/12/2011

26/03/2014

46538/13

Haydar TEKÄ°N

23/06/1969

F ı rat Publishing House and Distribution,

Employee

20/12/2011

24/12/2011

26/03/2014

46541/13

Safet ORMAN

01/08/1991

F ı rat Publishing House and Distribution,

Employee

20/12/2011

24/12/2011

11/02/2013

46542/13

Mehmet Emin YILDIRIM

25/08/1973

Azadiya Welat ,

Editor-in-chief and columnist

21/12/2011

24/12/2011

26/03/2014

46544/13

Ä°smail YILDIZ

01/04/1981

Freelance journalist

20/12/2011

24/12/2011

08/02/2013

46545/13

Davut UÇAR

01/08/1971

Ö zg ü r G ü ndem ,

Sales manager

20/12/2011

24/12/2011

12/05/2014

46546/13

Hüseyin DENİZ

08/08/1966

Evrensel ,

Reporter and columnist

20/12/2011

24/12/2011

26/03/2014