Communicated on 11 September 2015

SECOND SECTION

Application no. 46533/13 Ãœlkem Evrim KEPENEK against Turkey lodged on 29 March 2012

STATEMENT OF FACTS

1. The applicant, Ms Ülkem Evrim Kepenek , is a Turkish national, who was born in 1977 and lives in Istanbul . She is represented before the Court by Mr Ö. Kılıç and Ms A. Ta ş demir , lawyers practising in Istanbul .

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The applicant ’ s arrest and the criminal proceedings brought against her

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

4. Within the context of one of these investigations, on 20 December 2011 the applicant, a journalist working for the Dicle New s Agency , and approximately fifty other journalists working for differe nt newspapers and news agencies, were arrested on suspicion of membership of the KCK . It is to be noted that the report concerning the applicant ’ s arrest was not submitted to the Court by the applicant.

5. On the same day a judge at the Ninth Division of the Istanbul Assize Court, assigned under Article 250 of the Code of the Criminal Procedure at the material time , ordered that the applicant and the other suspects be prevented from having access to their legal representatives and that the latter be prevented from having access to the entire content of the investigation file in accordance with sections 10(b) and 10(d) of the Prevention of Terrorism Act (Law no. 3713), in force at the material time.

6. Between 20 and 23 December 2011 the applicant was kept in police custody .

7. During her detention in police custody, the applicant did not make any statement in relation to the charge s against her .

8. On 22 December 2011 one of the applicant ’ s representatives lodged a petition with the Ninth Division of the Istanbul Assize Court on behalf of two other persons and requested, inter alia , to be allowed to have access to the investigation file. Some other lawyers also lodged petitions containing similar requests on behalf of other persons arrested at the same time as the applicant.

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

10. On 23 December 2011 the applicant was brought before the Istanbul public prosecutor assigned under Article 250 of the Criminal Procedure Code at the material time. In her statements to the public prosecutor, the applicant stated that she was a journalist working for the Dicle News Agency and that she had previously worked for three newspapers. The applicant noted that she did not carry out any activities oth er than activities related to journalism.

11. The applicant was asked about a telephone conversation held on 24 October 2011 between her and a certain E.A., a conversation intercepted by the police, according to which the applicant had called E.A. and asked him if he could cover a press statement to be made by a parliamentarian, S.S. Ö . During the conversation, the applicant noted that the news agency did not have a sufficient number of journalists and since all journalists had tasks that day, the agency could not send any person to report about that press statement. The applicant contended before the public prosecutor that she had tried to obtain information about that event on behalf of the Dicle News Agency, given that a press statement by S.S. Ö . was an event to be covered by a media outlet.

12. The public prosecutor further questioned the applicant about the materials seized in a tent put up by the Dicle News Agency, in a park in the province of Van, where the applicant had been arrested. In her reply, the applicant contended that she had been a guest there and that she did not have any knowledge of the nature of those materials.

13. When shown the images of a demonstration in which the applicant had appeared, she contended that a number of parliamentarians had attended that demonstration and that she had been there as a journalist in order to cover the event and the parliamentarians ’ participation in it. She noted that their news reports were uploaded on the website of the Dicle News Agency and that those reports had been password protected. She did not know how those images were also found on websites of RojTV and F ı rat News Agency, media that broadcast in support of a terrorist organisation .

14. During her questioning before the Istanbul public prosecutor, the applicant was accompanied by two lawyers who contended that the applicant was a journalist in the Dicle News Agency, a legally established media outlet. According to the lawyers ’ statements, the applicant did not have any connection with any illegal organisation and her participation in demonstrations and similar events had been due to her work as a journalist. Noting that the applicant ’ s activities had been within the scope of press freedom and in the light of the importance of the right to liberty and the fact that she had a permanent residence and that there was no risk of tampering with evidence , they asked for their client to be released.

15. On 23 and 24 December 2011 a number of the applicant ’ s co ‑ detainees were brought before a judge at the Istanbul Assize Court assigned under Article 250 of the Code of the Criminal Procedure , who ordered their detention on remand. According to the document containing the statements of the applicant ’ s co-detainees before the judge, the applicant was not questioned by the judge but was released upon the order of the public prosecutor on 23 December 2011. It is to be noted that the applicant did not submit the document relating to the public prosecutor ’ s decision on her release to the Court.

16. On 27 April 2012 the Istanbul public prosecutor filed a bill of indictment against forty-four journalists, including the applicant, and charged them with membership of the KCK/PKK. T he 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 establishing an independent Kurdish state and a new society. He further noted that the KCK was a 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 would work towards the goals of establishing the media policies of the KCK and controlling the media outlets which disseminated information and ideas in support of the KCK/ PKK and had rich financial resources. The members of this committee would work in line with the instructions of the leader of the PKK, Abdullah Ö calan , and a number of other leading members of the organisation. The Istanbul public prosecutor stated that the subject matter of the bill of indictment was the media activities of the KCK/PKK.

17. As regards the applicant, the Istanbul public prosecutor noted that when she had been arrested on 20 December 2011, the following materials were found in the tent of the Dicle News Agency in Van: books, periodicals, flash disks, computers, mobile telephones, photographs, documents, notebooks, credit cards and identity cards. The public prosecutor noted that there were court orders for confiscation and prohibition of four of the books found in the tent.

18. According to the indictment, the applicant had had a telephone conversation with E.A. in respect of a press statement to be held by a parliamentarian (see paragraph 10 above). The public prosecutor noted that E.A. had called the Dicle News Agency and asked for a journalist to attend the press statement to be made by S.S. Ö . and that the applicant had told E.A. that the agency did not have a sufficient number of journalists and since all journalists had tasks that day, she could not send any person to report about that press statement.

19. The public prosecutor further noted that in May and June 2011 the applicant had attended two demonstrations in Istanbul, which had become propaganda in support of the KCK/PKK, in her capacity as a member of the KCK/PKK Media Committee. He also noted that during one of these demonstrations clashes had occurred between some demonstrators and the security forces, during which a number of police officers had been injured and shops and vehicles had been damaged.

20. The Istanbul public prosecutor finally relied on the statement of B.Y., an anonymous witness, dated 2 January 2012. According to that statement, the PKK was in control of the Media Committee, of which the applicant was a member. The Committee ’ s activities were carried out in line with the instructions received from the PKK. The Committee members held secret meetings approximately every two months. The applicant participated in these meetings and carried out journalistic activities under the control of the PKK.

21. In view of the aforementioned evidence, the Istanbul public prosecutor concluded that the applicant carried out activities which formed a part of the activities of the Media Committee; that she worked as a journalist at the Dicle News Agency; that according to the statement of B.Y., she was a member of the Media Committee and worked in line with the instructions of the PKK; and that therefore the applicant was a member of the KCK/PKK.

22. According to the information in the case file, the criminal proceedings against the applicant and her co-accused are currently pending before the Third Division of the Istanbul Assize Court.

B. Conditions of detention at the place of custody in the Istanbul courthouse

23. On 23 December 2011 the applicant together with the other detainees was brought to the courthouse in order to be questioned by the Istanbul public prosecutor and by a judge.

24. As a result of the high number of detainees to be questioned, the applicant and the other detainees were kept in two detention rooms in the courthouse for around twenty-four hours pending their questioning by the public prosecutor.

25. The applicant claims that during her stay in the courthouse, she was kept in a room of 20 sq. m . with approximately twenty other women The room did not receive natural light and there was no fresh air or heating. There were only two benches in the room and only three or four people could sit on benches at a time. The applicant and the other detainees had to sit on the benches in turns and those who could not sit on the benches had to stand up or sit on the floor. The applicant and other detainees were deprived of sleep during their stay in that room in the courthouse.

COMPLAINTS

26. The applicant complains under Article 3 of the Convention about the conditions of detention at the place of detention in the Istanbul courthouse .

27. The applicant complains under Article 5 § 1 of the Convention that she was arrested and detained in police custody in the absence of any tangible evidence and reasonable grounds for suspicion that she had been involved in illegal activities. According to the applicant, the arrest and detention of journalists was a part of the Government ’ s policy to oppress political opponents. She also submits that she was arrested and placed in police custody solely on account of her activities as a journalist . The applicant finally alleges 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 she should have been invited to make statements to the public prosecutor and that her arrest could have been ordered had she failed to appear before the public prosecutor.

28. The applicant complains under Article 5 § 2 of the Convention that she was not informed of the reasons for her arrest and detention in police custody. She maintains that she was only told that she was being arrested on suspicion of carrying out activities for the KCK/PKK. She complains, in particular, about the decision of 20 December 2011 preventing her representatives from having access to the content of the investigation file.

29. The applicant complains under Article 5 § 3 of the Convention that the length of her detention in police custody was excessive.

30. Relying on Article 10 of the Convention, the applicant complains that she was arrested, detained in police custody and charged with membership of the KCK/PKK on the basis of her activities as a journalist and that as a result her right to freedom of expression was breached.

31. The applicant complains under Article 13 of the Convention, in conjunction with Article 5 §§ 1 and 2 and Article 10 of the Convention that the remedies provided in domestic law were not effective.

32. The applicant further complains under Article 13 of the Convention, in conjunction with Article 3 of the Convention that the public prosecutors failed to fulfil their obligation of inspecting the room where she was detained in the Istanbul courthouse.

QUESTIONS TO THE PARTIES

1. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 3 of the Convention, as required by Article 13 of the Convention? If so, did the applicant exhaust the remedy in question , as required by A rticle 35 § 1 of the Convention?

The Government are invited to submit decisions by judicial authorities in response to complaints regarding conditions of dete ntion by detainees in comparable situations.

2. Were the conditions of the applicant ’ s detention at the place of detention in the Istanbul courthouse ( adliye nezarethanesi ) compatible with Article 3 of the Convention?

The Government are invited to submit the holding data regarding the applicant ’ s detention in the Istanbul courthouse, i.e. the date and time and exact location of detention , the size and the capacity of the place of detention and the number of occupants held at the same time as the applicant. The Government are also invited to submit information and materials (photographs, video footage etc.) on the conditions at the place of detention in the Istanbul courthouse .

3. Was the applicant deprived of her 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 applicant ’ s arrest?

b. Did the statement of B.Y. exist prior to the applicant ’ s arrest on 20 December 2011?

c. Can the statement of B.Y. be considered to contain information that would satisfy an objective observer that the applicant might have committed an offence?

4. Did the applicant have at her disposal a remedy by which she could challenge the lawfulness of her 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 applicant ’ s access to her 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 applicant ’ s exercise of the right enshrined in Article 5 § 4?

The Government are invited to submit decisions by judicial authorities in response to objections challenging the lawfulness of detention in comparable situations.

The Government are invited to submit a copy of the files of the investigation no. 2011/521 as well as the case brought against the applicant and her co-accused in so far as the documents concern the applicant.

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

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