PARTLY DISSENTING OPINION OF JUDGE KŪRIS

1 . I respectfully disagree with the majority ’ s conclusion regarding the applicant ’ s complaint under Article 18 in conjunction with Article 5.

2 . I have stated my views on the persecution of Turkish journalists – such as in the present case, which is one of a much greater number – in my separate opinion annexed to the judgment in the recent case of Sabuncu and Others v. Turkey (no. 23199/17, 10 November 2020). At the time of the writing of this opinion that judgment is not final, because a request for the referral of the case to the Grand Chamber is pending , as well as of the case of Ş ı k v. Turkey (no. 2) (no. 36493/17), in which the judgment was delivered on 24 November 2020 .

3 . In the above-mentioned opinion I wrote about a “system”, a “synergy” and a “policy” behind the violations established by the Court (see , in particular, paragraphs 26 and 36 of the opinion). That system, synergy and policy were not left unnoticed by the third-party interveners in Sabuncu and Others (cited above). Neither did the latter turn a blind eye to these matters in the present case. The case file contains a document entitled “Third party intervention by the Council of Europe Commissioner for Human Rights”. The same document also featured in the case file in Sabuncu and Others , Ş ı k (also cited above) and several other cases, some already examined by the Court and some still pending examination. (In order not to make this opinion too lengthy, I focus here on only one third-party intervener, but there have been more of them, and what is said about this third-party intervener ’ s submissions is also applicable, mutatis mutandis , to their submissions.) By submitting to the Court that one single document the Commissioner intervened in not one but a series of similar , related , repetitive cases – as many as ten. That is why this document is noteworthy in its own right . Indeed, where there is a system, a synergy and a policy behind the measures taken by the State against representatives of the media in what, as is discovered upon examination, appears to be a violation of various provisions of the Convention, separate submissions in every single case would be repetitive. For these are not only individual cases that the Court has been called upon to deal with. By examining individual cases it shows how it deals with the broader problem.

4 . No doubt courts must and, as a rule, do examine each and every case on its own merits, individually. However, this does not absolve the examining court, not excluding the Strasbourg Court, from considering the whole picture, let alone from at least trying to look at it or recognising its relevance – at least when that picture has been presented to it by an informed third-party intervener, especially one who usually would not intervene in trivial cases.

Alas, sometimes that general picture is ignored – for whatever reasons.

5 . When that general picture is deemed irrelevant, the results are like those presented in the table below. The first column (C) indicates the cases in which the Council of Europe ’ s Commissioner for Human Rights intervened by means of the above-mentioned submissions, as well as the relevant judgments (six of the cases have already been examined and judgments have been adopted). The cases are listed, without prejudice, in the same order as in the said submissions. The second column (V) indicates the violations of various provisions of the Convention found by the Court. Please bear in mind that in some of the cases already examined the Court has found that there was “no need” to examine certain complaints. The third column (A18) presents the Court ’ s conclusion with regard to the applicants ’ complaints under Article 18, as formulated in the operative parts of the judgments already adopted.

C

V

A18

Ahmet H ü srev Altan v. Turkey (no. 13252/17) – the present judgment

Article 5 § 1, Article 5 § 5, Article 10

No violation

Şahin Alpay v. Turkey (no. 16538/17) – judgment of 20 March 2018

Article 5 § 1, Article 10

No need to examine separately

Atilla Ta ş v. Turkey (no. 72/17) – judgment of 19 January 2021

Article 5 § 1, Article 10

No need to examine

Bula ç v. Turkey (no. 25939/17)

Not yet examined

Il ı cak v. Turkey (no. 1210/17)

Not yet examined

Mehmet Hasan Altan v. Turkey (no. 13237/17) – judgment of 20 March 2018

Article 5 § 1, Article 10

No need to examine separately

Murat Aksoy v. Turkey (no. 80/17)

Not yet examined

Sabuncu and Others v. Turkey (no. 23199/17) – judgment of 10 November 2020 (not final)

Article 5 § 1, Article 10

No violation

Ş ı k v. Turkey (no. 2) (no. 36493/17) – judgment of 24 November 2020 (not final)

Article 5 § 1, Article 10

No violation

Y ü cel v. Turkey (no. 27684/17)

Not yet examined

6 . This table requires little – or rather no – comment. I believe that it speaks for itself. It indicates the patterns and the tendencies – both the pattern and the tendency of the respondent State ’ s stand vis- Ã -vis the independent media and the pattern and the tendency on the part of the Court in dealing with the respective complaints. I am far from sure that these are patterns and tendencies which would enjoy the same persuasiveness in the world outside the judicial ivory tower as within its halls.

7 . In paragraph 243 of the judgment the majority conclude that “ the mere fact that the applicant has been prosecuted or placed in pre-trial detention does not automatically indicate that the aim pursued by such measures was to silence him” and subscribe to the view that “the authorities ’ acts do not substantiate any other interpretation of events than that the predominant purpose of keeping the applicant in detention was to ensure the smooth conduct of the criminal investigation”.

This finding comes a bit ahead of schedule. At that stage, the examination of the applicant ’ s Article 18 complaints has not been completed yet. The piecemeal methodology employed here would allow almost any “mere fact” to be interpreted in an authority-friendly (= applicant-unfriendly) way.

8 . In the next paragraph (paragraph 244) the majority accept that “the applicant ’ s detention based on such serious charges had a chilling effect on the applicant ’ s willingness to express his views in public and was liable to create a climate of self-censorship affecting him and all journalists reporting and commenting on the running of the government and on various political issues of the day ” (emphasis added). Yet this is followed by the consideration that “this finding is likewise insufficient by itself to conclude that there has been a violation of Article 18”.

Truth to tell, in Article 18 cases almost everything looks “insufficient by itself”. What is needed is the whole picture: the facts in their combination and, no less importantly, in their context.

Perhaps the above-cited finding could convince some, had the chilling effect and the media-unfriendly climate acknowledged by the Court been the result of the persecution of one journalist. Then the chilling effect and the climate created by the impugned measures could be downgraded to something incidental. But they are what the third-party interveners assert happened in a series of cases. Again: system, synergy and policy. One who did not want to see all that would not acknowledge it. But the reality does not disappear for the simple reason that it is not acknowledged.

9 . Further, in paragraph 246, it is stated that “the elements relied on by the applicant in support of a violation of Article 18 ..., taken separately or in combination with each other, do not form a sufficiently homogeneous whole for the Court to find that the applicant ’ s detention pursued a purpose not prescribed by the Convention and representing a fundamental aspect of the case”.

The finding that the said “elements ... do not form a sufficiently homogeneous whole” could be reached only if those elements had been examined not only “separately” or in some kind of “combination with each other”, but separately from their context and not in combination with anything that the Court has been reluctant to see as part of any uncomfortable combination – irrespective of the fact that the third-party interveners have demonstrated that what the facts of as many as ten cases constitute is a very convincing combination.

10 . Here comes the final conclusion of the majority, which is stated in paragraph 247: “it has not been established beyond reasonable doubt that the applicant ’ s pre-trial detention was ordered for a purpose not prescribed by the Convention within the meaning of Article 18”.

That is correct: it has not been established by the Court. The question is: could it have been established?

I believe that it could, had the context been considered. And had the context been considered, the authorities ’ ulterior purpose should have been established.

11 . After all, the Court has itself concluded that the charges against the applicant were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c). Moreover, it has found that “the measure taken against the applicant ... was essentially based on acts which ... were related to the exercise of Convention rights, and in particular the right to freedom of expression” (see paragraph 239 of the judgment). And what is still more, “the Government failed to substantiate their argument that the measure taken against the applicant was justified by reasonable suspicion” ( paragraph 240 ) .

This begs the question: if the impugned measure was not based on any reasonable suspicion, what was it based on ? The Government have not provided any plausible explanation. The Court thus had to conclude that: (a) either there was no reason behind the measure; or (b) there was an ulterior purpose, but it was not possible for the Court to identify it. The first option can be dismissed without much hesitation, because it is hardly conceivable that the machinery of the State (not only some erring individual official but various institutions) would resort to such measures without any reason. What we are left with is the second option: the ulterior purpose was there, but it was not established.

It is perfectly understandable why the Government failed to substantiate the impugned measure: it was because it could be substantiated only by admitting something which was ulterior to the Convention. The answer is in the very name of what Article 18 is all about: the hidden agenda .

Very well hidden , as it appears – for it has been impossible to ascertain that it indeed existed.

I believe that the ascertainment of its existence could have been possible and even easy. By way of comparison, for the third-party interveners, such as the Council of Europe ’ s Commissioner for Human Rights, the establishment of that hidden agenda presented no great difficulty.

The difference is that the Commissioner looked at the whole picture , that is to say, at this case in its context.

12 . The present case was communicated to the respondent Government together with the case of Mehmet Hasan Altan (cited above), the sixth case in the Human Rights Commissioner ’ s list (see the joint communication report of 13 June 2017). Given the similar factual and legal background of the two cases, their joint communication made sense. I think that the joint communication of all ten cases in the Commissioner ’ s list would have made even greater sense. The unusual (but by all means commendable ) celerity of the communication of these cases was also self-explanatory. But all this is by the by. There is another point that I want to make.

13 . In Mehmet Hasan Altan the Court found that there was “no need to examine separately” the applicant ’ s complaint under Article 18. In the present case, it has examined the complaint under that Article but has found no violation.

I do not know which is better, or rather, which is worse. Be that as it may, carrying out no examination is an omission, regrettable as it is, but in the end, not much more than that. It leaves the question regarding the authorities ’ hidden agenda open, unanswered.

In contrast to that, the explicit finding of no violation of Article 18 without an examination of the applicant ’ s complaints under that Article in their context does answer that question. It answers it in the negative. By doing so, the Court ’ s judgment (even if unwillingly) justifies the repression.

14 . Here I need to make a side remark. At least one of the applications listed in the above table was lodged with the Court by an applicant who already had some experience in winning a case in Strasbourg against the State which had attempted to silence him. Namely, is Mr Ş ı k not the same media figure who won his case in 2014? See Ş ı k v. Turkey (no. 53413/11, 8 July 2014) – violations of Article 5 § 3, Article 5 § 4 and Article 10. It is hardly a coincidence that that case somehow related to Mr Ş ı k ’ s rights under Article 10.

When histories like these repeat themselves, they speak of something. Of a pattern and a tendency , for instance.

15 . In paragraph 237 of the judgment the majority, referring to the Grand Chamber ’ s landmark judgment in Merabishvili v. Georgia ([GC] , no. 72508/13, 28 November 2017), very rightly state (emphasis added):

“The Court applies its usual approach to proof when dealing with complaints under Article 18 of the Convention ... The first aspect of that approach is that, as a general rule, the burden of proof is not borne by one or the other party, because the Court examines all material before it irrespective of its origin, and because it can, if necessary, obtain material of its own motion . The second aspect of the Court ’ s approach is that the standard of proof before it is ‘ beyond reasonable doubt ’ . That standard, however, is not co-extensive with that of the national legal systems which employ it. First, such proof can follow from the coexistence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact . Secondly, the level of persuasion required to reach a conclusion is intrinsically linked to the specificity of the facts, the nature of the allegation made, and the Convention right at stake. The third aspect of the Court ’ s approach is that the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it. There is no reason for the Court to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations. Circumstantial evidence in this context means information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts. Reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts, are often taken into account to, in particular, shed light on the facts, or to corroborate findings made by the Court ... ”

16 . In the present case the employment of this standard has not gone beyond mere quotation.

For clearly not all material before the Court has been examined.

Sufficiently strong, clear and concordant inferences about the primary facts have not been drawn.

Reports by international observers have been put aside.

Given all that, it would have been na ï ve to expect that the Court would attempt to obtain material of its own motion .

À propos , that material is in abundance.

17 . If the Court ’ s methodology as developed in Merabishvili (cited above) allows and even requires it to look into “sequences of events which can form the basis for inferences about the primary facts”, here they are, the events in their sequence – in the table provided above. It presented no difficulty for the third-party interveners to draw inferences from this sequence about the primary facts. However, this appears to remain an insurmountable difficulty for judicial reasoning.

18 . I have no explanation as to why the pattern and tendency in the determination of Article 18 complaints against Turkey (and, in my assessment, one other State) have come into being. It is only my impression that they are going to stay with the Court for a while. Perhaps too long a while, until the Court at last explicitly acknowledges the reality of what is going on.

For while the Court does not acknowledge that reality, its pattern and tendency in dealing with Article 18 complaints will only soothe and (even if indirectly and unwillingly) reinforce the pattern and the tendency of a certain type of conduct on the part of the authorities with regard to the independent media – not only to an isolated applicant whose case is examined “separately”, but to independent media as such, as an institution of civil society . And that will be to the detriment of the values enshrined in the Convention.

19 . When examining cases and rendering judgments, courts should confine themselves to the law. But the law is not an end in itself . It is of value only in so far as it is applied to reality – and this depends on how adequately it is applied to the latter. This is especially so as regards judge-made law. If courts make law on the basis of the application of legal clauses to such a reality, one important part of which has been not taken into due consideration, most likely the resulting judge-made law will turn out to be flawed.

So, the facts matter – also for the quality of judge-made law. The facts are persistent. The law is unable to alter them.

Rather, as I want to believe, at some point the facts, such as those presented to the Court by the third-party interveners in this case (as well as in the other nine cases mentioned in the above table), will impel the Court to change its pattern of dealing with Article 18 complaints (not only in Turkish cases), to reverse the tendency prevailing today and to alter its case-law so that the Court ’ s pronouncements on the authorities ’ hidden agenda are not at odds with the reality.

20 . Also, it is not true that judges are preoccupied only by law. Sometimes they listen to music. And sometimes they may even find certain lines of a song worthy of being cited in their opinions, especially if, paradoxically, these lines, the product of sheer artistic creativity, are closer to reality than the jurisprudence that the courts produce – although it is the lawyers and not the artists who are supposed to deal with real facts. Some judges may even quote their favourite songwriters in their opinions. And some may even do this more than once. For example, I have quoted Bob Dylan twice in my opinions (some might say that even that is too much). But here is one more quote – from Dylan ’ s best-known song (“ Blowin ’ in the Wind”, from The Freewheelin ’ Bob Dylan , 1963, Columbia Records), which I see as striking at the very heart of the Court ’ s (not only) Turkish Article 18 case-law. Just as everyone knows (I still want to hope that even courts know) what pattern and tendency in treating civil society in general and independent media in particular have been consolidated in the last few years in some countries, perhaps everyone also knows this song, including these lines:

“Yes, and how many times can a man turn his head

And pretend that he just doesn ’ t see?”

Is the addressee of Dylan ’ s question only some indeterminate “man”? I think not. His question goes equally to institutions. Courts among them, domestic and international alike.