DISSENTING OPINION OF JUDGE Y Ü KSEL

1 . For the reasons set out below, I respectfully disagree with the conclusions reached by the majority under Articles 5 § 1 (c) and 10 of the Convention. Consequently, I voted against finding a violation of these provisions in the present case.

2 . Before explaining the reasons for my dissent, I should firstly recall the unique circumstances at the time of the applicant ’ s arrest on 10 September 2016, that is, the period immediately after the attempted coup of 15 July 2016. I refer in this respect to the text of the judgment, where detailed explanations are provided regarding the structure of FETÖ/PDY and the events surrounding the attempted coup (see paragraphs 12-17 and 88).

Article 5 § 1 of the Convention

3 . At the outset, I would like to point out that facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge (for details regarding case-law, see paragraph 128 of the judgment). The case-law of the Court does not define what is to be regarded as “reasonable” and states that it will depend upon all the relevant circumstances. Thus, an assessment of whether there existed “reasonable suspicion” justifying the applicant ’ s detention is very delicate. I should like to start by noting that the notion of “reasonable suspicion” has been defined by the Court as “the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence” (see Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A no. 182). In this regard, the fact that a suspicion is held in good faith is insufficient (see Rasul Jafarov v. Azerbaijan , no. 69981/14, § 116, 17 March 2016). Furthermore, the existence of reasonable suspicion requires that the facts relied on can reasonably be considered criminal behaviour under domestic law. In the present case, as is pointed out in paragraph 130 of the judgment, the applicant was suspected of attempting to overthrow the government or to prevent it from discharging its duties, and of being a member of a terrorist organisation or of committing an offence on behalf of an illegal organisation without being a member. In cases concerning the investigation and prosecution of serious offences, the Court affords some leeway to the national authorities. Yet this leeway is not unlimited, in particular in cases where the Court is called upon to examine a complaint under Article 5 of the Convention. Even the exigencies of dealing with terrorist crimes cannot justify stretching the notion of “reasonableness” to the point where the essence of the safeguard secured by Article 5 § 1 (c) is impaired (see Fox, Campbell and Hartley , cited above, § 32; Murray v. the United Kingdom , 28 October 1994, § 51, Series A no. 300-A; and O ’ Hara v. the United Kingdom , no. 37555/97, § 35, ECHR 2001 ‑ X).

4 . In the present case, in order to verify whether there existed sufficient objective elements that could lead an objective observer to reasonably believe that the applicant might have committed the acts alleged by the prosecuting authorities, the Court relies on three groups of relevant documents, namely the decisions relating to the applicant ’ s pre-trial detention, the bill of indictment and the Constitutional Court ’ s judgment. It then concludes in paragraph 137 that the logic applied by the authorities responsible for the pre-trial detention, equating these activities to the offences with which the applicant was charged, could not be regarded as an acceptable assessment of the facts.

5 . While I agree with the taking into consideration of the three groups of relevant documents, I would point out that according to the Court ’ s case-law, “it is not normally for the Court to substitute its own assessment of the facts for that of the domestic courts, which are better placed to assess the evidence adduced before them” (see Mergen and Others v. Turkey , nos. 44062/09 and 4 others, § 48, 31 May 2016, and Mehmet Hasan Altan v. Turkey , no. 13237/17, § 126, 20 March 2018). I therefore disagree with the conclusions of the majority for the following reasons.

6 . Firstly, as regards the wording of the relevant decisions relating to the applicant ’ s initial and continued detention, in my opinion the decisions of the domestic courts were adequately reasoned and provided sufficient explanations as to why there had been an evidentiary link to suspect the applicant of having participated in the crimes allegedly committed by the illegal organisation by using the media to influence public opinion in support of it and why detention was a proportionate measure. Secondly, the bill of indictment included new items of evidence strengthening the suspicions against the applicant and demonstrated the links between the acts allegedly committed by him and the evidence submitted in support of the accusations against him. Thirdly, the decision of the Constitutional Court studied each item of evidence (both the initial evidence and the subsequent evidence added in the indictment) before concluding that, having regard to the conditions at the material time, the domestic authorities had not acted arbitrarily and their decisions had not been unsubstantiated in holding that there had been a strong suspicion to believe that the applicant had committed the offences.

7 . The explanations above indicate clearly that the decisions of the domestic courts ordering and extending the applicant ’ s detention, the indictment and the decision of the Constitutional Court contained a detailed assessment of the specific facts of the case which reasonably demonstrated that the detention had been necessary for the normal progress of the case and that other preventive measures would not have achieved this goal. Consequently, in my opinion there was sufficient information in the case file to satisfy an objective observer that the applicant might have committed at least some of the offences for which he had been prosecuted and that as a result, the domestic authorities ’ finding that there was reasonable suspicion that the applicant had committed the alleged offences appears to have been reasonable in the light of a contextual analysis of the case .

8 . In the judgment, the Court, following the method of the domestic courts, further examines whether the acts of the applicant could be regarded as capable of grounding a “reasonable suspicion” that he had committed the alleged criminal offences (see paragraphs 139-145 of the judgment).

9 . In that connection, the first group of evidence examined by the Court relates to the involvement of the applicant in the “ Balyoz ” case, and his position as the editor-in-chief of the Taraf newspaper. The second group concerns the three articles written by the applicant, entitled “Absolute fear”, “Crushing through”, and “Montezuma”; and finally, the third group relates to the applicant ’ s remarks on the television programme that aired on 15 July 2016 on Can Erzincan TV (see paragraph 139 of the judgment). Reading as a whole and in the context at the material time, it is highly probable that these elements could have raised a reasonable suspicion on the part of the judges who examined the applicant ’ s detention, specifically bearing in mind the timing of the events in question and the undeniable experience of the national judges in relation to the history and former coups that had taken place in Turkey. Moreover, the judgment also takes note of the new items of evidence that were added to the investigation file with the filing of the indictment (see paragraph 146 of the judgment). These included in particular statements of two witnesses who had confirmed the applicant ’ s alleged links with the leaders of the said illegal organisation , and the transcript of a ByLock conversation where the applicant ’ s name had been mentioned amongst those of high-level people in FETÖ/PDY.

10 . I recall that reasonable suspicion must persist throughout a person ’ s detention pending trial. Consequently, even if the applicant was not subsequently found guilty of the offences with which he was charged in September 2016 (attempting to overthrow the government and to prevent it from discharging its duties, and being a member of a terrorist organisation ), this does not in itself lead to a violation of Article 5 of the Convention (see Korkmaz and Others v. Turkey , no. 35979/97, § 26, 21 March 2006). In the judgment, the existence of reasonable suspicion was addressed as a whole, without making a distinction between the initial and subsequent classification of criminal charges. While I may have some doubts as to whether the initial evidence could be considered as reaching the minimum level of reasonableness in relation to the offences of attempting to overthrow the government or to prevent it from discharging its duties and of being a member of a terrorist organisation , without a distinction between the initial and subsequent charges, I am unable to agree with the majority ’ s assessment on the applicant ’ s pre-trial detention. I find it important to note that after the filing of the public prosecutor ’ s indictment, new items of evidence were included in the file which supported and even strengthened the reasonable suspicion that the applicant had committed the offence with which he was charged, namely committing offences on behalf of a terrorist organisation without being a member of it. These new items of evidence, which indicate that the applicant was in contact with senior members of the said illegal organisation (see paragraph 46 of the judgment), taken together with the initial elements, could have raised a reasonable suspicion on the part of the authorities that the applicant had committed offences by using the media to create a positive perception in preparation for the eventual attempted coup of which he had had prior knowledge (see paragraphs 29-37 of the judgment).

11 . I therefore consider that the applicant can be said to have been arrested and detained on “reasonable suspicion” of having committed a criminal offence, within the meaning of sub-paragraph (c) of Article 5 § 1 (see Korkmaz and Others , cited above, § 26, and Süleyman Erdem v. Turkey , no. 49574/99, § 37, 19 September 2006) and thus I voted against finding a violation of Article 5 § 1.

Article 10 of the Convention

12 . As regards Article 10 of the Convention, the majority considered that the interference with the applicant ’ s rights and freedoms under Article 10 of the Convention could not be justified under the second paragraph of that provision, on the ground that it was not “prescribed by law”. In reaching this conclusion, the majority merely relied on the finding of a violation of Article 5 § 1 of the Convention, without carrying out a further examination under Article 10 (see paragraphs 222-227 of the judgment). I have already expressed my disagreement with this approach in my concurring opinions in the cases of Ragıp Zarakolu v. Turkey (no. 15064/12, 15 September 2020), Sabuncu and Others v. Turkey (no. 23199/17, 10 November 2020) and Şık v. Turkey (no. 2) , no. 36493/17, 24 November 2020). In my view, the Chamber should have continued its examination and analysed whether the interference with the applicant ’ s freedom of expression could be regarded as necessary in a democratic society to maintain national security or public safety. Having said that, in any event, in the present case, I consider that there has been no violation of Article 10 for the following reasons.

13 . As I have explained above, I consider that the applicant can be said to have been arrested and detained on “reasonable suspicion” of having committed the offences. Consequently, the applicant ’ s detention was lawful as it was prescribed by law. As to the legitimacy of the aims pursued and the necessity of the interference, the criminal proceedings were initiated against the applicant for the purposes of the second paragraph of Article 10, namely protection of national security or public safety, and prevention of disorder and crime. Thus, the interference pursued a legitimate aim (see Mehmet Hasan Altan , cited above, § 206).

14 . In determining the necessity of the interference, the assessment of the case should be carried out by taking all elements into consideration as a whole, namely the three articles written by the applicant, his remarks on the television programme , and his role as the editor-in-chief of the Taraf newspaper. The background against which these remarks were made should also be borne in mind.

15 . Regarding the three articles written by the applicant shortly before the attempted coup, the domestic courts considered that he had written them to manipulate public perception in favour of the illegal organisation in the run-up to the eventual military coup. It was also noted that certain statements in his articles bore striking similarities with the incidents that had occurred on the night of the attempted coup (see paragraphs 31, 46 and 56-58 of the judgment). Secondly, regarding the talk show that had aired on 14 July 2016, the domestic courts considered that the applicant had once again been justifying an eventual military coup, by stating that whatever the developments that had led to the previous military coups in Turkey, the President was taking the same decisions and paving the way for yet another coup (see paragraphs 31 and 56 of the judgment). Thirdly, the domestic courts found that the applicant, in his capacity as the editor-in-chief of the Taraf newspaper, had determined the newspaper ’ s editorial policy by engaging in acts which had caused several members of the army to be discharged, and paved the way for members of the illegal organisation to obtain promotions and to become more influential within the armed forces (see paragraphs 29 and 56 of the judgment).

16 . While I agree with the vital role played by the press in a democratic society, I stress once again that journalists cannot, in principle, be released from their duty to obey the criminal law on the basis that Article 10 affords them protection. Indeed, Article 2 of Article 10 defines the boundaries of the exercise of freedom of expression (see, Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I). In that connection, I would refer to the extensive case-law of the Court regarding the importance of responsible journalism (see Jersild v. Denmark , 23 September 1994, Series A no. 298; Sürek v. Turkey (no. 1) [GC], no. 26682/95, ECHR 1999 ‑ IV; Sürek v. Turkey (no. 2) [GC], no. 24122/94, 8 July 1999; Sürek v. Turkey (no. 3) [GC], no. 24735/94, 8 July 1999; and Saygılı and FalakaoÄŸlu v. Turkey , no. 22147/02 and 24972/03, 23 January 2007). I note in particular that in Pentikäinen v. Finland ([GC], no. 11882/10, § 90, ECHR 2015), the Court pointed out that the concept of responsible journalism also embraced the lawfulness of the conduct of a journalist, and that the fact that a journalist had breached the law was a relevant, albeit not decisive, consideration when determining whether he or she had acted responsibly. These considerations play a particularly important role nowadays, given the influence wielded by the media in contemporary society; not only do they inform, they can also suggest by the way in which they present the information how it is to be assessed (see Stoll v. Switzerland [GC], no. 69698/01, § 104, ECHR 2007 ‑ V).

17 . Turning back to the facts of the present case, I repeat that the statements of the applicant, who is a well-known journalist with considerable influence, cannot be looked at in isolation. Moreover, I also underline the fact that the applicant was not only acting in his capacity as a journalist, but he was also the editor-in-chief of the daily newspaper Taraf and he was responsible for determining the newspaper ’ s editorial stance. The statements were of significance, particularly in the circumstances of the present case, as the applicant must have realised . Specifically, the articles coincided with the attempted coup and could have been regarded by the authorities as likely to manipulate a positive reaction among the public, at a time when the authorities needed to be alert and to identify all the legal entities allegedly infiltrated by the illegal organisation and to find out the connections of the individuals concerned. Bearing in mind the specific and unique circumstances prevailing at the time of the applicant ’ s detention, that is, shortly after the attempted coup, these remarks and the similarities between the metaphors used and the incidents that actually took place during the attempted coup could have given rise to a reasonable suspicion on the part of the domestic courts that the applicant had had prior information and had acted with the intention to manipulate public opinion. Furthermore, the reasons put forward by the domestic courts were relevant and sufficient for the purposes of Article 10 § 2.

18 . Having regard to all the above factors and to the margin of appreciation which the authorities have in such cases, and without prejudice to the outcome of the criminal proceedings pending before the domestic courts, I consider that the opening of the criminal proceedings against the applicant could be seen as justified and that the interference with the applicant ’ s exercise of his right to freedom of expression could reasonably be regarded by the national authorities as necessary in a democratic society (see Zana v. Turkey , 25 November 1997, §§ 58-62, Reports of Judgments and Decisions 1997 ‑ VII ).

[1] . An encrypted messaging service allegedly used by members of FETÖ/PDY.