Prevention of terrorism
THE LAW PRELIMINARY QUESTION CONCERNING THE DEROGATION BY TURKEY 106. In the Government ’ s submission, all the applicants ’ complaints should be examined with due regard to the derogation of which the Secretary General of the Council of Europe had been notified on 21 July 2016 under Article 15 of the Convention. They submitted that in availing itself of its right to make a derogation from the Convention, Turkey had not breached the provisions of the Convention. In that context they argued that there had been a public emergency threatening the life of the nation on account of the risks caused by the attempted military coup and that the measures taken by the national authorities in response to the emergency had been strictly required by the exigencies of the situation. 107. The applicants contested the Government ’ s argument. In their submission, the application of Article 15 of the Convention could not result in the removal of all the safeguards under Article 5. They submitted that there had been no reasonable suspicion that they had committed an offence, that they had gone to the police station to give statements of their own accord, and that the applicant Akın Atalay had even returned from abroad for that purpose. 108. The Court observes that the applicants ’ pre-trial detention took place during the state of emergency. It also notes that the criminal proceedings instituted against them during that period have extended beyond it. 109. At this stage the Court observes that in its judgment in the case of Mehmet Hasan Altan v. Turkey ( no. 13237/17, § 93, 20 March 2018) it held that the attempted military coup had disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention. As to whether the measures taken in the present case were strictly required by the exigencies of the situation and consistent with the other obligations under international law, the Court considers it necessary to examine the applicants ’ complaints on the merits, and will do so below. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONSObjection under Article 35 § 2 (b) of the Convention Objection under Article 35 § 2 (b) of the Convention Objection under Article 35 § 2 (b) of the Convention 110. The Government argued that the applicants had submitted their complaints to another procedure of international investigation or settlement within the meaning of Article 35 § 2 (b) of the Convention, namely the United Nations Working Group on Arbitrary Detention (“the WGAD”). In their submission, although a non-governmental organisation had been named as the applicant before the WGAD, it could not have provided certain details without receiving input from the applicants. Furthermore, the applicants had not informed the Court that they had previously submitted their case to another international body; this amounted to an abuse of the right of application to the Court. The relevant parts of Article 35 of the Convention provide: “... 2. The Court shall not deal with any application submitted under Article 34 that: ... (b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is ... an abuse of the right of individual application ...” 111. The applicants contested the Government ’ s argument. They submitted that the complaint to the WGAD had been submitted by a third party, Mr Srinivas, on behalf of the Right Livelihood Award Foundation, a foundation based in Sweden, and that the applicants themselves had not submitted any individual applications to an international body. The only link between the newspaper Cumhuriyet and the above-mentioned foundation lay in the fact that the newspaper had received the Right Livelihood Award a year previously. Both the applicants and the subject matter of the present applications were different from those in the procedure before the WGAD. 112. The Court observes that it has previously examined the procedure before the WGAD and concluded that this Working Group was indeed a “procedure of international investigation or settlement” within the meaning of Article 35 § 2 (b) of the Convention (see Peraldi v. France ( dec. ), no. 2096/05, 7 April 2009). 113. In the instant case the Court observes that it has not been established that the applicants or their close relatives submitted any application to the United Nations bodies (see, conversely, Peraldi, cited above), or that they actively participated in any proceedings before them. In this connection it reiterates that, under its case-law, if the complainants before the two institutions are not identical (see Folgerø and Others v. Norway ( dec. ), no. 15472/02, 14 February 2006, and Eğitim ve Bilim Emekçileri Sendikası v. Turkey, no. 20641/05, §§ 37, ECHR 2012 (extracts)), the application to the Court cannot be considered as being “substantially the same as a matter that has ... been submitted ...”. 114. The Court also considers that given the nature of the case, which related to the detention of journalists and managers of a newspaper on account of the newspaper ’ s editorial stance, it is consistent with the normal course of life for non-governmental organisations working in the sphere of press freedom to feel concerned by the events and themselves take the initiative to put an end to interference which they consider to be unjustified. 115. As to the Government ’ s argument that there had been an abuse of the right of individual application because the applicants had not informed the Court of the procedure before the WGAD, the Court refers in the first place to its finding that the procedure in question was initiated and conducted without the participation of the applicants. It also notes that the judicial authorities involved in the present case took no account of the WGAD ’ s findings, nor did they include them in the proceedings before them. Those findings, although they concluded that the applicants ’ detention had been unlawful, remained a “dead letter” for the applicants at domestic level. In the Court ’ s view, therefore, it cannot be said that the applicants abused the right of application by not first informing the Court of the procedure before the WGAD. Objections concerning the individual applications to the Constitutional Court 116. The Government, referring mainly to the Court ’ s findings in its decisions in Uzun v. Turkey (( dec. ), no. 10755/13, 30 April 2013) and Mercan v. Turkey (( dec. ), no. 56511/16, 8 November 2016), alleged that the applicants had not exercised the remedy of an individual application before the Constitutional Court. 117. The applicants contested the Government ’ s argument. 118. The Court reiterates that an applicant ’ s compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). Nevertheless, the Court accepts that the last stage of a particular remedy may be reached after the application has been lodged but before its admissibility has been determined (see Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts); Stanka Mirković and Others v. Montenegro, nos. 33781/15 and 3 others, § 48, 7 March 2017; and Azzolina and Others v. Italy, nos. 28923/09 and 67599/10, § 105, 26 October 2017). 119. The Court observes that on 26 December 2016 the applicants lodged individual applications with the Constitutional Court, which gave its judgments on the merits on 11 January 2018 and on 2 and 3 May 2019. 120. Accordingly, the Court also dismisses this objection raised by the Government with regard to the applicants other than Turhan Günay and Ahmet Kadri Gürsel. 121. In the case of those two applicants ( Turhan Günay and Ahmet Kadri Gürsel ), the Court considers that as the Constitutional Court, in its judgments of 11 January 2018 and 2 May 2019 respectively, found a violation of Article 19 of the Constitution (right to liberty and security of person) and also, in the case of Ahmet Kadri Gürsel alone, a violation of Articles 26 and 28 of the Constitution (concerning, respectively, freedom of expression and freedom of the press), these two applicants – who, moreover, had not claimed pecuniary compensation – can no longer claim victim status in the present case in respect of the facts examined by the Constitutional Court. The application must therefore be declared inadmissible as regards these two applicants ( Turhan Günay and Ahmet Kadri Gürsel ), except in relation to their complaints concerning the time taken to examine their applications to the Constitutional Court challenging the lawfulness of their pre-trial detention (Article 5 § 4 of the Convention). Objection of failure to exhaust domestic remedies on account of the failure to bring a compensation claim 122. Regarding the applicants ’ complaints concerning their pre-trial detention, the Government stated that a compensation claim had been available to the applicants under Article 141 § 1 (a) and (d) of the CCP. The Government contended that the applicants could and should have brought a compensation claim on the basis of those provisions. 123. The applicants contested the Government ’ s argument. They asserted, in particular, that a compensation claim had not offered any reasonable prospect of success in terms of remedying the unlawfulness of their detention or securing their release. 124. As regards the period during which the applicants were in detention, the Court reiterates that for a remedy in respect of the lawfulness of an ongoing deprivation of liberty to be effective, it must offer a prospect of release (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 40, 6 November 2008, and Mustafa Avci v. Turkey, no. 39322/12, § 60, 23 May 2017). It notes that the remedy provided for in Article 141 of the CCP is not capable of terminating an applicant ’ s pre-trial detention. 125. As to the period during which the applicants were released pending trial, the Court notes that they had already submitted their complaints under Article 5 of the Convention in the context of their applications to the Constitutional Court. That court examined their complaints on the merits and dismissed them in its judgments of 2 and 3 May 2019. 126. The Court considers that, regard being had to the rank and authority of the Constitutional Court in the Turkish judicial system, and in view of the conclusion reached by that court concerning these complaints, a claim for compensation under Article 141 of the CCP had, and continues to have, no prospect of success (see, to similar effect, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 27, Series A no. 332, and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 58, ECHR 2010). Accordingly, the Court considers that the applicants were not required to exercise this compensatory remedy, even after their release. 127. The objection raised by the Government in this regard must therefore be dismissed. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 128. The applicants (except for Turhan Günay and Ahmet Kadri Gürsel ) complained that their initial and continued pre-trial detention had been arbitrary. They alleged, in particular, that the judicial decisions ordering and extending their pre-trial detention had not been based on any concrete evidence grounding a reasonable suspicion that they had committed a criminal offence. In their submission, the facts on which the suspicions against them had been based related solely to acts coming within the scope of their activity as journalists and, hence, of their freedom of expression. 129. In this regard they alleged a violation of Article 5 §§ 1 and 3 of the Convention, the relevant parts of which provide: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” Admissibility 130. The Court notes that these complaints, with the exception of those of the applicants Turhan Günay and Ahmet Kadri Gürsel that have been declared inadmissible, are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicants 131. The applicants maintained that there were no facts or information that could satisfy an objective observer that they had committed the offences of which they were accused. The facts on which the suspicions against them had been based related in principle to acts coming within the journalistic activity of the newspaper Cumhuriyet for which they worked. The remaining allegations made by the prosecutor ’ s office had no basis in reality. This was true, for instance, of the allegation that companies with close ties to the organisation FETÖ had provided funding to Cumhuriyet by purchasing advertising space, as these transactions had not amounted to more than one per cent of those companies ’ advertising expenditure. 132. The applicants also pointed to the aspects of their initial and continued detention which they considered to be in breach of the provisions of domestic law and hence unlawful. Firstly, although they had been arrested on suspicion of carrying out activities on behalf of terrorist organisations without being members of those organisations, the reasons given in the orders for their pre-trial detention had referred to propaganda in favour of terrorist organisations (the offence provided for in Article 220 § 8 of the CC), and in no way justified the main suspicions against them. Secondly, the suspicions against them had not been individualised, in breach of the CCP. Although a separate detention order had been drawn up in the name of each individual applicant, they had all been accused in blanket fashion of responsibility for the newspaper ’ s editorial stance on account of their managerial positions. Thirdly, according to the Press Act, the proprietors and editors-in-chief of newspapers were not liable for articles constituting a criminal offence unless the authors of the articles had not been identified. Hence, their criminal responsibility should not be engaged in relation to the articles referred to in the detention orders and the indictment. The applicants added that the applicant Mehmet Murat Sabuncu had been appointed as the newspaper ’ s publication director on 1 September 2016 and that the applicant Kadri Gürsel had been the editorial adviser as of 20 September 2016, and that the articles complained of had been written before those dates. The applicants also contested the reasons given by the judicial authorities for their continued pre-trial detention. (b) The Government 133. The Government, referring to the principles established in the Court ’ s case-law in this sphere (they cited Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no.182, and İpek and Others v. Turkey, nos. 17019/02 and 30070/02, 3 February 2009), stated at the outset that the applicants had been arrested and placed in pre-trial detention in the course of a criminal investigation instituted in the context of action to combat terrorist organisations. 134. According to the information in the investigation file, the basis for the investigation concerning the applicants had been the suspicion that the newspaper for which they worked had been acting in accordance with the objectives of terrorist organisations such as FETÖ/PDY, the PKK and the DHKP/C, with a view to provoking civil war and rendering the country ungovernable before and after 15 July 2016. 135. The Government stressed that the organisation FETÖ/PDY was an atypical terrorist organisation of an entirely new kind. Firstly, the organisation in question had placed its members in all the State organisations and institutions, that is to say, in the judicial apparatus, the law ‑ enforcement agencies and the armed forces, in an apparently lawful manner. Furthermore, it had created a parallel structure by setting up its own organisation in all spheres, including the mass media, the trade unions, the financial sector and education. Secondly, FETÖ/PDY, by insidiously placing its members in sections of the press that were not part of its own organisation, had attempted to steer the material published by them in order to convey subliminal messages to the public and thus manipulate public opinion for its own aims. 136. In the Government ’ s submission, the ultimate aim of the terrorist organisation the PKK had been established by Abdullah Öcalan and his friends in 1978, when they had founded the organisation. That aim was to establish an independent State of Kurdistan based on Marxist-Leninist principles and covering east and south-east Turkey and parts of Syria, Iran and Iraq. The KCK was a political model for reconstructing Kurdish society through administrative and judicial structures, in accordance with the PKK ’ s ultimate goal. According to the Government, the PKK and its sub-groups had carried out terrorist activities that had infringed the right to life (tens of thousands had been killed and wounded, including civilians and members of the security forces, in the period preceding the attempted coup), the right to liberty and security, the right to respect for one ’ s home and the right to property, in several regions of Turkey. In particular, these organisations had stepped up the number of terrorist attacks in a bid to declare the supposed autonomy of certain provinces in south-east Turkey and to bring pressure to bear on the population of that region by preventing free movement (digging trenches, installing barricades and planting bombs at the exit and entry points of the towns and cities), and by using military weapons. 137. The Government further submitted that from the evidence that had been gathered during the criminal investigation, it was objectively possible to conclude that there had been a reasonable suspicion that the applicants had committed the offences of which they were accused. On the strength of the evidence obtained during the investigation, criminal proceedings had been instituted against the applicants and were currently pending before the domestic courts. The third-party interveners (a) The Commissioner for Human Rights 138. The Commissioner for Human Rights pointed out that excessive recourse to detention was a long-standing problem in Turkey. In that connection he noted that 210 journalists had been placed in pre-trial detention during the state of emergency, not including those who had been arrested and released after being questioned. One of the underlying reasons for the high numbers of journalists being detained was the practice of judges, who often tended to disregard the exceptional nature of detention as a measure of last resort that should only be applied when all other options were deemed insufficient. In the majority of cases where journalists had been placed in pre-trial detention, they had been charged with terrorism ‑ related offences without any evidence corroborating their involvement in terrorist activities. The Commissioner for Human Rights was struck by the weakness of the accusations and the political nature of the decisions ordering and extending pre-trial detention in such cases. (b) The Special Rapporteur 139. The Special Rapporteur noted that since the declaration of a state of emergency, a large number of journalists had been placed in pre-trial detention on the basis of vaguely worded charges without sufficient evidence. 140. In the Special Rapporteur ’ s submission, the combination of facts surrounding the prosecution of journalists suggested that, under the pretext of combating terrorism, the national authorities were interpreting the criminal legislation and investigation files in a broad and unforeseeable manner, thereby arbitrarily suppressing freedom of expression through prosecutions and detention. For instance, the journalists in question had been charged, among other offences, with conducting telephone conversations with persons who had allegedly used the ByLock application, with no account being taken of the fact that the journalists themselves had never used the application. (c) The intervening non-governmental organisations 141. The intervening non-governmental organisations stated that since the attempted military coup more than 150 journalists had been placed in pre-trial detention. Emphasising the crucial role played by the media in a democratic society, they criticised the use of measures depriving journalists of their liberty. The Court ’ s assessment (a) Relevant principles 142. The Court reiterates firstly that Article 5 of the Convention guarantees a right of primary importance in a “democratic society” within the meaning of the Convention, namely the fundamental right to liberty and security (see Assanidze v. Georgia [GC], no. 71503/01, § 169, ECHR 2004 ‑ II). 143. All persons are entitled to the protection of that right, that is to say, not to be deprived, or to continue to be deprived, of their liberty (see Weeks v. the United Kingdom, 2 March 1987, § 40, Series A no. 114), save in accordance with the conditions specified in paragraph 1 of Article 5 of the Convention. The list of exceptions set out in Article 5 § 1 is an exhaustive one (see Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000 ‑ IV), and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Assanidze, cited above, § 170; Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 99, ECHR 2011; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts)). 144. Article 5 § 1 (c) of the Convention does not presuppose that the investigating authorities should have obtained sufficient evidence to bring charges at the point of arrest or while the applicants were in custody. The purpose of questioning during detention under Article 5 § 1 (c) is to further the criminal investigation by confirming or dispelling the concrete suspicion grounding the arrest (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no.145 ‑ B). Thus, 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, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300 ‑ A; Metin v. Turkey ( dec. ), no. 77479/11, § 57, 3 March 2015; and Yüksel and Others v. Turkey, nos. 55835/09 and 2 others, § 52, 31 May 2016). 145. However, 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 § 1 (c) of the Convention. For that reason, the fact that a suspicion is held in good faith is insufficient in itself. 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. 146. Firstly, as regards the factual aspect, 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 (see, among other authorities, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182, and Merabishvili v. Georgia [GC], no. 72508/13, § 184, 28 November 2017), but the Court must be able to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. It must therefore consider, in assessing the factual aspect, 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 (see Fox, Campbell and Hartley, cited above, §§ 32-34, and Murray, cited above, §§ 50-63). Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence. 147. Secondly, the other aspect of the existence of a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention, namely 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 (see Kandjov v. Bulgaria, no. 68294/01, § 57, 6 November 2008). 148. Further, it must not appear that the alleged offences themselves were related to the exercise of the applicant ’ s rights under the Convention (see, mutatis mutandis, Merabishvili, cited above, § 187). In that regard the Court emphasises that, since the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 171, 13 February 2020), a suspicion cannot be regarded as reasonable if it is based on an approach consisting in “classifying as criminal conduct” the exercise of the rights and freedoms recognised by the Convention. Otherwise, the use of the notion of “reasonable suspicion” to deprive the persons concerned of their physical liberty would risk rendering it impossible for them to exercise their rights and freedoms under the Convention. 149. In that connection the Court reiterates that any deprivation of liberty should be in keeping with the purpose of Article 5 of the Convention, namely to protect the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see, among other authorities, A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162-64, ECHR 2009, and Creangă v. Romania [GC], no. 29226/03, § 84, 23 February 2012). 150. The Court also observes that it is at the time of arrest that the suspicions against a person must be “reasonable” and that, in cases of prolonged detention, those suspicions must remain “reasonable” (see, among many other authorities, Stögmüller v. Austria, 10 November 1969, p. 40, § 4, Series A no. 9; McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006-X; and Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 90, 22 May 2014). Furthermore, the requirement for the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion that the arrested person has committed an offence – applies already at the time of the first decision ordering pre ‑ trial detention, that is to say “promptly” after the arrest (see Buzadji, cited above, § 102). (b) Application of these principles in the present case 151. The Court observes that the applicants were suspected of assisting organisations considered as terrorist organisations or of disseminating propaganda in their favour, mainly on account of articles published in the newspaper whose editorial stance they had allegedly influenced in their capacity as managers and, in some cases, by sharing material on social media. These are serious criminal offences which are punishable by imprisonment under Turkish law. 152. The Court ’ s task under Article 5 of the Convention is to ascertain whether there were sufficient objective elements to satisfy an objective observer that the applicants could have committed the offences of which they were accused. In view of the seriousness of these offences and the severity of the potential sentence, the facts need to be examined with great care. In that connection it is essential that the facts grounding the suspicion should be justified by verifiable and objective evidence and that they can be reasonably considered as falling under one of the sections describing criminal behaviour in the Criminal Code. 153. The Court notes in that regard that the dispute between the parties in the present case does not concern the wording of the text or headings of the articles and social media posts referred to in the decisions of the judicial authorities responsible for pre-trial detention. Rather it concerns the attributability of those materials to the applicants and the plausibility of other alleged acts (the factual aspect), as well as the classification of the facts as criminal conduct (aspect concerning the classification under criminal law). (i) Factual aspect of the existence of “reasonable suspicion”: attributability and plausibility (1) Attributability to the applicants of the impugned articles allegedly indicating a change in the editorial stance of Cumhuriyet 154. As to whether the strikingly large number of articles referred to and listed in the detention orders can be attributed to the applicants, the Court observes that the latter were not the authors of the articles in question. It notes that the judicial authorities that ordered the applicants ’ pre-trial detention were unable to cite any concrete or specific fact capable of suggesting that the applicants had imposed the content of those articles on the authors, either with regard to the facts dealt with or the opinions expressed therein, with the undeclared aim of assisting illegal organisations. The authorities ’ accusations against the applicants were based solely on assumptions stemming from the positions which they occupied within the bodies that managed and funded the newspaper Cumhuriyet. 155. The Court observes in that connection that the magistrates, in ordering the applicants ’ pre-trial detention, and the Constitutional Court, in dealing with their individual applications, made extensive findings on this issue which can be divided into three groups. Firstly, they found that the Cumhuriyet Foundation ranked above the company Yenigün and the daily newspaper Cumhuriyet in the institutional hierarchy, and that its board of management was in a position to direct the newspaper ’ s editorial stance. In this regard they took into consideration the fact that the foundation ’ s board of management had the power to appoint or remove the publication director and could decide which journalists to recruit and which to dismiss. Secondly, the judicial authorities concerned and the Constitutional Court noted that on the day before a major “scoop”, meetings were held within the newspaper Cumhuriyet which were attended by certain members of the board of management. Thirdly, those authorities considered that following the appointment of the applicants (with the exception of Mehmet Murat Sabuncu ) to the board of management of the Cumhuriyet Foundation, the newspaper Cumhuriyet had published several articles that could be regarded as propaganda and assistance in favour of terrorist organisations, in that they had been liable to create a favourable impression of those organisations among the public. The national judicial authorities found the applicant Mehmet Murat Sabuncu to be responsible for the impugned articles on the sole ground that he had been the newspaper ’ s publication director, rather than relying mainly on their assessment concerning the relationship between the foundation, the media company and the newspaper. In the magistrate ’ s view, Mr Sabuncu, in his capacity as the publication director, was responsible for all the articles referred to in the pre-trial detention orders issued in respect of all the applicants (see paragraph 23 above). Meanwhile, in the Constitutional Court ’ s view, he was responsible for the articles published during the periods when he had been involved in overseeing the material that was published (see paragraphs 43-45 above). The tweets posted by the applicants Mehmet Murat Sabuncu and Akın Atalay were taken into consideration as additional items of evidence in support of the main charge, which was based in particular on the publication of the impugned articles in the newspaper Cumhuriyet. 156. Even though the Court has serious doubts as to whether the articles complained of could be attributed to all the applicants, it notes that the assessment made by the national courts (including the Constitutional Court) was that the applicants were indeed responsible for those articles. In these circumstances the Court decides to ascertain whether the articles in question – even assuming them to be attributable to all the applicants – and other evidence adduced against them were capable of grounding a reasonable suspicion in relation to the applicants. (2) Attributability to the applicants of the activities relating to the illegal organisations in question 157. The Court also notes that the authorities concerned were unable to cite any specific facts or information capable of suggesting that the above ‑ mentioned illegal organisations had issued requests or instructions to Cumhuriyet ’ s managers or journalists for the newspaper to publish specific items or follow a particular editorial policy with the aim of helping to prepare and carry out a campaign of violence or legitimising such violence. 158. As to the witness evidence against the applicants cited by the prosecuting authorities and given by former Cumhuriyet journalists who had been removed from positions of responsibility, the Court notes that it merely contained very general impressions regarding the newspaper ’ s alleged links to the illegal organisations referred to, without remedying the shortcomings which invalidated the suspicions raised by the judicial authorities. (3) Plausibility of certain acts other than the criticisms of the government 159. The Court also notes that the acts of which the applicants were accused by the authorities responsible for their detention, leaving aside the articles published in Cumhuriyet and the material posted on social media, cannot be regarded as relevant in establishing the existence of a reasonable suspicion that the offence of assisting a terrorist organisation had been committed. Given the complete absence of any incriminating content, the telephone calls made by Mehmet Murat Sabuncu and Akın Atalay to public figures against whom criminal proceedings were later brought constitute acts consistent with the normal course of journalistic activity and cannot be regarded as grounding a reasonable suspicion that the applicants had committed the criminal offences of which they were accused. 160. As to the financial transactions linked to the advertisements placed in the newspaper Cumhuriyet by companies with close ties to the organisation FETÖ (cited as evidence against the applicant Akın Atalay ), the Court considers, in the light of the modest sums involved (around one per cent of the advertising expenditure of the companies concerned) that they do not demonstrate the existence of a privileged commercial relationship. 161. Likewise, in the Court ’ s view, it cannot reasonably be inferred from an article entitled “Peace in the world, but what about at home?” (mainly criticising the President ’ s political approach by alleging that his strategy of creating tensions between the different sectors of society was undermining peace within the country) that the author of the article had announced the date of the attempted coup because the instigators were controlled by a body known as the “Peace at Home Council”. 162. The Court further considers that it cannot reasonably be claimed that an article published in Cumhuriyet, a national daily newspaper, informing the public of the location where the President, who had been absent from the media for almost a week, had been on holiday, was in fact intended to indicate to the instigators of the planned military coup where they needed to focus their actions in order to neutralise the President. 163. As regards the journalists ’ contribution to seminars on topical political issues, including the “ Abant meetings”, the Court considers that the political leanings of the organisers cannot reasonably be taken into account in determining the nature of the “reasonable suspicion”, in the absence of any element in the content of the Cumhuriyet journalists ’ contributions capable of justifying restrictions on their freedom of expression. 164. The Court therefore considers that the logic applied in the present case by the authorities responsible for the applicants ’ pre-trial detention, equating these activities to assisting a terrorist organisation, cannot be regarded as an acceptable assessment of the facts. (ii) Aspect concerning the classification as criminal conduct of the facts grounding the “reasonable suspicion” 165. The Court must also ascertain whether the materials relied on as grounds for the suspicions against the applicants could reasonably amount to an offence provided for by the CC at the time when they were written. (1) Classification of the impugned materials according to their aim 166. The Court observes that the published material referred to by the judicial authorities in ordering and extending the applicants ’ pre-trial detention, as taken into consideration by the Constitutional Court in its judgments of 2 and 3 May 2019, can be divided into four groups. 167. The first group included the articles amounting to criticism of the political authorities ’ policies and the public conduct of their sympathisers, namely an article entitled “Danger on the streets” (see paragraphs 23, 46 and 48 above); an article entitled “No one at the rallies is talking about democracy” (see paragraphs 23, 46 and 48 above); an article about the MİT lorries (see paragraphs 23 and 48 above); an article concerning the explosives attack on the town of Reyhanlı (see paragraphs 23 and 48 above); an article under the heading “Peace in the world, but what about at home?” (see paragraphs 46 and 49 above); an article entitled “Incomplete democracy” (see paragraphs 43 and 46 above); an interview with Fethullah Gülen published on 23 May 2015 under the heading “The son-in-law called my humble home ( fakirhane ) a mansion ( malikhane )” (see paragraph 49 above); the statement made by a Cumhuriyet journalist in an interview saying that he “would not describe the Gülenist community as a terrorist organisation” (see paragraph 49 above); and news items reporting information posted on the Twitter accounts @ fuatavni and @ jeansbiri (see paragraph 49 above). 168. The second group included articles and messages or news items reporting statements made by persons allegedly representing illegal organisations, namely an interview entitled “If they don ’ t agree to autonomy, we ’ ll consider separation ”, reporting on the views of one of the PKK ’ s leaders, M. Karayilan (see paragraphs 23 and 48 above); an article describing the PKK ’ s militants as “guerrilla fighters” and relaying the remarks made by the PKK ’ s leaders on certain topical issues (see paragraphs 23 and 48 above); an article about Selahattin Demirtaş, stating that the PKK was mindful of environmental and gender equality issues (see paragraphs 23 and 48 above); tweets by the applicant Mehmet Murat Sabuncu containing excerpts from an interview with the Gülen family and from a BBC interview with Gülen himself (see paragraph 47 above); the use by the newspaper Cumhuriyet on two occasions of the same heading as the daily newspaper Zaman (see paragraph 49 above); and some articles by Cumhuriyet ’ s US correspondent reporting on some of the views of the organisation FETÖ/PDY on current affairs (see paragraph 49 above). 169. The third group included the assessments and criticisms made by Cumhuriyet journalists concerning the administrative and judicial authorities ’ actions to combat the illegal organisations, namely an article entitled “War at home, war in the world” (see paragraphs 23 and 48 above); an article entitled “The witch hunt has begun” (see paragraphs 23, 46 and 48 above); a series of news items and interviews concerning the alleged disappearance in police custody of Hurşit Külter, a local politician of Kurdish origin (see paragraph 46 above); some tweets posted by the applicant Mehmet Murat Sabuncu expressing support for the journalists who had been dismissed or prosecuted (see paragraph 47 above); and material posted on social media by the applicant Akın Atalay criticising the allegedly unlawful measures taken against certain mass media outlets (see paragraph 48 above). 170. The fourth group included sensitive information arousing public interest, namely an article entitled “ He went missing for a week ... we ’ ve discovered where Erdoğan was” (see paragraphs 23, 46 and 48 above) and articles featuring photographs of the incident in which a prosecutor was taken hostage and a telephone interview with the hostage-takers (see paragraphs 23 and 48 above). (2) Characteristics common to the four groups 171. The Court notes that the four groups of articles or messages referred to above and cited as grounds for the suspicion against the applicants have some characteristics in common. 172. Firstly, the articles and messages constituted contributions by the journalists of Cumhuriyet to various public debates on matters of general interest. They contained the journalists ’ assessment of current political developments, their analysis and criticism of the various actions taken by the government, and their points of view on the legality and compatibility with the rule of law of the administrative and judicial measures taken against the alleged members or sympathisers of the illegal organisations. The topics addressed in these messages and articles – including the role of the Fethullahist movement in the attempted coup of 15 July 2016, the reaction of those close to the government to the coup attempt, the necessity and proportionality of the measures taken by the government against the prohibited organisations, the appropriateness or otherwise of the government ’ s domestic and external security policy, including in relation to illegal separatist organisations, and the views expressed by the alleged members of the illegal organisations challenging the accusations made against them – had already been the subject of wide-ranging public debate in Turkey and beyond, involving political parties, the press, non ‑ governmental organisations, groups representing civil society and public international organisations. 173. Secondly, those articles and messages did not contain any incitement to commit terrorist offences, did not condone the use of violence and did not encourage insurrection against the legitimate authorities. While some of the published material may have reported points of view voiced by members of prohibited organisations, it remained within the bounds of freedom of expression, which requires that the public has the right to be informed of the different ways of viewing a situation of conflict or tension, including the point of view of illegal organisations (see Nedim Şener v. Turkey, no. 38270/11, § 115, 8 July 2014; Şık v. Turkey, no. 53413/11, § 104, 8 July 2014; and Gözel and Özer v. Turkey, nos. 43453/04 and 31098/05, § 56, 6 July 2010). As to the interview conducted by the journalist A.S. with the persons who had taken the prosecutor hostage, the Court considers it undeniable that the interview, carried out in the midst of a terrorist operation with one of the perpetrators, had news or information value and that the way in which the journalist conducted the interview – as highlighted by the antagonistic nature of the questions – had distanced him clearly from the person being interviewed. Taken overall, the interview, which amounted to the broadcasting of statements made by a third party, could not objectively have appeared to have as its purpose the propagation of the ideas of left-wing extremists, but on the contrary sought to expose the young militants and their violent attitudes (see, to similar effect, Jersild v. Denmark, 23 September 1994, §§ 33-35, Series A no. 298). 174. Thirdly, the stance taken by the articles and messages in question was broadly one of opposition to the policies of the government of the day. They contained points of view and positions corresponding to those expressed by the opposition political parties and by groups or individuals whose political views were at variance with those of the political authorities. The criticisms voiced in the articles and messages were in some cases accompanied by proposals for alternative policies to those pursued by the government and by suggestions that a change of government or of government policy would be better for Turkey. 175. Hence, detailed examination of the applicants ’ alleged acts, which at first glance were indistinguishable from the legitimate activities of political opposition, shows that those acts fell within the exercise of their freedom of expression and freedom of the press, as guaranteed by domestic law and by the Convention. There is nothing to indicate that they were part of an overall plan pursuing an aim in breach of the legitimate restrictions imposed on those freedoms. The Court therefore considers that the acts in question enjoyed a presumption of conformity with domestic law and with the Convention and were not, generally speaking, capable of grounding a “reasonable suspicion” that the applicants had committed criminal offences. (3) Notion of “asymmetric warfare” advanced by the prosecution 176. The Court also observes that the prosecuting authorities accused the applicants of attempting, using the tactics of “asymmetric warfare”, to manipulate public opinion and disguise the truth in order to slander the government and the President of the Republic, and of acting in accordance with the objectives of terrorist organisations in order to create domestic upheaval and render the country ungovernable 177. The Court notes that the use in peacetime of the notion of “asymmetric warfare”, an expression denoting a method of counter ‑ propaganda deployed in wartime, as referred to by the prosecuting authorities and taken into consideration by the other authorities involved in this case, has the overall effect of linking expressions of opinion by political opponents, criticising the political authorities without promoting the use of violence, to the campaign of violence conducted by certain criminal organisations on the pretext of advocating similar opinions. In the Court ’ s view, this approach is liable to result in any adversary or opponent of the political authorities being treated as a member or sympathiser of a terrorist organisation. 178. In the present case the Court notes that, in order to justify the applicants ’ pre-trial detention, the judicial authorities concerned created confusion between, on the one hand, criticism of the government in the context of public debate and, on the other hand, the pretexts used by the terrorist organisations to justify their violent acts. They characterised criticism levelled legitimately at the authorities in the context of public debate, in accordance with freedom of expression and press freedom, as assisting terrorist organisations and/or disseminating propaganda in favour of those organisations. 179. In the Court ’ s view, such an interpretation of the criminal law is not only difficult to reconcile with the domestic legislation recognising public freedoms, but also posed a considerable risk to the Convention system, resulting in any person expressing a view at odds with the views advocated by the government and the official authorities being characterised as a terrorist or a person assisting terrorists. Such a situation is incapable in a pluralist democracy of satisfying an objective observer of the existence of a reasonable suspicion against journalists who are aligned with the political opposition but do not promote the use of violence. (iii) Conclusion regarding Article 5 § 1 of the Convention 180. In the light of these observations the Court considers that, even assuming that all the newspaper articles cited by the national authorities were attributable to the applicants, the latter could not be reasonably suspected, at the time of their placement in detention, of having committed the offences of disseminating propaganda on behalf of terrorist organisations or assisting those organisations. In other words, the facts of the case do not support the conclusion that a reasonable suspicion existed against the applicants. Accordingly, the suspicion against them did not reach the required minimum level of reasonableness. Although imposed under judicial supervision, the contested measures were thus based on a mere suspicion. 181. Moreover, it has likewise not been demonstrated that the evidence added to the case file after the applicants ’ arrest, in particular the evidence in the bill of indictment and the evidence produced while they were in detention, amounted to facts or information capable of giving rise to other suspicions justifying their continued detention. The fact that the first ‑ instance and appeal courts accepted the facts relied on by the prosecution as evidence of the applicants ’ guilt does nothing to alter this finding. 182. In particular, the Court notes that the acts for which the applicants were held criminally responsible came within the scope of public debate on facts and events that were already known, that they amounted to the exercise of Convention freedoms, and that they did not support or advocate the use of violence in the political sphere or indicate any wish on the applicants ’ part to contribute to the illegal objectives of terrorist organisations, namely to use violence and terror for political ends. 183. As regards Article 15 of the Convention and Turkey ’ s derogation, the Court notes that the Turkish Council of Ministers, chaired by the President of the Republic and acting in accordance with Article 121 of the Constitution, passed several legislative decrees during the state of emergency placing significant restrictions on the procedural safeguards laid down in domestic law for anyone held in police custody or pre-trial detention. Nonetheless, in the present case, it was under Article 100 of the CCP that the applicants were placed in pre-trial detention on charges relating to the offence set out in Article 220 of the Criminal Code. It should be noted in particular that Article 100 of the CCP, which requires the presence of factual evidence giving rise to strong suspicion that the person has committed an offence, was not amended during the state of emergency. Instead, the measures complained of in the present case were taken on the basis of legislation which was in force prior to and after the declaration of the state of emergency. Consequently, the measures complained of in the present case cannot be said to have complied with the conditions laid down by Article 15 of the Convention, since, ultimately, no derogating measure was applicable to the situation. To conclude otherwise would negate the minimum requirements of Article 5 § 1 (c) of the Convention. 184. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention in the present case on account of the lack of reasonable suspicion that the applicants (except for Turhan Günay and Ahmet Kadri Gürsel ) had committed a criminal offence. 185. Having regard to the above finding, the Court considers it unnecessary to examine separately whether the reasons given by the domestic courts for the applicants ’ continued detention were based on relevant and sufficient grounds as required by Article 5 §§ 1 (c) and 3 of the Convention (see, to similar effect, Şahin Alpay v. Turkey, no. 16538/17, § 122, 20 March 2018). ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 186. The applicants (including Turhan Günay and Ahmet Kadri Gürsel ) alleged a violation of Article 5 § 4 of the Convention on the grounds that the Constitutional Court had not complied with the requirement of “speediness” in the context of the applications they had brought before it to challenge the lawfulness of their pre-trial detention. Article 5 § 4 of the Convention provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 187. The Government contested the applicants ’ argument. The parties ’ submissionsThe Government The Government The Government 188. First of all the Government submitted that when the applicants had been released pending trial they had ceased to have victim status for the purposes of Article 5 § 4 of the Convention. Accordingly, their application to the Court should be rejected in this regard as being incompatible ratione personae. 189. Next, referring to statistics on the Constitutional Court ’ s caseload, the Government stated that in 2012 1,342 applications had been lodged with that court; in 2013 that number had risen to 9,897, and in 2014 and 2015 respectively there had been 20,578 and 20,376 applications. Since the attempted military coup, there had been a dramatic increase in the number of applications to the Constitutional Court: a total of 103,496 applications had been lodged with it between 15 July 2016 and 9 October 2017. Bearing in mind this exceptional caseload for the Constitutional Court and the notice of derogation of 21 July 2016, the Government submitted that it could not be concluded that that court had failed to comply with the requirement of “speediness”. The applicants 190. The applicants reiterated their assertion that the Constitutional Court had not ruled “speedily” within the meaning of Article 5 § 4 of the Convention. They alleged that, owing to the considerable delay in reviewing the lawfulness of the pre-trial detention measures based on suspicions which they regarded as clearly improbable, an application to that court could no longer be considered effective in respect of these kinds of violations of the right to liberty. The third-party intervenersThe Commissioner for Human Rights The Commissioner for Human Rights The Commissioner for Human Rights 191. The Commissioner for Human Rights noted that the Constitutional Court ’ s case-law concerning Article 5 of the Convention conformed to the principles established by the Court in its own case-law. While acknowledging the scale of the Constitutional Court ’ s caseload since the attempted coup, he emphasised that it was essential for the proper functioning of the judicial system that that court should give its decisions speedily. The Special Rapporteur 192. The Special Rapporteur likewise noted that since the declaration of the state of emergency the Constitutional Court had been faced with an unprecedented caseload. The Court ’ s assessmentAdmissibility Admissibility Admissibility 193. The Court reiterates that it has found Article 5 § 4 of the Convention to be applicable to proceedings before domestic constitutional courts (see, in particular, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 254, 4 December 2018; see also Smatana v. the Czech Republic, no. 18642/04, §§ 119-24, 27 September 2007, and Žúbor v. Slovakia, no. 7711/06, §§ 71 ‑ 77, 6 December 2011). Accordingly, having regard to the jurisdiction of the Turkish Constitutional Court, the Court has previously concluded that Article 5 § 4 is also applicable to proceedings before that court (see, for example, Koçintar v. Turkey ( dec. ), no. 77429/12, §§ 30 ‑ 46, 1 July 2014). 194. The Court further reiterates that the primary purpose of Article 5 § 4 of the Convention is to secure to a person deprived of his or her liberty a speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The Court considers that the requirement of speediness of the review is therefore relevant while that person ’ s detention lasts. While the guarantee of speediness is no longer relevant for the purpose of Article 5 § 4 after the person ’ s release, the guarantee of efficiency of the review should continue to apply even thereafter, since a former detainee may well have a legitimate interest in the determination of his or her detention even after being released (see Žúbor, cited above, § 83). 195. In the present case the Court observes that the applicants lodged their individual applications with the Constitutional Court on 26 December 2016 and that they were released pending trial on 9 March 2018 (in the case of the applicant Mehmet Murat Sabuncu ), on 25 April 2018 (in the case of the applicant Akın Atalay ) and on 28 July 2107 (in the case of the remaining applicants). Their release pending trial put an end to the alleged breach of Article 5 § 4 of the Convention resulting from the failure by the Constitutional Court to speedily examine their complaint concerning the unlawfulness of their detention (see Žúbor, cited above, § 85, and the references cited therein). The Court is therefore called upon to examine in the present case the applicants ’ complaints of failure to comply with the speediness requirement under Article 5 § 4 in the Constitutional Court proceedings, between the dates on which the applicants ’ constitutional applications were lodged and the dates of their release pending trial. Accordingly, it rejects the Government ’ s argument that these complaints are incompatible ratione personae with the provisions of the Convention. 196. The Court further finds that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. Merits 197. The Court reiterates the principles arising from its case-law concerning the requirement of “speediness” within the meaning of Article 5 § 4 of the Convention, as summarised, in particular, in its judgments in Mehmet Hasan Altan (cited above, §§ 161-63) and Şahin Alpay (cited above, §§ 133-35) and in its decision in the case of Akgün v. Turkey (( dec. ), no. 19699/18, §§ 35-44, 2 April 2019). In those cases it noted that in the Turkish legal system, anyone in pre-trial detention could apply for release at any stage of the proceedings and could lodge an objection if the application was rejected. It also observed that the question of detainees ’ continued detention was automatically reviewed at regular intervals of no more than thirty days. Accordingly, it held that it could tolerate longer periods of review by the Constitutional Court. However, in the case of Mehmet Hasan Altan, cited above, the period before the Constitutional Court to be taken into consideration was fourteen months and three days; in the case of Şahin Alpay, cited above, it was sixteen months and three days; and in the case of Akgün, cited above, it was twelve months and sixteen days. Bearing in mind the complexity of the applications and the Constitutional Court ’ s caseload following the declaration of a state of emergency, the Court considered that this was an exceptional situation. Consequently, although periods of twelve months and sixteen days, fourteen months and three days and sixteen months and three days before the Constitutional Court could not be described as “speedy” in an ordinary context, in the specific circumstances of those cases the Court held that there had been no violation of Article 5 § 4 of the Convention. 198. In the present case, the Court notes that the periods to be taken into consideration are sixteen months in the case of the applicant Akın Atalay, fourteen months and eleven days in the case of the applicant Mehmet Murat Sabuncu, eight months and twenty-nine days in the case of the applicant Ahmet Kadri Gürsel, and seven months and two days in the case of the remaining applicants, and that these periods all fell within the period of the state of emergency, which was not lifted until 18 July 2018. It considers that the fact that the Constitutional Court did not deliver its judgment dismissing the applicants ’ applications until 2 May 2019, some two years and four months later, is not relevant in calculating the period of time to be taken into consideration from the standpoint of Article 5 § 4 of the Convention, since all the applicants had been released by that date. 199. The Court therefore considers that its findings in the cases of Akgün, Mehmet Hasan Altan and Şahin Alpay, all cited above, are also applicable in the context of the present application, although the situation of Akın Atalay appears to be borderline in terms of possible parallels with the cases cited above. The Court emphasises in that connection that the applicants ’ applications to the Constitutional Court were complex, as this was one of the first cases raising complicated issues concerning the pre-trial detention of journalists on account of their newspaper ’ s editorial stance, and because the applicants had pleaded their case extensively before the Constitutional Court, arguing not only that their detention had not been based on any valid grounds, but also that the accusations against them were unconstitutional. Moreover, the Court considers that account must also be taken of the exceptional caseload of the Constitutional Court during the state of emergency in force from July 2016 to July 2018, and of the measures taken by the national authorities to tackle the problem of that court ’ s backlog (see Mehmet Hasan Altan, cited above, § 165; Şahin Alpay, cited above, § 137; and Akgün, cited above, § 41). In that connection the Court stresses the distinction to be made between the present case and the case of Kavala v. Turkey in which the applicant had remained in pre-trial detention for the eleven months elapsing between the lifting of the state of emergency on 18 July 2018 and the delivery of the Constitutional Court ’ s judgment on 28 June 2019 (see Kavala v. Turkey, no. 28749/18, § 195, 10 December 2019). 200. In the light of the foregoing considerations, although the review by the Constitutional Court in the present case could not be described as “speedy” in an ordinary context, in the specific circumstances of the present case the Court considers that there has been no violation of Article 5 § 4 of the Convention. ALLEGED VIOLATION OFARTICLE 10 OF THE CONVENTION 201. The applicants (except for Turhan Günay and Ahmet Kadri Gürsel ) alleged mainly a breach of their right to freedom of expression on account of their initial and continued pre-trial detention. In particular, they complained of the fact that the editorial stance of a newspaper criticising certain government policies had been considered as evidence in support of charges of assisting terrorist organisations or disseminating propaganda in favour of those organisations. They relied in that connection on Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 202. The Government contested the applicants ’ argument. The parties ’ submissionsThe Government The Government The Government 203. The Government submitted that the applicants lacked victim status since the criminal courts had not convicted them in a final judgment. For the same reasons, the complaint under Article 10 of the Convention should be declared inadmissible for failure to exhaust domestic remedies. 204. As to the lawfulness of the interference, the Government submitted that the criminal offence in question had been clearly proscribed by the articles of the CC that made it an offence to belong to an organisation deemed to be criminal in nature or to aid and assist such an organisation. 205. In the Government ’ s submission, the instances of interference complained of had pursued several aims for the purposes of the second paragraph of Article 10 of the Convention, namely the protection of national security and public safety and the prevention of crime and disorder. 206. As to the necessity of the interference in a democratic society, the Government submitted that the applicants had been detained and tried not for their journalistic activities but in order to answer charges of knowingly assisting organisations deemed to be criminal in nature, mainly the PKK and FETÖ/PDY. The applicants had been suspected of assisting the terrorist organisations FETÖ and the PKK by attempting to undermine public support for the administrative and criminal proceedings instituted against the suspected members of those organisations and to exert pressure on the members of the security forces and on judges to ensure that those proceedings did not result in a process of lustration concerning the perpetrators or in the latter ’ s conviction. The applicants 207. The applicants pointed out that they had been detained for lengthy periods of time. Their placement in detention for allegedly assisting terrorist criminal organisations, on the basis of the activities of Cumhuriyet ’ s journalists reflecting the newspaper ’ s editorial stance, constituted in itself a breach of their freedom of expression. That deprivation of liberty had prevented them from carrying on their occupation as journalists and had resulted, in their case and in the case of other journalists, in self-censorship in the exercise of their professional activity, particularly when it came to expressing their opinions in public debate concerning the conduct of the political or judicial authorities, including with regard to the proceedings taken against persons suspected of belonging to organisations deemed to be criminal. 208. Furthermore, the applicants submitted that the provisions of the CC on the basis of which they had been charged were not clear and foreseeable, in so far as there was confusion, in their view, between the individual criminal responsibility of the author of a newspaper article and the responsibility of the proprietor or editor-in-chief of the newspaper. That distinction should have been clear since a Constitutional Court judgment of 18 June 2006 on the subject, which had rejected the argument that the proprietor or editor-in-chief of a newspaper could be held responsible where the author of the article had been identified. They alleged that they had been prosecuted for articles whose authors had indeed been known, on the basis of a finding of criminal responsibility not provided for by the CC. 209. The applicants further submitted that the judicial authorities did not accuse them of having in any way actively contributed to the violent actions allegedly planned and carried out by the illegal organisations in question. Moreover, it was not necessary in a democratic society to protect the judicial authorities against criticisms made in good faith or to imprison journalists who voiced such criticism in monitoring and commenting upon the measures taken against persons suspected of being members of those organisations. 210. The applicants also complained of the fact that the Government had opted for criminal-law sanctions, in breach of the right to freedom of expression, instead of responding to political criticism through the major communication channels available to them in order to inform the public. The third-party intervenersThe Commissioner for Human Rights The Commissioner for Human Rights The Commissioner for Human Rights 211. Relying mainly on the findings made during his visits to Turkey in April and September 2016, the Commissioner for Human Rights observed firstly that he had repeatedly highlighted the widespread violations of freedom of expression and media freedom in Turkey. He expressed the view that Turkish prosecutors and courts interpreted anti-terrorism legislation in a very broad manner. Many journalists expressing dissent or criticism against the government authorities had been placed in pre-trial detention purely on account of their journalistic activities, without any concrete evidence. The Commissioner for Human Rights thus rejected the Government ’ s assertion that the criminal proceedings instituted against journalists were unconnected to their professional activities, finding that it lacked credibility in that often the concrete evidence included in investigation files concerning journalists related to their journalistic activities. He submitted that neither the attempted coup nor the dangers represented by terrorist organisations could justify measures entailing severe interference with media freedom, such as the measures he had criticised. 212. The Commissioner for Human Rights observed that the illegal organisations FETÖ/PDY and the PKK, which the applicants had been accused of assisting, were on opposite ends of the political spectrum. The Special Rapporteur 213. The Special Rapporteur submitted that anti-terrorism legislation had long been used in Turkey against journalists expressing critical opinions about government policies. Nevertheless, since the declaration of the state of emergency, the right to freedom of expression had been weakened even further. Since 15 July 2016, 231 journalists had been arrested and more than 150 remained in prison, and the evidence produced against them was very vague or non-existent. 214. The Special Rapporteur stated that any interference would contravene Article 10 of the Convention unless it was “prescribed by law”. It was not sufficient for a measure to have a basis in domestic law; regard should also be had to the quality of the law. Accordingly, the persons concerned had to be able to foresee the consequences of the law in their case, and domestic law had to provide certain safeguards against arbitrary interference with freedom of expression. The intervening non-governmental organisations 215. The intervening non-governmental organisations submitted that restrictions on media freedom had become significantly more pronounced and prevalent since the attempted military coup. Stressing the important role played by the media in a democratic society, they stated that journalists were often detained for dealing with matters of public interest. They complained on that account of arbitrary recourse to measures involving the detention of journalists, which were also designed to ensure self-censorship. The Court ’ s assessmentAdmissibility Admissibility Admissibility 216. The Court considers that the Government ’ s objections set out in paragraph 186 above, and contested by the applicants, raise issues that are closely linked to the examination of whether there has been an interference with the applicants ’ rights and freedoms under Article 10 of the Convention. It therefore decides to join them to the merits. 217. The Court further notes that these complaints, with the exception of those submitted under this provision by the applicants Turhan Günay and Ahmet Kadri Gürsel, are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. Merits (a) Fundamental principles 218. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313; Castells v. Spain, 23 April 1992, § 42, Series A no. 236; Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; and Jersild, cited above, § 37). 219. Specifically, 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. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society (see Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Castells, cited above, § 43). 220. Although the press must not overstep certain bounds, in particular in respect of the prevention of disorder and the protection of the reputation of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the administration of justice (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997 ‑ I; The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30; and Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999 ‑ III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick, cited above, § 38; Thoma v. Luxembourg, no. 38432/97, §§ 45-46, ECHR 2001-III; and Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003 ‑ V). 221. Furthermore, there is little scope under Article 10 of the Convention for restrictions on political speech or on debate concerning questions of public interest (see Sürek and Özdemir v. Turkey [GC], nos. 23927/94 and 24277/94, § 60, 8 July 1999, and Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996 ‑ V). Moreover, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media (see Castells, cited above, § 46). 222. Freedom of political debate, which is at the very core of the concept of a democratic society, also includes 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 public has the right to be informed of the different ways of viewing a situation of conflict or tension; in that regard the authorities must, whatever their reservations, allow all parties to express their point of view. In order to assess whether the publication of material emanating from prohibited organisations entails a risk of incitement to violence, consideration must be given, first and foremost, to the content of the material in question and the background against which it is published, for the purposes of the Court ’ s case-law (see, to similar effect, Gözel and Özer, cited above, § 56). In this connection it is apparent from the Court ’ s case-law that where the views expressed do not comprise incitement to violence – in other words unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist offences in pursuit of their supporters ’ goals or can be interpreted as likely to encourage violence by expressing deep-seated and irrational hatred towards identified persons – Contracting States must not restrict the right of the general public to be informed of them, even on the basis of the aims set out in Article 10 § 2, that is to say the protection of territorial integrity and national security and the prevention of disorder or crime (see Sürek v. Turkey (no. 4) [GC], no. 24762/94, § 60, 8 July 1999; Gözel and Özer, cited above, § 56; Nedim Şener, cited above, § 116; and Şık, cited above, § 105). (b) Whether there was interference 223. The Court has previously found that certain circumstances which have a chilling effect on freedom of expression do in fact confer on those concerned – persons who have not been finally convicted – the status of victim of interference in the exercise of their right to that freedom (see, among other authorities, Dilipak v. Turkey, no. 29680/05, §§ 44 ‑ 47, 15 September 2015). It has made the same finding in relation to the detention of investigative journalists for almost a year under criminal proceedings brought for very serious crimes (see Nedim Şener, cited above, §§ 94 ‑ 96, and Şık, cited above, §§ 83 ‑ 85). 224. The Court observes in the present case that criminal proceedings were brought against the applicants for acts characterised as assisting terrorist organisations, on the basis of facts which consisted in the editorial stance adopted by the daily newspaper for which they worked in its presentation and assessment of current political developments. This characterisation of the facts also featured in the bill of indictment filed when the applicants were placed in pre-trial detention, in which the prosecuting authorities accused them of aiding and assisting a terrorist organisation, an offence carrying a heavy penalty under the Criminal Code. 225. The Court also notes that the applicants were kept in pre-trial detention for periods ranging from eight to seventeen months in the context of these criminal proceedings. It observes that the judicial authorities which ordered the applicants ’ initial and continued detention considered that there was serious and credible evidence that they were guilty of terrorism-related acts. 226. The Court considers that the applicants ’ pre-trial detention in the context of the criminal proceedings against them, for offences carrying a heavy penalty and directly linked to their work as journalists, amounted to an actual and effective constraint and thus constituted “interference” with the exercise by the applicants of their right to freedom of expression guaranteed by Article 10 of the Convention (see Nedim Şener, cited above, § 96, and Şık, cited above, § 85). On the basis of this finding, the Court dismisses the Government ’ s objection as regards the lack of victim status of the applicants other than Turhan Günay and Ahmet Kadri Yüksel. 227. For the same reasons, the Court likewise dismisses the Government ’ s objection of failure to exhaust domestic remedies in respect of the complaints under Article 10 of the Convention (see, mutatis mutandis, Yılmaz and Kılıç v. Turkey, no. 68514/01, §§ 37-44, 17 July 2008). (c) Whether the interference was justified 228. Such interference will breach Article 10 of the Convention unless it satisfies the requirements of the second paragraph of that Article. It therefore remains to be determined whether the interference was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was “necessary in a democratic society” in order to achieve them. 229. The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the interference should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences, and that it should be compatible with the rule of law. A law which confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see, among many other authorities, Müller and Others v. Switzerland, 24 May 1988, § 29, Series A no. 133; Ezelin v. France, 26 April 1991, § 45, Series A no. 202; and Margareta and Roger Andersson v. Sweden, 25 February 1992, § 75, Series A no. 226 ‑ A). 230. In the present case the applicants ’ arrest and detention amounted to interference with their rights under Article 10 of the Convention (see paragraph 225 above). The Court has already found that the applicants ’ detention was not based on reasonable suspicion that they had committed an offence for the purposes of Article 5 § 1 (c) of the Convention, and that there has therefore been a violation of their right to liberty and security under Article 5 § 1 (see paragraph 184 above). It also notes that according to Article 100 of the Turkish Code of Criminal Procedure, a person may be placed in pre-trial detention only where there is factual evidence giving rise to strong suspicion that he or she has committed an offence, and considers in this connection that the absence of reasonable suspicion should, a fortiori, have implied an absence of strong suspicion when the national authorities were called upon to assess the lawfulness of the applicants ’ detention. The Court reiterates in this regard that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and that no deprivation of liberty will be lawful unless it falls within one of those grounds (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 88, 15 December 2016). The Court further observes that the requirements of lawfulness under Articles 5 and 10 of the Convention are aimed in both cases at protecting the individual from arbitrariness (see paragraphs 143, 145 and 149 above as regards Article 5, and paragraph 228 above as regards Article 10). It follows that a detention measure that is not lawful, as long as it constitutes interference with one of the freedoms guaranteed by the Convention, cannot be regarded in principle as a restriction of that freedom prescribed by national law. It follows that the interference with the applicants ’ rights and freedoms under Article 10 § 1 of the Convention cannot be justified under Article 10 § 2 since it was not prescribed by law (see Steel and Others v. the United Kingdom, 23 September 1998, §§ 94 and 110, Reports 1998 ‑ VII, and, mutatis mutandis, Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 98-101, 11 February 2016). The Court is therefore not called upon to examine whether the interference in question had a legitimate aim and was necessary in a democratic society. 231. Accordingly, there has been a violation of Article 10 of the Convention. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 232. Lastly, the applicants (except for Turhan Günay and Ahmet Kadri Gürsel ) alleged that their detention had been designed to punish them for their criticisms of the government. They contended that the purpose of their initial and continued detention had been to subject them to judicial harassment on account of their journalistic activities. They relied in that regard on Article 18 of the Convention taken together with Articles 5 and 10. Article 18 of the Convention provides: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” Admissibility 233. The Government submitted that Article 18 of the Convention did not have an autonomous role and could only be applied in conjunction with other provisions of the Convention. In their view, the complaints under Article 18 of the Convention should be declared inadmissible for the same reasons that they had put forward concerning the applicants ’ other complaints. 234. The applicants contested that argument. 235. The Court observes that it has found, in respect of the applicants other than Turhan Günay and Ahmet Kadri Gürsel, a violation of Article 5 § 1 of the Convention on account of the applicants ’ initial and continued detention in the absence of reasonable suspicion that they had committed the offences of which they were accused, and also, on the basis of the same facts, a violation of Article 10 on account of the unjustified interference with the applicants ’ freedom of expression. Taking the view that the complaint under Article 18 is closely linked to the complaints under those provisions, that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicants 236. In the applicants ’ submission, a number of features of the case demonstrated that the undeclared aim of their placement in pre-trial detention for serious offences had in fact been to punish and harass them for the critical commentaries published by the newspaper Cumhuriyet concerning the actions of the government and its sympathisers. They submitted that it was very common practice in Turkey to use pre-trial detention against journalists who criticised government policies. The poor situation with regard to press freedom in the country had been commented on in reports and statements by international observers including the member States and various bodies of the Council of Europe and the European Union. The Commissioner for Human Rights had also criticised the applicants ’ placement in detention in his memorandum of 15 February 2017. 237. The applicants alleged in particular that one of the undeclared aims of their pre-trial detention had been to punish the newspaper Cumhuriyet for having revealed facts which the government had sought to conceal. The facts referred to in the detention orders as the basis for the suspicions had provoked an immediate and vehement response from the members of the government. For instance, when Cumhuriyet had brought to light the affair concerning the lorries belonging to the intelligence services alleged to have transported weapons to armed Islamist groups in Syria, the President of the Republic had accused the newspaper of espionage and had stated: “Whoever wrote that article will pay dearly, I will not let the matter rest there”. The applicants added that Cumhuriyet ’ s former publication director, C.D., and the head of the newspaper ’ s Ankara office, E.G., had been arrested for espionage but had been released after a Constitutional Court judgment had found their detention to be unlawful in the absence of strong suspicions of guilt. They alleged that, following that judgment, the President of the Republic had stated as follows: “I will not comment on the Constitutional Court ’ s judgment, but I am not obliged to accept it. I will not abide by this judgment, I will not comply with it”. 238. The applicants alleged that another undeclared reason for their placement in detention was that the judicial authorities regretted the release pending trial of the former publication director, C.D., who had moved abroad after being released. Following an assassination attempt, C.D. had left the country, stating that his life was in danger and that he would remain abroad until the state of emergency had been lifted. In the orders concerning the applicants ’ pre-trial detention, the judges had stated that “the content of earlier investigation files show[ed] that the suspects [had] fled, by lawful or unlawful means, as soon as an opportunity [had arisen]”. 239. The applicants pointed out that three of them ( Bülent Utku, Mustafa Kemal Güngör and Akın Atalay ) had been lawyers of the newspaper Cumhuriyet whose task it was to defend the newspaper in criminal and civil proceedings brought on account of the articles which it published. The applicants contended that their pre-trial detention had pursued the undeclared purpose of making it difficult for the newspaper to defend its interests in judicial proceedings. 240. Furthermore, the public prosecutor who had been in charge of the investigation concerning them, from the beginning of the investigation until the filing of the bill of indictment (signed by a different prosecutor), had himself faced charges and was being tried for membership of one of the illegal organisations (in this instance, FETÖ) which the applicants were accused of assisting. There had been no prospect that this prosecutor, who himself feared being convicted of belonging to that illegal organisation, would conduct the judicial investigation in an objective and fair manner. (b) The Government 241. The Government contested the applicants ’ argument. They submitted that the system for the protection of fundamental rights and freedoms under the Convention rested on the assumption that the authorities of the High Contracting Parties acted in good faith. It was for the applicants to demonstrate convincingly that the authorities ’ real aim had differed from the one proclaimed. In that regard they considered that a mere suspicion was not sufficient to prove that Article 18 had been breached. 242. The Government argued that the criminal investigation in question had been conducted by independent judicial authorities. The applicants had been placed in pre-trial detention on the basis of the evidence that had been gathered and placed in the case file. Contrary to the applicants ’ assertion, that evidence was in no way linked to the fact that the newspaper for which they worked had adopted an editorial line opposed to the government ’ s policies. In accordance with the rule of law, no political party or State body, including the government, could intervene or issue instructions when it came to instituting investigations or ordering pre-trial detention, which were matters for the judicial authorities alone. 243. In the Government ’ s submission, the applicants had not furnished any evidence to show that the pre-trial detention in question had been imposed with a hidden intention. Furthermore, the criminal proceedings against the applicants were still pending and the allegations made in that regard would be verified at the end of those proceedings. The third-party interveners (a) The Commissioner for Human Rights 244. In the view of the Commissioner for Human Rights, it was difficult to see how the use of pre-trial detention against journalists in Turkey could be linked to one of the legitimate aims provided for in the Convention in that regard. Some of the criminal-law provisions concerning State security and terrorism were open to arbitrary application owing to their vague wording and the overly broad interpretation of the concepts of terrorist propaganda and support for a terrorist organisation, with those concepts encompassing statements and articles that clearly did not incite violence. In the aftermath of the attempted coup many journalists had faced unsubstantiated terrorism-related charges under such provisions, in connection with the legitimate exercise of their right to freedom of expression. The detention and prosecution of journalists under such grave charges resulted in a strong chilling effect on wholly legitimate journalistic activities and contributed to self-censorship among those who wished to participate in public debate. In the Commissioner ’ s view, numerous instances of judicial actions targeting not only journalists but also human rights defenders, academics and members of parliament exercising their right to freedom of expression indicated that criminal laws and procedures were currently being used by the judiciary to silence dissenting voices. (b) The intervening non-governmental organisations 245. The intervening non-governmental organisations submitted that Article 18 of the Convention would be breached where an applicant could show that the real aim of the authorities was not the same as that proclaimed. They pointed out that the restriction of freedom of expression and political criticism was not one of the legitimate purposes of pre-trial detention enumerated in Article 5 of the Convention. 246. According to these organisations, where restrictions on applicants ’ freedom of expression formed part of a wider campaign to silence and punish anyone engaged in critical journalism, under problematic criminal laws that were increasingly restrictive of fundamental rights and freedoms, the Court should find a violation of Article 18 of the Convention. An analysis of the comments made by high-ranking State officials and pro ‑ government media could assist in identifying the actual motivation of the State in prosecuting journalists. 247. The intervening non-governmental organisations further argued that following the attempted military coup on 15 July 2016, the government had misused legitimate concerns in order to redouble its already significant crackdown on human rights, inter alia by placing dissenters in pre-trial detention. The Court ’ s assessment 248. The Court refers to the general principles concerning the interpretation and application of Article 18 of the Convention as they were recently set out, particularly in its judgments in Merabishvili (cited above, §§ 287 ‑ 317) and Navalnyy v. Russia ([GC], nos. 29580/12 and 4 others, §§ 164 ‑ 65, 15 November 2018). 249. The Court observes at the outset that the applicants ’ main complaint was that they had been specifically targeted because of their newspaper ’ s editorial stance, which was considered to oppose the government. It notes that they also maintained that their initial and continued pre-trial detention had pursued an undeclared aim, namely to silence the newspaper ’ s criticism of the government and its sympathisers. 250. The Court notes that the measures in question, and those taken in the context of the criminal proceedings brought against other opposition journalists in Turkey, have been heavily criticised by the third-party interveners. However, as the political process and adjudicative process are fundamentally different, the Court must base its decision on “evidence in the legal sense”, in accordance with the criteria laid down by it in the Merabishvili judgment (cited above, §§ 310-17), and on its own assessment of the specific relevant facts (see Khodorkovskiy v. Russia, no. 5829/04, § 259, 31 May 2011; Ilgar Mammadov, cited above, § 140; and Rasul Jafarov v. Azerbaijan, no. 69981/14, § 155, 17 March 2016). 251. In the present case the Court has concluded above that the charges against the applicants were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention. It has found in particular that the measures taken against the applicants were not justified by reasonable suspicions based on an objective assessment of the alleged acts; instead, they were essentially based on written material which could not reasonably be considered as behaviour criminalised under domestic law but was related to the exercise of Convention rights, and in particular the right to freedom of expression. 252. Nevertheless, whilst the Government failed to substantiate their argument that the measures taken against the applicants were justified by reasonable suspicions, leading the Court to find a violation of Article 5 § 1 and Article 10 of the Convention, this would not by itself be sufficient to conclude that Article 18 has also been violated (see Navalnyy, cited above, § 166). Indeed, as the Court pointed out in Merabishvili (cited above, § 291), the mere fact that a restriction of a Convention right or freedom does not meet all the requirements of the clause that permits it does not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case. There is still a need to examine the question whether – in the absence of a legitimate purpose – there was an identifiable ulterior one (see Navalnyy, cited above, § 166). 253. The Court observes that the stated aim of the measures imposed on the applicants was to carry out investigations into the campaign leading to the attempted coup in 2016 and the campaigns of violence conducted by members of separatist or leftist movements, and to establish whether the applicants had indeed committed the offences of which they were accused. Given the serious disruption and the considerable loss of life resulting from these events, it is perfectly legitimate to carry out investigations into these incidents. In addition, it must not be overlooked that the attempted coup led to a state of emergency being declared throughout the country. 254. The Court observes that there appears to be nothing untoward in the chronological sequence of the acts of which the applicants were accused and the opening of the investigation concerning them (see, conversely, Kavala, cited above, §§ 225-28). The acts of which the applicants were accused in the investigation which was opened at the end of 2016 had occurred, for the most part, prior to or after the attempted coup of 15 July 2016. Those acts, most of which had occurred during 2015 and 2016, allegedly formed part of the preparations for the planned coup or of opposition to the measures taken against the alleged instigators of the coup attempt. The items reporting on the viewpoints of members of separatist or leftist organisations were published in 2015 and are thus no exception to this rule. It cannot therefore be said that an excessive length of time elapsed between the impugned acts and the opening of the criminal investigation in the course of which the applicants were placed in pre-trial detention. 255. The Court is prepared to accept that statements made in public by members of the government or the President concerning criminal proceedings against applicants could, in some circumstances, constitute evidence of an ulterior purpose behind a judicial decision (see Kavala, cited above, § 229; Merabishvili, cited above, § 324; and Tchankotadze v. Georgia, no. 15256/05, § 114, 21 June 2016). However, the Court notes in the present case that the statements by the President of the Republic referred to above related to a specific affair concerning the destination of lorries belonging to the intelligence services and used to transport weapons, and were not directed against the applicants themselves but rather against the newspaper Cumhuriyet as a whole under the editorial direction of C.D., its publication director at the time. Moreover, it should be noted that the Constitutional Court ruled in favour of C.D. and another of Cumhuriyet ’ s managers at the time, finding that the suspicions against them were unconstitutional. It is true that the statement by the President of the Republic to the effect that he would not abide by the Constitutional Court ’ s ruling, was not bound by it and would not comply with it, was clearly in contradiction with the basic tenets of the rule of law. However, such an expression of dissatisfaction does not in itself amount to evidence that the applicants ’ detention was ultimately motivated by reasons incompatible with the Convention. 256. As to the fact that a prosecutor who was himself charged with membership of the organisation FETÖ participated in the judicial investigation concerning the applicants, including the drafting of the bill of indictment, the Court considers that this fact in itself does not constitute decisive evidence of a violation of Article 18 of the Convention, as the applicants ’ initial and continued detention was based on orders made by a magistrate or by one or more members of the Assize Court, rather than on a decision of the public prosecutor ’ s office. Furthermore, when this situation came to light the prosecutor in question was removed from the investigation before the bill of indictment was filed. That being said, the Court accepts that their detention based on such a serious charge had a chilling effect on the applicants ’ willingness to express their views in public and was liable to create a climate of self-censorship affecting them and all journalists reporting and commenting on the running of the government and on various political issues of the day. Nevertheless, this finding is likewise insufficient by itself to conclude that there has been a violation of Article 18. The Court further observes that the Constitutional Court subjected the applicants ’ complaints under Articles 5 and 10 of the Convention to thorough scrutiny and delivered its judgments in the case following in-depth discussion, as demonstrated by the large number of dissenting opinions. It follows that the elements relied on by the applicants in support of a violation of Article 18 of the Convention, taken separately or in combination with each other, do not form a sufficiently homogeneous whole for the Court to find that the applicants ’ detention pursued a purpose not prescribed by the Convention and representing a fundamental aspect of the case. In the light of the foregoing, the Court holds that it has not been established beyond reasonable doubt that the applicants ’ pre-trial detention was ordered for a purpose not prescribed by the Convention within the meaning of Article 18. Accordingly, there has been no violation of Article 18 of the Convention in the present case. APPLICATION OF ARTICLE 41 OF THE CONVENTION 257. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 258. The applicants claimed 20,000 euros (EUR) each for each month spent in pre-trial detention, in respect of the non-pecuniary damage they had allegedly sustained. 259. The Government submitted that the amounts claimed by the applicants were excessive in the light of the Court ’ s case-law on this issue, and that the claims should be dismissed. 260. With regard to non-pecuniary damage, the Court considers that the violations of the Convention have indisputably caused the applicants substantial damage. Accordingly, ruling on an equitable basis, it awards EUR 16,000 to each applicant in respect of non-pecuniary damage. Costs and expenses 261. The applicants did not seek reimbursement of any costs and expenses incurred before the Convention institutions or the domestic courts. That being so, the Court considers that no sum is to be awarded to them on that account. Default interest 262. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the interference with the applicants’ rights and freedoms under Article 10 could not be justified since it had not been prescribed by law. The Court also noted, in particular, that the acts for which the applicants had been held criminally responsible came within the scope of public debate on facts and events that were already known, amounted to the exercise of Convention freedoms, and did not support or advocate the use of violence in the political sphere or indicate any wish on the applicants’ part to contribute to the illegal objectives of terrorist organisations, namely to use violence and terror for political ends;