Case Summary and Outcome

The Second Section of the European Court of Human Rights (ECtHR), in a 6-1 split decision, held that the criminal conviction for terrorism, by the Turkish national courts, of Ms. Ayşenur Parıldak (the applicant) for alleged links with the Gulenist Terror Organization/Parallel State Organization (FETÖ/PDY), accused of planning the coup d’état, of July 15, 2016, represented a violation of her right to freedom of expression, protected under Article 10 of the European Convention on Human Rights. The applicant was a journalist who wrote critical articles against the Turkish government, particularly regarding the measures taken by the government after the failed coup d’état, both on social media and in newspapers. The ECtHR considered that the Turkish authorities failed to respect the applicant’s right to freedom of expression by applying and upholding disproportionate measures that have a chilling effect on criticism and do not meet the criteria necessary in a democratic society.

Facts

On July 15, 2016, there was a failed coup d’état in Türkiye, resulting in the Turkish government declaring a state of emergency. This context led to a widespread repression, especially against journalists, academics and public figures accused of having links to the FETÖ/PDY, which was accused of planning the coup.

Ayşenur Parıldak was a journalist and law student who completed an internship at Taraf newspaper, in 2012, and worked as a judicial columnist at Zaman newspaper between 2012 and 2016, considered a newspaper close to the FETÖ/PDY coup movement. Following an anonymous report, the applicant was arrested, on August 4, 2016, by the Turkish police on suspicion of links to the FETÖ/PDY movement. Then, on August 11, 2016, the applicant’s pre-trial detention was ordered on the existence of strong suspicions of her affiliation to a terrorist organization, under the grounds enumerated in Article 100 paragraph 3 of the Criminal Procedure Code. Such preventive detention was reviewed and extended on several occasions.

The prosecutor’s office filed charges against the applicant, before the Fourteenth Criminal Court (Criminal Court), and the applicant was formally charged with terrorist affiliations, under the grounds of Article 314 of the Criminal Code, for the following reasons: i) making terrorist propaganda and criticizing the government on social networks; ii) making publications in support of FETÖ/PDY; iii) working for the newspaper Zaman, linked to FETÖ/PDY; iv) having links to the Twitter profile Fuatavni, which the police accused of being run by members of FETÖ/PDY; v) using the encrypted messaging application ByLock, linked to the FETÖ/PDY movement; vi) possessing a bank account in Bank Asya, allegedly linked to the FETÖ/PDY; vii) possessing documents and electronic devices with information related to FETÖ/PDY; and viii) having family members linked to the FETÖ/PDY movement, due to his father sending money to an institution associated with the FETÖ/PDY movement, which was categorized as evidence of financial support. [para. 9]

The applicant denied all the accusations and argued the following: i) the publications on social networks, and in the newspapers in which she worked, were a legitimate expression of her freedom of expression and did not constitute terrorist propaganda; ii) lack of concrete evidence linking her to social network profiles related to terrorism or to the ByLock application; and iii) she argued that the process was politically motivated for having made criticisms of the government in her social networks and in the newspapers in which she worked.

However, on November 21, 2017, the applicant was convicted on the charge of affiliation to a terrorist organization and was sentenced to 7 years and 6 months of prison, due to the previously detailed accusations. Then, on December 7, 2018, the Regional Judicial Court upheld the conviction as it considered the evidence presented to be sufficient. On December 27, 2018, the Court of Cassation upheld the sentence, arguing that the decision respected national law. The applicant also filed an appeal before the Constitutional Court alleging violations of her fundamental rights, due to the prolonged pre-trial detention and the limitation to her freedom of expression. However, on November 28, 2018, the Constitutional Court declared her appeal inadmissible on the grounds that her conviction for terrorism was justified by the evidence presented demonstrating her links to the FETÖ/PDY movement, thus her conviction was not for having made criticisms of the government. [para. 36]

As a result, on August 1, 2017, the applicant brought an application against Türkiye before the ECtHR, alleging that the convictions by the domestic courts violated her right to freedom of expression under Article 10 of the European Convention on Human Rights.

Decision Overview

Presiding Judge Arnfinn Bårdsen delivered the decision of the European Court of Human Rights. The main issue before the ECtHR was whether the sanctions imposed on the applicant constituted a justified and necessary interference in a democratic society under Article 10 of the Convention.

First, the applicant stated that there had been a violation of her freedom of expression, claiming that her publications on social networks and journalistic articles were legitimate opinions related to issues of public debate. In this regard, the applicant clarified that her statements also fell within her role as a journalist and did not contain incitement to violence, advocacy of terrorism or direct support for the coup d’état, she was simply criticizing the government and its actions, which is protected by Article 10 of the Convention. Therefore, the applicant explains that her opinions were arbitrarily interpreted and used to accuse her of affiliation with a terrorist organization to silence voices critical of the government.

The applicant also argued that the restrictions on her freedom of expression were not stipulated by law, were not necessary in a democratic society, and were not proportional to the objective pursued.

On the other hand, the Turkish government claimed that the measures were necessary to ensure national security in a context of emergency after the coup d’état. Therefore, the Turkish government argued that freedom of expression is not an absolute right and can be restricted in cases where national security is compromised or terrorism is promoted, which was proven in the case of the applicant as she was found to be a member of the FETÖ/PDY movement.

The ECtHR analyzed the case, under Article 10 of the Convention, to determine whether the measure taken was necessary and proportionate in a democratic society. [para. 125] First, the ECtHR examined whether the restrictions on freedom of expression were provided for by law and found that the charges of terrorist propaganda based on the applicants’ publications were too broad and not clearly defined in Turkish law.

Second, the ECtHR agreed that the measures may have had a legitimate objective in protecting national security in the aftermath of the attempted coup d’état. However, the ECtHR concluded that the restrictions were neither necessary nor proportionate, as there was insufficient evidence that the publications posed a real threat to public security because while the publications criticized the government, they did not incite violent acts or promote terrorism. According to the ECtHR, critical expressions against the government are protected in a democratic society, especially considering the role of journalism in democracy.

Finally, the ECtHR stated that holding critical voices in pre-trial detention, and their subsequent conviction, can have a negative effect both on the individual in detention and on society. Consequently, an atmosphere of intimidation may be created that has an undeniable chilling Effect. [para. 128]

As a result, in a 6-1 decision split, the ECtHR ruled that Türkiye had violated Article 10 of the Convention, and consequently ordered it to pay EUR 16,000 to the applicant for moral damages, plus any amount resulting from taxation on this sum. Türkiye was also ordered to pay EUR 6,000 the applicant for the costs incurred in the proceedings, plus any amount resulting from taxation on this sum.

Dissenting Opinion:

Regarding freedom of expression, Judge Yüksel, reiterated her dissenting opinion, previously stated in the decision lıcak c. Türkiye (2021), in which she expressed her disagreement with the majority decision, considering that the Article 10 analysis was based on the finding of a violation of Article 5(1), without an exhaustive examination from the perspective of Article 10. This decision would suggest a stricter interpretation of the obligations of States regarding their obligations to respect the right to freedom of expression.