MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-35

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-35 Dink v. Turkey (Application No. 2668/07) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1186, DH-DD(2022)733, CM/Del/Dec(2018)1324/H46-21

 

Application	Case	Judgment of	Final on	Indicator for the classification
2668/07+	DINK	14/09/2010	14/12/2010	Complex problem

Case description

The case concerns the violation of the right to freedom of expression on account of the conviction of the journalist and newspaper editor Fırat Dink for denigrating Turkishness under Article 301 of the Criminal Code (violation of Article 10).

It further concerns the failure of the Turkish authorities to take steps to prevent Fırat Dink’s murder by members of an ultranationalist group, despite having been reasonably informed of a real and imminent threat to his life (substantive violation of Article 2). In addition, the authorities failed to conduct an effective investigation to identify and punish the officials who had failed to take action to prevent the assassination, including a chief police officer who allegedly revealed his support for the suspects (procedural violation of Article 2). The Court also criticised the lack of independence of the Governorship and Provincial Administrative Council in investigating the allegations against members of security forces as well as the restrictions on access for Fırat Dink’s close relatives to the investigation files. 

Finally, the case concerns a violation of the right to an effective remedy on account of the inability of the applicants to claim damages (violation of Article 13 in conjunction with Article 2).

Status of execution

The information provided by the authorities in response to the Committee’s previous decisions is summarised below (DH-DD(2022)733 and DH-DD(2024)1186).

Individual measures:

At its last examination in September 2018, the Committee noted with interest that the investigations which were re-initiated after the Constitutional Court's judgment of July 2014 led to the opening of criminal proceedings against a number of public officials, including several high-level officials in respect of whom public prosecutors had previously issued non-prosecution decisions.

It invited the authorities to provide additional, detailed information, with supporting documentation, to clarify the precise nature of the charges brought against those suspected of responsibility for the violation of Article 2 found in this case and also whether the procedural shortcomings identified by the European Court in relation to the first investigation have been remedied.

Recalling that Fırat Dink was murdered in January 2007 and that the European Court judgment became final in December 2010, the Committee strongly urged the authorities to accelerate their efforts so that the proceedings are rapidly brought to conclusion in accordance with the Convention standards.

Criminal proceedings against the perpetrator: On 25 July 2011, the perpetrator was sentenced to 22 years and 10 months’ imprisonment for the offences of murder, possession of unlicensed firearms, and this decision was upheld by the Court of Cassation.

Criminal proceedings against the public officials: The Head of the Intelligence Department of the General Directorate of Police and the Chief of Branch of the Intelligence Department of the General Directorate of Police were sentenced to aggravated life imprisonment for “premeditated intentional killing within the scope of a terrorist organisation”. The Court of Cassation upheld this decision, which became final. The authorities stated in this regard that public officials, who were holding office in critical positions at the material time, were sentenced by the trial court as the actual perpetrator due to their will to complicity in the premeditated murder.

12 other accused public officials were sentenced to imprisonment for terms varying between 10 years and life imprisonment for the offences of, inter alia, intentional killing and aiding intentional killing. On 21 June 2023, the Court of Cassation, considering the responsibility of these accused persons in the murder of Fırat Dink, quashed the decision on the ground that they should have been sentenced to heavier penalties. The reopened proceedings are pending. The proceedings against a number of fugitive accused persons whose statements could not be taken, had already been disjoined from the proceedings. Execution of the arrest warrant is awaited.

Criminal proceedings against the public officials due to the offence of abuse of power: The authorities stated that 27 public officials, including the Director of the İstanbul Provincial Police Department at the material time, had been prosecuted for the offence of abuse of power for their alleged failure to take the necessary measures to prevent Fırat Dink’s murder. The trial court, however, discontinued the proceedings against these accused due to the expiry of the statutory limitation period for this offence.

Disciplinary investigation against the public officials: Disciplinary investigations, which were initiated in 2018 and conducted by the High Disciplinary Board of the Ministry of Interior against high-level executives, including those who were serving as the Provincial Police Chief and the Director of the Intelligence Branch of the General Police Department at the material time, were discontinued due to the expiry of the statutory limitation periods.

The authorities further provided that the lawyer of Rahil (Rakel) Dink, Fırat Dink’s wife, was given access to the case file in the context of the disciplinary investigations.

General measures:

The general measures examined under this case relate to the substantive violation of Article 2. At its last examinations, the Committee strongly urged the authorities to provide precise and detailed information on the general measures taken or envisaged to ensure that journalists have immediate access to protective measures in the light of its Recommendation on the protection of journalism and safety of journalists and other media actors (CM/Rec(2016)4) and to provide up-to-date statistical information regarding the safety of journalists in Türkiye. The Committee also encouraged the authorities to consider legislative or other measures to enhance the safety of journalists and protect their professional activities, and to cooperate actively with the Council of Europe Platform for the Protection of Journalism and Safety of Journalists (the Platform) by promptly reacting to alerts posted on its webpage concerning threats and violence against media professionals in Türkiye.

In their submissions, the authorities referred to the findings of the trial court that terrorist organization FETO/PDY instigated the perpetrators of the impugned murder to achieve its organisational goals. Public officials, including the members of the police, gendarmerie and the judiciary, had been informed of the murder plans, and they ensured the commission of the murder by failing to enforce their duties and powers. The authorities further stated that subsequent investigations conducted into the murder were also directed in line with the interests of the terrorist organisation.

According to the authorities, the murder did not take place as a result of the negligence of the security forces. It had been a planned act of the terrorist organisation which deliberately infiltrated into the State and thus was an isolated incident.

The authorities further referred to the general obligation of the State to protect all individuals under the norms of the Constitution, and provided that the secondary legislation on protection stipulates the principles of identifying persons to be placed under protection. Regulation on Protective Services lays out the rules for

providing protective services in confidentiality to individuals who face terrorist threats. This Regulation is based on the Prevention of Terrorism Act (Law No. 3713) and the Directive on Protective Services. Accordingly, individuals facing terrorist threats must apply to the Governor’s Office requesting protection, which, after examining the request, could issue Close Protection, On-Call Protection, or Special Protection orders.

As regards other threats that are not related to terrorist organisations, protection measures are taken within the scope of the Circular on the Protection of Threatened Persons. In such a case, the person concerned should apply to the Police or Gendarmerie Station, requesting protection. According to the information provided, when journalists face a real and imminent risk to their lives, they can apply to the authorities and request that urgent protective measures be taken, who in return could provide close protection by accompanying the person outside his/her residence. In addition, the house or workplace of the individual may be placed under uninterrupted surveillance for 24 hours. Different types of protection are determined according to the level of threat to an individual. A protection order may also be issued without a complaint, where intelligence units establish the need for protection on the basis of risk and threat assessment.

The authorities provided further information on awareness-raising activities, pre- and in-service trainings on human rights provided for the judges and prosecutors by the Justice Academy of Türkiye, with the support of Council of Europe co-operation projects.[1] The authorities also provided information on the right to individual application before the Constitutional Court. The authorities referred to the Constitutional Court’s decision on the application of Rahil Dink and Others, delivered in July 2014, where the court found a violation due to the failure of the authorities to conduct an effective investigation.

Concerning the other violations found in the present case:

-       general measures required for the violation of Article 10 are examined by the Committee within the context of the Altuğ Taner Akçam group of cases (27520/07) (see the Committee’s last decisions[2]);

-       general measures required for  the violations of Article 2 (substantive limb) and Article 13 in conjunction with Article 2 are examined within the context of the Batı and Others group (33097/96) (see the Committee’s last decisions[3]).

Submissions under Rule 9.2

Freedom of Expression Association (DH-DD(2023)22) and Media and Law Studies Association (DH-DD(2024)1232) argue that the slow pace of pending proceedings and lack of meaningful outcome due to the statute of limitations raise serious concerns about the authorities’ compliance with their procedural obligations. They further state that the information submitted by the authorities did not include any plan to establish and oversight unit that could handle protection requests involving journalists at risk and criticised the lack of regulations to collect statistical information regarding the safety of journalists. The NGOs submit that the Platform has received 184 active alerts concerning Türkiye since 2015 and 39 of these alerts were generated due to the physical attacks against journalists. They argue that the authorities replied only six of these 39 alerts. 17 of those physical attacks had been classified as coming from the State and 15 from non-State actors. They underline that the case of Dink was not an isolated incident, the impunity for murdered journalists remained a serious concern, and physical attacks against journalists continued together with harassment and intimidation. The NGOs refer to a report of the Turkish Journalists’ Association which expressed that 57 journalists were killed in Türkiye between 1948 and 2022, and argued that almost none of those incidents were effectively investigated.

Another report prepared by the Turkish Journalists’ Union had revealed that at least 96 journalists were physically assaulted, and 43 journalists received verbal threats in 2023 alone.

In their response (DH-DD(2023)88), the authorities reiterated the information they provided in the action plan, underlining that they would not comment on other issues raised in the NGOs submission, which fell outside of the scope of the supervision of the judgment.

Analysis by the Secretariat

Individual measures:

In its last two decisions the Committee called upon Türkiye to accelerate efforts aimed at bringing the proceedings against officials suspected of responsibility for the violation of the right to life in this case to conclusion, in accordance with the Convention requirements. It can thus be noted with interest that the former Head of Intelligence Department and the former Chief of Branch of the Intelligence Department at the General Directorate of Police (in respect of whom public prosecutors had previously issued non-prosecution decisions) were subject to final judicial convictions on account of their involvement in Mr Dink’s assassination. It can be noted with regret that criminal proceedings concerning the offence of abuse of office as well as the disciplinary investigations against a number of public officials were discontinued due to the expiry of the statutory limitation periods. Considering that it has been 17 years after the assassination in question and 10 years after the reopening of proceedings, the authorities could be urged to redouble their efforts to ensure that the remaining criminal proceedings pending against public officials for the offences of intentional killing or aiding are concluded in a Convention-compliant manner before they become time-barred.

It can further be noted that the applicants were given access to the files of the disciplinary investigation against the public officials, which was eventually discontinued due to the expiry of the statutory limitation period.

General measures:

The information provided by the authorities on the provisions under Turkish law relating to the State’s obligation to protect all individuals facing threats – both related or unrelated to terrorist organisations, can be noted with interest.

Whereas the primary legislation put forward by the authorities (in particular Articles 5, 17 and 19 of the Constitution) was already in force at the material time, the secondary legislation recently adopted (in particular Circular No. 2022/17 on the Protection of Threatened Persons, of December 2022), appears to be in principle capable of providing close protection in case of a real and imminent threat to any individual - including journalists.

This being said, it would be important to supplement this information with more specific elements on the protection of journalists. Indeed, the Committee of Ministers was clear that this case specifically requires measures aimed at protecting the right to life of journalists when they face real and imminent threat to their lives, and in particular to ensure that journalists have immediate access to protective measures, in the light of its Recommendation on the protection of journalism and safety of journalists and other media actors (CM/Rec(2016)4). It would thus be important for the Committee to receive further information on the practical implementation of the applicable legal framework (including Circular No. 2022/17 on the Protection of Threatened Persons) in providing protection specifically to journalists when they are faced with threats to their lives - and on the forms of protective measures offered in sample cases.

The Committee could reiterate its previous encouragement to the authorities to consider legislative or other measures to enhance the safety of journalists. As already indicated, such measures would be in line with Recommendation CM/Rec(2016)4, which advises that member States put in place a comprehensive legislative framework that recognises the particular roles of journalists in a democratic society and enables them to contribute to public debate without fear. This framework and its implementation should guarantee effective protection of the journalists’ lives. The Recommendation also invites member States to encourage the establishment of, and support the operation of, early-warning and rapid-response mechanisms to ensure that journalists have immediate access to protective measures when they are threatened.

Lastly, the Committee’s encouragement on the authorities to cooperate actively with the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists by promptly reacting to alerts posted on the Platform concerning threats and violence against media professionals in Türkiye remains fully valid, and it would be consistent for the Committee to reiterate this. The Committee’s request for up-to-date statistical information regarding the safety of journalists in Türkiye also remains entirely pertinent – all the more considering the number of “active alerts” on the Platform concerning threats received by journalists and/or impunity in proceedings regarding murdered journalists[4], as well as the NGOs communications under Rule 9 (referring to reports and records of the journalists’ associations and unions).

Financing assured: YES