Information Note on the Court’s case-law 250
Ahmet Hüsrev Altan v. Turkey – 13252/17
Judgment 13.4.2021 [Section II]
Unlawful pre-trial detention of journalist, accused without reasonable suspicion of involvement in illegal organisation and attempted coup: violation
Review of lawfulness of detention
Inappropriate restriction on investigation file access during state of emergency, preventing effective challenge to pre-trial detention: violation
Freedom of expression
Unjustified interference through unlawful detention, on the basis of statements and articles made by applicant: violation
Facts – The applicant is a well-known journalist and previous editor-in-chief of the Taraf daily newspaper.
In July 2016, a military coup was attempted, for which the leader of an illegal terrorist organisation, the FETÖ/PDY (“Fetullahist Terrorist Organisation/Parallel State Structure”) was blamed. A state of emergency was declared in the country.
The applicant was arrested during the course of investigations into the attempted coup and the illegal organisation. He was placed in pre-trial detention and indicted, inter alia, for having acted on the instruction of FETÖ/PDY and in his capacity as a journalist and previous editor-in-chief at the Taraf, by trying to manipulate public opinion in favour of the coup. The criminal proceedings against him are still pending at the appeal stage. The applicant complained unsuccessfully to the Constitutional Court that his pre-trial detention had infringed his right to liberty, and his right to freedom of expression and of the press.
Law – (a) Article 15: The derogation by Turkey
The formal requirement of the derogation had been satisfied and there had been a public emergency threatening the life of the nation. That was undoubtedly a contextual factor that had to be fully taken into account in interpreting and applying Article 5 in the present case. As to whether the measures taken had been strictly required by the exigencies of the situation and consistent with the other obligations under international law, it was necessary to examine the applicant’s complaints on the merits.
(b) Article 5 § 1: Pre-trial detention on reasonable suspicion
In view of the seriousness of the offence and the severity of the potential sentence, the facts needed to be examined with great care. It was essential that the facts grounding the suspicion had to be justified by verifiable and objective evidence and that they could be reasonably considered as falling under one of the sections describing criminal behaviour in the Criminal Code. The Court also had to take into consideration the unique circumstances at the time of the applicant’s arrest, that is, the period immediately after the attempted coup, and in view of the difficulties inherent in the investigation and prosecution of terrorism-related offences.
The dispute between the parties was about the plausibility of the accusations and their classification as criminal conduct:
The domestic judicial authorities had had particular regard to the alleged facts that the applicant, in his capacity as the editor-in-chief of Taraf, had attempted to discredit an investigation into the earlier “Balyoz” case (involving allegations that certain high-ranking military officers had plotted a military coup against the Government) by publishing news stories on the basis of documents provided by FETÖ/PDY which had turned out to be fictitious, and that Taraf had been acting under the instructions of FETÖ/PDY. However, the detention of the applicant had occurred more than four years after the events in issue, and could not be regarded as a necessary measure. Further, at no stage of the investigation proceedings had the domestic authorities had any concrete evidence capable of suggesting that the newspaper, or, in particular, the applicant, had acted under the instruction of the illegal organisation to publish specific news stories or to follow particular editorial policy with the aim of manipulating public opinion in favour of a coup.
The applicant had written three articles shortly before the attempted coup, in which it was considered that he had maintained that the President had been acting contrary to the Constitution and that he had been breaching the law. It had been considered that the applicant had thereby aimed to manipulate opinion in favour of FETÖ/PDY and had thus contributed to the coup process, of which he had had prior knowledge. The authorities had also referred to the applicant’s remarks in a TV programme warning of a potential coup, from which it was concluded that the applicant had had prior knowledge of the attempted coup which had taken place the following day. The Court considered it important that the applicant’s remarks should not be taken out of their context and had to be viewed in their entirety. They had remained within the limits of freedom of speech, in so far as they could not be construed as a call for violence, and they could not be regarded as relevant in establishing a reasonable suspicion of the relevant offences.
New items of evidence had been added to the investigation file with the filing of the indictment, including two witness statements and a transcript. The witness statements had contained general impressions that the applicant had had contact with the leaders of the illegal organisation, and could not be considered as confirming the suspicions against him. Moreover, those new items of evidence had not been specifically taken into account when the domestic courts had delivered their decisions.
In the light of those observations, the applicant could not have been reasonably suspected, at the time of his placement in detention, of having committed the offences of attempting to overthrow the Government or to prevent it from discharging its duties, of being a member of a terrorist organisation or of committing an offence on behalf of an illegal organisation without being a member of it.
Turning to Article 15 and the derogation by Turkey, several legislative decrees had been passed placing significant restrictions on the procedural safeguards laid down in domestic law for anyone held in police custody or pre-trial detention. Nonetheless, Article 100 of the Code of Criminal Procedure, requiring the presence of factual elements giving rise to a “strong suspicion” that the offence had been committed, had not been amended during the state of emergency. In consequence, the measures complained of in the present case could not be said to have been strictly required by the exigencies of the situation.
Conclusion: violation (six votes to one).
(c) Article 5 § 4: Lack of access to investigation file preventing effective challenge to the pre-trial detention order
The Istanbul public prosecutor had decided to restrict the suspects’ and their lawyers’ access to the investigation file if that involved a risk of compromising the investigation. At the material time, the domestic authorities had considered that there had been an urgent need to protect national security due to the attempted coup. Balanced against this important public interest, however, had been the applicant’s right under Article 5 § 4 to procedural fairness.
The applicant had been aware of some of the relevant evidentiary materials in the investigation file through the detailed interrogations conducted by the police and the public prosecutor during his police custody. However, new evidence had been included in the file which had been brought to the applicant’s attention only after the filing of the indictment. The applicant therefore could not be regarded as having had a possibility to effectively challenge the allegations against him.
As to Article 15 and the derogation, the decision to restrict access to the case file had been based on domestic law which had entered into force during the state of emergency. That part of the application therefore strictly involved a measure taken to derogate from the Convention. Having said that, the access to the case file had been based on the general order of the Istanbul Public Prosecutor and had therefore been issued before the applicant had been arrested. Moreover, the restriction had been lifted with the indictment which had been filed while the state of emergency had still been in force. That general order therefore could not be regarded as an appropriate response to the state of emergency.
Conclusion: violation (unanimously).
(d) Article 10: Breach of freedom of expression through pre-trial detention
The applicant’s initial and continued detention on account of his articles and statements had amounted to an interference with the exercise of his freedom of expression (see Mehmet Hasan Altan v. Turkey).
The Court had already found that the applicant’s detention had not been based on reasonable suspicion that he had committed an offence and that there had therefore been a violation of Article 5 § 1. According to Article 100 of the Code of Criminal Procedure, a person might be placed in pre-trial detention only where there was factual evidence giving rise to strong suspicion that he had committed an offence, and the Court considered that the absence of reasonable suspicion should, a fortiori, have implied an absence of strong suspicion when the national authorities had been called upon to assess the lawfulness of the applicant’s detention.
Further, the requirements of lawfulness under Articles 5 and 10 were aimed in both cases at protecting the individual from arbitrariness. It followed that a detention measure that was not lawful, as long as it constituted interference with one of the freedoms guaranteed by the Convention, could not be regarded in principle as a restriction of that freedom prescribed by national law.
It followed that the interference with the applicant’s rights and freedoms under Article 10 § 1 could not be justified, since it had not been prescribed by law.
Conclusion: violation (six votes to one).
The Court also held: unanimously, that there had been no violation of Article 5 § 4 on account of the speediness of judicial review by the Constitutional Court, given that the case had been one of the first of a large number of cases raising new and complicated issues concerning the right to liberty and security and freedom of expression under the state of emergency following the attempted military coup; unanimously, that there had been a violation of Article 5 § 5 due to the lack of access to an effective remedy to obtain compensation for the damage sustained on account of the applicant’s pre-trial detention; and, by six votes to one, that there had been no violation of Article 18, as it had not been established beyond reasonable doubt that the applicant’s pre-trial detention had been ordered for a purpose not prescribed by the Convention.
Article 41: EUR 16,000 in respect of non-pecuniary damage.
(See also Mehmet Hasan Altan v. Turkey, 13237/17, 20 March 2018, Legal Summary)