Last Updated on November 2, 2019 by LawEuro
Overview of the Case-law of the ECHR 2018
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Derogation in time of emergency (Article 15)
The judgments in Mehmet Hasan Altan v. Turkey and Şahin Alpay v. Turkey[186] concerned the validity of a derogation for the purposes of Article 15 of the Convention.
Following the attempted coup in Turkey during the night of 15 to 16 July 2016, on 20 July 2016 the Government declared a state of emergency and on 21 July 2016 notified the Secretary General of the Council of Europe of its derogation from certain of its Convention obligations. The applicants, well-known journalists, were arrested and held in pre-trial detention on anti-terrorism charges related to the attempted coup. The Constitutional Court found that their arrest and detention violated their rights to liberty and to freedom of expression and awarded them damages and costs and expenses. The assize court, considering that the Constitutional Court judgments were not binding, did not act on them and the applicants remained in detention. The applicants mainly complained under Article 5 § 1 of the absence of a reasonable suspicion that they had committed an offence justifying their pre-trial detention, and that their arrest and pre-trial detention had violated their Article 10 rights. The Court found that there had been a violation of Article 5 § 1 and of Article 10 of the Convention.
The Commissioner for Human Rights of the Council of Europe exercised his right to submit written comments (Article 36 § 3 of the Convention). Third-party observations (Article 36 § 2 of the Convention) were also received from the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, with several non-governmental organisations also submitting observations jointly.
The cases are important in the context of Turkey, constituting as they do the Court’s first judgments on the merits of complaints concerning arrest and pre-trial detention on charges related to the attempted coup in 2016 in Turkey. A number of case-law points are worth noting.
(i) There being relatively few cases in which the Court has examined derogations, certain aspects of its review of the validity of the derogation under Article 15 of the Convention are worth noting.
The first question to be addressed was the fact that the derogation did not refer to the Convention Articles from which the measures adopted by the Government might derogate. The Court did not consider this to undermine the validity of the derogation: noting that neither of the parties had disputed the point, the Court accepted that the derogation fulfilled the formal requirements of Article 15 § 3 of the Convention. Secondly, and referring in particular to the findings of the Constitutional Court, the Court found that the attempted military coup amounted to a “public emergency threatening the life of the nation”. Thirdly, the Court found that the next question – whether the measures were strictly required by the exigencies of the situation – required an examination on the merits of the applicants’ complaints, thereby linking the merits of the complaints with the validity of the derogation. It went on to find, having regard to the assize court’s failure to implement the clear and unambiguous judgments of the Constitutional Court, that the applicants’ pre-trial detention was “unlawful” and “not in accordance with the law” contrary to Article 5 § 1. The Court found, as did the Constitutional Court, that such a deficiency meant, in turn, that the derogation could not be considered proportionate or therefore valid, so that the Court could conclude that there had been a violation of Article 5 § 1 of the Convention. The same approach was adopted as regards Article 10: again relying on the findings of the Constitutional Court, the Court found the interference with the applicants’ freedom of expression to be disproportionate and that this was sufficient, in turn, to find the derogation to be disproportionate and invalid, so that it could conclude that there had been a violation of Article 10 of the Convention.
(ii) It is also interesting to note that, because the finding of a violation of Article 5 § 1 was based on the failure by the assize court to implement the judgments of the Constitutional Court, the Court considered it necessary to explain that those findings under Article 5 § 1 did not modify its constant precedent according to which the right of individual petition before the Constitutional Court constitutes an effective remedy as regards complaints concerning pre-trial detention for those deprived of their liberty under Article 19 of the Constitution (see, for example, Koçintar v. Turkey[187]). Nevertheless, it reserved the possibility of re-examining the effectiveness of this remedy in future cases concerning complaints under Article 5 of the Convention, at which stage it would be for the Government to demonstrate its effectiveness in law and in practice (Uzun v. Turkey[188]).
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186. Mehmet Hasan Altan v. Turkey, no. 13237/17, 20 March 2018, and Şahin Alpay v. Turkey, no. 16538/17, 20 March 2018. See also under Article 5 § 4 (Speediness of the review) above.
187. Koçintar v. Turkey (dec.), no. 77429/12, § 44, 1 July 2014.
188. Uzun v. Turkey (dec.), no. 10755/13, § 71, 30 April 2013.
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