Last Updated on October 3, 2020 by LawEuro
Information Note on the Court’s case-law 216
March 2018
Şahin Alpay v. Turkey – 16538/17
Judgment 20.3.2018 [Section II]
Article 15
Aborted military coup attempt: derogation justified; proportionality of interferences to be examined with merits
Article 5
Article 5-1
Lawful arrest or detention
Procedure prescribed by law
Refusal by trial court to release applicant despite Constitutional Court’s finding detention to be unlawful (context of Article 15 derogation): violation
Article 5-4
Speediness of review
Sixteen months for examination of application to Constitutional Court raising new complex questions relating to state of emergency: no violation
Article 10
Article 10-1
Freedom of expression
Detention of journalist on anti-terrorism charges following attempted coup: violation
[This summary also covers the judgment in the case of Mehmet Hasan Altan c. Turquie, n° 13237/17, 20 March 2018]
Facts – On 21 July 2016 Turkey notified the Secretary General of the Council of Europe that it was availing itself of the right of derogation under Article 15 of the Convention, indicating that a state of emergency had been declared in order to tackle the “threat to the life of the nation” caused by the attempted military coup of 15 July 2016 and the terrorist violence affecting the country, without explicitly mentioning the Articles of the Convention to which the derogation related.
The applicants, journalists known as critics of the government, were arrested and tried in an assize court under provisions of the Criminal Code on attempting to overthrow the constitutional authorities and committing offences on behalf of a terrorist organisation without being a member of it. After failing to secure release from pre-trial detention, they both applied to the Constitutional Court, which took fourteen and sixteen months respectively to examine the applications of Mr Altan and Mr Alpay.
The Constitutional Court held that in the absence of any specific grounds other than their articles or television appearances, the applicants’ initial pre-trial detention and its continuation were unconstitutional from the standpoint of the rights protected under both Article 5 and Article 10 of the Convention. However, the assize courts refused to release them, finding that the Constitutional Court had acted outside its jurisdiction by conducting an assessment of the evidence.
Law
Article 15 (general aspect): The Court was prepared to accept: (i) that the formal requirement in Article 15 § 3 to keep the Secretary General of the Council of Europe fully informed of the measures taken by way of derogation from the Convention and the reasons for them had been satisfied; and (ii) that, as the Constitutional Court in particular had found, 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 had been strictly required by the exigencies of the situation and consistent with the other obligations under international law, this question would be examined together with the merits of the complaints.
Article 5 § 1: Firstly, although the legal basis on which the ordinary courts reviewed pre-trial detention differed from that employed in the context of a constitutional application, it could not be maintained that the Constitutional Court could have examined the lawfulness of pre-trial detention without considering the evidence in the file.
Secondly, the binding nature of the Constitutional Court’s judgments was precisely one of the reasons that had prompted the conclusion that that court offered an effective remedy to be used in cases concerning pre-trial detention (see Uzun v. Turkey (dec.), 10755/13, 30 April 2013, Information Note 163; and Koçintar v. Turkey (dec.), 77429/12, 1 July 2014, Information Note 176).
Accordingly, if the Constitutional Court ruled that an individual’s pre-trial detention was in breach of the Constitution, the competent courts should react in such a way as to ensure the individual’s release, unless new reasons or evidence justified not doing so.
However, in the present cases, the assize courts had refused to release the applicants despite the Constitutional Court’s judgment by interpreting and applying domestic law in a manner departing from the approach indicated to the European Court by the Government, who had argued that an application to the Constitutional Court was an effective remedy. The reasons given by the assize courts could not be accepted. For another court to call into question the powers conferred on a constitutional court to give “final and binding” judgments ran counter to the fundamental principles of the rule of law and legal certainty.
In the absence of any evidence indicating that there had been any change in the basis for the detention, the applicants’ continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgments, could not be regarded as “in accordance with a procedure prescribed by law”.
With regard to the context of Turkey’s derogation from the Convention, a measure of pre-trial detention that was unlawful on account of the lack of reasonable suspicion was not strictly required by the exigencies of the situation that had justified the application of Article 15.
The Court noted that it reserved the right to reconsider the effectiveness of an application to the Constitutional Court for the protection of the rights enshrined in Article 5 and would, to that end, take account of the domestic courts’ practice regarding the authority of Constitutional Court judgments.
Conclusion: violation (six votes to one).
Article 5 § 4: In the present cases, the applicants had on several occasions been able to secure a “speedy” review by the appropriate court of the reasons for their detention. In a system of that kind, the Court could tolerate longer periods of review by the Constitutional Court.
Although a period of fourteen to sixteen months could nevertheless have been regarded as incompatible with the “speediness” requirement in a normal context, such a finding did not apply in the particular circumstances of the two cases: firstly, the applicants’ applications to the Constitutional Court raised new and complex issues linked to the state of emergency following the attempted military coup; and secondly, the Constitutional Court’s caseload after the declaration of a state of emergency had created an exceptional situation.
That did not mean, however, that the Constitutional Court had carte blanche in this regard: in accordance with Article 19 of the Convention, the Court retained its ultimate supervisory jurisdiction for complaints submitted by other applicants about the length of time taken to examine their application to the Constitutional Court concerning the lawfulness of their detention.
Conclusion: no violation (unanimously).
Article 10: Although serious doubts could arise as to whether the interference had been foreseeable, the following conclusions made it unnecessary for the Court to settle this question.
The Court was prepared to take into account the difficulties facing Turkey in the aftermath of the attempted military coup. However, the existence of a “public emergency threatening the life of the nation” must not serve as a pretext for limiting freedom of political debate, which was at the very core of the concept of a democratic society. Even in a state of emergency – a legal regime designed to return the situation to normal by guaranteeing fundamental rights (as the Constitutional Court had noted) – any measures taken should seek to protect the democratic order from the threats to it, and the authorities had to make every effort to safeguard the values of a democratic society, such as pluralism, tolerance and broadmindedness.
Criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda. And even where such charges were brought, pre-trial detention should only be used as a last resort.
The pre-trial detention of anyone expressing critical views had a chilling effect on freedom of expression for society as a whole, and such an effect could persist even where the detainee was subsequently acquitted.
Lastly, with regard to the derogation by Turkey, the conclusions set out in relation to Article 5 were also valid in the context of Article 10.
Conclusion: violation (six votes to one).
Article 46: The respondent State was to take all necessary measures to put an end to Mr Alpay’s pre-trial detention breaching Article 5 § 1. However, there was no basis for indicating a similar measure in the case of Mr Altan, since he had in the meantime been convicted and his detention was thus no longer covered by Article 5 § 1 (c) but by Article 5 § 1 (a).
Article 41: EUR 21,500 to each applicant in respect of non-pecuniary damage.
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