{"id":615,"date":"2019-04-07T21:11:15","date_gmt":"2019-04-07T21:11:15","guid":{"rendered":"https:\/\/laweuro.com\/?p=615"},"modified":"2019-11-02T05:32:35","modified_gmt":"2019-11-02T05:32:35","slug":"615","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=615","title":{"rendered":"Derogation in time of emergency (Article\u00a015)"},"content":{"rendered":"

Overview of the Case-law of the ECHR 2018<\/em><\/p>\n

Other Convention provisions<\/strong><\/p>\n

Derogation in time of emergency (Article\u00a015)<\/strong><\/p>\n

The judgments in Mehmet Hasan Altan v. Turkey and \u015eahin Alpay v. Turkey[186] concerned the validity of a derogation for the purposes of Article 15 of the Convention.<\/p>\n

Following the attempted coup in Turkey during the night of 15\u00a0to 16\u00a0July 2016, on 20\u00a0July 2016 the Government declared a state of emergency and on 21\u00a0July 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\u00a05 \u00a7\u00a01 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\u00a010 rights. The Court found that there had been a violation of Article\u00a05 \u00a7\u00a01 and of Article\u00a010 of the Convention.<\/p>\n

The Commissioner for Human Rights of the Council of Europe exercised his right to submit written comments (Article\u00a036 \u00a7\u00a03 of the Convention). Third-party observations (Article\u00a036 \u00a7\u00a02 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.<\/p>\n

The cases are important in the context of Turkey, constituting as they do the Court\u2019s 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.<\/p>\n

(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\u00a015 of the Convention are worth noting.<\/p>\n

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\u00a015 \u00a7\u00a03 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 \u201cpublic emergency threatening the life of the nation\u201d. Thirdly, the Court found that the next question \u2013 whether the measures were strictly required by the exigencies of the situation \u2013 required an examination on the merits of the applicants\u2019 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\u2019s failure to implement the clear and unambiguous judgments of the Constitutional Court, that the applicants\u2019 pre-trial detention was \u201cunlawful\u201d and \u201cnot in accordance with the law\u201d contrary to Article\u00a05 \u00a7\u00a01. 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\u00a05 \u00a7\u00a01 of the Convention. The same approach was adopted as regards Article\u00a010: again relying on the findings of the Constitutional Court, the Court found the interference with the applicants\u2019 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\u00a010 of the Convention.<\/p>\n

(ii) It is also interesting to note that, because the finding of a violation of Article 5 \u00a7 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 \u00a7 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, Ko\u00e7intar 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]).<\/p>\n

_____________________<\/p>\n

186. Mehmet Hasan Altan v. Turkey, no.\u00a013237\/17<\/a>, 20\u00a0March 2018, and \u015eahin Alpay v. Turkey, no.\u00a016538\/17<\/a>, 20\u00a0March 2018. See also under Article\u00a05 \u00a7\u00a04 (Speediness of the review) above.<\/p>\n

187. Ko\u00e7intar v. Turkey (dec.), no.\u00a077429\/12, \u00a7\u00a044, 1\u00a0July 2014.<\/p>\n

188. Uzun v. Turkey (dec.), no.\u00a010755\/13, \u00a7\u00a071, 30\u00a0April 2013.<\/p>\n

Table of Contents<\/a><\/p>\n

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Overview of the Case-law of the ECHR 2018 Other Convention provisions Derogation in time of emergency (Article\u00a015) The judgments in Mehmet Hasan Altan v. Turkey and \u015eahin Alpay v. Turkey[186] concerned the validity of a derogation for the purposes of…<\/p>\n

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