ECHR ruling of March 20, 2018 in the case of “Sahin Alpay) v. Turkey (application No. 16538/17) and ECHR ruling of March 20, 2018“ Mehmet Hasan Altan ”against Turkey (application N 13237 / 17).
In 2017, applicants were assisted in preparing a applications. Subsequently, the applications were communicated to Turkey.
The case has successfully examined complaints of appeal of a failed attempt of a military coup, a derogation from obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms was found to be justified. The question of the proportionality of interventions was considered together with the consideration of the complaint on the merits. The case has violated the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
On July 21, 2016, the Turkish authorities notified the Secretary General of the Council of Europe about the use of the right to derogation from the obligations stipulated in Article 15 of the Convention, stating that a state of emergency was declared to respond to the “threat to the life of the nation” caused by an attempted military coup d'état July 15, 2016, and terrorist violence affecting the country, and without mentioning explicitly from the provisions of which articles of the Convention will the derogation apply.
Being journalists, known for their criticism of the government, the applicants were detained and put on trial by the Assize on the basis of the provisions of the Turkish Penal Code, which criminalize an attempt to overthrow the constitutional authorities and commit crimes on behalf of a terrorist organization, but are not members. Not having obtained the cancellation of his preliminary detention, each of the applicants filed a constitutional complaint, the consideration of which lasted 16 months in relation to one applicant and 14 months in relation to another.
The Constitutional Court decided that in the absence of any specific reason other than their articles or television appearances, the applicants' detention and their detention were unconstitutional from the point of view of both the rights enshrined in Article 5 of the Convention and the rights guaranteed by Article 10 of the Convention. However, the assize courts refused to release the applicants from custody, arguing that the Constitutional Court carried out an assessment of evidence that was not its responsibility.
QUESTIONS OF RIGHT
Regarding compliance with Article 15 of the Convention (general aspect). The European Court is prepared to acknowledge that i) the formal requirement established by paragraph 3 of Article 15 of the Convention, namely, to inform the Secretary General of the Council of Europe exhaustively of the measures taken to derogate from the Convention and the reasons for their adoption, was observed, ii) as, in particular, It was noted by the Constitutional Court, an attempt of a military coup d'état revealed the existence of "extraordinary circumstances threatening the life of the nation" within the meaning of the Convention.
As to the question of whether the measures imposed were taken only to the extent that this was due to the extreme circumstances, and in accordance with other obligations under international law, it was considered when analyzing the complaints on the merits.
Regarding compliance with paragraph 1 of Article 5 of the Convention. Firstly, even if the legal basis for the control of custody and the control exercised within the framework of a constitutional complaint is different, it cannot be argued that the Constitutional Court could have considered the lawfulness of detention without having examined the evidence contained in the case file.
Secondly, the binding nature of the rulings of the Constitutional Court is just one of the grounds that made it possible to consider that it provided an effective remedy to be exhausted in relation to detention.
Therefore, if the Constitutional Court considers that the detention of a person is contrary to the Constitution, the relevant courts must act in such a way as to release the person concerned from custody, unless new grounds or evidence require otherwise.
However, in this case, it was by interpreting and applying the legislation of the respondent State in a manner different from that submitted to the European Court by the Turkish authorities, which therefore referred to the effectiveness of the constitutional complaint, the assize courts refused to release the applicants from custody, despite the ruling Constitutional Court. However, one cannot agree with such grounds. The fact that another court questions the jurisdiction of the Constitutional Court, which is empowered to pass “final and binding” decisions, is contrary to the fundamental principles of the rule of law and legal certainty.
In the absence of any evidence showing that the reason for the detention subsequently changed, the continuation of the applicants' detention after making clear and unambiguous rulings by the Constitutional Court cannot be considered as carried out “in the manner prescribed by law”.
As regards the context of Turkey’s derogation from its obligations under the Convention, the applicants' unlawful detention due to lack of plausible grounds goes beyond the extent to which this was due to the extreme circumstances surrounding the application of Article 15 of the Convention.
The European Court of Justice specifies that it reserves the opportunity to reconsider the issue of the effectiveness of a constitutional complaint to protect the rights guaranteed by Article 5 of the Convention, and to this end it will take into account judicial practice regarding the authority of the decisions of the Constitutional Court.
The case of violation of the requirements of paragraph 1 of Article 5 of the Convention (adopted by six votes "for" with one - "against").
Regarding compliance with paragraph 4 of Article 5 of the Convention. In the present case, the applicants repeatedly managed to achieve a “prompt” review by a competent court of the reasonableness of their detention. In such circumstances, the Court may agree that the consideration of the case by the Constitutional Court takes more time.
Even if the term of 16 months appears, however, incompatible with the “urgency” of consideration required at normal times, the situation changes fundamentally according to the specific circumstances of these two cases: first, the applicants' constitutional complaint raised new and complex issues in the context of an emergency resulting from the attempted military coup d'état, and secondly, the volume of work of the Constitutional Court itself, after declaring a state of emergency, created an emergency.
However, this does not mean that the Constitutional Court has full freedom of action in this regard: in accordance with Article 19 of the Convention, the European Court retains its highest control authority over complaints filed by other applicants on the length of consideration of their constitutional complaint concerning the legality of their content the guards.
The case did not violate the requirements of Article 5 § 4 of the Convention (adopted unanimously).
Regarding compliance with Article 10 of the Convention. Although serious doubts may arise regarding the predictability of the interference, the following conclusions release the Court from a decision on this matter.
The European Court is prepared to take into account the difficulties that the Turkish authorities faced after the attempted military coup d'état. Nevertheless, the existence of "emergency situations threatening the life of a nation" should not be a pretext for restricting free political debate, which is central to the definition of a democratic society. Even in an emergency situation that is a legal regime whose goal is to return to the usual order by ensuring basic rights (as emphasized by the Constitutional Court), the measures introduced should have been aimed at protecting the threatened democratic order, and the authorities had to do everything possible to protect the values of a democratic society, such as pluralism, tolerance and a spirit of openness.
Speaking of criticism of governments and publishing information that leaders and leaders of the country consider to be a danger to national interests should not result in particularly serious criminal charges, such as belonging to a terrorist organization or rendering assistance to it, an attempt to overthrow the government or the constitutional order or propaganda of terrorism. And even in these cases, detention must be applied only as a last resort.
The detention of critics of individuals in general has a deterrent effect on society on the exercise of freedom of expression, which can be maintained even if the person in detention was subsequently justified.
Finally, with regard to the derogation of the Turkish authorities from their obligations under the Convention, the conclusions set forth for Article 5 of the Convention are also applicable from the point of view of Article 10 of the Convention.
In the case of a violation of the requirements of Article 10 of the Convention (adopted by six votes "for" with one - "against").
EXECUTION OF REGULATIONS
In application of Article 46 of the Convention. The authorities of the respondent State must take all necessary measures to terminate the detention of the applicant Alpay in custody in violation of Article 5 § 1 of the Convention. However, such a measure cannot be indicated for use against the Altan applicant: since the applicant had already been convicted, his detention falls within the scope of Article 5 § 1 of the Convention, instead of as “c” 1 Article 5 of the Convention.
In application of Article 41 of the Convention. The Court awarded each of the applicants EUR 21,500 in respect of non-pecuniary damage.