The ECHR ruling of April 13, 2021 in the case "Ahmet Husrev Altan v. Turkey" (application No. 13252/17).
In 2017, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Turkey.
An application about the illegal detention of a journalist accused without reasonable suspicion of participating in the activities of a criminal organization and an attempted military coup was successfully considered in the case. The case involved a violation of the requirements of subparagraph "c" of paragraph 1 of Article 5 of the Convention.
CIRCUMSTANCES OF THE CASE
The applicant was a well-known journalist and former editor-in-chief of the daily newspaper Taraf.
In July 2016, an attempted military coup was carried out in the country, for which the Turkish authorities blamed the leader of the terrorist organization FET /PDY ("Fethullahist Terrorist Organization"/"Parallel State education") (hereinafter referred to as an illegal organization). A state of emergency was declared in the country.
The applicant was detained in the course of investigations into the military coup and the activities of this illegal organization. The applicant was taken into custody as part of the chosen preventive measure and was accused, inter alia, of acting on the instructions of an illegal organization, acting as a journalist and former editor-in-chief of the newspaper "Taraf", trying to change public opinion in favor of a military coup. The criminal proceedings against the applicant have not yet been completed and are at the stage of appeal consideration. The applicant unsuccessfully complained to the Constitutional Court of Turkey that his detention under the chosen preventive measure violated his rights to personal freedom, freedom of expression and freedom of the press.
Regarding compliance with article 15 of the Convention. Deviation of the Turkish authorities from compliance with the provisions of the Convention. The formal requirement for derogation from the provisions of the Convention was met, and an emergency situation that threatened the life of the nation took place. This was undoubtedly a factor to be taken into account in the interpretation and application of article 5 of the Convention in the present case. As to whether the measures in question were strictly necessary due to the exceptional situation and whether they were consistent with other obligations under international law, it was necessary to consider the applicant's complaints on the merits.
Regarding compliance with paragraph 1 of article 5 of the Convention. Application of a preventive measure in the form of detention on grounds of reasonable suspicion. Taking into account the gravity of the crime and the severity of the potential punishment, the facts of the case had to be analyzed with special care. It was important that the facts underlying the accusation were confirmed by verified and objective evidence and that they could reasonably be considered acts provided for by one of the articles of the Turkish Criminal Code. The Court also had to take into account the extraordinary circumstances that existed at the time of the applicant's detention, namely the period immediately after the attempted military coup in the country, as well as the difficulties associated with investigating and maintaining charges of terrorism-related crimes in court.
The dispute between the parties to the present case arose regarding the plausibility of the charges and their qualification as criminally punishable acts.
The Turkish courts paid special attention to the alleged data that the applicant, acting as the editor-in-chief of the newspaper "Taraf", tried to discredit the investigation into the previously initiated case "Sledgehammer" (Balyoz) (The name of the military action plan.) (which included allegations that some high-ranking military personnel were preparing a military coup to overthrow the Turkish Government), publishing new articles based on documents provided by an illegal organization that turned out to be fictitious, as well as the fact, that the newspaper "Taraf" was following the instructions of a terrorist organization. However, the applicant was detained more than four years after the events in question, and this could not be considered a necessary measure. Moreover, at no stage of the investigation did the Turkish authorities have any concrete evidence that the newspaper or, in particular, the applicant acted on the instructions of an illegal organization to publish specific articles or to follow a certain editorial policy in order to manipulate public opinion in favor of a military coup.
Shortly before the attempted military coup, the applicant wrote three articles in which, it was believed, he claimed that the Turkish President had acted contrary to the provisions of the country's Constitution and violated the law. It was assumed that the applicant thus sought to manipulate public opinion in favor of an illegal organization and, consequently, contributed to a military coup, which he knew about in advance. The Turkish authorities also referred to the applicant's statements in a television program when he warned about the possibility of a military coup, from which it was concluded that the applicant knew about the attempted military coup that took place the next day. The European Court considered it important that the applicant's statements should not be considered outside their context, but evaluated in their totality. The applicant's statements remained within the scope of the principle of freedom of speech to the extent that they could not be interpreted as a call to violence, and they could not be considered as relevant to a reasonable suspicion of committing the relevant crimes.
During the preparation of the indictment, new evidence was attached to the case materials, including two witness statements and a protocol. The witness statements contained general statements that the applicant had been in contact with the leaders of an illegal organization and could not be considered as confirmation of suspicions against the applicant. Moreover, this new evidence was not taken into account when the Turkish courts made their decisions.
In view of these observations, at the time of his detention, the applicant could not reasonably be suspected of committing a crime in the form of an attempt to overthrow the Government or an attempt to prevent him from performing his duties, suspected of membership in an illegal organization or of committing crimes on its behalf, without being a member of it.
With regard to article 15 of the Convention and the derogation of the Turkish authorities from their obligations, several decisions were adopted that imposed significant restrictions on the procedural guarantees established by Turkish law for persons in police custody or in custody as part of the chosen preventive measure. Nevertheless, article 100 of the Turkish Code of Criminal Procedure, which requires the existence of factual elements justifying a "serious suspicion" that a crime has been committed, was not amended during the state of emergency. Consequently, it cannot be considered that the measures complained of in the present case were strictly necessary due to the exceptional situation.
The case involved a violation of the requirements of paragraph 1 of Article 5 of the Convention (adopted by six votes in favor with one against).
Regarding compliance with paragraph 4 of article 5 of the Convention. Lack of access to the case file, which prevented an effective appeal against the decision to detain the applicant within the framework of the chosen preventive measure. The Istanbul Prosecutor decided to restrict the access of suspects and their lawyers to case files if it was associated with the risk of compromising the investigation. During the period related to the circumstances of the case, the Turkish authorities believed that there was an urgent need to protect national security as a result of the coup attempt. However, this important public interest had to be balanced with the applicant's right to procedural fairness guaranteed by article 5, paragraph 4, of the Convention.
The applicant was aware of some relevant evidentiary materials from detailed interrogations conducted by police officers and prosecutors during his detention. However, new evidence was attached to the case file, about which the applicant was notified only after the indictment was drawn up. In this regard, it cannot be admitted that the applicant had the opportunity to effectively appeal the evidence of the prosecution.
With regard to article 15 of the Convention and the Turkish authorities' derogation from their obligations, the decision to restrict access to the case file was based on Turkish legislation, which came into force during the emergency. Consequently, this part of the complaint directly affected the measure adopted in derogation from the provisions of the Convention. Thus, the restriction of access to the case file was based on a general decision of the Istanbul Prosecutor and, accordingly, was introduced prior to the applicant's detention. Moreover, the restriction was lifted upon presentation of the indictment, which was drawn up during the period of the state of emergency in the country. In this regard, the above-mentioned general resolution cannot be considered as an appropriate response to the state of emergency.
The case involved a violation of the requirements of paragraph 4 of article 5 of the Convention (adopted unanimously).
Regarding compliance with article 10 of the Convention. Violation of the right to freedom of expression during the applicant's detention under the chosen preventive measure. The applicant's detention and his continued detention on the basis of his articles and statements constituted interference with the applicant's exercise of his right to freedom of expression (see Mehmet Hasan Altan v. Turkey (see: Judgment of the European Court of Justice in Mehmet Hasan Altan v. Turkey (Mehmet Hasan Altan v. Turkey) dated March 20, 2018, complaint No. 13237/17.)).
The Court has already established that the applicant's detention was not based on a reasonable suspicion that he had committed a crime and that, consequently, there had been a violation of article 5, paragraph 1, of the Convention. According to article 100 of the Turkish Code of Criminal Procedure, a person may be detained pending trial only if there is factual evidence that serves as a basis for a serious suspicion that the said person has committed a criminally punishable act, and the European Court considered that the absence of a reasonable suspicion should, a fortiori, imply the absence of a serious assumption of guilt, when the Turkish authorities had to assess the legality of the applicant's detention.
In addition, in both cases, the requirement of legality provided for in articles 5 and 10 of the Convention was aimed at protecting a person from arbitrariness. Consequently, a measure in the form of detention, which was not lawful to the extent that it was an interference with one of the freedoms guaranteed by the Convention, in principle could not be considered as a restriction of freedom provided for by domestic legislation.
Consequently, the interference with the applicant's rights and freedoms under article 10, paragraph 1, of the Convention cannot be considered justified, since it was not provided for by law.
The case involved a violation of the requirements of article 10 of the Convention (adopted by six votes in favor with one against).
The European Court also ruled unanimously that there was no violation of Article 5, paragraph 4, of the Convention with regard to the urgency of the consideration of the case by the Constitutional Court of Turkey, given that the case was one of the first of a large number of cases involving new and complex issues relating to the right to freedom and inviolability and the right to freedom of expression in the event of a state of emergency imposed during an attempt of a military coup in the country. The Court unanimously concluded that there had been a violation of article 5, paragraph 5, of the Convention due to the lack of access to an effective remedy to obtain compensation for the damage caused by the applicant's detention. In addition, by six votes in favour and one against, he ruled that there had been no violation of article 18 of the Convention, since it had not been established beyond reasonable doubt that the applicant's detention had been used for purposes not provided for by the Convention.
In the application of article 41 of the Convention. The European Court awarded the applicant 16,000 euros in compensation for moral damage.