The European Court of Human Rights (ECtHR) on 20 March issued a ruling on the applications by journalists Mehmet Altan and Şahin Alpay, finding that the detention of both journalists, one of who were released from prison last week, was a “clear violation” of several articles of the European Convention on Human Rights (ECHR).
For both journalists, the Court found that there had been violations of Article 5 (1), which protects the right to liberty and of Article 10, which protects, freedom of expression, of the Convention.
However, the court said it had no violation of Article 5(4), which guarantees the right to a speedy review of the lawfulness of detention; in relation to the applicants’ complaint that the Turkish Constitutional Court took too long to decide on their cases.
The Court said the journalists’ continued pre-trial detention, after a Constitutional Court ruling for their release was a violation of the Convention. “The Court held that for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty,” it said.
However, the Court said although that it will be watching the Constitutional Court more closely, it still accepted individual applications to the Constitutional Court as an effective remedy. It also said the Constitutional Court had too high a caseload and the Altan and Alpay applications were “complex” cases, ruling that it was understandable for it to have taken too long to decide on their cases.
It also said both journalists’ freedom of expression rights, protected under ECHR Article 10, were severely violated and arresting individuals for expressing their opinions is a “severe measure.”
In the Alpay ruling, the European Court said the government should terminate the journalists’ detention, but didn’t say the same thing in the case for Altan.
The court also ordered Turkey to pay EUR 21,500 in compensation to both journalists.
It remains yet to be seen what course the Turkish government will take regarding the detention of Mehmet Altan, who was not released from prison in spite of a Constitutional Court ruling ordering lower courts to do so issued on 11 January and who was sentenced to life without parole in prison on charges of “attempting to overthrow the constitutional order” on 16 February. Legal experts fear that Turkey might use Altan’s conviction as an excuse not to release him.
Alpay was released from Silivri Prison where he had been kept for more than a year but placed under house arrest on 16 March, after the Constitutional Court found his detention unlawful a second time. His situation is technically different, as there is no verdict in his case yet and his next hearing will be on 05 April.
According to Veysel Ok, who filed the European Court application on behalf of Alpay together with lawyer Ferat Çağıl and who was part of a team of lawyers that made the application for Altan said: “This ruling came very late. The Court has taken more than a year to issue it despite knowing that a conviction was imminent for Mehmet Altan and that the lower courts ignored the Turkish Constitutional Court ruling.”
“Regardless, it proves a second time that both Altan and Alpay’s detention was unlawful.”
Ok said Altan should be released immediately after today’s ruling. "By ignoring the Constitutional Court decision, Turkey violated its own Constitution. After this point, Mehmet Altan should be released immediately. Because this ruling doesn’t only show that the journalists’ rights were violated and that their detention was unlawful, but also it shows that the evidence used against them is invalid. In this sense, they should be acquitted not just released.”
Ok said all journalists in prison should be released, because today’s rulings clearly state that treating expression as a rationale for pretrial and during trial detention is unlawful. “These rulings show that these are political arrests,” he said.
He also called on the Turkish government to release Altan immediately so as not to experience another constitutional crisis.
Turkish judge Ergün Ergül has placed a reservation under the decision. Ergül, who is still a deputy undersecretary at the Justice Mİnister, was an ad-hoc appointment by Turkey after Judge Işıl Karakaş withdrew from the case. Ergül has also served as a government-appointed trustee of the Koza Altın gold mining company seized by the state after the 15 July coup attempt.
Background of Altan and Alpay’s applications
Below is the Court’s own summary of the cases of Altan and Alpay.
Mehmet Altan (application no. 13237/17) is an economics professor and a journalist. Prior to the attempted military coup of 15 July 2016, he presented a political discussion programme on Can Erzincan TV, a television channel that was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016.
In the course of a criminal investigation relating to suspected members of FETÖ/PDY (“GülenistTerror Organisation/Parallel State Structure”), Mr Altan was arrested on 10 September 2016 and taken into police custody on suspicion of having links to the organisation’s media wing. On 22 September 2016 he appeared before the Istanbul 10th Magistrate’s Court and was placed in pre-trial detention. On various dates Mr Altan applied without success to be released pending trial. On 14 April 2017 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court in respect of several individuals including Mr Altan, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the Criminal Code, of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it.
On 8 November 2016 Mr Altan lodged an individual application with the Constitutional Court. On 11 January 2018 the Constitutional Court gave judgment, holding that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press. Despite the Constitutional Court’s judgment, the Istanbul Assize Court rejected Mr Altan’s subsequent application for release.
On 16 February 2018 the Istanbul 26th Assize Court sentenced Mr Altan to aggravated life imprisonment for attempting to overthrow the constitutional order.
Mr Altan relies on Article 5 §§ 1, 3, 4 and 5 (right to liberty and security) and Articles 10 (freedom of expression), 17 (prohibition of abuse of rights) and 18 (limitation on use of restriction of rights) in conjunction with Articles 5 and 10 of the European Convention on Human Rights.
Şahin Alpay (application no. 16538/17) is a journalist who had been working since 2002 for the daily newspaper Zaman, which was viewed as the principal publication medium of the “Gülenist” network and was closed down following the adoption of Legislative Decree no. 668. He also lectured on comparative politics and Turkish political history at a private university in Istanbul.
On 27 July 2016 Mr Alpay was arrested at his home and taken into police custody on suspicion of being a member of the terrorist organisation FETÖ/PDY. On 30 July 2016 he was brought before the Istanbul 4th Magistrate’s Court and placed in pre-trial detention on the grounds that articles by him had promoted the terrorist organisation in question. Applications for Mr Alpay’s release were rejected. On 10 April 2017 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court in respect of several individuals suspected of being part of the FETÖ/PDY media wing,
including Mr Alpay, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the Criminal Code, of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being a member of it.
On 8 September 2016 Mr Alpay lodged an individual application with the Constitutional Court. On 11 January 2018 the Constitutional Court gave judgment, holding that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press. Despite the Constitutional Court’s judgment, the Istanbul Assize Court rejected Mr Alpay’s subsequent objection.