This statement was originally published on platform24.org on 20 March 2018.
In its long-awaited judgment, ECtHR says right to personal liberty and security and freedom of expression have been violated.
The European Court of Human Rights (ECtHR) announced on 20 March 2018 long-awaited judgments on applications filed on behalf of Turkish journalists Şahin Alpay and Mehmet Altan, who were imprisoned following a failed coup attempt in 2016.
The Strasbourg court found that there had been a violation of personal liberty and security under Article 5/1 of the European Convention of Human Rights and of freedom of expression under Article 10.
The ECtHR said there was no need to examine separately the complaint under Article 18 of the Convention, under which both Altan and Alpay complained that they had been detained for expressing critical opinions about the government authorities.
In its judgment on Alpay, the European court also urged Turkey to take necessary measures "to ensure the termination of Mr. Alpay's pre-trial detention at the earliest possible date" under Article 46 of the Convention, which concerns binding force and execution of the ECtHR judgments.
The court did not make a similar call for Altan's release. In Altan's application, the court said the period taken into consideration began on 22 September 2016, when he was placed in pre-trial detention, and ended on 16 February 2018, when he was convicted by the Istanbul 26th High Criminal Court.
"From that date onwards, his deprivation of liberty has been covered by Article 5 § 1 (a) of the Convention and falls outside the scope of this application," the court said. The said paragraph of Article 5 refers to "the lawful detention of a person after conviction by a competent court."
The ECtHR also held that Turkey was to pay Alpay 21,500 euros in respect of non-pecuniary damage.
Imprisoned on coup charges
Altan, an economist and a columnist, and Alpay, a former columnist for the shuttered Zaman newspaper, were arrested in the aftermath of the failed coup attempt of 15 July 2016. Altan, who was on trial along with his brother, Ahmet Altan, journalist Nazlı Ilıcak and others, was handed down an aggravated life sentence on 16 February, at the end of his trial, for "attempting to overthrow the constitutional order."
74-year-old Alpay, whose trial on the charges of "attempting to overthrow the constitutional order, the government and Parliament" is still ongoing, was released from Silivri Prison just days before the European court ruling, in the early hours of 17 March, after a second ruling by the Constitutional Court against his pre-trial detention. He had been incarcerated as part of the trial for nearly 20 months.
The European Court of Human Rights rulings come in the wake of Constitutional Court decisions on 11 January, which similarly found that Alpay and Altan's rights to individual liberty and security and freedom of expression had been violated as a result of their pre-trial detention. But the lower courts refused to implement the Constitutional Court rulings, saying the top court overstepped its jurisdiction by examining evidence included in the case file.
On 16 March, the Constitutional Court issued a second ruling in Alpay's case filed after the lower courts refused to release him in line with the first Constitutional Court ruling, this time openly urging the trial court to release Alpay to remedy the violation.
"Government should prove Constitutional Court offers effective remedy"
In its judgments, the ECtHR also said Altan's continued pre-trial detention and the fact that Alpay had been kept in pre-trial detention even after the Constitutional Court's judgment “raised serious doubts as to the effectiveness of the remedy of an individual application to the Constitutional Court in cases concerning pre-trial detention" and added that it was up to the government to prove that this remedy is effective, in theory and in practice.
It said it would continue to view individual applications to the Constitutional Court constituted an effective remedy but indicated it would be monitoring the system to see if the Constitutional Court rulings are implemented by penal courts.
"The Court would emphasise that the applicant's continued pre-trial detention, even after the Constitutional Court's judgment, as a result of the decisions delivered by the Istanbul 26th Assize Court, raises serious doubts as to the effectiveness of the remedy of an individual application to the Constitutional Court in cases concerning pre-trial detention. However, as matters stand, the Court will not depart from its previous finding that the right to lodge an individual application with the Constitutional Court constitutes an effective remedy in respect of complaints by persons deprived of their liberty under Article 19 of the Constitution. Nevertheless, it reserves the right to examine the effectiveness of the system of individual applications to the Constitutional Court in relation to applications under Article 5 of the Convention, especially in view of any subsequent developments in the case-law of the first-instance courts, in particular the assize courts, regarding the authority of the Constitutional Court's judgments. In that regard, it will be for the Government to prove that this remedy is effective, both in theory and in practice," the court said.
Lawyers apply to Justice Ministry to seek Altan's release
Following the European Court of Human Rights ruling, Altan's lawyers applied to the government to request his release. In a petition presented to the Justice Ministry, lawyers Ergin Cinmen and Figen Albuga Çalıkuşu said it was confirmed by the ECtHR that Altan's right to liberty and security and freedom of expression had been violated.
Noting that the failure to implement the first Constitutional Court ruling of 11 January was explicitly criticized in the ECtHR judgment, the lawyers said the judgment made it clear that remedying violations would only be possible through Altan's release.
Full text of the petition submitted to the Justice Ministry (in Turkish) can be read here.
The ECtHR has admitted applications of a total of 10 journalists from Turkey who were arrested and then placed in pre-trial detention following the 2016 coup attempt.
The court is expected to announce its judgments on the remaining applications soon. The other applicants include Ahmet Altan, Cumhuriyet reporter Ahmet Şık, Cumhuriyet Executive Board Chairman Akın Atalay, former singer and columnist Atilla Taş and veteran journalist Nazlı Ilıcak.
The ECtHR's full judgment on Mehmet Altan's application can be viewed here. To read the court's judgment on Şahin Alpay, click here.