The frustration at the failure of the ECtHR to uphold Convention values with due courage may be the real reason for the criticisms against the Court in recent years

 

EMEL ATAKTÜRK*

 

This article aims to suggest an assessment of the judgment dated 13 April 2021 and delivered by the Second Section of the European Court of Human Rights (the ECtHR or the Court) concerning the individual application no. 13252/17 lodged by journalist Ahmet Hüsrev Altan.

 

The article includes three main topics: the events leading up to the application; the handling of the events by the ECtHR and the judgment, and the assessment of the judgment.

 

The events leading up to the application

 

On 10 September 2016, an arrest warrant was issued for journalist Ahmet Altan on the allegation of “disseminating subliminal messages that were evocative of a coup” in a television program that had aired on the since-shuttered Can Erzincan TV one day prior to the attempted coup of 15 July 2016, which he attended with journalists Mehmet Altan and Nazlı Ilıcak.

 

The accusation brought against Altan, along with the other accused persons, was that “he threatened the government and the President of the Republic of Turkey; that it would be impossible for him to know of the coup and raise it in a way that would shape the public perception one day beforehand without collaborating with the FETÖ/PDY prior to the coup attempt; ... that in no democratic society can supporting a coup attempt and threatening an elected government be covered by freedom of expression or the press; that ... for this reason, he committed the alleged crime jointly with some military officers who are members of a terrorist organization that attempted the coup.”

 

Altan remained in police custody until 22 September 2016. He was later released pending trial on the charges of “attempting the coup,” “aiding and abetting the FETÖ/PDY structure,” and “making propaganda for a terrorist organization” and re-arrested upon an objection by the public prosecutor requesting that he would be placed in pre-trial detention. Altan’s lawyers filed several objections against his pre-trial detention order, which were eventually dismissed on the grounds that his pre-trial detention was deemed a proportionate measure.

 

The indictment dated 11 April 2017 against Altan and the other accused persons was sent to the İstanbul 26th High Criminal Court. In the indictment, it was claimed that Altan, his brother Mehmet Altan and Nazlı Ilıcak “had prior knowledge about the coup attempt and made statements and propaganda that prepared the ground for the coup attempt” due to their remarks during a TV program broadcast on the Can Erzincan TV; the accused were also charged with participating in the attempted coup of 15 July 2016 as “joint perpetrators.” During the ensuing criminal proceedings, Altan’s remarks during a TV program that was aired on the Can Erzincan TV one day prior to the attempted coup of 15 July; his involvement in the publications about the Sledgehammer (Balyoz) case in the now-defunct Taraf newspaper in his capacity as the former editor-in-chief of the daily, and his three articles “Absolute Fear” (“Mutlak Korku”), “Crushing through” (Ezip Geçmek”) and “Montezuma” were cited as evidence that Altan had committed the alleged crimes.

 

On 16 February 2018, the İstanbul 26th High Criminal Court sentenced the applicant to aggravated life imprisonment on the charge of “attempting to overthrow the constitutional order” pursuant to Article 309 of the Turkish Penal Code (TCK) at the end of the trial, which lasted about one year. The aforementioned judgment was upheld by a regional court of appeals, but subsequently overturned by the Supreme Court of Appeals.

 

In the retrial of the case which took place after the Supreme Court of Appeals quashed the judgment of the first-instance court, Altan was convicted of “knowingly aiding and abetting a terrorist organization without being a member of its hierarchical structure”; he was sentenced to 10 years and 6 months in prison and released under judicial supervision, having regard to the time he had spent in pre-trial detention. However, he was placed in detention once more following an objection by the prosecutor’s office.

 

In November 2016, after the objections filed against the detention order were dismissed, Altan lodged an individual application with the Constitutional Court (AYM), claiming that his right to liberty and security and freedom of expression and the press were violated, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment. In its assessment, the AYM found no violations.[1]

 

In January 2017, Altan lodged an individual application with the European Court of Human Rights with the same claims. On 13 April 2021, the Second Section of the ECtHR delivered its judgment, and found violations in respect of Article 5 (the right to liberty and security) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR or the Convention) with regard to the complaints raised by Altan in his application, while concluding that there had been no violation of Article 18 (limiting the restrictions on rights).[2]

 

The handling of the events by the ECtHR and the judgment

 

a) The impact of the derogation from the Convention

 

In respect of the individual application lodged by Altan, the Turkish government argued that the attempted coup of 15 July 2016 posed a threat to the life of the Turkish nation within the meaning of Article 15 of the Convention, which allows Contracting States to temporarily derogate from their Convention obligations “in time of war or other public emergency threatening the life of the nation”; that the Secretary General of the Council of Europe had been notified of the derogation from the Convention on 21 July 2016; that Altan’s detention and other measures were strictly required by the exigencies of the situation and were consistent with the other obligations under international law; that Altan’s application should be examined within this framework and rejected.

 

UN Special Rapporteur for Freedom of Opinion and Expression and the intervening non-governmental institutions, however, submitted their written opinion that individuals’ rights could no longer be restricted in connection with the derogation from the Convention once the circumstances justifying the declaration of State of Emergency (OHAL) in the aftermath of the coup attempt ceased to exist, and that Altan’s pre-trial detention could not be regarded as strictly required by the exigencies of the situation.

 

In examining the impact of the derogation, while the ECtHR accepted that the military coup attempt revealed the existence of a “public emergency threatening the life of the nation” and that Altan’s detention on 23 September 2016, following his arrest on 10 September 2016, took place a very short time after the coup attempt and the subsequent declaration of OHAL, it decided to examine whether the detention measure was required by the exigencies of the situation and consistent with the other obligations under international law, along with the applicant’s complaints on the merits.

 

b) The assessment of the alleged violation of Article 5 of the ECHR

 

In his application to the ECtHR, Altan claimed that his detention was not based on a reasonable suspicion; that there had been no reasonable suspicion that he might have committed a crime either during his arrest or pre-trial detention, and that there were no facts or information that could satisfy an objective observer that he had committed the alleged crimes. Altan also argued that the domestic authorities in Turkey had used the coup attempt as a pretext to silence the dissenting voices. (Para. 113 etc.)

 

Altan stated that he had been involved in the publication of the documents that allegedly set the stage for the trial commonly known as “Sledgehammer case” in Taraf newspaper because he believed them to be genuine, and that he had resigned from the newspaper in 2012 while the Sledgehammer operation occurred in 2013. In respect of the allegation that he had paved the way for the coup attempt in his articles, Altan argued that he had merely expressed his concerns, which had to be regarded as legitimate criticism, regarding the political developments. 

 

In his application to the Court, Altan stated that he was categorically against coups, and that even if he had come into contact with the members of the FETÖ/PDY in his capacity as a journalist, this did not indicate that he had been involved in any criminal activities.

 

In respect of the complaints regarding Article 5 of the ECtHR, the Government stated that FETÖ/PDY was an armed terrorist organization; that the real aim of the organization was to take over the State and establish a totalitarian system by overthrowing the government; that the members of the organization had infiltrated the armed forces, the judiciary, public institutions and organizations and media outlets to manipulate the perceptions of the public. In this context, the government claimed that the criminal proceedings launched against Altan were in no way pertinent to his activities as a journalist; that he was placed and kept in pre-trial detention on suspicion of attempting to overthrow the Constitutional order, the Turkish Grand National Assembly and the Government as a member of a terrorist organization.” (Para. 118 etc.)

 

The Council of Europe Commissioner for Human Rights, the UN Special Rapporteur for Freedom of Opinion and Expression and non-governmental organizations submitted their written opinion in respect of Altan’s application as interveners. In his opinion, the Commissioner for Human Rights stated, in brief, that 210 journalists had been placed in pre-trial detention during OHAL, excluding those who had been arrested and released after being questioned; that even though detention should have been regarded as a measure of last resort it had been commonly applied in Turkey, and that journalists had been charged with terrorism-related crimes without any evidence corroborating their involvement in terrorist activities.

 

The Commissioner for Human Rights further expressed his astonishment by the weakness of the accusations and the political nature of the decisions ordering pre-trial detention in such cases. Similarly, the Special Rapporteur noted that a large number of journalists had been placed in pre-trial detention on the basis of vaguely worded accusations without sufficient evidence since the declaration of the state of emergency. (Paras. 119, 120, 121)

 

In its assessment on the merits of the case, the Court reiterated that according to its case-law, an arrest or detention must meet three conditions: First, there must be facts or information that would satisfy an objective observer that the person concerned may have committed a crime and that the accusation must be based on a “reasonable suspicion.” Secondly, the purpose of arrest or detention must be to bring the person concerned before a “competent legal authority.” Thirdly, an arrest or detention, like any other measure involving the deprivation of liberty, must be “lawful” and “in accordance with a procedure prescribed by law.” (Para. 126)

 

According to the Court, the existence of a “reasonable suspicion” also requires that the facts that are cited as evidence can be considered as criminal behavior under domestic law. Hence, there could not be a clear “reasonable suspicion” unless the acts held against a detained person constituted a crime at the time they were committed. Additionally, the ECtHR noted that it must be demonstrated that there remained a reasonable suspicion and that the suspicion persisted, not only at the time of the arrest and the initial detention, but throughout the prolonged detention. (Paras. 127, 128)

 

The Court observed that the dispute between the parties in respect of Altan’s application was not due to the content of his articles that were cited as evidence or his remarks on the TV program that was broadcast on Can Erzincan TV on 14 July 2016 or, for that matter, the attributability of these articles and remarks, but whether it was plausible to classify the articles and remarks in question as criminal conduct. (Para. 135)

 

With regard to the said articles and the remarks on the TV program, the Court stated that, when examined as a whole, they failed to establish the existence of a reasonable suspicion that Altan had attempted to overthrow the government, or that he had been a member of a terrorist organization, or that he had committed crimes on behalf of an illegal organization without being its member. According to the ECtHR, these articles were written as part of journalistic activity, and the applicant’s criticisms of the President’s political approach could not be seen as an indication that he had prior knowledge about the attempted coup of 15 July 2016 or be construed as grounds for pre-trial detention. (Paras. 136, 137)

 

The material before the judicial authorities could ultimately be examined in three groups, according to the Court: The first group concerns the applicant’s involvement in the Sledgehammer case, and his position as the editor-in-chief of Taraf newspaper. The second group relates to the three articles penned by the applicant, entitled “Absolute Fear,” “Crushing through” and “Montezuma.” Finally, the third group concerns the remarks of the applicant during a TV program that was broadcast on Can Erzincan TV on 14 July 2016. (Para. 139)

 

As regards the charges based on the material in the first group, the Court stated that given that the Sledgehammer case occurred in 2012, the arrest and detention of Altan in 2016, four years after the events in question, could not be regarded as a necessary measure, and that the domestic authorities had failed to present any concrete evidence at any stage of the investigation, noting that Altan had worked for Taraf newspaper in the years between 2007 and 2012, ultimately resigning from the paper in 2012, while the charges relating to the Sledgehammer case were raised in 2016. (Para. 135, 141)

 

With regard to the material in the second group, that is, the three articles that the applicant had written shortly before the coup attempt, namely “Absolute Fear,” “Montezuma” and “Crushing through,” the ECtHR found that Altan had expressed his views on the government policies in these articles; that his expressions in the articles should be examined in their entirety; that the metaphors the applicant had employed could not be taken as an unequivocal indication that he had prior knowledge about the coup attempt and sought to manipulate the public opinion. (Para. 143)

 

The content of Altan’s articles could be regarded as offensive, shocking or disturbing by the State or by a section of the population, according to the Court. That, however, would not satisfy an objective observer that the applicant may have committed the alleged crimes unless other grounds or evidence that would justify his pre-trial detention were put forward, in the Court’s view. The concept of “reasonable suspicion” cannot be interpreted so broadly as to impair the applicant’s right to freedom of expression pursuant to Article 10 of the Convention. (Para. 143)

 

The charge against Altan based on the material found in the third group was that he had made a speech in a TV program broadcast on Can Erzincan TV on 14 July 2016 under the instructions of the FETÖ/PDY and with the aim of manipulating the public opinion against the President and the Government. The judicial authorities, who had placed Altan in pre-trial detention, interpreted his statements that said, “Whatever the developments that led to the previous military coups in Turkey, President Erdoğan, by taking the same decisions, is paving the way for another coup,” and “He will be leaving the Government soon, and will be prosecuted,” as an indication that he had prior knowledge about the coup attempt that would occur the following day. (Para. 144)

 

The ECtHR found that Altan’s aforementioned remarks in the TV program in question should have been viewed in their entirety without taking them out of their context, and that, as such, his statements could not be interpreted as a call to violence and remained within the limits of freedom of expression. The Court stressed that Altan’s warning to the public about a potential coup or civil war could not justify his pre-trial detention. (Para. 145)

 

Overall, the Court found that the applicant’s acts that were the basis of the charges against him and his pre-trial detention fell within the exercise of his freedom of expression and the press, as guaranteed by domestic law and the Convention, concluding that, in the light of these reasons, there had been a violation of Article 5/1 of the Convention. (Paras. 147, 148, 151)

 

The Court observed that the restrictions on the applicant’s access to the investigation file had prevented him from effectively challenging the allegations against him, and therefore, concluded that there had also been a violation of Article 5/4 of the Convention in the present case. (Paras. 161, 164, 166)

 

c) The assessment of the alleged violation of Article 10 of the ECHR

 

In his application, Ahmet Altan stated that the views expressed in his articles and during a broadcast TV program fell within the limits of freedom of expression, and that his prosecution and pre-trial detention constituted a violation of Article 10 and Article 17 of the Convention, arguing that there had been no incitement to violence in any of his comments. (Paras. 193, 196, 197)

 

The Government, on the other hand, argued that the order of Altan’s pre-trial detention did not amount to an interference within the meaning of Article 10 of the Convention, since the criminal proceedings against him did not concern his journalistic activities, and that, in the light of the events of 15 July 2016, the call for a military coup was not covered by freedom of expression, and as such, had to be regarded as a call to violence. (Paras. 199, 203)

 

The Council of Europe Commissioner for Human Rights, the UN Special Rapporteur, and the non-governmental organizations who have intervened in the case as third parties, emphasized that violations of freedom of expression had become more prevalent in Turkey, especially after the declaration of OHAL. The Commissioner for Human Rights stated that the Government’s assertion that the criminal proceedings instituted against journalists were unconnected to their professional activities was lacking in credibility, noting that Turkish prosecutors and courts had interpreted the anti-terror legislation in a very broad manner; that many journalists who had expressed dissent or criticism against the Government authorities had been placed in pre-trial detention without any concrete evidence, solely on account of their journalistic activities; that often the only evidence included in the investigation files against journalists related to their journalistic activities. The Commissioner further stated that the coup attempt or the dangers presented by terrorist organizations could not justify measures that entail severe interference with rights and freedoms. (Paras. 204-209)

 

The Court found the application admissible in respect of the Government’s objection that the domestic remedies had not been exhausted, and in its examination on the merits of the case, stressed that freedom of expression, as enshrined in paragraph 2 of Article 10 of the Convention, was not only applicable to “information” or “ideas” that were deemed favorable, inoffensive or regarded as a matter of indifference, but also to ideas that disturb or shock the State or a section of the population, and that this notion was indispensable to a pluralistic and democratic society. (Para. 212)

 

In particular, the ECtHR reiterated that freedom of the press provided the public with the opportunity to discover and form an opinion of the ideas and attitudes of the political leaders and allowed the politicians to reflect and comment on the issues of public interest, and thus enabling everyone to participate at the free political debate, which is at the core of the concept of a democratic society. (Para. 213) The Court emphasized the prominent role of the press as the “public watchdog” once again, stating that the public had a right to receive information about the widest range of news. (Para. 214)

 

Noting that the right to freedom of expression and the press, enshrined in Article 10 of the Convention, could be restricted on very limited grounds, the Court observed that “the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician.” In the Court’s view, “the actions or the omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion” in a democratic system, and in cases where there were other means to challenge the unjustified attacks and criticisms of its adversaries or the media, the Government had to avoid resorting to criminal proceedings. (Para. 215)

 

The ECtHR referred to its case-law and stated that freedom of political debate also included the free expression of the views of outlawed organizations, provided that these did not contain incitement to terrorism or a call to use violence. (Para. 216)

 

The Court held that Contracting States should not have introduced restrictions on freedom of expression, even for the purposes of protecting territorial integrity and national security and preventing disorder and crime insofar as the views expressed did not advocate recourse to violent actions or bloody revenge, did not justify the commission of terrorism-related crimes in pursuit of their supporters’ goals or did not encourage a deep-seated and irrational hatred towards certain persons. (Para. 217)

 

In this context, the ECtHR concluded that Altan’s initial and continued pre-trial detention on account of his articles and statements constituted an interference with the exercise of his freedom of expression, and thus, dismissed the Government’s objection to the effect that domestic remedies had not been exhausted. (Paras. 220, 221)

 

With regard to whether the interference in question was justified, the ECtHR examined whether the interference was “prescribed by law”; pursued one or more of the legitimate aims referred to in paragraph 2 of Article 10 and was “necessary in a democratic society” to achieve these aims. The Court concluded that the pre-trial detention of Altan did not meet the requirement that such an interference should have been prescribed by law, and thus, there had been a violation of Article 10 of the Convention, in the light of which it did not find it necessary to further examine whether the interference in question had a legitimate aim and was necessary in a democratic society. (Paras. 222-226)

 

d) The assessment of the alleged violation of Article 18 of the ECHR in conjunction with Article 5

 

The ECtHR did not find a violation of Article 18 of the Convention, which prohibits the restriction of the rights and freedoms enshrined in the Convention for purposes not prescribed by the Convention itself, in conjunction with Article 5 as regards the application lodged by Altan. In its assessment, the Court argued that even though the Government had failed to substantiate their argument that Altan’s pre-trial detention was based on a reasonable suspicion, which prompted the Court to find a violation of Article 5/1 and Article 10 of the Convention, that was not sufficient, by itself, to conclude that Article 18 had also been violated.

 

In sum, the Court stated the following: that it observed that the stated aim of the measures imposed on Altan was to establish whether he had indeed committed the alleged crimes (para. 241); that it noted that the case file did not contain any speech or interference of any high-ranking public official which would suggest an ulterior purpose for the detention of Altan, and that not all expressions of dissatisfaction by the authorities automatically amounted in themselves to evidence an ulterior purpose behind a judicial decision or that the predominant purpose was to silence the applicant (paras. 242, 243); that it observed that Altan was able to put forward his complaints before the domestic authorities and that his pre-trial detention was examined on several occasions by the domestic courts, in addition to the fact that the Constitutional Court subjected the applicant’s complaints under Article 5 and Article 10 of the Convention to thorough scrutiny, and delivered its decision after in-depth discussion, as evidenced by several dissenting opinions (para. 245); that in the light of the foregoing reasons, the fact that there had been a violation of Article 5/1 and Article 10 of the Convention was not sufficient, by itself, to conclude that Article 18 had been violated, as well. (Para. 240)

 

The ECtHR noted that the elements on which Altan relied in his application to support his claim that Article 18 of the Convention had been violated did not form a sufficiently homogeneous whole, taken separately or in combination with each other, for the Court to find that his pre-trial detention pursued an ulterior purpose not prescribed by the Convention (para. 246) and concluded that there had been no violation of Article 18 of the Convention. (Paras. 247, 248)

 

The assessment of the judgment

 

In Altan’s application, the ECtHR held, by a majority of six votes to one, that there had been no violation of Article 18 of the Convention in conjunction with Article 5.

 

In his partly dissenting opinion, Lithuanian judge Egidijus Kuris, who voted against the majority’s conclusion in that regard, pointed out that there were a great number of individual applications against Turkey lodged with the ECtHR by journalists, and denounced the Court for its failure to take a holistic perspective in respect of the repetitive nature and the similar features of the issues mentioned in such applications. (Partly dissenting opinion, paras. 3, 4)

 

Indeed, Turkey has seen a widespread trend where the state has accused, arrested, and prosecuted media representatives without any justification in recent years. Members of the press have been criminalized in the public eye by means of ungrounded accusations, and subjected to threats, intimidation, and harassment in an effort to silence them. This prevalence can only be understood if the complaints mentioned in individual applications are evaluated from a holistic point of view. The patterns behind the complaints can only be disclosed if the events subject to such complaints are placed side by side and evaluated in their entirety. The disclosure of prevalent administrative and judicial practices, and the assessment of the individual applications in the light of this background are in no way contrary to the obligation of the Court to examine each case on its own merits.

 

In his partly dissenting opinion, Kuris also submitted a list of the individual applications filed with the ECtHR by journalists in Turkey, to which Council of Europe’s Commissioner for Human Rights intervened by means of third-party submissions. Along with Altan’s application, the list includes the individual applications lodged with the Court by Şahin Alpay, Nazlı Ilıcak, Mehmet Altan, Murat Aksoy, Sabuncu and Others, Ahmet Şık and Deniz Yücel.

 

Most of the individual applications on the list have been concluded by the ECtHR, while the few remaining applications are pending review. However, the overall approach of the Court in view of the examined applications illustrate that while the ECtHR had no difficulty in finding violations of Article 5 and Article 10 of the Convention, it was hesitant in its review with respect to both the effectiveness of the Constitutional Court and Article 18 of the Convention to the detriment of the applicants.

 

Judge Kuris, in his opinion, criticizes Turkey’s behavioral patterns regarding freedom of the press and the pattern and the tendency of the ECtHR in dealing with the respective complaints, and states that such approaches have no credibility or standing in the world outside the courtroom, which he describes as the judicial ivory tower, arguing that the table of applications, which show the cases in which Commissioner for Human Rights intervened by means of third-party submissions, was too clear to require any further comment. (Para. 6)

 

In arguing that the claim that a restriction has been imposed on rights and freedoms for a purpose not prescribed by the Convention would be warranted only if the said purpose appears to be a fundamental aspect of the case under Article 18 and determining that this fundamental aspect was lacking in Altan’s application, the Court was contradicting its own assessments. It seems excessively contradictory that the Court both stated that the charges against Altan were not based on a “reasonable suspicion” and then found no violation of Article 18 of the Convention in conjunction with Article 5.

 

The Court could only reach a holistic analysis that would reveal that the systematic restrictions on freedom of expression and the press of journalists in Turkey were the product of a deliberate policy designed to silence them had it examined all the similar applications from Turkey lodged with the Court as a whole, but it failed to do so. The Court applied the methodology established in the case of Merasbishvili in a somewhat different manner here and assessed whether the complaints were justified or not as limited to the specific events in the application. It did not consider the practice patterns and trends in Turkey as a whole and in their entirety.

 

In conclusion, it can be said that the values, rights and freedoms enshrined in the Convention have been violated more and more by some Contracting States, including Turkey. That the values of the Convention cannot be upheld by the ECtHR with due courage and to the same standards in the face of every event brings great disappointment to the human rights community. The constant bending of the principles by the Court with the concern of observing the varying sociopolitical balances between Contracting States may very well be the main reason why the ECtHR fails to adopt a holistic approach much needed in individual applications lodged against Turkey. And perhaps the frustration at the failure to defend Convention values with due courage, even on the part of the ECtHR, is the real reason for the criticisms directed at the Court in recent years.

 

 

* Lawyer and human rights defender

 

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[1]           The Plenary Assembly of the Constitutional Court, Application No. 2016/23668, Date of Application: 08.11.2016, Date of Judgment: 03.05.2019 (In Turkish) https://kararlarbilgibankasi.anayasa.gov.tr/BB/2016/23668 

[2]           http://hudoc.echr.coe.int/eng?i=001-209444  Date of Access: 27.05.2021