Liberty beckons

On Tuesday, the European Court of Human Rights (ECtHR) delivered its verdict on Mehmet Altan’s and Şahin Alpay’s applications. The conclusion it reached in both judgments was that the detention of the two journalists was unlawful and Article 5/1 of the Convention on liberty of person had been violated and, also, the detaining of the journalists for their writing violated Article 10 on the freedom of expression. Both were awarded non-pecuniary damages of 21,500 euro. It also stated in the ruling on Şahin Alpay that Alpay should be released immediately. Since Ahmet Altan has been convicted and is no longer a detainee, it could not say the same about him. The ECtHR to a large degree relied on the ruling that the Constitutional Court (CC) delivered on 11 January 2018. It confirmed the points set out in this ruling. The important points in this ruling can be summarised as follows:
 
Turkey’s Declaration of Derogation from the Articles of the Convention: Turkey notified the General Secretariat of the Council of Europe in a statement it made on 21 July 2016 pursuant to Article 15 of the Convention that it had derogated from the provisions of the Convention due to the measures it would take during the state of emergency. The ECtHR, while conceding to the existence of a threat to the life of the nation, asserted that both the unlawful detention of the two journalists and their being charged for their writing was not necessary or proportional in relation to warding off the threat, and dismissed this defence on the part of the government. This conclusion that the ECtHR has reached will both have validity for other cases and must also be taken into consideration in terms of compliance with the law of state of emergency decrees with the force of law.
 
Unlawfulness of Detention: In this regard, the ECtHR, confirming the CC’s ruling, criticises the non-compliance by the Istanbul Serious Crime courts with the CC ruling. It states that the non-implementation by a lower court of the CC’s final and binding ruling conflicts with the principle of the supremacy of the law. Consequently, it rules that the continuation of detention following the CC ruling violated Article 5/1 of the Convention on liberty of person. A point that must be noted here is its pronouncement that, while it maintains its opinion that the CC is an effective domestic remedy, this has been placed in serious doubt by the lower courts’ non-compliance with the CC ruling.
 
Freedom of Expression: It is stated in the ECtHR ruling that the existence of a threat to the life of the nation cannot be used as a pretext for eliminating the freedom to political debate, and criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for offences such as belonging to or assisting a terrorist organisation, the right of the people to obtain information must not be hindered provided it does not incite violence, and depriving critics of the government of their freedom will have a chilling effect on the freedom of expression, silence dissenting voices and intimidate civil society. For these reasons, it ruled that there had been a violation of Article 10 on the freedom of expression.
 
The ruling drives home once more the depth of the chasm between the Turkish judiciary’s understanding of freedom of expression and the ECtHR’s understanding. However, as freedom of expression is closely related to democracy, the Turkish judiciary’s implementation of freedom of expression creates problems, not just in human rights terms, but at the same time in terms of the manner of governance.
 
The two ECtHR rulings are rulings that are significant with regard to the detention regime and freedom of expression and must be complied with pursuant to Article 90 of the Constitution. The principles in these decisions must be taken into account by judges of their own accord. Application of these principles by the judiciary will lead to the ending of unlawful detentions and many people who have been arbitrarily deprived of their liberty regaining their freedom.