ECtHR Cases Nr. 16538/17 and Nr. 13237/17: A Good Approach or Missed Opportunity? (Part I)
Written by Korbinian Zellner
In light of the ongoing debate about the accession of Turkey to the EU, there are multiple factors to be kept in mind, among which also violations of Human Rights play an important role, which is why Turkey acceded to the European Convention on Human Rights (“ECHR”).
Given that Turkey is one of the "founding signatories" of the ECHR in 1950, it seems somewhat logical that the state already dealt multiple times with the European Court of Human Rights (“ECtHR”). Actually, when examining the exact number of judgments of the ECtHR in the time span from 1959 to 2017, it shows that a total of 3.386 judgments were made against Turkey (ECtHR, 2018), securing Turkey both first place as well as a rather low reputation in the field of Human Right violations.
Only recently- in 2016- Turkey triggered indignation by making use of Article 15 ECHR and thus derogating the ECHR. In light of this situation, the ECtHR had to decide, whether the imprisonment of two journalists in 2018 has posed a violation of human rights, causing the problem whether the ECHR should be applied, despite Turkey’s proclaimed derogation of the Charter. Furthermore the question arose, why the court did not use the cases to discuss further unanswered issues concerning the derogation procedure.
In a two-parted article I am going to focus on exactly these questions and evaluate, whether the court had a good approach when applying the ECHR and secondly, if it should have tackled more issues.
Starting by giving a summary of what has happened in the aforementioned cases, this part will elaborate on the problems the court faced during its judgement, as well as how it addressed arisen issues.
Following the failed coup attempt in Turkey on the 15 July 2016, the two journalists Mehmet Hasan Altan and Şahin Alpay were arrested by the Turkish authorities and put on remand. They were accused of being members of the Gülen movement, which was classified as a terrorist organisation by the Turkish government for trying to overthrow the constitutional order of Turkey.
Both journalists had voiced criticism towards the government through various articles and television interviews. When arrested, they claimed a violation of their right to freedom of expression and their right to liberty and security; initially without success.
It was only before the Turkish Constitutional Court that the right of the applicants finally was confirmed and their release ordered. Shockingly, the lower court refused to implement the verdict of the Turkish Constitutional Court and continued to keep the complainants in custody.
Following this line of events, the ECtHR administered to the cases, convicting Turkey on March 20th 2018 for infringing Article 5 (1) ECHR (Right to Freedom and Security) and Article 10 ECHR (Freedom of Expression).
II. Findings of the ECtHR 1. Violation of Art 5 (1) ECHR
Starting by examining an infringement of the Right to Freedom and Security the ECtHR supported the judgment of the Turkish Constitutional Court, which approved a violation, classifying the refusal to remand detention as unlawful and not in accordance with the right to liberty and security (Sahin Alpay, number 140ff). In addition, the refusal was found to constitute a violation of the Turkish legal order, as decisions of the Turkish Constitutional Court have binding effect Sahin Alpay, number 111). Lastly, disregarding a highest-ranking judgment is also a violation of the prohibition of arbitrariness, which is inherent to all human rights of the ECHR (Sahin Alpay, number 116). These findings were further upheld despite the predominant derogation. Both courts here upheld that If remand detention were possible without the existence of effective evidence, the right to liberty and security would have become meaningless (Sahin Alpay, number 119ff). 2. Violation of Art 10 ECHR The ECtHR further assumed a violation of the right to freedom of expression. Even though the ECtHR accepts the reasoning of the Turkish Government that the detention served a legitimate purpose; namely by combating disorder and crime (Sahin Alpay, number 176), the court held the measure unproportionate. The ECtHR assessed that the complainants' pre-trial detention constitutes a serious measure that in a democratic society classifies as an unnecessary and inappropriate restriction of Article 10 ECHR (Sahin Alpay, number 177). Moreover, the court states that limiting the right to freedom of expression is only possible if the restricted action calls for violent behaviour. This not being the case, the detention didn’t meet urgent social needs (Sahin Alpay, number 177). Following this, the court concludes that such a restriction, especially given the lack of concrete evidence of punishable conduct, can have a “chilling effect” on the freedom of expression and the press and thus poses a violation of Article 10 of the ECHR (Sahin Alpay, number 177). III. Interim Result – A good approach? Before drawing conclusions yet, it should be kept in mind that the Council of Europe called on all Member States to refrain from using Article 15 ECHR, especially to limit the rights and liberties guaranteed under Article 5 ECHR (Council of Europe, 2002).
Also, it is only logical that accepting the imprisonment of individuals without any strong evidence, would go downright against the guarantees entailed in Article 5 ECHR, rendering it somewhat meaningless (Sahin Alpay, number 119).
Accordingly, the ECtHRs statement that the deprivation of liberty at hand was "disproportionate and furthermore is neither lawful nor has been effected in accordance with a procedure prescribed by law", can only be regarded as a good approach. This is even more so, as the Turkish government has not supported its position with any strong evidence demonstrating the need of the imprisonment (Sahin Alpay, number 119). However, due to the absence of strong reasons (Sahin Alpay, number 183), The ECtHR thus applied the Charter regardless the derogation, not only regarding Article 5 but also regarding Article 10 ECHR. From a critical point of view this extension might be too far-reaching, especially in light of the derogation. By doing so, without giving a strong reasoning, the court opens the judgements to more criticism. However, given that the two rights here are very strongly connected, the courts approach still has to be seen as comprehensible.
 Given that the ECtHR rules almost identically in both cases, regarding the references I will only use the case of ŞAHİN ALPAY v. TURKEY (Application no. 16538/17) to show the exact source.
- Ali Yildiz, Leighann Spencer (2020), The Turkish Judiciary’s Violations of Human Rights Guarantees
- Amos Merris (2017), The Value of the European Court of Human Rights to the United Kingdom
- Annual Report (2017), European Court of Human Rights
- Augenstein Daniel (2011), State responsibilities to regulate and adjudicate corporate activities under the European Convention on Human Rights,
- Cowell Frederick (2013), Sovereignty and the Question of Derogation: An Analysis of Article 15 of the ECHR and the Absence of a Derogation Clause in the ACHPR, page 146.
- Deutsche Welle (2018), Türkei muss Ausnahmezustand aufheben.
- Füglistaler Gabriel (2016), The Principle of Subsidiarity and the Margin of Appreciation Doctrine in the European Court of Human Rights’ Post-2011 Jurisprudence
- Hervey Ginger (2017), Europe’s human rights court struggles to lay down the law
- Horne Alexander, Miller Vaughne (2014), Parliamentary Sovereignty and the European Convention on Human Rights
- Greer Steven (2000), The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Council of Europe.
- Jay Zoë (2017), Keeping rights at home: British conceptions of rights and compliance with the European Court of Human Rights
- Judgment on the CASE OF ILGAR MAMMADOV v. AZERBAIJAN (Application no. 15172/13) of the 22.05.2014
- Judgment on the CASE OF MEHMET HASAN ALTAN v. TURKEY(Application no. 13237/17) of the 20.03.2018
- Judgment on the CASE OF ŞAHİN ALPAY v. TURKEY (Application no. 16538/17) of the 20.03.2018
- Resolution 1271 (2002) of the Council of Europe’s Parliamentary Assembly of 24 January 2002
- Violations by Article and State (2018), European Court of Human Rights;