Resuscitating the Turkish Constitutional Court: The ECtHR’s Alpay and Altan Judgments

Written by Senem Gurol, PhD candidate at Ghent University

Introduction

After the failed coup d’etat in Turkey, critics have raised concerns about the European Court of Human Rights’ (ECtHR or the Court) ability and willingness to provide an effective remedy for the human rights violations occurred. These concerns arose from the Strasbourg Court’s recent inadmissibility decisions in the cases of Zihni, Çatal, and Köksal, which resulted in the Court sending the applicants back to exhaust the disputedly available and effective domestic remedies. Conversely, in the judgments of Şahin Alpay and Mehmet Altan, delivered on 20 March 2018, the ECtHR demonstrated a vigilant scrutiny over the protection of freedom of expression in Turkey which has deteriorated even further in recent years. These cases are also the first in which the Strasbourg Court has examined the validity of the derogation made on 21 July 2017 by Turkey under Article 15 of the Convention in relation to restrictions of other Convention rights, namely Articles 5 and 10. In this blogpost, I will focus on the ECtHR’s exercise of its subsidiarity role in the given cases and its impact on the functioning of the domestic remedies in Turkey.

Background and Facts of the Cases

Following the failed coup d’etat on 15 July 2016, a state of emergency was declared “to tackle the threat posed to the life of the nation” and Turkey has derogated from its human rights obligations under ICCPR and ECHR in relation to emergency measures taken. The situation related to the freedom of expression and media has declined at an alarming rate: 300 journalists were arrested, 166 media outlets were liquidated and access to thousands of websites was blocked, all of which have been condemned internationally.

The applicants Alpay and Altan, are among those journalists who were arrested after the attempted coup d’etat on suspicion of being a member of the terrorist organisation FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). After the period they spent in police custody, they were placed in pre-trial detention by the order of the magistrate. A bill of indictment was eventually filed against the applicants and several other individuals accusing them 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, despite not being members of it. The accusations were mainly based on the articles they had published and views stated by the applicants against the Government and its policies, which were perceived to have served the interest of the terrorist organisation, FETÖ.

During the criminal proceedings, the applicants lodged a number of appeals challenging their continuing pre-trial detention. All of these appeals were rejected. In addition, they filed individual applications before the Turkish Constitutional Court (TCC) complaining, inter alia, about the infringement of their right to liberty and freedom of expression. Whilst their cases were pending before the TCC, the applicants also lodged their applications with the ECtHR.

In the proceedings before the ECtHR, a number of human rights monitoring actors and internationally reputable NGOs intervened as a third party in the group of cases concerning the detention of journalists. Their submissions criticised the overly-broad interpretation and application by the judicial authorities of vaguely formulated criminal law provisions which suppressed the freedom of expression of journalists and media in Turkey.

Following the ECtHR’s change of priority policy, the group of cases concerning the pre-trial detention of journalists was urgently communicated to the respondent Government. After this development, the TCC eventually took action, and on 11 January 2018 delivered judgments in the Alpay and Altan cases, finding violations of their right to liberty and freedom of expression. The TCC asserted that the applicants’ detention was not ‘lawful’ based on any reasonable suspicion or collaborated by any concrete evidence that the applicants had committed the alleged crimes. Furthermore, it ruled that the applicants’ prosecution and detention did not correspond to any pressing social need and thus, was not necessary or proportionate, even in the context of public emergency, violating their right to freedom of expression.

The TCC’s judgments were subjected to severe criticism by the Government. Moreover, the first instance courts refused to take the necessary measures to implement the TCC’s decision and thus release the applicants. This lack of implementation by the lower courts caused a legal scandal in regards to the authority of the TCC and the binding force of its decisions. It also raised questions about the effectiveness of the individual petition system to the TCC. In their recent blogposts, Cali and Kurban have respectively criticised the resistance of the lower courts to execute the rulings of the TCC as a “death of Turkish Constitutionalism” and as a further example of the rule of law failing in Turkey.

Following the TCC’s second judgment on 15 March 2018, the 13^th Istanbul Assize Court released Şahin Alpay, after he had spent more than twenty months in prison. He has been put under house arrest whilst the criminal proceedings are currently pending against him.  On the other hand, the 26^th Istanbul Assize Court, on 16 February 2018, convicted Mehmet Altan of attempting to overthrow the constitutional order by force and sentenced him, despite the TCC ruling in his favour, with aggravated life imprisonment.

The Judgments of the ECtHR

In these judgments, the ECtHR strongly stated that where the views expressed do not constitute incitement to violence or hatred, the public authorities should not restrict the right of the public to be informed of them even with reference to the aims set out under Article 10 § 2, namely the protection of territorial integrity or national security or the prevention of disorder or crime. It underlined the chilling effect of the criminal prosecution and detention of journalists that results in self-censorship and impoverishment of democratic debate in society and added that pre-trial detention should be used “as an exceptional measure of last resort”.

In finding violations of Article 5 § 1 and 10, the Strasbourg Court relied mainly on the reasoning of the TCC considering that it had sufficiently examined the cases.  In this regard, the ECtHR demonstrated once more that it would defer to the assessments made by the domestic judicial authorities as long as the latter had carried out a thorough and effective review of Convention rights by applying the standards of the Court (para.129 and 208 in Altan judgment).

Furthermore, in respect to Article 15, the ECtHR noted that “the existence of a public emergency threatening the life of the nation must not serve as a pretext for limiting freedom of political debate, which is at the very core of the concept of a democratic society” (para.210 in Altan). Asserting the importance of protecting individuals from arbitrary deprivation of liberty in the context of a state of emergency, the ECtHR found that the detention of journalists without any sufficient factual basis that they have committed an offence, could not be regarded as a measure “strictly required by the emergency of the situation” within the meaning of Article 15 (para.140 in Altan).

Lastly, the ECtHR did not examine the applicants’ complaints under Article 18 that their detention was politically motivated.

Commentary

The ECtHR has triggered the domestic process

Unlike its previous approach in the cases of Zihni, Catal and Koksal, this time the active course of action taken by the ECtHR for the cases of detained journalists has triggered the domestic process of human rights protection and thus encouraged the TCC to assume its role as a domestic remedy for the applications lodged after the failed coup. Conversely, by referring to its subsidiarity role, the ECtHR summarily dismissed the aforementioned applications lodged by purged judges, prosecutors and civil servants on account of the applicants’ failure to have exhausted domestic remedies. This was in spite of the existing uncertainty over the availability and effectiveness of those domestic remedies.

By giving priority to this group of cases, the ECtHR sped up its own adjudication process and treated the present applications within a period of six months from the time they were lodged. This approach accelerated the domestic proceedings and sent the necessary signals to the national authorities to perform their duties. As a result the TCC has broken its protracted silence since the attempted coup and delivered its judgments in the applicants’ favour. If the ECtHR had not acted on these cases, one wonders whether the TCC would have dared to pass down judgment on these “sensitive cases” given Turkey’s political climate.

From this analysis, I would say that prior to the ECtHR’s involvement, the TCC was paralysed in regards to these cases. However, the ECtHR has now resuscitated the TCC and acted as a catalyser of human rights protection at domestic level. Further, the ECtHR has also shielded itself from acting as a fourth-instance court for the complaints relating to the deprivation of liberty that have not been remedied by domestic authorities.

Is the Turkish Constitutional Court an effective domestic remedy for the cases concerning pre-trial detention?

The ECtHR has given an affirmative response to this question but with some warnings and reservations. Referring to the final and binding nature of the TCC’s decisions as guaranteed in the Turkish Constitution and the power and competence vested in it to secure redress for violations found, the ECtHR upheld that the TCC could serve as an effective remedy for complaints concerning the deprivation of liberty in line with its precedent of Koçintar v. Turkey. Even so, the ECtHR issued an important warning to the lower courts to implement the TCC’s decisions and act with due respect to the rule of law (para.139 in Altan). If the lower courts fail to do so, the Strasbourg Court has reserved the right to re-examine the effectiveness of the system of individual applications to the TCC for complaints concerning the right to liberty in the future. The ECtHR has also noted that, in such case, it would be for the Government “to prove that the remedy offered by the TCC was effective, both in theory and in practice” (para.142 in Altan).

As to the requirement of speediness, the ECtHR also criticised the failure of the TCC to offer a speedy judicial review of the applicants’ continuing pre-trial detention, referring to its passivity for more than 14 and 16 months respectively in the applicants’ cases. However, taking into account the exceptional caseload encountered by the TCC, it did not find a violation of Article 5 § 4. In short, although the TCC has been let off the hook this time, the ECtHR has indicated that it would keep an eye on its performance in the future.

Has the ECtHR missed the opportunity to address the systemic nature of the problem and its root causes?

What is important in these judgments is that the ECtHR referred to “the existence of a general problem” of unpredictably broad interpretation of anti-terrorism legislation by the judicial authorities and their excessive use of pre-trial detention for the journalists in the criminal proceedings as asserted by the intervening parties (para. 209 in Altan). In this regard, the Court signalled that the applicants’ cases were not isolated incidents but representative of a systemic problem caused by the general attitude of the judiciary in relation to these cases.

Regarding the root causes of the problem, the ECtHR has chosen not to reach a final conclusion on whether the applicants’ detention and prosecution were “prescribed by law”, including whether the legal basis met the quality requirement of accessibility and the foreseeability both in terms of wording and of their effects. However, like in the judgment of Gülcü v. Turkey, it expressed a clear doubt about the foreseeability of criminal provisions at stake (para.175 in Alpay and para. 205 in Altan).

Given these findings of the ECtHR, national authorities should not only take individual, but also general measures in a view to bringing the domestic legislation and judicial practices in line with the standards of Article 10 for the execution of these judgments.

Conclusion

Overall, in the Altan and Alpay judgments, whilst the ECtHR seems supportive of the functioning of the national human rights protection system, it has also issued important warnings to the domestic authorities. In these carefully drafted judgments, the Court has given clear signals on the standards for the effectiveness, authority and diligence of the domestic remedies and the possible consequences of failing to meet them.

Looking forward, it is to be seen whether the guidance provided by the ECtHR will be followed by the national authorities and bear positive results in the improvement of domestic remedies to provide effective protection for the right to liberty and freedom of expression in Turkey.