European Court finds detention of journalist violates freedom of expression
Mehmet Hasan Altan v Turkey, Application No. 13237/17
Court: European Court of Human Rights, Second Section
Date of judgment: 20 March 2018
On 20 March 2018, the European Court (ECtHR) upheld a claim that the detention of a journalist was a violation of the right to liberty and freedom of expression under the European Convention on Human Rights (European Convention).
The applicant is an economics professor and journalist in Turkey, as well as a television host known for his critical views on the serving government’s policies. In July 2016, there was an attempted military coup in Turkey, which led to the government declaring a state of emergency.
On an unspecified date thereafter, the Istanbul public prosecutor initiated a criminal investigation in respect of alleged members of FETÖ/PDY, a suspected terrorist organisation. In the course of the investigation, the applicant was arrested at his home on 10 September 2016 and taken into police custody on suspicion of having links to the media wing of FETÖ/PDY.
The applicant was charged of, amongst other things, making certain statements serving the interests of FETÖ/PDY. He contended that he had no links to the attempted coup. Despite various attempts, the applicant was unsuccessful in challenging his detention before the domestic courts.
In November 2018, the applicant lodged an individual application with the Turkish Constitutional Court, arguing that his being placed in pre-trial detention on account of his articles and statements violated his right to liberty and security and his right to freedom of expression and of the press. The Constitutional Court, by a majority of eleven votes to six, upheld the applicant’s claim that his rights had been violated.
In light of the Constitutional Court’s judgment, the applicant’s lawyer applied to the Istanbul 26th Assize Court on 11 January 2018 for his client’s release, which was rejected. In addition to procedural considerations, the Assize Court held that ordering the applicant’s release as an automatic consequence of the Constitutional Court’s judgment would run counter to the general principles of law, the independence of the courts, and the principle that no authority could give orders or instructions to the courts. As such, the Assize Court ordered the continuation of the applicant’s pre-trial detention.
Before the Second Section of the ECtHR, the applicant argued, amongst other things, that his right to freedom of expression under article 10 of the European Convention had been violated by his detention. The ECtHR agreed, and upheld the findings of the Turkish Constitutional Court that the applicant’s initial and continued pre-trial detention following the expression of his opinions constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society. The ECtHR further agreed with the Turkish Constitutional Court that insofar as the applicant’s detention was not based on any concrete evidence other than his articles and comments, this could have had a chilling effect on freedom of expression and of the press.
The ECtHR went on to reiterate its consistently-held position (at para 209) that:
“[W]here the views expressed do not constitute incitement to violence – in other words, unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist acts in pursuit of their supporters’ goals and can be interpreted as likely to encourage violence by instilling deep-seated and irrational hatred towards specified individuals – the Contracting States cannot restrict the right of the public to be informed of them, even with reference to the aims [of] the protection of territorial integrity or national security or the prevention of disorder or crime.”
The ECtHR further stated (at para 210) that: “[T]he Court considers that one of the principal characteristics of democracy is the possibility it offers of resolving problems through public debate. It has emphasised on many occasions that democracy thrives on freedom of expression”. It therefore cautioned that the existence of a state of emergency should not serve as a pretext for limiting freedom of political debate, and that “every effort must be made to safeguard the values of a democratic society, such as pluralism, tolerance and broadmindedness.”
With regard to the criminal charges being imposed for criticising government, the ECtHR held that criticism of governments and the publication of information that the country’s leaders regarded as endangering national interest should not attract criminal charges for particularly serious offences, such as belonging to or assisting a terrorist organisation. Further, pre-trial detention should only be used as an exceptional measure of last resort when all other measures have proved incapable of fully guaranteeing the proper conduct of proceedings. According to the ECtHR (at para 212):
“[T]he pre-trial detention of anyone expressing critical views produces a range of adverse effects, both for the detainees themselves and for society as a whole, since the imposition of a measure entailing deprivation of liberty, as in the present case, will inevitably have a chilling effect on freedom of expression by intimidating civil society and silencing dissenting voices … The Court further notes that a chilling effect of this kind may be produced even when the detainee is subsequently acquitted”.
The majority of the ECtHR therefore upheld the applicant’s claim that his right to freedom of expression under article 10 of the European Convention, as well as his right to security and liberty under article 5 of the European Convention, had been violated, and awarded damages in favour of the applicant.
The full judgment is accessible here.
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