Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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The European Court of Human Rights held that Turkey’s violation of Article 10 of the Convention occurred in the case of Ahmet Hüsrev Altan, a prominent Turkish journalist and novelist. The Court ruled that Altan’s extended pretrial detention, stemming from his arrest following a failed coup attempt in 2016, constituted an interference with his right to freedom of expression. The judgment emphasized the fundamental importance of freedom of expression in democratic societies and the role of the press in disseminating information and fostering political discourse. The Court also underlined the protection of expressions from prohibited organizations, as long as they did not incite violence or terrorism. Additionally, the Court found that Altan’s detention lacked “reasonable suspicion,” violating his right to liberty and security under Article 5 § 1 (c) of the Convention. Despite rejecting the claim that Altan’s detention was driven by an ulterior motive not sanctioned by the Convention, the ruling underscores the significance of safeguarding journalists’ rights and freedom of expression within the context of legal proceedings.
Ahmet Hüsrev Altan, an acclaimed Turkish journalist, and novelist, gained prominence through his writings in various newspapers and his involvement in television programs. In 2007, he played a pivotal role in establishing the daily newspaper Taraf and served as its editor-in-chief until 2012. Notably, Altan’s journalistic endeavors also extended to the “haberdar.com” website, where he began contributing articles about contemporary issues from October 7, 2015 onwards.
During the early 2010s, Taraf gained attention for publishing articles that exposed a planned military coup, leading to an investigation by the Istanbul public prosecutor’s office into a suspected criminal group named “Balyoz” or “Sledgehammer” in 2010. This group was alleged to consist of military officers and was accused of orchestrating a coup in 2002 and 2003 to overthrow the democratically elected government. Subsequently, several high-ranking military officers were charged and dismissed from the army as a result of these allegations.
The Assize Court eventually found 237 of the accused individuals guilty and handed down various prison sentences. The Court of Cassation later upheld these convictions. However, the Constitutional Court, upon appeal, determined that the accused military officers had been denied a fair trial. It highlighted the falsification of digital documents used as evidence and the manipulation of these documents to secure convictions and remove high-ranking military figures. Consequently, the criminal proceedings against the accused officers were reopened by the Anadolu Assize Court, ultimately leading to their acquittal. This turn of events prompted criminal charges to be brought against Ahmet Hüsrev Altan, who was the editor-in-chief of Taraf, on allegations of fabricating evidence and disclosing classified materials.
Amidst this backdrop, a faction of the Turkish armed forces named the “Peace at Home Council” attempted a military coup on the night of July 15 to 16, 2016, with the intention of overthrowing the democratically elected government and seizing power. The coup attempt resulted in a night of violence that claimed more than 300 lives and left over 2,500 individuals injured. The Turkish authorities attributed responsibility for the coup to Fetullah Gülen, a Turkish citizen living in the United States, whom they labeled as the leader of a terrorist organization known as the “Fetullahist Terrorist Organisation/Parallel State Structure” (FETÖ/PDY). In response, the government declared a state of emergency in Turkey and initiated criminal proceedings against those involved in the coup attempt and suspected members of the FETÖ/PDY organization.
On September 9, 2016, a warrant was issued for Ahmet Hüsrev Altan’s arrest, accusing him of being a member of FETÖ/PDY and disseminating messages that hinted at a coup. Altan was subsequently arrested, and his home was searched during his 12-day police custody. He was questioned about his activities, including the articles he wrote and his connections to FETÖ/PDY, as well as his involvement in a television talk show called “Free Thought.” The prosecution alleged that Altan and other participants in the talk show had conveyed subliminal messages that threatened the government and implied support for a coup.
After a series of legal proceedings, Altan was released under judicial supervision by the Istanbul 10th Magistrate’s Court on September 22, 2016. However, this decision was later overturned by the Istanbul 1st Magistrate’s Court based on the objection of the public prosecutor. Altan faced multiple instances of pretrial detention, and his case was ultimately brought before the Istanbul Assize Court on April 14, 2017. He was charged with attempting to overthrow the constitutional order, the Turkish Grand National Assembly, and the government through force and violence, as well as committing offenses on behalf of a terrorist organization without being its member.
In a significant development, the Istanbul 26th Assize Court issued a judgment on February 16, 2018, sentencing Altan to aggravated life imprisonment under Article 309 of the Turkish Criminal Code, accusing him of contributing to the aims of FETÖ/PDY through his continuous actions. However, this verdict was later overturned by the Court of Cassation, which held that Altan’s actions could be seen as aiding a terrorist organization without necessitating his membership within its hierarchical structure.
Consequently, the Istanbul 26th Assize Court re-evaluated the case, and Altan was found guilty of aiding and abetting a terrorist organization, resulting in a ten-year and six-month prison sentence. Altan was released on judicial supervision due to time served, but he was subsequently re-imprisoned following a prosecutorial objection, which contended that alternative measures were inadequate given the gravity of the charges.
On November 8, 2016, the Applicant lodged an individual application with the Constitutional Court, complaining of infringements of his rights to liberty and security, freedom of expression, and freedom of the press. Among other complaints, he argued that the reasons for his arrest had been unconstitutional and that his detention conditions were inhuman and degrading. In a split decision, his complaints were rejected for being manifestly ill-founded, failing to exhaust the appropriate remedies, or being dismissed.
On January 12, the Applicant lodged an application with the European Court of Human Rights alleging violations of Articles 5 (Liberty and Security of Person), 10 &17(Right to Freedom of Expression), and 18 (Restrictions permitted must have been prescribed) of the European Convention on Human Rights (ECHR).
The Second Section of the European Court of Human Rights issued a unanimous decision, focusing on two fundamental issues. The primary matter at hand was whether the applicant’s initial and prolonged pretrial detention amounted to a violation of their right to freedom of expression, as stipulated in Article 10 of the Convention. Additionally, the Court deliberated on whether the pre-trial detention was utilized as a tactic to suppress the applicant’s expression of dissenting opinions about the President and the Government.
The applicant contended that his pretrial detention was a consequence of his opinions, which he asserted did not pose a threat to national security or public safety. He claimed that his deprivation of freedom constituted an unwarranted encroachment upon his freedom of expression. Within this context, he argued that his comments were legitimate forms of criticism.
The applicant highlighted that in his article titled “Absolute Fear,” he had criticized the President for assuming control over the legislative, executive, and judicial branches. In another article called “Crushing Through,” the applicant quoted a former bureaucrat who alleged that the President didn’t oppose the idea of a civil war. The applicant’s commentary on this information emphasized that no one would emerge victorious if a civil war were to erupt. The applicant maintained that in this article, he didn’t issue a threat to the President but rather cautioned about the dire consequences of a civil conflict. Additionally, his piece titled “Montezuma” asserted that the President had been held captive by nationalists striving to reintroduce military education in Turkey. Concerning his statements during a televised program aired on Can Erzincan TV shortly before the attempted coup, he argued that his remarks fell within the boundaries of his freedom of speech and didn’t incite violence.
The Turkish Government contended that the complaint based on Article 10 should be deemed inadmissible due to the applicant’s failure to exhaust domestic remedies, given that the ongoing criminal proceedings against him hadn’t concluded. The government also argued that the decision to detain the applicant before trial did not qualify as an interference under Article 10 of the Convention, as the subject matter of the legal proceedings against him didn’t pertain to his journalistic activities. However, should the Court still find an interference, the government asserted that it was “prescribed by law,” pursued a legitimate objective, was deemed “necessary in a democratic society” to achieve said objective, and thus justified.
The government underscored that the criminal code dictated the legal proceedings against the applicant. Moreover, the contested interference pursued various aims outlined in the second paragraph of Article 10 of the Convention, including safeguarding national security or public safety and preventing disorder and crime. The government further maintained that terrorist organizations often exploited ostensibly lawful structures to advance their objectives within democratic systems. It contended that given the events of July 15, 2016, a call for a military coup should be regarded as a call for violence rather than protected under freedom of expression.
The Council of Europe Commissioner for Human Rights rebuffed the government’s assertion that the criminal proceedings against journalists were unrelated to their professional roles, deeming it lacking credibility. CECHR noted that evidence in investigation files concerning journalists frequently revolved around their journalistic activities. It pointed out that journalists critical of the government were frequently placed in pretrial detention solely due to their journalistic endeavors, without substantial evidence. It also highlighted the broad interpretation of anti-terrorism legislation by Turkish prosecutors and courts, resulting in a suppression of media freedom. Similarly, non-governmental organizations intervening in the matter contended that journalists were often detained for addressing matters of public interest. Lastly, CECHR argued that detaining a journalist for expressing non-violent opinions amounted to an unjustified intrusion upon their exercise of the freedom of expression.
The United Nations Special Rapporteur emphasized that Turkey’s declaration of a state of emergency had weakened the country’s commitment to freedom of expression. He asserted that any interference should adhere to the standards of being “prescribed by law,” requiring not only a basis in domestic legislation but also quality adherence to the law. He argued that the amalgamation of circumstances surrounding the prosecution of journalists suggested that, under the pretext of counterterrorism efforts, national authorities were arbitrarily stifling freedom of expression through detentions and prosecutions
The ECtHR underscored that freedom of expression is a cornerstone of democratic societies, extending not just to information and ideas received favorably, but also to those that may be offensive or disruptive. [Castells v. Spain (1992), Handyside v. the United Kingdom (1976), and Jersild v. Denmark (1994)]. (para 212-213) It emphasized the significance of pluralism, tolerance, and open-mindedness in upholding democratic values. The freedom of the press plays a vital role in political discourse, enabling the public to form opinions on their leaders’ ideas and attitudes. (para. 214) Furthermore, while there are limits to criticism, the press has a duty to disseminate information and ideas on public interest matters, consistent with obligations and responsibilities. Article 10 protects both the content and form of expression. Moreover, freedom of expression is especially important in political debates, encompassing various viewpoints and even elements of exaggeration or provocation. [Sürek and Özdemir v. Turkey (1999) and Wingrove v. the United Kingdom (1996)]. (para. 216-217)
The Court acknowledged that freedom of expression also extends to prohibited organizations, as long as their views do not promote violence, condone terrorism, or incite public incitement to commit terrorist offenses. [Gözel and Özer v. Turkey (2010)] The authorities must allow all parties to express their perspectives in situations of conflict while assessing whether the material from these organizations poses a risk of inciting violence. The Court referred to its prior case law that certain circumstances with a chilling effect on freedom of expression grant applicants, who are yet to be convicted in a final judgment, the status of victims of interference with their freedom of expression. [Altuğ Taner Akçam v. Turkey (2011) and Nedim Şener v. Turkey (2014)]. (para. 218-221)
Considering the applicant’s situation, the Court noted that criminal proceedings were initiated against him, charging him with attempting to forcibly overthrow the constitutional order, the Turkish Grand National Assembly, and the Government. The applicant was sentenced to imprisonment, with the proceedings still pending, and he was detained for around seventeen months. Consequently, the Court concluded that the applicant’s detention due to his articles and statements constituted an interference with his freedom of expression. [Khlaifia and Others v. Italy (2016)] (para. 218-221)
The Court then turned to evaluate whether this interference met the criteria outlined in the second paragraph of Article 10. The Court recalled that “prescribed by law” requires both a basis in domestic law and compatibility with the rule of law. [Müller and Others v. Switzerland (1988), Ezelin v. France (1991), and Margareta & Roger Andersson v. Sweden (1992)] The Court had previously found that the applicant’s detention lacked reasonable suspicion under Article 5 § 1 (c) of the Convention, thereby violating his right to liberty and security. Since the basis for detention was not reasonable suspicion, it wasn’t lawful. The Court underlined that lawfulness aims to prevent arbitrariness, and a detention not founded on lawful grounds cannot be considered a restriction prescribed by national law. [Steel and Others v. the United Kingdom (1998), Huseynli and Others v. Azerbaijan (2016), and Ragıp Zarakolu v. Turkey (2020)]. (para 222-226)
In light of the aforementioned reasoning, the interference with the applicant’s rights and freedoms under Article 10 § 1 could not be justified under Article 10 § 2 since it was not prescribed by law. Thus, the Court ruled that there had been a violation of Article 10 of the Convention. (para 227)
On the use of pre-trial detention to suppress the Appellant’s expression of dissenting opinions, the Government contested the applicant’s assertion that the authorities had a hidden intention behind their actions. They emphasized that independent judicial bodies had carried out the criminal investigation, and the applicant’s pretrial detention was based on the evidence presented in the case file. The Government stated that the applicant had not provided any evidence to support the claim that the pretrial detention had been imposed with an undisclosed motive.
The Commissioner for Human Rights, intervening in the matter, expressed skepticism about how the use of pretrial detention against journalists in Turkey could align with the legitimate aims outlined in the Convention. The Commissioner highlighted that the detention and prosecution of journalists on serious charges had a profound chilling effect on legitimate journalistic activities and contributed to self-censorship among individuals seeking to engage in public discourse. According to the Commissioner, numerous instances of legal actions had targeted journalists, human rights advocates, academics, and parliament members exercising their freedom of expression. This pattern indicated that the judicial system was employing criminal laws and procedures to stifle dissenting voices.
The Court drew upon the interpretation and application of Article 18 of the Convention as established in previous cases, notably Merabishvili v. Georgia (2017), and confirmed in Navalnyy v. Russia (2018). It clarified that the mere non-conformance of a restriction of a Convention right or freedom with the clause permitting it doesn’t inherently raise an Article 18 issue. A separate examination is warranted only when a claim of an ulterior purpose not sanctioned by the Convention appears to be fundamental to the case. To do so, the Court must determine if there’s an identifiable ulterior purpose in light of the circumstances, including the reprehensibility of the alleged ulterior motive.
After a thorough evaluation, the Court determined that the charges against the applicant were not based on a “reasonable suspicion” as required by Article 5 § 1 (c) of the Convention. The measures taken against the applicant pertained to actions that were not criminalized under domestic law but were connected to the exercise of Convention rights, particularly freedom of expression. Given the grave disruption and loss of life resulting from the events, it was deemed legitimate for domestic authorities to conduct investigations after the attempted coup, which led to the declaration of a state of emergency across the nation. The case materials lacked any high-ranking public official’s statements or interferences that would imply an ulterior motive behind the applicant’s detention.
The Court reiterated that the fact that the applicant was prosecuted or held in pretrial detention doesn’t automatically suggest an intent to silence him. The authorities’ actions did not support any interpretation other than the primary purpose of the applicant’s detention is to facilitate the smooth progress of the criminal investigation. Based on this assessment, the Court determined that it was not conclusively proven that the applicant’s pretrial detention was ordered for an ulterior purpose not sanctioned by Article 18 of the Convention.
Consequently, the ECtHR found no violation of Article 18 of the Convention established in the present case.
Justice Egidijus Kūris Dissenting Opinion (Partly)
Justice Kūris dissented from the majority’s finding regarding the applicant’s complaint under Article 18 combined with Article 5. He disagreed with the majority’s assertion that there was no conclusive proof beyond reasonable doubt that the applicant’s pretrial detention was ordered for an ulterior purpose not sanctioned by Article 18 of the Convention. He argued that considering the context could have revealed the authorities’ hidden motives. He referred to third-party submissions in unrelated Turkey-related cases, specifically the “Third-party intervention by the Council of Europe Commissioner for Human Rights,” to elaborate on a pattern, synergy, and policy behind the Court-established violations. He noted a consistent stance of the respondent State towards independent media and a recurring trend in the Court’s handling of Article 18 complaints against Turkey.
Justice Kūris pointed out an apparent contradiction in the majority’s stance. On one hand, the majority accepted that the detention had a chilling effect on the journalist’s willingness to express his views and contributed to self-censorship. On the other hand, the majority’s conclusion did not see this as sufficient to establish a violation of Article 18. Justice Kūris asserted that without acknowledging the reality of the situation in Turkey, the Court’s approach would perpetuate the prevailing conduct towards independent media. He emphasized that this approach wouldn’t only impact the current applicant but would affect independent media as a societal institution.
Justice Saadet Yüksel’s Dissenting Opinion
Justice Yüksel expressed disagreement with the majority’s conclusions concerning the applicant’s complaints under Article 5 § 1 (c) and Article 10 of the Convention. She challenged the Court’s evaluation of whether a “reasonable suspicion” existed. In her view, the domestic courts’ decisions were sufficiently reasoned, offering explanations for the evidentiary connections leading to suspicions about the applicant’s involvement in the alleged crimes. She noted that these decisions, along with the indictment and the Constitutional Court’s decision, provided a detailed assessment of the case’s specifics, demonstrating that the detention was essential for the case’s normal progression and that alternative preventive measures would not have sufficed.
Justice Yüksel argued that the case file contained enough information to convince an objective observer that the applicant might have committed some of the alleged offenses. Therefore, she believed that the domestic authorities’ conclusion of reasonable suspicion appeared reasonable given a contextual analysis. Regarding Article 10 of the Convention, Justice Yüksel criticized the majority’s reliance on the Article 5 § 1 (c) violation to decide that the interference with the applicant’s Article 10 rights wasn’t “prescribed by law,” without conducting a thorough Article 10 assessment. She contended that the applicant’s arrest and detention were based on a “reasonable suspicion” of his involvement in the crimes, making the detention lawful as per the prescribed law. Justice Yüksel concluded that the interference pursued a legitimate aim, and the national authorities could reasonably view it as necessary in a democratic society.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling expands the scope of freedom of expression by recognizing that detaining individuals unlawfully, which amounts to an infringement on their freedom of expression, cannot be justified as being “prescribed by the law” as stated in Article 10 of the Convention. The Court restated that certain situations that create a chilling effect on freedom of expression can lead to individuals, who have not yet received a final conviction, being considered as victims of interference with their freedom of expression. However, it’s worth noting that Judge Kūries highlighted that the Court did not delve into the hidden motives behind the Applicant’s pre-trial detention under Article 18 of the Convention. This missed opportunity prevents the acknowledgment of the stark reality faced by independent media in Turkey.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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