Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Mixed Outcome
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The European Court of Human Rights found that Turkey had violated journalist Mehmet Hasan Altan’s freedom of expression after continuing to detain him despite a January 11, 2018 order of Turkey’s Constitutional Court for his release. Mr. Altan hosted a political talk show on Can Erzincan TV that discussed current political topics in Turkey. The Turkish government shut down the news channel and a special prosecutor brought terrorism charges against Mr. Altan for allegedly supporting the 2016 attempted military coup. Altan was placed in pre-trial detention on September 10, 2016 and was subsequently sentenced to aggravated life imprisonment on February 16, 2018 by the Istanbul 26th Assize Court. The European Court emphasized that despite the extraordinary circumstances in Turkey, 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.” The European Court found that the interference was neither proportionate nor necessary in a democratic society, did not serve a pressing social need and that such detentions without concrete evidence could have a chilling effect.
Mr. Altan is a Turkish public figure, economics professor, and journalist. He hosted a political talk show on Can Erzincan TV where he expressed critical views of the current Turkish administration. On July 14, 2016, Mr. Altan allegedly “mentioned [on the show] that there [was] an atmosphere suitable for a coup.” On July 15, 2016, a section of the Turkish armed forces, the “Peace at Home Council,” attempted and failed to overthrow the government. The military coup attacked government officials, government buildings, media outlets, and demonstrators resulting in a death toll of over 300 and the injury of more than 2,500 individuals. The Turkish government publicly blamed the terrorist organization FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”) and on July 20, 2016, declared a state of emergency. In conjunction with the declaration, Legislative Decree no. 668 was adopted which shut down the television channel that aired Can Erzincan TV.
On September 10, 2016, the public prosecutor in charge of investigating the coup arrested Mr. Altan. Mr. Altan is one of many journalists currently being detained under similar circumstances in Turkey. The Turkish government alleges that Mr. Altan was part of FETÖ/PDY’s plan to use the media to manipulate public opinion and muster support for the coup. On the same day as his arrest, Mr. Altan filed to be released and the court denied the request. Mr. Altan did not have access to an attorney for the first five days under police custody. He was accused of six different crimes in relation to the coup: (1) attempt to “discredit the ongoing investigation”, (2) making comments on his television show, (3) having a bank account with a bank allegedly linked to FETÖ/PDY, (4) avoiding criminal investigation by working with police controlled by FETÖ/PDY, (5) visiting the head of FETÖ/PDY in the U.S. and “kissing his hand,” (6) having possession of a U.S. dollar where the serial number starts with the letter “F.”
Mr. Altan denied the criminal elements to all accusations, claiming that connections to FETÖ/PDY were innocuous. For example, he admitted to visiting Fetullah Gülen, the head of FETÖ/PDY, but claimed he did so with a group of journalists for professional reasons. On September 22, 2016, Istanbul 10th Magistrate’s Court ordered that Mr. Altan stay in pre-trial detention. The judge justified the decision based on his suspicion that Mr. Altan was involved in the coup, the alleged connection to a terrorist organization, and the likeliness that Mr. Altan would not participate in the criminal proceedings if not detained. Mr. Altan filed for his release which was subsequently rejected by all competent magistrates’ courts.
On April 14, 2017, the public prosecutor filed incitements against Mr. Altan and various other individuals accusing them of attempting to “overthrow the constitutional order.” In a summary judgment issued by the Istanbul 26th Assize Court on February 16, 2018, Mr. Altan was convicted and sentenced to life in prison.
On November 8, 2016, Mr. Alton filed a complaint with ECtHR alleging that the Turkish government had infringed on his right to freedom of expression, press rights, and right to liberty and security. Furthermore, that his detainment was unlawful, excessive, and inhumane, On January 11, 2018, ECtHR found that Mr. Alton’s freedom of expression and press rights had been violated. With regard to the unlawful detainment claims, ECtHR examined the evidence that Mr. Alton had colluded with FETÖ/PDY and decided that, not only were some of the allegations in accordance with living a normal life (e.g. having a bank account or possession of foreign currency), but that the Turkish “investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FETÖ/PDY or with the purpose of preparing the ground for a possible military coup.” The Turkish government had lacked sufficient evidence to hold Mr. Altan and that while a threat to national security may affect the procedures it does not completely negate an individual’s right to liberty or security. The ECtHR did not hear all of Mr. Altan’s complaints but held that Articles 15, 19, 25, and 28 had been violated. Turkey was ordered to pay Mr. Altan 20,000 Turkish liras of non-pecuniary damages and 2,219.50 Turkish lira for costs and expenses. However, the Court found that Mr. Altan had not exhausted all home country remedies, he had not filed a claim with the enforcement judge, and referred the case back to Istanbul 26th Assize Court to take the “necessary action.”
On that same day, Mr. Altan’s lawyer filed for his release with the Istanbul 26th Assize Court which rejected the application on the basis it had not received the official notification from ECtHR. On January 12, 2018, with the notice, Mr. Altan’s lawyer once again filed for his release and was rejected. On January 19, 2018, Istanbul 26th Assize Court claimed that ECtHR did not have jurisdiction over the matter and refused to release Mr. Altan. On January 30, 2018, Mr. Altan once again filed a complaint with ECtHR claiming his Article 5, 6, 10, and 18 rights had been violated.
The Turkish criminal proceedings against Mr. Altan are ongoing, but due to Turkey’s direct violation of the order for Mr. Altan’s release and the increasing number of claims regarding the unconstitutional pre-trial detainment of journalists, ECtHR has given such cases priority and heard Mr. Altan’s second complaint on March 20, 2018.
ECtHR first addressed the preliminary question concerning Turkey’s derogation from ECHR. The Court noted that Article 15 allows for Contracting States to take measures derogating from the ECHR “[i]n time of war or other public emergency threatening the life of the nation,” however, such measures must be “strictly proportionate to the exigencies of the situation,” and can not conflict with other international legal obligations. The Court noted that Turkey had satisfied the formal requirement (Article 15 § 3 of the Convention [para. 90]); Turkey could correctly claim that the attempted military coup was public emergency [para. 93]. The Contracting States have a lot of discretion as to declaring what is a public emergency and what measures need to be taken to rectify the situation. A Contracting State is not unlimited in this power and is subject to European supervision [para. 91]. ECtHR stated that it would consider Turkey’s actions in light of the circumstances [para. 94].
Turkey claimed that Mr. Altan’s rights under Article 10 were not violated during the pre-trial detention as the “subject matter of the proceedings instituted against him did not relate to his activities as a journalist” [para. 182] and that the pre-trial detention was justified under Turkish law Article 309 § 1, Article 311 § 1 and Article 314 §§ 1 and 2 of the CC and fell under Article 10 in the Convention [para. 184]. However, the Court found that because Mr. Altan was arrested for his public comments and views alone, without any substantial evidence to indicate actual terrorist activity, Turkey’s actions could have a “chilling effect on freedom of expression and the press.” [para. 207]. The Court stated that, “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.” [para. 212]. The Court further noted that even if Mr. Altan is later acquitted, the actions of the Turkish government could nonetheless result in chilling of freedom of expression.
ECtHR found that Mr. Altan’s rights under Article 10 were violated and did not examine the remainder of his claims. ECtHR ordered Mr. Altan be compensated 21,500 euros in non-pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression as it protects the rights of journalists and government critics in times of “public emergency threatening the life of the nation” where the state can potentially limit individual rights for the greater good. However, the Court failed to fully address the Turkish government’s actions against journalists and the press. While the Court declared that an Article 10 violation had occurred, it did very little to penalize Turkey or address all the ways in which Turkey had gone too far.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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