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 held that Turkey violated a journalist’s rights to liberty and freedom of expression when it failed to terminate his pre-trial detention following a Constitutional Court’s decision finding that this measure was unlawful. The applicant had been working for the newspaper Zaman which was closed down by a law issued under state of emergency on July 27, 2016. He was arrested and put in custody on suspicion of being a member of the terrorist organisation FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”) and subsequently placed in pre-trial detention on the ground that the articles published by him in Zaman promoted this terrorist organization. The Court reasoned that the applicant’s pre-trial detention was a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society and agreed with the Constitutional Court that in so far as his detention was not based on any concrete evidence other than his articles, it could have had a chilling effect on freedom of expression and of the press. It said 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”.
The applicant was a columnist in the daily newspaper Zaman, which was considered to be the principal publication medium of the “Gülenist” movement which was accused of attempting to carry out a military coup d’état on July 15, 2016. During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During that night, more than 300 people were killed and more than 2,500 were injured. On July 20, 2016, the government declared a state of emergency for a period of three months which was subsequently extended for further periods, most recently with effect from January 19, 2018. On July 21, 2016, Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15.
The newspaper Zaman was closed down by an emergency decree-law issued on July 27, 2016. On July 30, 2016, several editors and columnists of the newspaper, including the applicant, were arrested and put in pre-trial detention, on suspicion of being members of a terrorist organization. During his interrogation before the Istanbul 4th Magistrate’s Court, the applicant alleged that he had joined Zaman in order to be able to express his opinions; that he was in favour of a democratic system and of European standards; that he was not aware of the threat posed by the Gülenist movement; and that he was opposed to any attack on democracy.
The Magistrate’s Court, decided that the applicant’s articles had promoted the terrorist organization in question and ordered his pre-trial detention. All the applicant’s applications against this measure were rejected.
According to the indictment filed by the Istanbul public prosecutor on April 10, 2017, the applicant was charged under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the Criminal Code, of attempting to overthrow the constitutional order, the Turkish Grand National Assembly, and the government by force and violence, and of committing offenses on behalf of a terrorist organisation without being members of it. The indictment proposed to impose three aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the applicant, on the basis of six articles written by him in 2013 and 2014. The public prosecutor submitted that the articles in question could not be viewed as an expression of opposition to or criticism of the government; that the expressions had gone beyond the limits of freedom of the press and endangered social peace and public order. The public prosecutor further observed that the applicant had not hesitated to call for a military coup and submitted that he had served the interests of the terrorist organization in question. The criminal proceedings against the applicant are currently pending before the Istanbul 13th Assize Court.
On September 8, 2016, the applicant lodged an individual application with the Constitutional Court and complained that his pre-trial detention violated his right to liberty and security and his right to freedom of expression and of the press. He also asked the Court to allow him to be released due to his state of health and to impose an interim alternative measure to detention. On October 26, 2016, the Constitutional Court refused to apply an interim measure. On January 11, 2018, the Court released its judgment by which it decided by eleven votes to six that there had been a violation of his right to liberty and security and his right to freedom of expression and of the press.
The Constitutional Court noted that the articles on the basis of which the applicant was accused mainly dealt with “17-25 December ” criminal investigations related to the alleged corruption of some of cabinet members. In his articles, the applicant had argued that government members implicated in the criminal investigation must be brought to justice and that the government’s reaction to the investigation had been unjust. He also argued that if the investigation in question was conducted on the orders of members of FETÖ/PDY, they should also be subject of a criminal investigation but that it would be unfair to accuse all members of the Gülenist movement. Observing that the applicant had not supported the overthrow of the government by force and that his article published one day before the attempted military coup suggested that he was opposed to coups d’état, the Court concluded that there was no strong factual basis to justify the applicant’s pre-trial detention.
The Constitutional Court established that the applicant’s pre-trial detention on account of his articles constituted an interference with the exercise of the right to freedom of expression. Regarding the lawfulness of the detention, the Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant’s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant’s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles. Based on the foregoing, the Constitutional Court held that there had been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution.
Despite the final decision of the Constitutional Court, the Istanbul 13th and 14th Assize Courts refused to release Mr Alpay. Although the Constitutional Court transmitted the judgment to the Istanbul 13th Assize Court so that it could take “the necessary action” and the applicant’s lawyer applied for his client’s release, the 13th Assize Court refused to release him. The Assize Court noted that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation, and that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application. It thus concluded that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. According to the Assize Court, the Constitutional Court’s judgment was not in compliance with the law and amounted to usurpation of power. The dissenting judge argued that the applicant must be released, noting that the Constitutional Court’s judgments were final and binding. After the rejection of the applicant’s objection by a decision of the 14th Assize Court on January 15, he renewed his individual application with the Constitutional Court on February 1, 2018 and lodged an application with the ECtHR on February 28, 2017.
Before examining the merits of the case, the European Court of Human Rights, hereinafter “the Court”, addressed the preliminary question concerning Turkey’s derogation from the European Convention on Human Rights (“ECHR”) . The Turkish Government submitted that the impugned measures were required by the exigencies of the situation, in response to the public emergency threatening the life of the nation on account of the risks caused by the attempted military coup [para. 67]. The applicant argued that the right of the State to derogate from the Convention could not be a reason to limit his rights because of articles he had written long before the attempted military coup [para. 68].
The Court reiterated that it fell to Contracting States to determine whether the life of the nation was threatened by a public emergency and, if so, how far it was necessary to go in attempting to overcome the emergency. Although the States had a wide margin of appreciation in this respect, the Court emphasised that they did not enjoy an unlimited discretion as the domestic margin of appreciation is accompanied by European supervision [para. 75]. In the present case, the Court noted that the Constitutional Court, having examined from a constitutional perspective the facts leading to the declaration of a state of emergency, concluded that the attempted military coup had posed a severe threat to the life and existence of the nation. In the light of the Constitutional Court’s findings and all the other material available to it, the Court said it likewise considered that the attempted military coup disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention. However, as to whether the measures taken in the present case were strictly required by the exigencies of the situation and consistent with the other obligations under international law, the Court considered it necessary to examine the applicant’s complaints on the merits. [para. 78].
With regard to the applicant’s allegation of violation of freedom of expression, the Government argued that the measure of pre-trial detention did not interfere with his right since the proceedings against him did not relate to his activities as a journalist [para. 152]. It then added that should the Court conclude that there had been an interference, it should find that the interference had been “prescribed by law”, had pursued a legitimate aim and had been “necessary in a democratic society” [para. 153]. The Government submitted that the applicant used his right to destroy other rights and freedoms, holding that the articles in question had promoted an armed terrorist organisation and had constituted incitement to violence, maintaining that the use of the media as a tool for destroying fundamental freedoms could not be tolerated [para. 156].
The applicant argued that his pre-trial detention without any concrete evidence of crime breached his freedom of expression. The third party interveners, comprising the Commissioner for Human Rights, the Special Rapporteur and non-governmental oranizations emphasised the widespread violation of freedom of expression and of the press in Turkey due to the broad and arbitrary application of anti-terrorism legislation. The interveners contended that the government abused this legislation to criminalize dissent or criticism.
The Court firstly endorsed the Constitutional Court’s decision that the pre-trial detention of the applicant on account of his articles constituted an interference with the exercise of his right to freedom of expression. [para. 169]. Having observed that the interference had a legal basis (Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the Criminal Code) and it had pursued a legitimate aim, namely prevention of disorder and crime, the Court went on to determine whether the interference was necessary in a democratic society. In this regard, the Court, following the decision of the Constitutional Court, found that Mr Alpay’s pre-trial detention after the expression of his opinions, had constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society. The Constitutional Court had found that the trial judges had failed to show that depriving the applicant of his liberty met a pressing social need and that, in so far as his detention was not based on any concrete evidence other than his articles, it could have had a chilling effect on freedom of expression and of the press [para. 177, para. 33].
While taking into account the special circumstances of the case resulting from the attempted coup d’état, the Court 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. In the Court’s view, even in a state of emergency the Contracting States must bear in mind that any measures taken should seek to protect the democratic order from the threats to it, and every effort must be made to safeguard the values of a democratic society, such as pluralism, tolerance and broadmindedness [para. 180]. Lastly, The Court pointed out that pre-trial detention of anyone expressing critical views could have 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. 182].
On the basis of the foregoing reasoning, the Court concluded that Turkey violated Mr. Alpay’s right to freedom of expression. It did not consider it necessary to examine separately the applicant’s complaint concerning Article 18 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression in so far as the European Court of Human Rights made clear that the existence of a public emergency threatening the life of the nation could not be used as a pretext to constrain political debate and criticism against state authorities. The decision is especially important for freedom of the press as the Court determined that journalistic activities per se could not be subject to criminal charges for terrorist activities. The Court’s decision further strengthened the right to freedom of expression by acknowledging that the pre-trial detention of a journalist for having published dissenting articles could have a chilling effect on both individuals, the press and civil society.
While these findings uphold protections to freedom of the press, the Court unfortunately chose not to directly address the troubling state of emergency measures implemented by the Turkish government, the scope of which breach what is permissible under international law. Specifically, the Court missed an opportunity to evaluate claims related to Article 18 which prohibits restrictions on liberties for any purpose other than for which they have been prescribed.
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