Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The European Court of Human Rights (ECtHR) supplemented a decision from the Constitutional Court of Turkey, finding that pre-trial detention of a journalist had been a violation of various rights, including of freedom of expression. The journalist had been detained for a year following his arrest under emergency laws adopted by Turkey. The journalist’s request for a provisional release had been rejected by the Constitutional Court but it later held that his detention was unconstitutional, released him and awarded him compensation. The ECtHR found that the journalist’s rights were still being violated and that the amount of compensation he had been awarded was inadequate.
On July 15, 2016, a group of people belonging to the Turkish armed forces, called “Peace Council”, attempted a military coup to overthrow the democratically elected parliament, government and president of Turkey. The government declared a state of emergency, notifying the Council of Europe of a derogation from the European Convention on Human Rights in terms of article 15. The government adopted 37 decree-laws under article 121 of the Turkish Constitution which governs a state of emergency. These laws introduced limitations to the procedural guarantees recognized in domestic law to persons placed in police custody or pre-trial detention including the extension of the duration of police custody; limitations to the examination of objections to detention measures; and restrictions on access to the case file and access to the file.
İlker Deniz Yücel, a Turkish-German journalist with dual nationality, was among the individuals taken into custody because of the content of articles he wrote for the German newspaper Die Welt on the military coup. The Istanbul Criminal judgeships of peace had also issued an arrest warrant against the journalist. Yücel was suspected of the criminal offences of belonging to a terrorist organization, of intrusion into a data processing system, of damage and destruction of the data stored in this system and infringement of their access.
On March 27, 2017, Yücel filed an individual appeal with the Constitutional Court on the grounds that various rights under the European Convention on Human Rights (Convention) had been violated. These rights included his right to liberty and security, his right to freedom of expression and freedom of the press, but also his rights under Articles 3, 6, 8, 13 and 18 of the Convention (namely the prohibition of torture, right to a fair trial, right to respect for private and family life, right to an effective remedy and limitation on use of restrictions on rights). He sought an order for his provisional release from the Constitutional Court.
On March 29, 2017, the Constitutional Court held that Yücel’s continued pre-trial detention did not constitute a danger to his life and physical and moral integrity and refused to order the provisional measure requested.
In 2019, the Constitutional Court reconsidered the matter in a subsequent case (No. 2017/16589) and ruled that there had been a violation of Yücel’s right to liberty and security and to freedom of expression. The Court found that Yücel’s pre-trial detention had a legal basis and then examined whether Yücel’s pre-trial detention pursued a legitimate aim and whether there were strong suspicions that he had committed the offenses charged. The Court held that Yücel’s pre-trial detention was out of proportion to the strict requirements of the situation, that “the deprivation of liberty” inflicted on Yücel “constitutes an ‘interference’ with the exercise […] of his right to freedom of expression” and that there was no strong indication that he had committed an offense. It held that Yücel’s rights to liberty and security, compensation for unlawful detention and “freedom of expression” under article 19 § 3 of the Turkish Constitution were violated.
In 2021, Yücel referred the matter to the European Court of Human Rights (ECtHR) to determine whether the Constitutional Court’s judgment constituted appropriate and sufficient relief.
Judge Jon Fridrik Kjølbro delivered the judgment of the European Court of Human Rights. The main issue before the Court was to determine whether the judgment of the Constitutional Court constituted an appropriate and sufficient remedy for Yücel.
The Turkish government emphasized that they had notified the Secretary General of the Council of Europe on July 21, 2016 about the derogation from the European Convention on Human Rights’ under article 15. It maintained that this meant it had not violated the provisions of the Convention and was only reacting to a public emergency threatening the life of the nation because of the risks involved in the attempted military coup. The Turkish government submitted that the Constitutional Court had already recognized Yücel’s claim of having suffered a violation of his right to liberty and security, and his right to freedom of expression, and that he had already received his compensation.
Yücel argued that there was no evidence of plausible grounds to suspect him of a criminal offense and described the duration of his pre-trial detention as excessive, invoking article 5 of the Convention. He submitted that the judicial decisions ordering his detention and his continued detention on remand were not sufficiently reasoned.
The Court held that Yücel’s pre-trial detention violated the right to liberty and security and the right to freedom of expression protected by articles 5 and 10 of the European Convention on Human Rights.
The Court held that there was a violation of Yücel’s rights to take proceedings by which the lawfulness of one’s detention shall be “decided speedily by a court and his release ordered if the detention is not lawful” and to have an “enforceable right to compensation” under article 5 §§ 4 and 5 of the Convention. The Court examined the length of Yücel’s pre-trial detention and held that the compensation from the Constitutional Court of 4100 euros was manifestly inadequate.
Accordingly, the Court held that Yücel can still claim to be the victim of a violation of these provisions, within the meaning of article 34 of the Convention. The Court stressed that the violation of article 19 of the Constitution as acknowledged by the Constitutional Court and its conclusion regarding the legality of the deprivation of liberty also results in a violation of rights under article 5 § 3 of the Convention which determines that “everyone arrested or detained […] shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial”. The Court repeated the Turkish Constitutional Court’s finding that the deprivation of liberty suffered by Yücel during the pre-trial detention constituted an “interference” with the exercise of his right to freedom of expression, in the European judicial system guaranteed by article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The European Court of Human Rights went further than the Turkish Constitutional Court in awarding compensation for a violation of the right to freedom of expression and in protecting the rights to liberty and to freedom of expression, and emphasized that freedom of expression can be violated by a lengthy pre-trial detention.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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