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Şahin Alpay and Mehmet Altan

Turkey should immediately implement the judgments of the European Court of Human Rights (ECtHR) and release the veteran journalists Mehmet Altan and Şahin Alpay without delay, a coalition of nongovernmental groups said on 23 March 2018. Furthermore, Turkey must ensure that domestic remedies for human rights violations are effective, in particular by ensuring the urgent review of all cases of journalists and writers currently pending before its Constitutional Court.

The organizations, which had intervened as third parties in the cases before the court, included PEN International, ARTICLE 19, Committee to Protect Journalists, European Centre for Press and Media Freedom, European Federation of Journalists, Human Rights Watch, Index on Censorship, International Press Institute, International Senior Lawyers Project and Reporters Without Borders. The coalition welcomed the judgments announced on March 20, 2018. The rulings are the first by the court in the cases of journalists arrested and detained on charges in relation to the failed 2016 coup attempt in Turkey. They set an important precedent for the other cases of 154 detained journalists in Turkey.

“The Turkish government must take action to implement the European Court of Human Rights’ judgement. The ongoing trials are a serious breach of human rights and freedom of expression by the government. Turkey must cease its judicial harassment of journalists, academics and lawyers,” said Joy Hyvarinen, head of advocacy of Index on Censorship said.

In its two judgments, the European Court found violations of Article 10 of the European Convention on Human Rights, which protects the right to freedom of expression. The court made clear that criticism of governments should not attract criminal charges since, in addition to pre-trial detention, this would inevitably have a chilling effect on freedom of expression and would silence dissenting voices.

“We welcome these rulings, in particular the European Court’s recognition that a state of emergency must not be abused as a pretext for limiting freedom of expression,” said Carles Torner, executive director of PEN International.

While acknowledging the threat posed to Turkey by the attempted coup, the court crucially 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.”

The European Court has also found that the journalists’ detention was unlawful under the right to liberty protected by Article 5 (1) of the European Convention. The European Court endorsed the January 2018 ruling of Turkey’s Constitutional Court, which held that there was not sufficient evidence to keep the defendants in detention and ordered their release.

The judgment further sharply criticized the lower courts for refusing to carry out the Constitutional Court’s decision. In particular, the applicants’ continued pre-trial detention raised serious doubts as to the ability of the domestic legal system in providing an effective remedy for human rights violations, stating: “For another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications runs counter to the fundamental principles of the rule of law and legal certainty.”

“We welcome the court’s finding that the right to liberty of the applicants was violated,” said Caroline Stockford, Turkey Advocacy Coordinator for the International Press Institute. “The Court rightly criticised the refusal by the lower domestic courts to implement the Turkish Constitutional Court’s decisions and to release Mehmet Altan and Şahin Alpay.”

The European Court decided not to examine the applicants’ complaint that the detention of the applicants was politically motivated, under Article 18 of the convention.

“In deciding not to rule on Article 18, the European Court dodges an important question at the core of this litigation, which is whether Turkey’s prosecutions of journalists just for doing their work is part of a larger campaign to crack down on independent journalism?”, said Torner.

“The decision stated that ‘the investigating authorities had been unable to demonstrate any factual basis’that indicate that both journalists had committed the offenses with which he was charged’. The Court repeats what we have been saying with our affiliates for years to Turkish authorities that journalism is not a crime and journalists, like writers or academicians in the country, must not be prosecuted for their work or opinions,” said Ricardo Gutiérrez, EFJ General Secretary.

What the judgments mean for other cases

The judgments contain some important statements of principle on unlawful detention and freedom of expression. In particular, the European Court emphasised that it is not permissible to prosecute individuals on the basis of expression that is critical of the government.

However, in practice, the judgments also imply that the European Court will wait for the Constitutional Court to rule on the other pending cases of Turkish journalists before proceeding to its own review. This is because the European Court still considers the Constitutional Court an effective remedy in general.

Although the European Court was prepared to accept the length of time the Constitutional Court took to review these cases, the judgment is effectively putting the Constitutional Court on notice, saying that it will keep the situation under review and that it cannot continue taking this long to decide on cases.

The coalition repeats its call for the immediate implementation of these two judgments and for the release of Mehmet Altan from prison and Şahin Alpay from house arrest.

“These judgments are an important affirmation of the right to free expression and clearly state that the state of emergency is not a good enough reason to hold journalists and writers in detention for what they say,” said Gabrielle Guillemin, Senior Legal Officer at ARTICLE 19. “The Turkish authorities must now immediately release them both and the Turkish courts should apply these principles to the many other cases of detained journalists in Turkey,” she added.

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