ECHR takes on Turkey’s freedom expression record

A completely new situation has arisen for jailed journalists in Turkey with the European Court of Human Rights’ (ECHR) rulings on the violation of the rights of journalists Şahin Alpay and Mehmet Altan.

In the ruling, the ECHR stated that Turkey violated the journalists’ right to “freedom and security” through the 5th article of the European Convention on Human Rights and “freedom of expression” through the 10th article.

Let’s draw attention to the different consequences that will be faced by Altan and Alpay regarding the ruling on the 5th article.

Alpay has not yet been convicted and his trial is still ongoing. The ECHR therefore ruled that the violation of his rights was based on his arrest during the trial and called for his release. However, the ECHR ruling effectively only puts the violation on the record, because the Istanbul 14th Heavy Penal Court already ruled for Alpay’s conditional release last week.

Mehmet Altan’s situation is slightly different because he was sentenced to life in jail on Feb. 16 by the Istanbul 26th Heavy Penal Court. Considering this, Altay can follow the route of former Chief of General Staff İlker Başbuğ and go to the local court first with a release request and then take his case to the Constitutional Court if necessary.

However, the ECHR’s ruling on Turkey’s violation of the 10th article goes beyond the “arrest and conviction” debates. That is because the ECHR’s ruling states that the state of emergency does not provide any basis for the government’s restriction of freedoms.

This is the heart of the matter.

The ruling on the violation of the 10th article, on freedom of expression, therefore goes above the ruling on the violation of the 5th article. Using one’s freedom of expression and exercising the right to criticism must not be met with either arrest or conviction.

What the ECHR rulings mean for Turkey

There are two particular points that I would like to draw your attention to. Firstly, after Turkey accepted the right to individual application to the ECHR back in 1987, it then committed itself to executing rulings coming from the court in 1989. Later, in 2004, Turkey agreed to keep ECHR law above national law through a constitutional reform it passed in 2004.

Here is what the additions made to the 90th article of the constitution stated: “In cases involving different views coming from local and international courts regarding cases on basic rights and freedoms, the international court’s decision will be applied.”

So our own Constitutional Court states that in the event of a conflict in rulings, the ECHR ruling from Strasbourg must be applied.

In this regard, the ECHR ruling must be a determining factor in terms of Turkey’s law and order in cases involving the jailing of journalists. In light of the latest ECHR ruling on Altay and Altan, Turkish journalists must not be arrested or convicted for having used their right to criticize and comment.

The ruling should thus serve as a strong basis for all defendants in similar cases. All prosecutors and judges in Turkey should take the ECHR ruling into consideration when making their decisions in cases involving journalists from now on.

Turkey’s first-degree courts do not have the luxury to not abide by Constitutional Court rulings - of course, that is if Turkey is still willing to walk in line with the European judicial system.