On the 20th of March 2018, the second section of the Chamber of the European Court of Human

Rights found that the Republic of Turkey had violated Article 5, paragraph 1 and Article

10 of the European Convention of Human Rights in the case of the applicant Mr. Şahin Alpay.

Why is the case important?

This case demonstrates how political judgements of domestic courts cause serious harm to individuals

as well as to our democratic society as a whole.

The relevance of this judgement can also be seen in the intervention into the trial by

the Council of Europe, Commissioner for Human Rights, the UN Special Rapporteur on the Promotion

and Protection of the Right to Freedom of Opinion and Expression as well as 11 non-governmental

organisations, all pointing to systematic human rights violations by the respondent

state.

Furthermore, the Alper I vs. Turkey case emphasised the press' crucial role in a democratic society

and deals not only with specific human rights obligations towards individuals by a state,

but also more abstract principles of a democratic society, like the rule of law and legal certainty.

Principle facts The applicant Mr Alper I had claimed that

his rights to liberty, security and freedom of expression of the Convention were breached

due to an extended pre-trial detention from 30 July 2016 until March 2018.

In 2013 and 2014, the journalist Mr Alper I had written six articles in the newspaper

Saman, a supposedly Gulenist paper criticising the Turkish government and the President of

Turkey for unjust criminal proceedings.

In 2016, a widespread and severe military coup attempt took place in Turkey, leading

to the declaration of the state of emergency on the 20th of July 2016 as a temporary measure

to secure public order.

In this context, the Republic of Turkey derogated from the European Convention on Human Rights,

which was found constitutional by the Constitutional Court of Turkey for the purpose of safeguarding

fundamental rights.

Mr Alper I was detained on the ground of suspicion of him being a member of the terrorist organisation

– Gulenist terror organisation – parallel state structures.

Due to his published articles, which allegedly contributed to the terrorist propaganda, according

to the Asisi Court's judgement, his articles did not amount to opinion or criticism of

the government, but were undermining the rights of authorities, endangered social peace and

public order.

His release bids were rejected repeatedly, which is why Mr Alper I filed an individual

application to the Constitutional Court.

The Constitutional Court found an infringement of his right to liberty, security and freedom

of expression, end of the press on 11 January 2018, as his active articles were in fact

expressions of opinion and there was no evidence of support of the military coup.

Despite the Constitutional Court's judgement, the Istanbul Asisi Court rejected Mr Alper

I's subsequent application for release, reasoning that the Constitutional Court had no jurisdiction

over Asisi's court in this case.

The Court's Findings The European Court of Human Rights confirmed

that a Turkish state has violated its negative human rights obligation.

The duty to respect guaranteed in Article 5, Paragraph 1 and Article 10 of the Convention.

By not respecting Mr Alper's liberty, security and freedom of expression.

Although the state party was granted a wide margin of appreciation with regard to the

declaration of public emergency, the measures taken to guard public safety in this case

were not shown to be conformed to a democratic society.

As the judges of the European Court of Human Rights put it in their merits to the case,

the ungrounded detention of journalists who criticised the states' politics amount to

silencing of dissent and misuse of state power in a state of emergency.