Turkish emergency measures in the European Court of Human Rights. Cases: Sahin Alpay v. Turkey and Mehmet Hasan Altan v. Turkey of 20 March 2018

AuthorDimitris Liakopoulos
PositionFull Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and MA of Arts in Law and diplomacy)
Turkish Emergency Measures in the European Court of Human
Rights. Cases: Şahin Alpay V. Turkey and Mehmet Hasan Altan V.
Turkey of 20 March 2018
Dimitris Liakopoulos
Abstract: The present work is concentrated on the analysis of European Court of Human
Rights (ECtHR), issued on cases: Şahin Alpa y v. Turkey and Mehmet Hasan Altan v.
Turkey of 20 March 20 18. ECtHR has ascertained the violation of conventional rights by
Turkish emergency measures for the first time. The extraordinary pre-trial detention of the
victims has breached their rig ht to personal liberty and security (art. 5 of the Convention)
and their right to freedom of expression (art. 10 of the European Convention on Human
Rights). The orientation seems to be based esse ntially on the findings of the domestic
Constitutional Court. This means that the Court of Strasbourg has not departed from its
strict interpretation of the rule of previous exhaustion of domestic remedies but open for a
more careful i nternational control over emergency measures. The method of analysis is
based in analysis of a case study which was analyzed and based on the international
doctrine of ECtHR.
Keywords: emergency measures; ECHR; ECtHR; state of exception
1. Introduction
Turkish State of Exception and Search for an Effective Remedy against
Emergency Measures between Internal and International Plan
In the face of the failed attempted coup d'état in Turkey on the night between 15
and 16 July 2016, the Ankara government decided to establish a strict and all-
encompassing state of exception, resorting, moreover, to the emergency suspension
Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international
law and MA of Arts in Law and diplomacy). Full Professor of International and European Criminal
and Pro cedural Law at the De Haagse Hogenschool -The Hague. Attorney at Law a New York and
Bruxelles. ORCID ID: 0000-0002-1048-6468. The present work is updated until November 2019,
Corresponding author: prof.d.liakopoulos.984@gmail.com. AUDJ, Vol. 15, No. 3/2019, pp. 88-110
mechanism of the guarentigie, governed by European Convention on Human
Rights (ECHR) and International Covenant of Civil and Political Rights. These are
clauses derogating from human rights (Svenssonccarthy, 1998; Prèmont(ed.), 1996;
Oraà, 1992; Gross, Ni Aolain, 2006; Hartman, 1981, pp. 155ss. O’Donnell (a cura
di), 1983; Higgins, 1977, pp. 282; Kretzmer, 2008; Olivier, 2004, pp. 405ss;
Crysler, 1994, pp. 603ss; El Zeidy, 1988, pp. 368ss; Mokhtar, 2004, pp. 658ss;
Partsch, 1971, pp. 327ss; Shraga, 1986, pp. 217ss; Tavernier, 1995, pp. 489;
Teraya, 2001, pp. 918ss; Norris, Reiton, 1980, pp. 192ss; Joseph, Castan, 2014, pp.
910ss), that is international provisions of agreements, included in two relevant
treaties aimed at protecting the fundamental rights of individuals, which allow
states in compliance with certain conditions, substantive and procedural to
temporarily suspend the protection in question, taking extraordinary measures,
suitable for facing and overcoming a serious emergency danger situation, such as to
threaten the security and/or independence of the country considered.
More specifically, the exceptional scheme in question was established through
Decision no. 2016/9064 of 20 July 2016
, specifically communicated to the
General Secretariats of the Council of Europe and the United Nations, precisely to
activate the aforementioned mechanism for the temporary suspension of
guarantees. The state of emergency in question, then, was implemented through a
large range of decrees with the force of law, intended to eradicate from the
structures of the state the coup movement, which was responsible for the events of
15 July. A reportable movement, again according to the authorities of Ankara, to
Fethullah Gülen, a Turkish preacher and scholar, residing in the USA, and accused
of presiding over a branched terrorist-subversive organization, interested in rising
to power in Turkey (Fethullah Gülen Terrorist Organization, so-called FETÖ)
(Gerards, 2019).
Moreover, the state of urgency in question would now seem to have acquired a
stable and permanent dimension within the Turkish system, given that it has
undergone a series of extensions. Such a diachronic arrangement, moreover,
appears to be hardly compatible with the principle of proportionality of exemption
(Kretzmer, 2008, pp. 1922; Joseph, Castan, 2014, pp. 912), one of the normative
cornerstones of the clauses de quibus, which, on the contrary, imposes a limited
duration of the emergency regime and strictly commensurate with the needs of the
See decision no. 2016/9064 of the Turkish Council of Ministers of 20 July 2016, filed and registered
with the General Secretariat of the Council of Europe on 21 July 2016, and notified to the General
Secretariat of the United Nations again on 20 July 2016 registered there on 2 August 2016.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT