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

• Author: Dimitris Liakopoulos
• Position: Full Professor of European Union Law at the Fletcher School-Tufts University (MA in international law and MA of Arts in Law and diplomacy)
• Pages: 88-110

ACTA UNIVERSITATIS DANUBIUS Vol. 15, no. 3/2019

88

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

1

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

1

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

JURIDICA

89

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

1

, 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

1

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.