Şahin Alpay v. Turkey, No. 16538/17, ECtHR (Second Section), 20 March 2018

Proportionality of measures derogating from the European Convention on Human Rights in time of emergency. Pre-trial detention of an alleged terrorist that is unlawful and contrary to the procedure prescribed by law. Arbitrary interference with freedom of expression and political debate.

Art. 15 ECHR 
Art. 10 ECHR
Art. 5 ECHR

1. The pre-trial detention of a journalist suspected of supporting the terrorist organisation FETÖ/PDY (Gülenist Terror Organisation/Parallel State Structure) breaches Article 5, para. 1 ECHR, given the lack of evidence grounding a reasonable suspicion that he had committed a crime. Article 5 ECHR would be meaningless if people could be placed in pre-trial detention without strong evidence that they committed an offence. In the context of the instant case, the Court notes that there had been a public emergency threatening the life of the nation ex Article 15 ECHR. However, a measure of pre-trial detention that is not “lawful” and has not been effected “in accordance with a procedure prescribed by law” is disproportionate to the strict exigencies of the situation, contrary to what required by Article 15 of the Convention.  

2. The existence of a “public emergency threatening the life of the nation” ex Article 15 ECHR must not serve as a pretext for limiting freedom of political debate. In a state of emergency every effort must be made to safeguard the values of a democratic society, such as pluralism and tolerance. In the present case, the applicant’s pre-trial detention, only based on the public expression of his opinions, cannot be regarded as a necessary and proportionate interference in his right to freedom of expression, even with reference to the aims set out in Article 10, para. 2.

3. Where the views expressed do not constitute an incitement to violence, Contracting States cannot restrict the right of the public to be informed of them, even with reference to the aims set out in Article 10, para. 2, namely the protection of territorial integrity or national security or the prevention of disorder or crime.