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Detentions put Turkey on ECHR collision course

Police came knocking on Ahmet Altan’s door at 6am. After searching his house, they bundled the journalist, who is one of Turkish president Recep Tayyip Erdogan’s fiercest critics, off to jail.

Mr Altan has remained behind bars for some 200 days — except for one day when he was released and then rearrested after criticising the government again. And in that time, his lawyers have struggled to get information on even the most basic details about his case.

They have no detailed indictment, no investigation files to back the formal charges of membership of a terrorist organisation and have had limited, monitored contact with Mr Altan since his arrest in September. Yet pro-government newspapers have published excerpts of the documents his lawyers have been denied access to. This has forced Mr Altan’s legal team to piece together a defence that depends on second-hand documents and the questions he has been asked during his interrogation.

His predicament would not be exceptional — tens of thousands of people arrested since a failed coup last July are still awaiting trial — except for the fact that his lawyers have managed to bring his case to Europe’s highest court, the European Court of Human Rights (ECHR).

That has catapulted Mr Altan’s case to international scrutiny, while illustrating the legal purgatory that has affected thousands of Turks as the country’s legal system strains under a state of emergency imposed after the failed coup. And it has set Turkey and the ECHR, which has also agreed to hear four other Turkish cases, on a collision course.

At the heart of the matter is whether Mr Altan’s legal team have exhausted all their domestic options — Turkey’s constitutional court has not made a single ruling since the putsch attempt and has declined to provide a date to hear his appeal. Given the dysfunction, they argue, the ECHR should be able to make a ruling without waiting for the constitutional court.

Ankara insists this is not the case, despite the fact that the constitutional court has close to 100,000 appeals pending. Two of its judges have also been sacked because of their suspected links to Fethullah Gulen, an exiled cleric accused of masterminding the coup attempt.

“The Turkish judiciary cannot provide an effective and prompt judicial remedy for our clients,” said Veysel Ok, the head of Mr Altan’s legal team. “Our clients have been in detention for over five months in an investigation that relies on no evidence except their written and verbal remarks. This is the most telling proof that the constitutional court has not provided an effective and prompt solution for our clients.”

Ahmet Altan, Turkish journalist who has been detained © Photoshot

The constitutional court has also exempted itself from ruling on the constitutionality of decrees issued by Mr Erdogan — who is hoping to cement his powers at an April 16 referendum on the constitution — under the state of emergency. The decision reverses its position in the 1990s when it asserted its jurisdiction over similar decrees.

With relations between Turkey and Europe strained to the point of breaking, any decision by the ECHR to rule that Mr Altan should be released would likely cause a jurisdictional crisis, Turkish officials warn.

“They [the ECHR] would be overstepping their jurisdiction, and it would mean nothing for us,” Binali Yildirim, Turkey’s prime minister, told foreign journalists in a recent interview.

Turkey is a member of the Council of Europe and in principle the country must abide by ECHR decisions. The European court declined to comment on Mr Yildirim’s remarks.

Bekir Bozdag, the justice minister, said Ankara would be very disappointed if the ECHR ruled that the appeals of the Turkish detainees were admissible.

“As long as they act in line with the rules, we are looking forward to the decision made by the ECHR,” he told the Financial Times. “But of course if the court does not stick to the existing rules when it comes to Turkey, it will hamper the trust towards the court.”

He said the ECHR does not have the authority to rule or control the trial process in Turkey. It could “only make a decision on whether the rights are violated or not, after exhausting the domestic remedies”.

But lawyers in other high-profile cases, including that of Selahattin Demirtas, the detained leader of the largest pro-Kurdish party, have also appealed to the European court to set aside a precedent that required a judgment from the constitutional court before Turkish citizens could seek redress from the ECHR.

The ECHR has yet to set a date for Mr Altan’s appeal to be heard, but has indicated the process will be fast-tracked for him and the other cases, including that of his brother, a writer, who was also arrested.

Police who questioned Mr Altan suggested he used subliminal messaging to signal the coup attempt and had made threats to the president. As evidence, they cite Mr Altan’s appearance on television the evening before the failed putsch, where he predicted that Mr Erdogan would lose elections in two years, among other things.

His lawyers argue that freedom of expression is protected by the constitution.

Via FT