Information Note on the Court’s case-law 256
Judgment 23.11.2021 [Section II]
Lawful arrest or detention
Procedure prescribed by law
Pre-trial detention of judges suspected of membership of an illegal organisation following a coup attempt, on the basis of an unreasonable extension of the concept of in flagrante delicto: violations
Facts – The applicants – all of whom were sitting as judges or prosecutors at different types and/or levels of court at the material time – were arrested and placed in pre-trial detention on suspicion of their membership of the “Fetullahist Terrorist Organisation/Parallel State Structure” (“FETÖ/PDY”) in the aftermath of an attempted coup d’état on 15 July 2016.
Law – Article 5 § 1: The parties diverged on whether the initial pre-trial detention of the applicants – as serving judges and prosecutors enjoying a special status at the time of the events – under the rules of the ordinary law might be said to have satisfied the “quality of the law” requirement.
(a) Initial pre-trial detention of ordinary judges and prosecutors
Despite the special procedural safeguards flowing from their status as judges or prosecutors at the material time, the applicants had been placed in pre-trial detention in accordance with the ordinary law, for they had been deemed to have been caught in flagrante delicto, as per section 94 of Law no. 2802. The application of the notion of “in flagrante delicto” in the specific context of the pre-trial detention of an ordinary judge subject to Law no. 2802 had already led to a finding of violation of Article 5 § 1 in Baş v. Turkey, where the Court had found that that notion had been interpreted by the national courts in an extensive manner that had not been in conformity with the requirements of the Convention. The Court saw no reason to depart from its findings in the Baş case.
In acknowledging the existence of “discovery in flagrante delicto” in the present circumstances, the Constitutional Court had adopted a slightly different approach from that followed by the Court of Cassation as examined in Baş. The Constitutional Court had taken the coup attempt as its main reference point, rather than relying solely on the continuing nature of the offence of membership of a terrorist organisation. According to the Constitutional Court, the applicants, and all members of the judiciary caught in the aftermath of the coup attempt, could be considered to have been caught in flagrante delicto solely on the basis of their alleged organisational ties with the terrorist organisation behind that attempt. The Court considered that the Constitutional Court’s conjectural approach appeared to stretch the concept of “in flagrante delicto” beyond the conventional definition provided in domestic law, noting in particular the absence of an affirmation that the applicants had been arrested and placed in pre-trial detention while in the process of, or immediately after, committing an act linked directly to the coup attempt.
The Government had further argued that the pre-trial detention of the relevant applicants under ordinary rules had not necessarily hinged on their discovery in flagrante delicto, but that it had also been justified under section 93 of Law no. 2802, as the offence of which they had been accused had been a personal offence governed by that section and not a duty-related one. In the detention orders issued regarding the applicants, no position had been taken on the “personal” or “duty-related” nature of the offence at issue and reference had been made if any, only to section 94 of the Law, which applied to both types of offences. Even in those applications where the detention orders had not made an express reference to section 94, it was clear from the relevant case-law of the Court of Cassation and the Constitutional Court that in the event of the arrest of a member of the judiciary for membership of an armed terrorist organisation, the conditions for “discovery in flagrante delicto falling within the jurisdiction of the assize courts” within the meaning of section 94 of Law no. 2802 would be considered to have materialised at the time of apprehension, in view of the continuing nature of the offence of membership of an armed terrorist organisation attributed to them. The Government had moreover acknowledged in their observations that the applicants’ pre-trial detention had been conducted in accordance with the general provisions of domestic criminal procedural law on account of their apprehension in flagrante delicto.
The Court was therefore not convinced that the finding as regards the existence of a case “in flagrante delicto” within the meaning of section 94 of Law no. 2802 might foreseeably have been considered as relevant only for determining the jurisdiction ratione loci of the court ordering the detention, without any bearing on the lawfulness of that detention.
The judicial protection provided under Law no. 2802 did not mean impunity. That said, having regard to the importance of the judiciary in a democratic State governed by the rule of law, and to the fact that protection of that kind was granted to judges and prosecutors not for their own personal benefit but in order to safeguard the independent exercise of their functions, the requirements of legal certainty became even more paramount where a member of the judiciary had been deprived of his or her liberty.
Having regard to the foregoing, and to its considerations in the Baş case, the Court could not conclude that the pre-trial detention of the applicants who had been subject to Law no. 2802 had taken place in accordance with a procedure prescribed by law within the meaning of Article 5 § 1. Moreover, the measures at issue could not be said to have been strictly required by the exigencies of the situation, within the meaning of Article 15 of the Convention.
Conclusion: violation (unanimously).
(b) Initial pre-trial detention of members of the Court of Cassation or the Supreme Court
According to Article 46 of Law no. 2797 governing the members of the Court of Cassation, also applicable to members of the Supreme Administrative Court, the initiation of an investigation against those high court judges was subject to the decision of their relevant Presidency Boards, unless in the case of discovery in flagrante delicto falling within the jurisdiction of the assize courts, which triggered the application of the rules of the ordinary law.
That legal framework was similar to that applicable to members of the Constitutional Court, as laid out in the case of Alparslan Altan v. Turkey. The extensive application of the notion “in flagrante delicto” had resulted in the finding of a violation of Article 5 § 1 in the aforementioned case and the Court saw no reason to depart from its findings. Accordingly, the applicants who had been members of the Court of Cassation or the Supreme Administrative Court at the time of their pre-trial detention had similarly not been deprived of their liberty in accordance with a procedure prescribed by law. The decision to place those applicants in pre-trial detention might not, moreover, be said to have been strictly required by the exigencies of the situation, within the meaning of Article 15 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 each in respect of non-pecuniary damage.
(See also Alparslan Altan v. Turkey, 12778/17, 16 April 2019, Legal Summary; Baş v. Turkey, 66448/17, 3 March 2020, Legal Summary)