Last Updated on November 2, 2019 by LawEuro
SECOND SECTION
CASE OF MEHMET HASAN ALTAN v. TURKEY
(Application no. 13237/17)
JUDGMENT
STRASBOURG
20 March 2018
FINAL
10/09/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Mehmet Hasan Altan v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro, judges,
Ergin Ergül,ad hoc judge,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 20 February 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 13237/17) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Hasan Altan (“the applicant”), on 12 January 2017.
2. The applicant was represented by Mr F. Çağıl, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant alleged, in particular, that hispre-trial detention had breached Articles 5, 10 and 18 of the Convention.
4. On 13 June 2017the Government were given notice of the complaints concerning Article 5 §§ 1, 3, 4 and 5 and Articles 10 and 18 of the Convention and the remainder of the application was declared inadmissible.
5. The applicant and the Government each filed observations on the admissibility and merits of the case.
6. The Council of Europe Commissioner for Human Rights (“the Commissioner for Human Rights”) exercised his right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2 of the Rules of Court).
7. In addition, written comments were submitted to the Court by the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (“the Special Rapporteur”),and also by the following non-governmental organisationsacting jointly: ARTICLE 19, the Association of European Journalists, the Committee to Protect Journalists, the European Centre for Press and Media Freedom, the European Federation of Journalists, Human Rights Watch, Index on Censorship, the International Federation of Journalists, the International Press Institute, the International Senior Lawyers Project, PEN International and Reporters Without Borders (“the intervening non-governmental organisations”). The Section President had granted leave to the Special Rapporteur and the organisations in question to intervene under Article 36 § 2 of the Convention and Rule 44 § 3.
8. The Government and the applicant each replied to the intervening parties’ comments.
9. In correspondence of 18 January 2018 the applicant informed the Court that the Constitutional Court had delivered a judgment on his individual application and that theIstanbul Assize Court had rejected his request for release despite the Constitutional Court’s finding of a violation. In a letter dated 19 January2018 theCourt invited the Government to submit comments on the matter. On 29 January 2018the Government sent their further comments.
10. The Court notes that there are currently a number of applications pending before it concerning the pre-trial detention of journalists. According to its new prioritisation policy, effective since 22 May 2017, cases where applicants have been deprived of their liberty as a direct consequence of an alleged violation of Convention rights, as in the present case, are to be given priority.The Court observes that on11 January 2018 the Constitutional Court gave its judgment on the individual application lodged by the applicant. The Court also considers that the applicant’s application should be examined as a priority.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
11. The applicant was born in 1953. He is currently detained in Istanbul.
A. The applicant’s professional career
12. The applicantis an economics professor and ajournalistin Turkey. Prior to the attempted military coup of 15 July 2016, he presented apolitical discussion programme on Can Erzincan TV, a television channel that was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016 in connection with the state of emergency (see paragraphs 14-18 below).
13. In the years leading up to the attempted coup, the applicant had been known for his critical views on the serving government’s policies.
B. The attempted coup of 15 July 2016 and the declaration of a state of emergency
14. During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey.
15. During the attempted coup, soldiers under the instigators’control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying,held the Chief of General Staff hostage, attacked television channels and fired shots atdemonstrators. During the night of violence, more than 300 people were killed and more than2,500 were injured.
16. The day after the attempted military coup, the national authorities blamed the network linked toFetullahGülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of thatorganisation.
17. On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President, most recently with effect from 19 January 2018.
18. On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention underArticle 15.
C. The applicant’s arrest and pre-trial detention
19. On an unspecified date, the Istanbul public prosecutor initiated a criminal investigation in respect of suspected members of FETÖ/PDY. In addition, on the basis of Article 3§ 1 (l) of Legislative Decree no. 668, he ordered restrictions on the right of the suspects’ lawyers to inspect the contents of the investigation file or to obtain copies of documents in the file. In the course of the criminal investigation, the applicantwas arrested at his home on 10 September 2016 and taken into police custody on suspicion of having links to the media wing of the organisation in question.
20. On the same day, the applicant’s home was searched by police officers without his lawyers being present, as they had been prevented from attending the search on account of the state of emergency.
21. Later that day, the applicantlodged an objection challenging his detention in police custody and seeking his release. On 12 September 2016 the Istanbul magistrate’s court dismissed the objection.
22. The applicantremained in police custody for twelve days at the Istanbul policeanti-terrorist branch. During his first five days in custody, he was not permitted to speak to his lawyers.
23. On 20 September 2016, while at the police station, the applicantstated that he was asserting his right to remain silent.
24. On 21 September 2016 he was questioned by the Istanbul public prosecutor on suspicion of attempting to overthrow the government or to prevent it from discharging its duties (Article 312 of the Criminal Code – (“the CC”) and of being a member of the FETÖ/PDY terrorist organisation (Article 314 of the CC).
25. The records of the questioning indicate that the applicant was accused of: (i) attempting to discredit an investigation into an alleged coup (the “Balyoz” case); (ii) making certain statements serving the interests of FETÖ/PDY, in particular during a television programmebroadcast on Can Erzincan TV on 14 July 2016, in the course of which, according to the public prosecutor, the terrorist organisation had sought to prepare the public for a military coup; (iii) holding an account with Bank Asya, a bank with alleged links to FETÖ/PDY; (iv) avoiding a criminal investigation through the assistance of members of the national police suspected of belonging to FETÖ/PDY; (v) visiting FetullahGülen at his home in Pennsylvania and kissing his hand; and (vi) having in his possession a United States one-dollar bill with an “F” serial number (denoting the initial of the forename Fetullah). In reply, the applicant stated thathe did not know any Turkish army officers and had no links to the attempted coup. The comments he had made during the television programme in question had been intended as warnings to prevent future military coups. Regarding the bank account, some years previously he had taught for three months at a private university, which had asked him to open an account at the bank in question for payment of his wages. He added that he had not been aware of having avoided a criminal investigation through the assistance of certain suspected members of an illegal organisation, and that this was a matterto be taken up with the police officers allegedly responsible. Furthermore, he had visited FetullahGülen as a member of a groupof journalists, for purely professional reasons linked to his role as a journalist, and had never kissed anyone’s hand. Lastly, the one-dollar bill was of no special significance.
26. On 22 September 2016 the applicantappeared before the Istanbul 10th Magistrate’s Courtand was questioned about his alleged acts and the accusations against him. At the end of the hearing, themagistrate ordered the applicant’s pre-trial detention, having taken the following factors into consideration: the strong suspicions against him; the nature of the alleged offences and the fact that they were among the offences listed in Article 100 § 3 of the Code of Criminal Procedure(“the CCP”)– the so-called “catalogue offences”,for whicha suspect’s pre-trial detention was deemed justifiedin the event of strong suspicion;the risk of absconding; and the risk that alternative measures to detention might be insufficient to ensure the applicant’s participation in the criminal proceedings. In the reasons for his decision, the magistrate noted the following: during the attempted military coup, members of FETÖ/PDY had used heavy weapons; since February 2012 the organisation in question had been explicitly waging a campaign against the political authorities; the members of FETÖ/PDYhad attempted to force the government’s resignation by discrediting it in public opinion, especially through judicial operations carried out between 17 and 25 December 2013; and the organisation had taken control of several media outlets with a view to achieving its aim. The magistrate further noted that during the television broadcast on 14 July 2016, the applicanthad said: “Within the State of the Republic of Turkey, there is probably another structure, whose components outside Turkey are closely observing and documenting all these events. It is not clear exactly when [it] will pull its hand out of the bag or how [it] will do so” (“TürkiyeDevletiiçinde de muhtemelenbütünbugelişmeleridışdünyadadahafazlabelgeleyen, izleyenbirbaşka da yapı var. Onun ne zaman torbadaneliniçıkaracağı, nasıleliniçıkaracağı belli değil”). The magistrate concluded that there were suspicions that the contents of the applicant’s statementsabout the political authorities had been intended to prepare the ground for a military coup and were not covered by freedom of the press.
27. On 28 September 2016the applicantlodged an objection against the order for his pre-trial detention. In a decision of 10 October 2016 theIstanbul 2nd Magistrate’s Court dismissed the objection.
28. On 14 October 2016the applicantlodged a freshapplicationfor his release. In a decision of 26 October 2016 the Istanbul 3rd Magistrate’s Courtrejected the application.
29. On various datesthe applicantlodged further applications seeking his release pending trial. According to the documents produced by the parties, the applications were all rejectedby the competent magistrates’ courts, for example on10 and 24 November 2016 and 8December 2016.
30. On 14 April 2017 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court in respect of several individuals, including the applicant, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the CC, of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it. The public prosecutor presented the following items of evidence against the applicant:two articles written by him; his comments during the television broadcast on 14 July 2016; the fact that he had an account with Bank Asya; and the seizure at his home of a United States one-dollar bill with an “F” serial number.He sought the imposition of three aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the applicant.
31. On an unspecified date, the public prosecutor filed his submissions on the merits (esashakkındamütalaa). He sought the applicant’s conviction for the offences with which he was charged.Besides the evidence he had already submitted when the bill of indictment had been filed, the public prosecutor also produced messages sent by other suspected members of FETÖ/PDY viaByLock, an encrypted messaging service allegedly used by members of that organisation.
32. During the criminal proceedings, the applicantdenied having committed any criminal offence.
33. In a summary judgment of 16 February 2018 the Istanbul 26th Assize Court sentenced the applicant to aggravated life imprisonment, in accordance with Article 309 of the CC, for attempting to overthrow the constitutional order. The criminal proceedings are still ongoingin the national courts.
D. Individual application to theConstitutional Court
34. On 8 November 2016 the applicantlodged an individual application withthe Constitutional Court. He complained that he had been placed in pre-trial detention on account of his articles and statements and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press.He also submitted that he had been arrested and detained for reasons other than those provided for by the Constitution. In addition, he complained that his detention in police custody had been unlawful and excessively lengthy,that he had had no access to the investigation file in order to challenge his pre-trial detention, that the magistrates ordering his detention had not been independent or impartial, that no hearings had been held following his applications challenging his continued pre-trial detention, and that the conditions of hisdetention were incompatible with the prohibition of inhuman and degrading treatment.
35. On 11 January 2018 the Constitutional Courtgave a judgment (no. 2016/23672) in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press.
36. With regard to the applicant’s complaint that his pre-trial detention was unlawful, the Constitutional Courtnoted firstly that the evidence forming the basis for his detention had included:(i) an article entitled “The meaning of Sledgehammer” (“Balyoz’unAnlamı”),published in the Star newspaper in 2010; (ii) his statements during the television programme broadcast on Can Erzincan TV on 14 July 2016;and (iii) an article entitled “Turbulence”(“Türbülans”), published on his own website on 20 July 2016. After examining the substance of these items of evidence, the Constitutional Courtheld that the investigating authorities had been unable to demonstrate any factual basis that might indicatethatthe applicanthad been acting in accordance with the aims of FETÖ/PDY orwith the purpose of preparing the ground for a possible military coup.The Constitutional Court observed that, as well as having published the above-mentioned articles and made thestatements in question, the applicant was accused of holding an account with Bank Asya, having avoided a criminal investigation through the connivance of members of the national police suspected of belonging to FETÖ/PDY, and having in his possession a United States one-dollar bill with an “F” serial number. Addressing thoseallegations, the Constitutional Courtheld, having regard to the applicant’s testimony and line of defence, that no specific facts had been established that could refute his explanations, which were “consistent with the normal course of life”. Similarly,regarding the contents of the messages exchanged by other individuals via ByLock, the Constitutional Courtheld that the messages could not in themselves be regarded as significant indicationsthat the applicant had committed an offence. Accordingly, it concluded that “strong evidence that an offence had been committed” had not been sufficiently established in the applicant’s case. Next, the Constitutional Court examined whether there had been a violation of the right to libertyand security in the light of Article 15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency). On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless. Accordingly, it held that the applicant’s pre-trial detentionwas disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 § 3 of the Constitution,had been breached.
37. However, having regard to the length of the applicant’s detention and the documents available to it, the Constitutional Courtheld that his complaint that he had been detained for political purposes, on grounds other than those provided for by the Constitution, lacked a sufficient basis.
38. With regard to the complaint concerning freedom of expression and of the press, the Constitutional Courtobserved that the applicant’s initial and continued pre-trial detention on account of his articles and statementsamounted to interference with the exercise of that right.Taking into account his arguments regarding the lawfulness of his pre-trial detention, the Constitutional Courtheld that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant’s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant’s pre-trialdetentioncould have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles and statements (see paragraph 235 of the Constitutional Court’s judgment). Regarding the application of Article 15 of the Constitution, it referred to its findings concerning the lawfulness of his pre-trial detention (as set out in paragraphs 155-57 of its judgment – see paragraph 36 above) and held that there had also been a violation offreedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution.
39. With regard to the complaints concerning the lawfulness and duration of the applicant’s detention in police custody, the Constitutional Courtheld that he should have brought an action under Article 141 § 1 (a) ofthe CCP but had refrained from doing so.Furthermore, it noted that there was no information in the application or the appended material as to whether the applicanthad lodged an objection under Article 91 § 5 of the CCP against his detention in police custody. Accordingly, it declared these complaints inadmissible for failure to exhaust the appropriate remedies.
40. As to the complaint of a lack of independence and impartiality on the part of the magistrates who had ordered the applicant’s pre-trial detention, the Constitutional Courtdismissed it as being manifestly ill-founded, on the grounds that the magistrateswere appointed by the High Council of Judges and Prosecutors andwere entitled to the same constitutional safeguards as other judges.
41. Concerning the applicant’s complaint that he had had no access to the investigation file,the Constitutional Courtheld that he had had sufficient means available to prepare his defence to thecharges against himand challenge his pre-trial detention, in view of the contents of the detailed questions put to him during questioning by the public prosecutor and the magistrate, and the overall duration of the restriction on access to the case file. Accordingly, itdeclared this complaint inadmissible as being manifestly ill-founded.
42. With regard to the complaint that no hearing had been held during the examination of the applicant’s applications challenging his pre-trial detention, the Constitutional Courtfound that there was no obligation to hold a hearing on each and every objection to pre-trial detention orders and their extension, and that where a person had been able to appear before the first-instance court considering the issue of detention, the fact that there was no hearing on a subsequent appeal did not in itself contravene the Constitution since it did not breach the principle of equality of arms. The Constitutional Court notedthatthe applicantand his lawyer had been present at the hearing on 22 September 2016, following which the applicant had been placed in pre-trial detention. It observed that he had lodged an objection against his detention on 28 September 2016, that the objection had been dismissed on 10 October 2016 and that eighteen days had thus elapsed between his previous appearance in court and the dismissal of his objection. Taking this period into account,the Constitutional Courtconsidered that there had been no obligation to hold a hearing during the examination of his objection, and accordingly declared this complaint likewise inadmissible as being manifestly ill-founded.
43. Lastly, with regard to the applicant’s complaintthatthe conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment, the Constitutional Court observed that he had not raised this issue with the enforcement judge.Accordingly, it declared the complaint inadmissible for failure to exhaust the appropriate remedies.
44. Having regard to its findings of violations, the Constitutional Courtheld that the applicant was to be awarded 20,000 Turkish liras (TRY –approximately 4,500 euros (EUR)) in respect of non-pecuniary damage and TRY 2,219.50 (approximately EUR 500) in respect of costs and expenses.
45. As the applicant was still in pre-trial detention on the date of delivery of its judgment, the Constitutional Courtdecided to transmit the judgment to theIstanbul 26th Assize Court so that it could take “thenecessary action”.
E. Reaction of the Istanbul assize courts to the Constitutional Court’s judgment
46. On 11 January 2018 the applicant’s lawyer applied to the Istanbul 26th Assize Court for his client’s release.
47. On the same day, the Istanbul 26th Assize Court rejected the application by two votes to one, on the grounds that it had not yet received official notification of the Constitutional Court’s judgment. It held in addition that the summary judgment submitted by the applicant’s lawyer did not contain any indication by the Constitutional Court of a measure relating to the applicant’s release.
48. In his opinion the dissenting judge stated that, in accordance with Article 153§ 6 of the Constitution, the Constitutional Court’s judgments were binding on the legislative, executive and judicial organs, the administrative authorities and natural and legal persons. Accordingly, where a violation had been found on account of a judicial decision, the relevant court was required to take the necessary action to redress the effectsof the violation, pursuant to section 50(2) of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court (“Law no. 6216”). In his view, the only way of satisfying this requirement in the applicant’s case was to order his release.
49. On 12 January 2018 the applicant lodged an objection with a view to securing his release, submitting a copy of the Constitutional Court’sjudgment of 11 January 2018 as published on the court’s website.
50. In adecision delivered on 15 January 2018 theIstanbul 27th Assize Court, by two votes to one, dismissed the applicant’s objection and ordered the continuation of his pre-trial detention.In reaching that finding, it observed that theConstitutional Court’s judgment had not been published in the Official Gazette as required byArticle 153 § 6 of the Constitution.
51. In his dissenting opinion, the judge in the minority expressed the view that, since the Constitutional Court’s judgments were binding and not subject to appeal, the applicantshould be released pending trial without waiting for the judgment in question to be published in the Official Gazette.
52. On 19 January 2018 the Constitutional Court’s judgment on the individual application lodged by the applicantwas published inOfficial Gazetteno. 20306.
53. On the same day, the Istanbul 26th Assize Court examined of its own motion the question of the applicant’s continued detention. Noting firstly that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rightsand what measures would be appropriate to put an end to the violation, and secondly that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. On that account, the Constitutional Court’s judgment no. 2016/23672 was not in compliance with the law. The Assize Court added that ordering the applicant’s release as an automatic consequence of the judgment in questionwould run counter to the general principles of law, the independence of the courts, the principle that no authority couldgive orders or instructions to the courts, and the “natural judge” principle.Lastly, by two votes to one, it ordered the continuation of the applicant’s pre-trial detention. In so holding, it took the following into account: the evidence before it; the large scale of the attempted military coup; the risk of the applicant’s absconding; the current state of the case file; and the severity of the potential sentence in the event of a conviction.
54. The judge who had voted in favour of the applicant’s release stated in a dissenting opinion that theConstitutional Court’s judgments were binding and that the Assize Court was thus required to comply withjudgment no. 2016/23672. He pointed out that the only possible way for it to do so was to order the applicant’s release.
55. On 30 January 2018 the applicant lodged a further individual application with the Constitutional Court. Relyingon Articles 5, 6 and 18 of the Convention, he complained mainly that he had been kept inpre-trial detention despite the Constitutional Court’s judgment of 11 January 2018.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant provisions of the Constitution
56. Article 11 of the Constitution provides:
“The provisions of the Constitution are fundamental legal rules binding on the legislative, executive and judicial organs, the administrative authorities and all other institutions and individuals. Laws shall not be contrary to the Constitution.”
57. Article 15 of the Constitution reads as follows:
“In the event of war, general mobilisation, a state of siege or a state of emergency, the exercise of fundamental rights and freedoms may be partially or fully suspended, or measures derogating from the guarantees enshrined in the Constitution may be taken to the extent required by the situation, provided that obligations under international law are not violated.
Even in the circumstances listed in the first paragraph, there shall be no violation of: the individual’s right to life, except where death occurs as a result of acts compatible with the law of war; the right to physical and spiritual integrity; freedom of religion, conscience and thought or the rule that no one may be compelled to reveal his or her beliefs or blamed or accused on account of them; the prohibition of retrospective punishment; or the presumption of the accused’s innocence until a final conviction.”
58. The relevant parts of Article 19 of the Constitution read as follows:
“Everyone has the right to personal liberty and security.
…
Individuals against whom there are strong presumptions of guilt may be detained only by order of a judge and for the purposes of preventing their absconding or the destruction or alteration of evidence, or in any other circumstances provided for by law that also necessitate their detention. No one shall be arrested without an order by a judge except when caught in flagrante delicto or where a delay would have a harmful effect; the conditions for such action shall be determined by law.
…
A person who has been arrested or detained shall be brought before a judge within forty-eight hours at the latest or, in the case of offences committedjointly with others, within four days, not including the time required to convey the person to the nearest court to the place of detention. No one shall be deprived of his or her liberty after the expiry of the aforementioned periods except by order of a judge. These periods may be extendedduring a state of emergency or a state of siege or in time of war.
…
Anyone who has been detained shall be entitled to request a trial within a reasonable time and to apply forrelease during the course of the investigation or criminal proceedings. Release may be conditioned by a guarantee to ensure the person’s appearance throughout the trial, or the execution of the court sentence.
Everyone who is deprived of his or her liberty for any reason whatsoever shall be entitled to apply to a competent judicial authority for a speedy decision on his or her case and for his or her immediate release if the detention is not lawful.
Compensation shall be paid by the State for damage sustained by anyone who has been the victim of actions contravening the above rules, in accordance with the general principles of compensation law.”
59. The first two paragraphs of Article 26 of the Constitution provide:
“Everyone has the right to express, individually or collectively, his or her thoughts and opinions and to disseminate them orally, in writing, through image or by any other means.This right also includes the freedom to receive or impart ideas or information without interference by the official authorities. This paragraph shall not preclude the imposition of rules concerning the licensing of radio, television, cinema or other similar enterprises.
The exercise of these freedoms may be restricted to preserve national security, public order, public safety, the fundamental characteristics of the Republic and the indivisible integrity of the State in terms of its territory and nation, to prevent crime, to punish offenders, to prevent the disclosure of information covered by State secrecy, to protect the honour, rights and private and family life of others, as well as professional secrecy as provided for by law, and to ensure the fulfilment of the judicial function in accordance with its purpose.”
60. The relevant parts of Article 28 of the Constitutionread as follows:
“The press is free and shall not be censored….
The State shall take the necessary measures to ensure freedom of the press and of information. The provisions of Articles 26 and 27 of the Constitution shall apply with regard to the restriction of freedom of the press.
…”
61. Article 90 § 5 of the Constitution provides:
“International treaties that are duly in force are legally binding.Their constitutionality cannot be challenged in the Constitutional Court. In the event of conflict between duly applicable international treaties onfundamental rights and freedoms and domestic statutes, the relevant provisions of the international treaties shall prevail.”
62. Article 153 §§ 1 and 6 of the Constitution reads as follows:
“The decisions of the Constitutional Court are final. Decisions entailing annulment shall not be made public until a statement of reasons has been drafted.
…
Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive and judicial organs, the administrative authorities and natural and legal persons.”
B. Law no. 6216on the establishment and rules of procedure of the Constitutional Court
63. Section 45(1) and (2) of Law no. 6216 provides:
“(1) Anyoneclaiming that a public authority has violated one of his or her fundamental rights and freedoms as protected by theConstitution and secured under the European Convention on Human Rights and the Protocols thereto that have been ratified by Turkey may apply to the Constitutional Court.
(2) An individual application may be lodged only after the exhaustion of all the administrative and judicial remedies provided for by law in relation to the measure, actor negligence complained of.”
64. Section 50(1)and(2)of Law no. 6216 reads as follows:
“(1) Following the examination on the merits, a decision shall be given as to whether or not there has been a violation ofthe applicant’s right. If a violation is established, the measures to be taken to put an end to the violation and redress its effects shall be specified in the operative provisions of the decision.No review of the appropriateness of an administrative act may be carried out, and no decision amounting to such an act may be given.
(2) Where a violation is established on account of a judicial decision, the file shall be sent to the relevant court for reopening of the proceedings with a view to putting an end to the violation and redressing its effects. Where there is no legal interest in reopening the proceedings, the applicant may be awarded compensation or be invited to institute proceedings in the appropriate courts. The court before which the proceedings are reopened shall deliver a decision, if possible on the basis of the case file, with a view to putting an end to the violation found by the Constitutional Court in its decision and redressing the effects of the violation.”
C. Relevant provisions of the Criminal Code (“the CC”)
65. Article 309 § 1 of theCCis worded as follows:
“Anyone who attempts to overthrow by force or violence the constitutional order provided for by the Constitution of the Republic of Turkey or to establish a different order in its place, or de factoto prevent its implementation, whether fully or in part, shall be sentenced toaggravated life imprisonment.”
66. Article 311 § 1 of theCCreads as follows:
“Anyone who attempts to overthrow the Turkish Grand National Assembly by force or violence or to prevent it, whether fully or in part, from discharging its dutiesshall be sentenced toaggravated life imprisonment.”
67. Article312 § 1 ofthe CCprovides:
“Anyone who attempts to overthrow the Government of the Republic of Turkey by force or violence or to prevent it, whether fully or in part, from discharging its dutiesshall be sentenced toaggravated life imprisonment.”
68. In addition, Article220 § 6 of theCC, on punishment of offences committed on behalf of an illegal organisation, reads as follows:
“Anyone who commits an offence on behalf of an [illegal] organisation shall also be sentenced for belonging to that organisation, even if he or she is not a member of it.”
69. Article 314 §§ 1 and 2 of theCC, which provides for the offence of belonging to an illegal organisation, reads as follows:
“1. Anyone who forms or leads an organisation with the purpose of committing the offences listed in the fourth and fifth parts of this chapter shall be sentenced to ten to fifteen years’ imprisonment.
2. Any member of an organisation referred to in the first paragraph above shall be sentenced to five to ten years’ imprisonment.”
D. Relevant provisions of the Code of CriminalProcedure (“the CCP”)
70. Article 91 § 1 of the CCP provides that a person may not be held in police custody for more than twenty-four hours from the time of the arrest, not including the time needed to convey the person to a judge or court, which may not exceed twelve hours.The third paragraph of the same Article provides that in the case of an offence committed jointly with others, where there are difficulties in gathering evidence or there are a large number of suspects, the public prosecutor may order, in writing, the extension of the custody period up to a maximum of four days. Under paragraph 5 of the same Article, the arrested person or his or her representative, partner or relatives may lodge an objection against the arrest, the custody order or the extension of the custody period with a view to securing the person’s release. The objection must be examined within twenty-four hours at the latest.
71. Pre-trialdetention is governed by Articles 100 et seq. of theCCP. In accordance with Article 100, a person may be placed in pre-trial detention where there is factual evidence giving rise to strong suspicion that the person has committed an offence and where the detention is justified on one of the grounds laid down in the Article in question, namely: if the suspect has absconded or there is a risk that he or she will do so, and if there is a risk that the suspect will conceal or tamper with evidence or influence witnesses. For certain offences, in particular offences against State security and the constitutional order, the existence of strong suspicion is sufficient to justify pre-trial detention.
72. Article 101 of theCCP provides that pre-trial detention is ordered at the investigation stage by a magistrate at the request of the public prosecutor and at the trial stage by the competent court, whether of its own motion or at the prosecutor’s request. An objection may be lodged with another magistrate or another court against decisions ordering or extending pre-trial detention. Such decisions must include legal and factual reasons.
73. Pursuant toArticle 108 of theCCP, during the investigation stage, a magistrate must review a suspect’s pre-trial detention at regular intervals not exceeding thirty days. Within the same period, the detainee may also lodge an application for release. During the trial stage, the question of the accused’s detention is reviewed by the competent court at the end of each hearing, and in any event at intervals of no more than thirty days.
74. Article 141 § 1 (a) and(d) ofthe CCP provides:
“Compensation for damage …may be claimed from the Stateby anyone …:
(a) who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law;
…
(d) who, even ifhe or she was detained lawfully during the investigation or trial, has not been brought before a judicial authority within a reasonable time and has not obtained a judgment on the merits within a reasonable time;
…”
75. Article 142 § 1 of the CCP reads as follows:
“The claim for compensation may be lodged within three months after the person concerned has been informed that the decision or judgment has become final, and in any event within one year after the decision or judgment has become final.”
76. According to the case-law of theCourt of Cassation, it is not necessary to wait for a final decision on the merits of the case before ruling on a compensation claim lodged under Article 141 of theCCP on account of the excessive length of pre-trial detention (decisions of 16 June 2015, E. 2014/21585 – K. 2015/10868 and E. 2014/6167 – K. 2015/10867).
E. Provisions of the emergency legislative decrees
77. Article 6 § 1 (a) ofEmergency Legislative Decree no. 667, which was in force when the applicant was in police custody, provided that the custody period could not exceed thirty days from the time of the arrest, not including the time needed to convey the person to a judge or court.
78. Under Article 3 § 1 (l) ofEmergency Legislative Decree no. 668, if the right of counsel for the defence to inspect the contents of the case file or obtain copies of documents risks endangering the purpose of the investigation, the public prosecutor may decide to restrict that right.
79. In accordance with Articles 10 and 11 ofEmergency Legislative Decree no. 684, which came into force on 23 January 2017, a person cannot be held in police custody for more than seven days from the time of the arrest, not including the time needed to convey the person to a judge or a court. Where there are difficulties in gathering evidence or there are a large number of suspects, the public prosecutor may order, in writing, the extension of the custody period for a further seven days.
F. Case-law ofthe Constitutional Court
80. In its decision of 4 August 2016 (no. 2016/12) concerning the dismissal of two members of the Constitutional Courtand its decision of 20 June 2017(Aydın Yavuzand Others, no. 2016/22169) concerning a person’s pre-trial detention, the Constitutional Courtprovided information and assessments on matters including the attempted military coup and its consequences. It carried out a detailed examination, from a constitutional perspective, of the facts leading to the declaration of the state of emergency. As a result of this examination, it found that the attempted military coup had been a clear and serious attack both on the constitutional principles that sovereignty was unconditionally and unreservedly vested in the people, who exercised it through authorised organs, and that no individual or bodycould exercise any State authority not emanating from the Constitution, and also on the principles of democracy, the rule of law and human rights.According to the Constitutional Court, the attempted military coup had been a practical illustration of the severity of the threats posed to the democraticconstitutional order and human rights. After summarising the attacks carried out during the night of 15 to 16 July 2016, it emphasised that in order to assess the severity of the threat posed by a military coup, it was also necessary to consider the risks that might have arisen had the coup attempt not been thwarted. It found that the fact that the attempted coup had taken place at a time when Turkey had been under violent attack from numerous terrorist organisations had made the country even more vulnerable and considerably increased the severity of the threat to the life and existence of the nation. The Constitutional Court noted that in some cases, it might not be possible for a State to eliminate threats to its democratic constitutional order, fundamental rights and national security through ordinary administrative procedures. It might therefore be necessary to impose extraordinary administrative procedures, such as a state of emergency, until such threats were eliminated.Bearing in mind the threats resulting from the attempted military coup of 15 July 2016, the Constitutional Court accepted the power of the Council of Ministers, chaired by the President, to issue legislative decrees on matters necessitating the state of emergency. In that context, it also emphasised that the state of emergency was a temporary legal regime, in which any interference with fundamental rights had to be foreseeable and the aim was to restore the normal regime in order to safeguard fundamental rights.
III. NOTICE OF DEROGATION BY TURKEY
81. On 21 July 2016 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:
“I communicate the following notice of the Government of the Republic of Turkey.
On 15 July 2016, a large-scale coupattempt was staged in the Republic of Turkey to overthrow the democratically-elected government and the constitutional order. This despicable attempt was foiled by the Turkish state and people acting in unity and solidarity. The coupattempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Republic of Turkey is taking the required measures as prescribed by law, in line with the national legislation and its international obligations. In this context, on 20 July 2016, the Government of the Republic of Turkey declared a State of Emergency for a duration of three months, in accordance with the Constitution (Article 120) and the Law No. 2935 on State of Emergency (Article 3/1b). … The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. Thus, the State of Emergency takes effect as from this date. In this process, measures taken may involve derogation from the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, permissible in Article 15 of the Convention.
I would therefore underline that this letter constitutes information for the purposes of Article 15 of the Convention. The Government of the Republic of Turkey shall keep you, Secretary General, fully informed of the measures taken to this effect. The Government shall inform you when the measures have ceased to operate.
…”
THE LAW
I. PRELIMINARY QUESTION CONCERNING THE DEROGATION BY TURKEY
82. The Government emphasised at the outset that all of the applicant’s complaints should be examinedwith due regard to the derogation of which the Secretary General of the Council of Europe had been notified on 21 July 2016 under Article 15 of the Convention. Article 15 provides:
“1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.”
A. The parties’submissions
83. The Government submitted thatin availing itself of its right to make a derogation from the Convention, Turkey had not breached the provisions of the Convention. In that context, they noted that there had been a public emergency threatening the life of the nation on account of the risks caused by the attempted military coup and that the measures taken by the national authorities in response to the emergency had been strictly required by the exigencies of the situation.
84. The applicantsubmitted that there had been a violation of Articles 5, 10 and 18 of the Convention without explicitly stating a position on the applicability ofArticle 15 of the Convention.
85. The Commissioner for Human Rightsdid not make any comments about the notice of derogation from the Convention in his intervention.
86. The Special Rapporteurstated that if the circumstances justifying the declaration of a state of emergency ceased to exist, individuals’ rights could no longer be restricted in connection with the aforementioned derogation.
87. The intervening non-governmental organisations submitted that the Governmenthad not shown that there was currently a public emergency threatening the life of the nation. They contended in addition that the applicant’s initial and continued pre-trial detention could not be regarded as strictly required by the exigencies of the situation.
B. The Court’s assessment
88. The Courtconsiders that the question thus arising is whetherthe conditions laid down in Article 15 of the Convention for the exercise of the exceptional right of derogation were satisfied in the present case.
89. In this connection, the Court notes firstly that thenotice of derogation byTurkey, indicating that a state of emergency has been declared in order to tackle the threat posed to the life of the nation by the severe dangers resulting from the attempted military coupand other terrorist acts, does not explicitly mention which Articles of the Conventionare to form the subject of a derogation. Instead, it simply announces that “measures taken may involve derogation from the obligations under the Convention”. Nevertheless, the Court observes that none of the parties havedisputed that the notice of derogationby Turkey satisfied theformal requirementlaid down in Article 15 § 3 of the Convention, namely to keep the Secretary General of the Council of Europe fully informed of the measures taken by way of derogation from the Convention and the reasons for them. Accordingly, it is prepared to accept that this formal requirement has been satisfied.
90. The Courtfurther notes that under Article 15 of the Convention, any High Contracting Party has the right, in time of war or public emergency threatening the life of the nation, to take measures derogating from its obligations under the Convention, other than those listed in paragraph 2 of that Article, provided that such measures are strictly proportionate to the exigencies of the situation and that they do not conflict with other obligations under international law (see Lawless v. Ireland (no. 3), 1 July 1961, § 22, p. 55, Series A no. 3).
91. The Courtreiterates that it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency (see A. and Othersv. the United Kingdom[GC], no. 3455/05, § 173, ECHR 2009). By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities. Nevertheless, the Court would emphasise that States do not enjoy an unlimited discretion in this respect. The domestic margin of appreciation is accompanied by European supervision (see Branniganand McBride v. the United Kingdom, 26 May 1993, § 43, Series A no.258‑B).
92. In the present case, the Courttakes note of the Government’s position that the attempted military coup and its aftermath have posed severe dangers to the democratic constitutional order and human rights, amounting to a threat to the life of the nation within the meaning of Article 15 of the Convention; it also notes that the applicant has not disputed this assessment.
93. The Court observes thatthe Constitutional Court, having examined from a constitutional perspectivethe facts leading to the declaration of a state ofemergency, concluded that theattempted military coup had posed a severe threat to the life and existence of the nation (see paragraph 80above). In the light of the Constitutional Court’s findings and all the other material available to it, the Courtlikewise considers that the attempted military coupdisclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention.
94. As to whether the measures taken in the present case were strictly required by the exigencies of the situation and consistent with the other obligations under international law, the Courtconsiders it necessary to examine the applicant’s complaints on the merits, and will do so below.
II. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
95. The Governmentraised two objections of failure to exhaust domestic remedies.
A. Objection of failure to bring a compensation claim
96. Regarding the applicant’s complaints under Article 5 of the Convention concerning the lawfulness and duration of his detention in police custody and the lawfulness of his pre-trial detention, the Governmentstated that a compensation claim had been available to him under Article 141 § 1 (a) and (d) of the CCP. They contended that he could and should have brought a compensationclaim on the basis of those provisions.
97. The applicant contestedtheGovernment’s argument. He asserted that a compensation claim did not offer reasonable prospects of success in terms of securing his release.
98. Firstly, as regards the complaint concerning the lawfulness and duration of the applicant’s detention in police custody, the Court observes that the Turkish legal system provides applicants with two remedies in this respect, namely an objection aimed at securing release from custody(Article 91 § 5 of the CCP) and a compensation claim against the State (Article 141 § 1 (a)of the CCP) (see Mustafa Avciv. Turkey, no. 39322/12, § 63, 23 May 2017). The Court notes that one of the reasons whythe Constitutional Court declared this complaint inadmissiblewas that there was no information in the case file as to whether the applicant had lodged an objection under Article 91 § 5 of the CCP against his detention in police custody (see paragraph 39 above). However, the Courtobserves that on 10 September 2016 the applicantdid lodge an objection seeking his release from police custody, which was dismissed by the Istanbul magistrate’s court on 12 September 2016 (see paragraph 21 above). He therefore availed himself of the remedy provided for inArticle 91 § 5 of the CCP. Next, as regards the possibility of bringing a compensation claim under Article 141 § 1 (a)of the CCP,the Court notes thatEmergency Legislative Decreeno. 667, adopted following thedeclarationof astate of emergency, allowed individuals to be held in police custody for up to thirty days, not including the time needed to convey them to a court. In those circumstances, having regard to the wording of the relevant provisions, the Courthasdoubts as to the effectiveness of the remedy provided for in Article141 § 1 (a), given that the applicant’s period in police custody does not appear to have exceeded the statutory maximum duration prescribed by Article 6 § 1 (a)of Emergency Legislative Decreeno. 667 as in force at the material time.
99. The Courtreiterates, however, that where there are doubts as to a domestic remedy’s effectiveness and prospects of success – as the applicantmaintains in this case – the remedy in question must be attempted (see Voisinev. France, no. 27362/95, Commission decisionof 14 January 1998). This is an issue that should be tested in the courts (see Roseiro Bento v. Portugal (dec.), no. 29288/02, ECHR 2004-XII (extracts);Whiteside v. the United Kingdom, no. 20357/92, Commission decisionof 7 March 1994;andMustafa Avci, cited above, § 65).
100. The Court notes in this connection that the Constitutional Court dismissed the applicant’s complaints concerning the lawfulness and duration of his detention in police custody, finding that anyone held in police custody under conditions and in circumstances not complying with the law could bring a compensation claim under Article 141 § 1 (a) of the CCP (see paragraph 39 above).
101. In the light of theConstitutional Court’s conclusion on this issue, the Courtconsiders that, as regards his complaint concerning the lawfulness and duration of his detention in police custody,the applicantwas required to bring a claim underArticle 141 § 1 of the CCP before the domestic courts, but did not do so. It therefore allows the Government’s objection and rejects this complaint concerning the applicant’s detention in police custody for failure to exhaust domestic remedies, pursuant toArticle 35 §§ 1 and 4 of the Convention.
102. The Courtpoints out, however, that this conclusion in no way prejudices any subsequent review of the question of the effectiveness of the remedy concerned, and in particular of the domestic courts’ ability to develop a uniform, Convention-compliant approach to the application of Article 141 § 1 (a)of the CCP (see Korenjak v. Slovenia (dec.), no. 463/03, § 73, 15 May 2007).
103. Furthermore, with regard to the applicant’s complaints concerning his initial and continued pre-trial detention, the Courtreiterates thatfor a remedy in respect of the lawfulness of an ongoing deprivation of liberty to be effective, it must offer a prospect of release(see Gavril Yosifov v. Bulgaria, no.74012/01, § 40, 6 November 2008, andMustafa Avci, cited above, § 60). It notes, however, that the remedy provided for in Article 141 of the CCPis not capable of terminating the applicant’s deprivation of liberty.
104. The Courttherefore concludes that the objection raised by the Governmenton this account must be dismissed.
B. Objection of failure to lodge an individual application withthe Constitutional Court
105. The Government, relying mainly on theCourt’s findings in Uzun v. Turkey((dec.), no. 10755/13, 30 April 2013) andMercan v. Turkey ((dec.), no. 56511/16, 8 November 2016),contended that the applicanthad failed to use the remedy of an individual application beforethe Constitutional Court.
106. The applicantrejected theGovernment’s argument.
107. The Courtreiterates that the applicant’s compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)). Nevertheless, the Courtaccepts that the last stage of a particular remedy may be reached after the application has been lodged but before its admissibility has been determined (see Karoussiotisv. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts);StankaMirkovićand Others v. Montenegro, nos. 33781/15 and 3 others, § 48, 7 March 2017;andAzzolinaand Othersv. Italy, nos.28923/09 and 67599/10, § 105, 26 October 2017).
108. The Courtobserves that on 8 November 2016the applicantlodged an individual application with the Constitutional Court, which gave its judgment on the merits on 11 January 2018 (see paragraphs 34-35 above).
109. Accordingly, the Courtalso dismisses this objection raised bythe Government.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
110. The applicant complained that his initial pre-trial detention and its continuation were arbitrary.He argued that there had been no evidence grounding a reasonable suspicion that he had committed a criminal offence necessitating his pre-trial detention. He also complained that insufficient reasons had been given for the judicial decisions ordering and extending hisdetention. The facts on which the suspicions against him had been based were linked to his criticisms of the country’s leaders. Furthermore, he had been kept in pre-trial detention despite the Constitutional Court’s finding of a violation of his right to liberty and security in its judgment of 11 January 2018. He complained that in those respects there had been a violation of Article 5 § 1 of the Convention, the relevant parts of which provide:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…”
111. The Government contested that argument.
A. The parties’ submissions
1. The Government
112. The Government, referring to the principles established in the Court’s case-law in this area (citing Klass and Others v. Germany, 6 September 1978, Series A no. 28; Murray v. the United Kingdom, 28 October 1994, Series A no. 300‑A; and İpek and Others v. Turkey, nos. 17019/02 and 30070/02, 3 February 2009), stated firstly that the applicanthad been arrested and placed in pre-trial detention in the course of a criminal investigationinitiated with a view to combating a terrorist organisation whosemembers hadinfiltrated State institutions and themedia. FETÖ/PDY had undertaken attempted coups since 17 December 2013, which were public knowledge, and yet the applicant had continued to work voluntarily within that organisation’s media wing. Inthe Government’s submission, the contents of the applicant’s articles and statementsshowed that he had known even before 15 July 2016 that there would be an attempted military coup, and that he had sought to prepare the public for aputsch of this kind.
113. The Governmentsubmitted thatfrom the evidence that had been gathered during the criminal investigation and included in the case file, it was objectively possible to conclude that there had been a reasonable suspicion that the applicant had committed the offences of which he was accused. On the strength of the evidence obtained during the investigation, criminal proceedings had been instituted against several individuals, including the applicant. Moreover, on 16 February 2018 the applicanthad been sentenced to aggravated life imprisonment by theIstanbul 26th Assize Court for attempting to overthrow the constitutional order.
114. Lastly, the Governmentsubmitted that the applicant’s complaint should be assessed in the light of the notice of derogation given on 21 July 2016 under Article 15 of the Convention.
2. The applicant
115. The applicantsubmitted that there were no facts or information that could satisfyanobjectiveobserver that he had committed the offences of which he was accused.The items of evidence produced by theGovernmentto justify his pre-trial detention were superficial and inconsistent.
116. In addition, the applicant stated thatnotwithstanding the final and binding judgment in which the Constitutional Courthad found a violation of his right to liberty and security and to freedom of expression and of the press, the Istanbul Assize Court had kept him in pre-trial detention.Accordingly, he also complained in correspondence of 18 January 2018 that his application to the Constitutional Court had not led to his release.
3. The third parties
(a) The Commissioner for Human Rights
117. The Commissioner for Human Rightspointed out that excessive recourse to detention was a long-standing problem in Turkey. In that connection he noted that 210 journalists had been placed in pre-trial detention during the state of emergency, not including those who had been arrested and released after being questioned. One of the underlying reasons for the high numbers of journalists being detained was the practice of judges, who often tended to disregard the exceptional nature of detention as a measure of last resort that should only be applied when all other options were deemed insufficient. In the majority of cases where journalists had been placed in pre-trial detention, they had been charged with terrorism-related offences without any evidence corroborating their involvement in terrorist activities. The Commissioner for Human Rightswas struck by theweakness of the accusations and the political nature of the decisions ordering and extending pre-trial detention in such cases.
(b) The Special Rapporteur
118. The Special Rapporteurnoted that since the declaration of a state of emergency, a large number of journalists had been placed in pre-trial detention on the basis of vaguely worded charges without sufficient evidence.
(c) The intervening non-governmental organisations
119. The intervening non-governmental organisationsstated that since the attempted military coup, more than 150 journalists had been placed in pre-trial detention. Emphasising the crucial role played by themedia in a democratic society, they criticised the use of measures depriving journalists of their liberty.
B. The Court’s assessment
1. Admissibility
120. The Court notesthat the period to be taken into consideration in the present case began on 22 September 2016, when the applicant was placed in pre-trial detention, and ended on 16 February 2018, when he was convicted by theIstanbul 26thAssize Court. From that date onwards, his deprivation of liberty has been covered byArticle 5 § 1 (a)of the Conventionand falls outside the scope of this application. The Courtobserves that it has examined and dismissed the Government’s objections of failure to exhaust domestic remedies in so far as the objections related to theapplicant’s pre-trial detention (see paragraphs 103-04and 109above).
121. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
122. The Courtreiterates firstly thatArticle 5 of the Conventionguarantees a right of primary importance in a “democratic society” within the meaning of the Convention, namelythe fundamental right to liberty and security (see Assanidzev. Georgia[GC], no. 71503/01, § 169, ECHR 2004‑II).
123. All persons are entitled to the protection of that right, that is to say, not to be deprived, or to continue to be deprived, of their liberty (see Weeks v. the United Kingdom, 2 March 1987, § 40, Series A no. 114), save in accordance with the conditions specified in paragraph 1 of Article 5 of the Convention. The list of exceptions set out in Article 5 § 1 is an exhaustive one (see Labitav. Italy [GC], no. 26772/95, § 170, ECHR 2000‑IV), and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see Assanidze, cited above, § 170;Al-Jeddav. the United Kingdom[GC], no. 27021/08, § 99, ECHR 2011; andBuzadjiv. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts)).
124. The Courtfurther reiterates that a person may be detained under Article 5 § 1 (c) of the Convention only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence (see Jėčiusv. Lithuania, no. 34578/97, § 50, ECHR 2000‑IX;Włochv. Poland, no. 27785/95, § 108, ECHR 2000‑XI; andPoyrazv. Turkey (dec.), no. 21235/11, § 53, 17 February 2015). The “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard laid down in Article 5 § 1 (c). Having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will, however, depend upon all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no.182;O’Hara v. the United Kingdom, no. 37555/97, § 34, ECHR 2001‑X;Korkmazand Othersv. Turkey, no. 35979/97, § 24, 21 March 2006;SüleymanErdemv. Turkey, no.49574/99, § 37, 19 September 2006; andÇiçekv. Turkey (dec.), no. 72774/10, § 62, 3 March 2015).
125. The Courthas also held that Article 5 § 1 (c) of the Conventiondoes not presuppose that the investigating authorities have obtained sufficient evidence to bring charges at the time of arrest. The purpose of questioning during detention under Article 5 § 1 (c) is to further the criminal investigation by confirming or dispelling the concrete suspicion grounding the arrest. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray, cited above, § 55;Metin v. Turkey (dec.), no. 77479/11, § 57, 3 March 2015;andYükseland Othersv. Turkey, nos. 55835/09 and2 others, § 52, 31 May 2016).
126. The Court’s task is to determine whether the conditions laid down in Article 5 § 1 (c) of the Convention, including the pursuit of the prescribed legitimate purpose, have been fulfilled in the case brought before it. In this context it is not normally for the Court to substitute its own assessment of the facts for that of the domestic courts, which are better placed to assess the evidence adduced before them (see Ersözv. Turkey (dec.), no.45746/11, § 50, 17 February 2015, andMergenand Othersv. Turkey, nos. 44062/09 and4 others, § 48, 31 May 2016).
127. In the present casethe Court observes thatthe applicant was taken into police custody on 10 September 2016 on suspicion of having links to the media wing of a terrorist organisationand was placed in pre-trial detention on 22 September 2016. It further notes that in a bill of indictment filed on 14 April 2017 theIstanbul public prosecutor sought the applicant’s conviction for attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence and for committing offences on behalf of aterrorist organisation. The Courtalso observes that during the criminal investigation and the trial, all of the applicant’s applications for release were rejected and that in a summary judgment of 16 February 2018 he was sentenced to aggravated life imprisonment, in accordance with Article 309 of the CC,for attempting to overthrow the constitutional order.
128. The Courtfurther notes that after the applicant lodged an individual application with the Constitutional Court, that court held, in a judgment of 11 January 2018 which was published in the Official Gazette on 19 January 2018, that the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FETÖ/PDY or with the purpose of preparing the ground for a possible military coup. On the basis of the evidence presented by the prosecution,the Constitutional Court held that there were no strong indications that the applicant had committed the offences with which he was charged(see paragraphs 142-48 of the Constitutional Court’s judgment). With regard to the application of Article 15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency), itconcluded that the right to liberty and security would be meaningless if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed a criminal offence. In the Constitutional Court’s view, the applicant’s deprivation of liberty wastherefore disproportionate to the strict exigencies of the situation.
129. The Court observes that it has beenestablished by theConstitutional Courtthatthe applicantwas placed and kept in pre-trial detention in breach ofArticle19 § 3 of the Constitution (see paragraph 150 of theConstitutional Court’s judgment). It considers that this conclusion amounts in substance to an acknowledgment that hisdeprivation of libertycontravenedArticle5 § 1 of the Convention. In the particular circumstances of the present case, the Courtendorses the findings whichthe Constitutional Courtreached following a thorough examination.
130. TheCourt’s scrutiny will therefore be limited to determining whether the national authorities afforded appropriate and sufficient redress for the violation found and whether they complied with their obligations underArticle 5 of the Convention. In this connectionthe Court observes that althoughthe Constitutional Courtfound a violation ofArticle 19 § 3 of the Constitution, theIstanbul 26thand 27thAssize Courts refused to release the applicantwhen ruling at final instance on hisapplications for release, the 26thAssize Courtfinding in particular that theConstitutional Court’s judgment was not in compliance with the law.
131. The Court notes that the Constitution and Lawno. 6216 confer jurisdiction onthe Constitutional Courtto examineapplications lodged, following the exhaustion of ordinary remedies, by individuals claiming that their fundamental rights and freedoms as protected by the Constitution and the Convention and Protocols thereto have been violated.
132. The Courtobserves that it has already examined the remedy of an individual application to the Constitutional CourtunderArticle 5 of the Convention, in particular in the case ofKoçintarv. Turkey((dec.), no. 77429/12, 1 July 2014). In that case, after examining the remedy in question, it found that none of the material in its possession suggested that an individual application to the Constitutional Court was not capable of affording appropriate redress for the applicant’s complaint under Article 5 of the Convention, or that it did not offer reasonable prospects of success.In reaching that finding, it noted in particular thatthe Constitutional Courthad jurisdiction to find violationsof Convention provisionsand was vested with appropriate powers to secure redress for violations,by granting compensation and/or indicating the means of redress; on that accountthe Constitutional Court could and should be able, if necessary, to prohibit the authority concerned from continuing to breach the right in question and to order it to restore, as far as possible, the status quo ante (see Koçintar, cited above, § 41). The Court observed that wherethe Constitutional Courtfounda violation of the right to liberty as guaranteed by Article 19 of the Constitution and the applicant remained in detention, it decided to transmit its judgment containing that finding to the appropriate court so that it could take “the necessary action”. Taking into account the binding nature of the Constitutional Court’s decisions in accordance with Article 153 § 6 of the Constitution (by which such decisions are binding on all State authorities and on all natural and legal persons), the Courtfound thatthe question of compliance in practice with thatcourt’sdecisions onindividual applications should not in principle arise in Turkey and thatthere was no cause to doubt that the judgments in which the Constitutional Court found a violation would be effectively implemented (ibid., § 43).
133. As indicated above (see paragraphs 46-54), following the publication ofthe Constitutional Court’s judgment in the Official Gazette (see paragraphs 52-53), theIstanbul 26thAssize Court,by a majority, rejected the applicant’s request for release on two grounds. Firstly, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file and that that court’s judgment wastherefore not in compliance with the law. Secondly, it found that ordering the applicant’s immediate release on the basis of the Constitutional Court’s judgment would run counter to the general principles of law, the independence of the judiciary, the principle that no authority could give instructions to the courts, and the right to a court. The26thAssize Court, having regard to the evidence before it, the large scale of the attempted military coup, the risk of the applicant’s absconding, the current state of the case file and the severity of the potential sentence in the event of a conviction, ordered the continuation of the applicant’s pre-trial detention.
134. In the light of the foregoing, it appears from developments in the domestic proceedings that, notwithstanding theConstitutional Court’s finding thattheapplicant’s pre-trial detention had infringed his right to liberty and security and his freedom of journalistic expression as safeguarded by theTurkish Constitution andthe Convention, the assize courts refused to release him. The Courtis therefore called upon to examinethe extent to which this state of affairs at domestic level has a bearing on its own assessment oftheapplicant’s complaint underArticle 5 § 1 of the Convention.
135. The Court observes that under Turkish law,the measure of pre-trialdetention is chiefly governed byArticle 19 of the Constitution andArticle 100 of the CCP. In this connection, it notes that the Constitutional Court’s review is essentially performed from the standpoint of Article 19 of the Constitution, whereas the criminal courtsconsider the matter of an individual’s detention primarily in relation toArticle 100 of the CCP. It thus observes that the reasons given in theConstitutional Court’s judgmentand in the decision delivered by the 26thAssize Courtsuggest that the criteria applied by the two courts coexist, particularly as regards the discretion to assess the evidence in the case file. In this context, the Courtcannot accept the26thAssize Court’s argument thatthe Constitutional Courtshould not have assessed the evidence in the case file.To hold otherwise would amount to maintaining that the Constitutional Courtcould have examined the applicant’s complaint concerning the lawfulness of his initial and continued pre-trial detention without considering the substance of the evidence produced against him.
136. Next, the Courtobserves that in the present case, prior to the Constitutional Court’s judgment of 11 January 2018, the Governmenthad explicitly urged theCourt to reject the applicant’s application for failure to exhaust domestic remedies, on the grounds that his individual application to the Constitutional Court was still pending (see paragraph 105above). This argument reinforcedthe Government’s viewthat an individual application tothe Constitutional Court was an effective remedy for the purposes of Article 5 of the Convention. Such a position is, moreover, consistent with the Court’s findings in the case ofKoçintar (cited above). To put it briefly, the Courtconsiders that this argument by theGovernmentcan only be interpreted as meaning that under Turkish law, if the Constitutional Courthas ruled that the applicant’spre-trialdetentionis in breach of the Constitution, the response by the courts with jurisdiction to rule on the issue of pre-trial detention must necessarily entail releasing him, unless new grounds and evidence justifying his continued detention are put forward. However, in the event, the26thAssize Courtrejected the application for theapplicant’s release following the Constitutional Court’s judgment of 11 January 2018 by interpreting and applying domestic law in a manner departing from the approach indicated by the Governmentbeforethe Court.
137. Asthe Courthas regularly confirmed, although it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether the domestic law has been complied with(see Moorenv. Germany [GC], no. 11364/03, § 73, 9 July 2009). The Courtmust, moreover, ascertain whether the domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court emphasises that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty should be satisfied (ibid., § 76). In laying down that any deprivation of liberty must be “lawful” and be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 does not merely refer back to domestic law; like the expressions “in accordance with the law” and “prescribed by law” in the second paragraphs of Articles 8 to 11, it also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. Lastly and above all, no detention which is arbitrary can be compatible with Article 5 § 1, the notion of “arbitrariness” in this context extending beyond the lack of conformity with national law.In the context of sub-paragraph (c) of Article 5 § 1, the reasoning of the decision ordering a person’s detention is a relevant factor in determining whether the detention should be regarded as arbitrary (ibid., § 77 and 79).
138. The Courtobserves that it has already found in theUzun decision(cited above) that the Turkish legislature has demonstrated its intention to entrust the Constitutional Court with jurisdiction to find violations of Convention provisions and with appropriate powers to provide redress for such violations (seeUzun, cited above, §§ 62-64). Furthermore, with regard to complaints under Article 5 of the Convention, inKoçintar (cited above)the Courtconsidered the nature and effects ofdecisions delivered bythe Constitutional Courtin accordance with theTurkish Constitution. Article 153 § 1 of the Constitution provides that theConstitutional Court’s judgments are “final”.Moreover,asthe Courtnoted inKoçintar, Article 153 § 6 provides thatdecisions ofthe Constitutional Courtare binding on the legislative, executiveand judicial organs (see, to similar effect,Uzun, cited above, § 66). In the Court’s view, therefore,it is clear that theConstitutional Courtforms an integral part of the judiciary within theconstitutional structure of Turkeyand that – as the Courthas previously noted inKoçintar, and asthe Governmentexplicitly submitted before the Court in the present case –it plays an important role in protecting the right to libertyand security under Article 19 of the Constitution andArticle 5 of the Conventionby offering an effective remedy to individuals detained during criminal proceedings (see alsoMercan, cited above, §§ 17-30).
139. On that basis, and having regard in particular to the Government’sarguments beforeitas to theeffectiveness of an individual application to the Constitutional Courtfor the purposes ofArticle 5 of the Convention, the Courtobservesthat the reasons given by theIstanbul 26thAssize Courtin rejecting the application for the applicant’s release, following a “final” and “binding” judgment delivered by the supreme constitutional judicial authority,cannot be regarded as satisfying the requirements ofArticle 5 § 1 of the Convention. For another court tocall into question the powers conferred on a constitutional court to give final and binding judgments on individual applications runs counter to the fundamental principles of the rule of law and legal certainty. The Courtreiterates that these principles, inherent in the protection afforded by Article 5 of the Convention, are the cornerstones of the guarantees against arbitrariness (see paragraph 137above). Althoughthe Constitutional Courttransmitted its judgment tothe Assize Courtso that it could take “the necessary action”, the Assize Court resisted the Constitutional Court by refusing to release the applicant, with the result that the violation found by the Constitutional Courtwas not redressed.The Courthas already stated (seeparagraph 129above) that it endorses the findings reached bythe Constitutional Courtin its judgment of 11 January 2018 regarding the period of pre-trial detention up to the date of that judgment. Itobserves that the case file discloses no new grounds or evidence showing that the basis for the detention has changed following theConstitutional Court’s judgment. In that connection, it notes in particular thatthe Governmenthave not demonstrated that the evidence purportedly available to the 26th Istanbul Assize Court justifying the strong suspicion against the applicantwas in fact any different from the evidence examined by the Constitutional Court. That being so, the Courtconsiders that theapplicant’s continued pre-trial detention,after the Constitutional Court had given its clear and unambiguous judgment finding a violation ofArticle 19 § 3 of the Constitution, cannot be regarded as “lawful” and “in accordance with a procedure prescribed by law”as required by the right to liberty and security.
140. Turning to the derogationbyTurkey, the Court observesthatthe Constitutional Courtexpressed its position onthe applicabilityofArticle 15 of the Turkish Constitution, holdingthat the guarantees of the right to liberty and security would be meaningless if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence(see paragraph 156 ofthe Constitutional Court’s judgment). Accordingly, it found that theapplicant’s deprivation of liberty was disproportionate to the strict exigencies of the situation. Thisconclusion is also valid for the Court’s examination.Having regard to Article 15 of the Conventionand thederogationbyTurkey, the Courtconsiders, as the Constitutional Court did in its judgment, that a measure of pre-trialdetention that is not “lawful” and has not been effected “in accordance with a procedure prescribed by law” on account of the lack of reasonable suspicion cannot be said to have been strictly required by the exigencies of the situation (see, mutatis mutandis, A. and Others, cited above, §§ 182-90). In that context, the Court notesin addition thatthe Governmenthave not provided it with any evidence that could persuade it to depart from the conclusion reached by the Constitutional Court.
141. In the light of the foregoing, there has been a violation ofArticle 5 § 1 of the Convention in the present case.
142. The Courtwould emphasise that the applicant’s continued pre-trial detention, even after the Constitutional Court’s judgment, as a result of thedecisions delivered by theIstanbul 26thAssize Court, raises serious doubts as to the effectiveness of the remedy of an individual application tothe Constitutional Courtin cases concerning pre-trial detention. However, as matters stand, the Courtwill not depart from its previous finding that the right to lodge an individual application with the Constitutional Courtconstitutes an effective remedyin respect of complaints by personsdeprived of their liberty under Article 19 of the Constitution (see Koçintar, cited above, § 44). Nevertheless, it reserves the right to examine the effectiveness of the system of individual applications to the Constitutional Court in relation to applications under Article 5 of the Convention, especially in view of any subsequent developments in the case-law of the first-instance courts, in particular the assize courts, regarding the authority of the Constitutional Court’s judgments. In that regard, it will be for the Government to prove that this remedy is effective, both in theory and in practice (see Uzun, cited above, § 71).
143. In view of its finding under Article5 § 1 of the Convention concerning the applicant’s complaint of a lack of reasonable suspicion that he had committed a criminal offence, the Courtconsiders that it is not necessary toexamine whether the authorities have kept him in detention for reasons that could be regarded as “relevant” and “sufficient” tojustify his initial and continuedpre-trial detention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION ON ACCOUNT OF THE LACK OF ACCESS TO THE INVESTIGATION FILE
144. The applicant complained that his lack of access to the investigation file had prevented him from effectively challenging the order for his pre-trial detention. On that account he alleged a violation of Article 5 § 4 of the Convention, which provides:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
145. The Governmentsubmitted that the applicanthad been able to challenge his continued detention by lodging an objection.In view of the questions put to them by the police officers, the public prosecutor and the magistrate, the applicant and his lawyers had had sufficientknowledge of the substance of the evidence forming the basis for his pre-trial detention, and had thus had an opportunityto properly contest the reasons given to justify the detention.
146. The Commissioner for Human Rightssubmitted that since thedeclaration of the state of emergency, the detention review procedure had been negatively affected, in particular by restrictions on access to investigation files. The other intervening parties did notmake submissions on this complaint.
147. The Courtobserves thaton an unspecified date, the Istanbul public prosecutor decided, on the basis of Article 3 § 1 (l) of Legislative Decree no. 668, to restrict the suspects’ and their lawyers’access to the investigation file (see paragraph 19 above).
148. It notes, as the Constitutional Court did, that the orders for the applicant’s initial and continued pre-trial detention were mainly based on the following evidence against him: two articles he had written; comments he had made during the television broadcast on 14 July 2016; the fact that he had an account with Bank Asya; the allegation that he had avoided a criminal investigation through the assistance of members of the national police suspected of belonging toFETÖ/PDY;and the seizure at his home of a United States one-dollar bill with an “F” serial number.
149. In this connection, the Court observes thatfirst the police, then the public prosecutor and finally the magistrate put detailed questions aboutall the above-mentioned evidence to the applicant, who was assisted by his lawyers, and that the contents of the questions were reproduced in the relevant records. It therefore concludes that although he did not have an unlimited right of access to the evidence,the applicanthad sufficient knowledge of the substance of the evidence forming the basis for his pre-trial detention and thushad the opportunity to properly contest the reasons given to justify the detention (see Cevizv. Turkey, no. 8140/08, §§ 41‑44, 17 July 2012).
150. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION ON ACCOUNT OF THE LACK OF A SPEEDY JUDICIAL REVIEW BY THE CONSTITUTIONAL COURT
151. Relying on Article 5 § 4 of the Convention, the applicant submitted that the proceedings he had brought before theConstitutional Courtwith a view to challenging the lawfulness of his pre-trialdetention had not complied with the requirements of the Convention in that the Constitutional Court had failed to observe the requirement of “speediness”.
152. The Government contested the applicant’s argument.
A. The parties’ submissions
1. The Government
153. First of all, the Governmentsubmitted that Turkish law contained sufficient legal safeguards enabling detainees to effectively challenge their deprivation of liberty. They noted that detainees could apply for release at any stage of the investigation or the trial and that an objection could be lodged against anydecisions rejecting such applications.The question of a suspect’s continued detention was automatically reviewed at regular intervals of no more than thirty days. In that context, the Government emphasised that theConstitutional Courtwas not to be regarded as a court of appeal for the purposes of Article 5 § 4 of the Convention.
154. Next, referring to statistics on the Constitutional Court’s caseload, the Governmentstated that in 2012 1,342 applications had been lodged with that court; in 2013 that number had risen to 9,897, and in 2014 and 2015 respectively there had been 20,578 and 20,376 applications. Since the attempted military coup, there had been a dramatic increase in the number of applications to the Constitutional Court:a total of 103,496 applications had been lodged with it between 15 July 2016 and 9 October 2017. Bearing in mind this exceptional caseload for theConstitutional Courtand the notice ofderogation of 21 July 2016, the Governmentsubmitted that it could not be concluded that that court had failed to comply with the requirement of “speediness”.
2. The applicant
155. The applicantreiterated his assertion thatthe Constitutional Courthad not decided “speedily” within the meaning of Article 5 § 4 of the Convention. He contended that the Constitutional Court was trying to avoid criticism from government circles and was accordingly refraining from conducting a review within a reasonable time of “sensitive cases” brought by journalists, politicians and academics.
3. The third parties
(a) The Commissioner for Human Rights
156. The Commissioner for Human Rightsobserved that, in relation to Article 5 of the Convention, the Constitutional Courthad developed an approach in line with the principles established by the Court in its own case-law. While acknowledging the size of the Constitutional Court’s caseload since the attempted military coup, he emphasised that it was essential for the proper functioning of the judicial system that that court should give its decisions speedily.
(b) The Special Rapporteur
157. The Special Rapporteurlikewise noted that since the declaration of the state of emergency, the Constitutional Court had been faced with an unprecedented caseload.
(c) The intervening non-governmental organisations
158. The intervening non-governmental organisationsdid not make submissions on this complaint.
B. The Court’s assessment
1. Admissibility
159. The Courtreiterates thatit has found Article 5 § 4 of the Conventionto be applicable to proceedings before domestic constitutional courts (see Smatanav. the Czech Republic, no. 18642/04, §§ 119-24, 27 September 2007, andŽúborv. Slovakia, no. 7711/06, §§ 71‑77, 6 December 2011). Accordingly, having regard to the jurisdiction of the TurkishConstitutional Court (see, for example, Koçintar, cited above, §§ 30‑46), the Court concludes that Article 5 § 4 is also applicable to proceedings before that court.
160. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
161. The Courtreiterates thatArticle 5 § 4, in guaranteeing detainees a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful(see Mooren, cited above, § 106,andIdalovv. Russia [GC], no. 5826/03, § 154, 22 May 2012).
162. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Article 5 § 3 and Article 6 § 1 of the Convention – be determined in the light of the circumstances of each case, including the complexity of the proceedings, their conduct by the domestic authorities and by the applicant and what was at stake for the latter (see Mooren, cited above, § 106, with further references;S.T.S. v. the Netherlands, no. 277/05, § 43, ECHR 2011;andShcherbinav. Russia, no. 41970/11, § 62, 26 June 2014).
163. In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings were conducted at more than one level of jurisdiction (see Navarrav. France, 23 November 1993, § 28, Series A no. 273-B, andMooren, cited above, § 106). Where the original detention order or subsequent decisions on continued detention weregiven by a court (that is to say, by an independent and impartial judicial body) in a procedure offering appropriate guarantees of due process, and where the domestic law provides for a system of appeal, the Court is prepared to tolerate longer periods of review in proceedings before a second-instance court (see Lebedevv. Russia, no. 4493/04, § 96, 25 October 2007, andShcherbina, cited above, § 65). These considerations apply a fortiorito complaints under Article 5 § 4 concerning proceedings before constitutional courts which were separate from proceedings before ordinary courts (see Žúbor, cited above, § 89). In this context, the Court notes that the proceedings before constitutional courts such as the TurkishConstitutional Courtare of a specific nature. Admittedly, the Constitutional Courtdoes reviewthe lawfulness of an applicant’s initial and continued pre-trial detention. However, in doing so it does not act as a “fourth-instance” bodybut determines solely whether the decisions ordering the initial and continued detention complied with the Constitution.
164. In the present casethe Court observes that the applicantlodged an individual application with the Constitutional Courton 8 November 2016 and that that court’s final judgment was given on 11 January 2018. The period to be taken into consideration thus amounted to fourteen months and three days.
165. The Courtobserves that in the Turkish legal system,anyone in pre-trial detention may apply for release at any stage of the proceedings and may lodge an objection if the application is rejected. It notes that in the present case the applicantmade several such applications for release, which were examined in conformity with the “speediness” requirement (see paragraphs 27-29 above). The Courtobserves in addition that the question of a suspect’s detention is automatically reviewed at regular intervals of no more than thirty days (see paragraph 73above). In asystem of that kind, the Courtcan tolerate longer periods of review by the Constitutional Court. Where an initial or further detention order was imposed by a court in a procedure offering appropriate guarantees of due process, the subsequent proceedings are less concerned with arbitrariness, but provide additional guarantees based primarily on an evaluation of the appropriateness of continued detention. Nevertheless, the Courtconsiders that even in the light of those principles, in normal circumstances a period of fourteen months and three days cannot be regarded as “speedy”(see G.B. v. Switzerland, no. 27426/95, §§ 28-39, 30 November 2000;Khudobinv. Russia, no. 59696/00, §§ 115-24, ECHR 2006‑XII (extracts);andShcherbina, cited above, §§ 62‑71). However, in the present casethe Court observes that the applicant’s application to the Constitutional Courtwas a complex one, being one of the first of a series of cases raising new and complicated issues concerning the right to liberty and security and freedom of expression under the state of emergency following the attempted military coup. Moreover, bearing in mind the Constitutional Court’s caseload following the declaration of a state of emergency, theCourt notes that this is an exceptional situation.
166. Thatconclusion does not mean, however, thatthe Constitutional Courthas carte blanche when dealing with any similar complaints raised under Article 5 § 4 of the Convention. In accordance with Article 19 of the Convention, the Courtretains its ultimate supervisory jurisdictionfor complaints submitted by other applicantsalleging that, after lodging an individual application with the Constitutional Court, they have not had a speedy judicial decision concerning the lawfulness of their detention.
167. In the light of the foregoing, although the duration of fourteen months and three days before the Constitutional Courtcould not be described as “speedy” in an ordinary context, in the specific circumstances of the case there has been noviolation ofArticle 5 § 4 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
168. The applicant also complained that he had not had access to an effective remedy by which he could have obtained compensation for the damage sustained on account of his pre-trial detention. He alleged a violation of Article 5 § 5 of the Convention, which provides:
“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
169. The Government contested the applicant’s argument. They stated that two remedies had been available to the applicant, namely a claim for compensation from the State underArticle 141 § 1 of theCCPand an individual application tothe Constitutional Court. In their submission, these remedies were capable of affording redress in respect of the complaint concerning the applicant’s pre-trial detention.
170. The applicantsubmitted that the remedies suggested by the Governmentwere not effective.
171. The intervening parties made no submissions on this complaint.
172. The Courtreiterates that the right to compensation set forth in Article 5 § 5 of the Convention presupposes that a violation of one of the other paragraphs of that Article has been established, either by a domestic authority or by the Convention institutions (see N.C. v. Italy[GC], no. 24952/94, § 49, ECHR 2002‑X). In the present case, it remains to be determined whether the applicant had the opportunity to claim compensation for the damage sustained.
173. In so far as this complaint concernsArticle 5 § 4 of the Convention, the Courtconsiders that in view of the absence of a finding of a violation of that provisionin its conclusions set out inparagraphs 144-67above, the complaint is incompatible rationemateriaewith the provisions of the Conventionfor the purposes ofArticle 35 § 3 (a)and must be rejectedin accordance withArticle 35 § 4.
174. The Court observes that it has already found a violation ofArticle 5 § 1. Regarding the possibility of claiming compensation for that violation, the Court notes thatArticle 141 of the CCPdoes not specifically provide for a compensation claim for damage sustained by a person as a result of the lack of reasonable suspicion that he or she has committed a criminal offence. In that connection, the Government have failed to produce any judicial decision concerning the award of compensation, on the basis of this provision of the CCP, to anyone in a similar position to the applicant.
175. The Court notes, however, thatan award was made to the applicantbythe Constitutional Courtin respect of the violation it had found. It reiterates that Article 5 § 5 does not confer a right to a particular amount of compensation, provided that the award made is not derisory or wholly disproportionate(see Attardv. Malta (dec.), no. 46750/99, 28 September 2000, andCumber v. the United Kingdom, no. 28779/95, Commission decisionof 27 November 1996), or considerably lower than what the Court would award in the event of a similar violation (see Ganea v. Moldova, no. 2474/06, § 30, 17 May 2011, andCristina Boicencov. Moldova, no. 25688/09, § 43, 27 September 2011).
176. The Courtreiterates that for the purposes of its examination underparagraphs 1, 2, 3 and 4 ofArticle 5 of the Convention, anapplicantmay still complain of a violation of thoseparagraphs even if compensation has already been paid on that account,for example where the Court considers that the sum awarded is manifestly insufficient. However, the mere fact that the amount is lower than the awardthe Courtwould have made in similar cases does not per se entail a violation ofArticle 5 § 5 of the Convention (see, to similar effect,VedatDoğruv. Turkey, no. 2469/10, §§ 42 and 64, 5 April 2016).In the present case, the Court observes thatthe applicanthad a remedy by which to obtain compensation and the Constitutional Courtawarded himTRY 20,000 (approximatelyEUR 4,500) for the violations it had found. Bearing in mind the Court’s own practice, although this amount is lower than what the Courtitself would have awarded, it cannot be regarded as wholly disproportionate either.
177. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
VII. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
178. The applicant also complained of a breach of his right to freedom of expression on account of his initial and continued pre-trial detention. He relied on Articles 10 and 17 of the Convention.
179. The Government contested the applicant’s argument. They submitted that the applicant’s complaint warranted an examination underArticle 5 § 1 of the Conventionalone, since the proceedings instituted against him did not in any way concern his activities as a journalist.
180. The Courtreiterates that it is master of the characterisation to be given to the facts of the case (see, for example, Sarıgülv. Turkey, no. 28691/05, § 33, 23 May 2017, andLopes de Sousa Fernandesv. Portugal [GC], no. 56080/13, § 145, ECHR 2017). In the present case it finds that the applicant’s complaint relates to his freedom of expression. This part of the application accordingly falls to be examined solely under Article 10 of the Convention, which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. The parties’ submissions
1. The Government
181. The Government argued firstly that the applicant’s complaint underArticle 10 should be declared inadmissible for failure to exhaust domestic remedies, given that the criminal proceedings brought against him were still pending in the domestic courts.
182. Next, the Governmentsubmitted that the order for the applicant’spre-trial detention did not constitute interference within the meaning ofArticle 10 of the Convention, since the subject matter of the proceedings instituted against him did not relate to his activities as a journalist.In that connection, they emphasised that the applicanthad been placed and kept in pre-trial detention on suspicion of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government through force and violence, and committing offences on behalf of an armed terrorist organisation without being a member of it.
183. The Governmentsubmitted that, should the Court nevertheless conclude that there had been an interference, it should in any event find that the interference had been “prescribed by law”, had pursued a legitimate aim and had been “necessary in a democratic society” in order to achieve that aim, and therefore justified.
184. To that end, they noted that the criminal proceedings against the applicant had been provided for in Article 309 § 1, Article 311 § 1 and Article 314§§ 1 and 2 of the CC. Furthermore, the impugned interference had pursued several aims for the purposes of the second paragraph of Article 10 of the Convention, namely protection of national security or public safety, and prevention of disorder and crime.
185. As to whether the interference had been necessary in a democratic society, the Governmentsubmitted thatby making use of the opportunities available in democratic systems, terrorist organisations were able to form numerous ostensibly legal structures in order to achieve their aims. In the Government’s view, the criminal investigations into individuals operating within such structures could not be said to concern their professional activities. In that regard, FETÖ/PDYwas a complex,sui generisterrorist organisation carrying out activities under the guise of lawfulness. Against thisbackground, the FETÖ/PDYmedia wing was primarily concerned with legitimising the organisation’s activities by manipulating public opinion. The Government emphasised thatthe applicanthad been placed in pre-trial detention in the context of an investigation of that nature.
186. The Government further submitted that, in view of the events of 15 July 2016, the call for a military coup had to be regarded as a call for violence and not as being covered by freedom of expression. In that connection they cited the following comments by the applicant: “Within the State of the Republic of Turkey, there is probably another structure, whose components outside Turkey are closely observing and documenting all these events. It is not clear exactly when [it] will pull its hand out of the bag or how [it] will do so.”Noting that the applicant had made these comments one day before the attempted military coup, the Governmentcontended that the interference complained of had been proportionate and necessary in a democratic society.
2. The applicant
187. The applicantsubmitted that he had been placed in pre-trial detention on account of his opinions, which had not posed any threat to national security or public safety. He argued that his deprivation of liberty in itself constituted unjustified interference with his freedom of expression.
3. The third parties
(a) The Commissioner for Human Rights
188. Relying mainly on the findings made during his visits toTurkey inApril and September 2016, the Commissioner for Human Rightsnoted firstly that he had repeatedly highlighted the widespread violations of freedom of expression and media freedom in Turkey. He expressed the view that Turkish prosecutors and courts interpreted anti-terrorism legislation in a very broad manner. Many journalists expressing dissent or criticism against the government authorities had been placed in pre-trial detention purely on account of their journalistic activities, without any concrete evidence. The Commissioner for Human Rightsthus rejected theGovernment’s assertion that the criminal proceedings instituted against journalists were unconnected to their professionalactivities, finding that it lacked credibility in that often the only evidence included in investigation files concerning journalists related to their journalistic activities.
189. In addition, the Commissioner for Human Rightssubmitted that neither the attempted coup nor the dangers represented by terrorist organisations could justify measures entailing severe interference with media freedom, such as the measures he had criticised.
(b) The Special Rapporteur
190. The Special Rapporteursubmitted thatanti-terrorism legislation had long been used inTurkeyagainst journalists expressing critical opinions about government policies.Nevertheless, since the declaration of the state of emergency, the right to freedom of expression had been weakened even further. Since 15 July 2016, 231 journalists had been arrested and more than 150 remained in prison.
191. The Special Rapporteurstated that any interference would contravene Article 10 of the Convention unless it was “prescribed by law”. It was not sufficient for a measure to have a basis in domestic law; regard should also be had to the quality of the law. Accordingly, the persons concerned had to be able to foresee the consequences of the law in their case, and domestic law had to provide certain safeguards against arbitrary interference with freedom of expression.
192. Inthe Special Rapporteur’s submission, the combination of facts surrounding the prosecution of journalists suggested that, under the pretext of combating terrorism, the national authorities were widely and arbitrarily suppressing freedom of expression through prosecutions and detention.
(c) The intervening non-governmental organisations
193. The intervening non-governmental organisationssubmitted that restrictions on media freedom had become significantly more pronounced and prevalent since the attempted military coup. Stressing the important role played by the media in a democratic society, they stated that journalists were often detained for dealing with matters of public interest. They complained on that account of arbitrary recourse to measures involving the detention ofjournalists. In their submission, detaining a journalist for expressing opinions that did not entail incitement to terrorist violence amounted to an unjustified interference with the journalist’s exercise of the right to freedom of expression.
B. The Court’s assessment
1. Admissibility
194. With regard to the Government’s objection that the applicant had not exhausted domestic remedies as the criminal proceedings against him were still ongoing in the domestic courts, the Courtconsiders that the objection raisesissues that are closely linked to the examination of whether there has been an interference with the applicant’s exercise of his right to freedom to of expression, and hence to the examination of the merits of his complaint under Article 10 of the Convention.The Courtwill therefore analyse this question in the context of its examination on the merits.
195. In the present case, the Courtobserves thatthe Constitutional Courtfoundviolationsof Articles 26 and 28 of the Turkish Constitution on account of the applicant’s initial and continued pre-trial detention and awarded him compensation by way of redress for those violations. However, despitethe Constitutional Court’s judgment, the competent assize courts rejected the applicant’s application for release. Accordingly, the Courtconsiders that the judgment did not afford appropriate and sufficient redress to the applicant and did not deprive him of his “victim” status.
196. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
(a) Whether there was an interference
197. The Courtrefers first of all to its case-law to the effect that certain circumstances with a chilling effect on freedom of expression will confer on applicants who have yet to be convicted in a final judgment the status of victims of an interference with the freedom in question (see Dink v. Turkey, nos. 2668/07 and 4 others, § 105, 14 September 2010;AltuğTanerAkçamv. Turkey, no.27520/07, §§ 70-75, 25 October 2011;andNedimŞenerv. Turkey, no.38270/11, § 94, 8 July 2014).
198. In thepresent case, the Court observes that criminal proceedings were instituted against theapplicant on suspicion of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of an armed terrorist organisation without being a member of it. On 16 February 2018 theIstanbul 26thAssize Courtsentenced the applicantto aggravated life imprisonment for attempting to overthrow the constitutional order, and the criminal proceedings instituted on that account are still ongoing. The Courttherefore observes that the applicant was kept in pre-trial detention for approximately one year and five months.
199. The Courtalso notes that in its judgment of 11 January 2018, the Constitutional Courtheld that the applicant’sdetention on account of his articles and statementsamounted to interference with the exercise of his right to freedom of expression and of the press. The Courtendorses this particular finding by the Constitutional Court.
200. The Courtconsiders, in the light of the Constitutional Court’s judgment, that the applicant’s pre-trialdetention accordingly constitutes an “interference” with his right to freedom of expression within the meaning ofArticle 10 of the Convention (see Şıkv. Turkey, no.53413/11, § 85, 8 July 2014).
201. For the same reasons, the Courtdismisses the Government’s objection of failure to exhaust domestic remedies in respect of the complaints under Article 10 of the Convention.
(b) Whether the interference was justified
202. The Courtreiterates that an interferencewill breach Article 10 of the Convention unless it satisfies the requirements of the second paragraph of that Article. It therefore remains to be determined whether the interferenceobserved in the present case was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was “necessary in a democratic society” in order to achieve them.
203. In this connection, the Courtreiterates thatthe expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences, and that it should be compatible with the rule of law(see Müller and Othersv. Switzerland, 24 May 1988, § 29, Series A no. 133).
204. In the present case, none of the parties disputed that the applicant’s pre-trial detention had had a legal basis, namely the relevant provisions of the CCand the CCP.
205. The question then arising is whether the interpretation and application of theprovisions of the CC mayreduce theiraccessibility and foreseeability. In the present case, given that the public prosecutor, in bringing the charges against the applicant, and the judges, in deciding to keep him in pre-trial detention, interpreted those provisions as covering the articles written by him and the comments he had made during the television programme in question, the Court considers that serious doubts may arise as to whether he could have foreseen his initial and continued pre-trial detention on the basis ofArticles 309, 311 and 312 in conjunction with Article 220 § 6 of the CC. However, in view of its findings below concerning the necessity of the interference, the Courtconsiders thatit does not have to settle this question.
206. As regards the“legitimate aim”pursued by the interference, the Court is prepared to accept that it was intended to prevent disorder and crime. It thus remains to be determined whether the interference was “necessary” to achieve those aims.
207. In the present casethe Court observesthatthe Constitutional Courtconcluded that the applicant’s initial and continuedpre-trialdetention, following his expression of his opinions, constituted a severe measure that could not be regarded as anecessary and proportionate interference in a democratic society for the purposes of Articles 26 and 28 of the Constitution. Finding that the judges concerned had not shown that depriving the applicant of his liberty met a pressing social need, the Constitutional Court held that in so far as his detentionwas not based on any concrete evidence other than his articles and comments, it could have had a chilling effect on freedom of expression and of the press (see paragraph 38 above).
208. In the circumstances of the case, the Courtcan see no reason to reach a different conclusion from that ofthe Constitutional Court. In this connection, it also refers to its own conclusions underArticle 5 § 1 of the Convention (see paragraphs 127-41above).
209. Against thisbackground, the Court notes thatthe intervening parties highlighted the existence of a general problem in Turkey concerning the interpretation of anti-terrorism legislation by prosecutors and the competentcourts.They submitted that journalists were oftensubjected to severe measures such as detentionfor dealing with matters of public interest. The Court notes in this connection that it has consistently held that where the views expresseddo not constitute incitement to violence – in other words, unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist acts in pursuit of their supporters’ goals and can be interpreted as likely to encourage violence by instilling deep-seated and irrational hatred towards specified individuals–the Contracting States cannot restrictthe right of the public to be informed of them, even with reference to the aims set out in Article 10 § 2, namely the protection of territorial integrity or national security or the prevention of disorder or crime (see Sürekv. Turkey (no. 4) [GC], no. 24762/94, § 60, 8 July 1999, andŞık,cited above, § 85).
210. The Courtis prepared to take into account thecircumstances surrounding the cases brought before it, in particular the difficulties facingTurkeyin the aftermath of the attempted military coup. The coup attempt and other terrorist acts have clearly posed a major threat to democracy in Turkey. In this connection, the Courtattachesconsiderable weight to the conclusions ofthe Constitutional Court, which noted, among other things,that the fact that the attempt had taken place at a time when Turkey had been under violent attack from numerous terrorist organisations had made the country even more vulnerable (see paragraph80above). However, the Courtconsiders that one of the principal characteristics of democracy is the possibility it offers of resolving problems through public debate. It has emphasised on many occasions that democracy thrives on freedom of expression(see, among other authorities,United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 57, Reports of Judgments and Decisions 1998‑I;Centro Europa 7 S.r.l. and Di Stefano v. Italy[GC], no. 38433/09, § 129, ECHR 2012; andParty for a Democratic Society (DTP) and Othersv. Turkey, nos. 3840/10 and 6 others, § 74, 12 January 2016). In this context, the existence of a “public emergency threatening the life of the nation” must not serve as a pretext for limitingfreedom of political debate, which is at the very core of the concept of a democratic society. In the Court’s view, even in a state of emergency – which is, as the Constitutional Court noted, a legal regime whose aim is to restore the normal regime by guaranteeing fundamental rights (see paragraph80above)– the Contracting States must bear in mind that any measures taken should seek to protect the democratic order from the threats to it, and every effort must be made to safeguard thevalues of ademocratic society, such as pluralism, tolerance and broadmindedness.
211. In this context, the Courtconsiders thatcriticism of governments and publication of informationregarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such asbelonging to or assisting a terrorist organisation, attempting to overthrow the governmentor the constitutional order or disseminating terrorist propaganda. Moreover, even where such serious charges have been brought, pre-trialdetentionshould only be used as an exceptional measure of last resortwhen all other measures have proved incapable of fully guaranteeing the proper conduct of proceedings. Should this not be the case, the national courts’interpretation cannot be regarded as acceptable.
212. The Courtfurther notes that the pre-trial detention of anyone expressing critical views produces a range of adverse effects, both for the detainees themselves and for society as a whole, since the imposition of a measure entailing deprivation of liberty, as in the present case, will inevitably have a chilling effect on freedom of expression by intimidating civil society and silencing dissenting voices (see, to similar effect,paragraph 235 ofthe Constitutional Court’s judgment). The Court further notes that a chilling effect of this kind may be produced even when the detainee is subsequently acquitted (see Şık, cited above, § 83).
213. Lastly, with regard to thederogationby Turkey, the Courtrefers to its findings inparagraph140of this judgment. In the absence of any strong reasons to depart from its assessment concerning the application ofArticle 15 in relation toArticle 5 § 1 of the Convention, the Courtconsiders that these conclusions are also valid in the context of its examination underArticle 10.
214. In the light of the foregoing, the Court concludes that there has been a violation ofArticle 10 of the Convention.
VIII. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 5 AND 10
215. On the basis of the same facts and relying on Article 18 of the Conventionin conjunction with Articles 5 and 10, the applicant complained that he had been detained for expressing critical opinions about the President and the government.
Article 18 of the Convention reads as follows:
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
216. Having regard to the conclusions reached above under Article 5 § 1 and Article 10 of the Convention, the Court does not consider it necessary to examine this complaint separately.
IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION
217. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
218. In respect of non-pecuniary damage, the applicant claimed 1,000 euros (EUR) for each day he had spent in detention.
219. The Government submitted that this claim was unfounded and that the amount claimed wasexcessive.
220. The Court considers that the violation of the Conventionhas indisputably caused the applicantsubstantial damage. Accordingly, taking into account the sum already awarded to him at domestic level and making its assessment on an equitable basis, the Court finds it appropriate to award theapplicant EUR 21,500 in respect of non-pecuniary damage. In addition, the Court notes that in a judgment of 16 February 2018 the Istanbul 26th Assize Court sentenced the applicant to aggravated life imprisonment, and that his pre-trial detention for the purposes of Article 5 § 1 (c) of the Conventionended with effect from that date. The applicant’s deprivation of liberty is now covered by Article 5 § 1 (a) of the Convention. Having regard to this particular circumstance, the Courtconsiders that there is no basis for indicating an individual measure to ensure the termination of the applicant’s pre-trial detention at the earliest possible date, as it has done in the case of Alpayv. Turkey (no. 16538/17, §§ 190-95, 20 March 2018, not final).
B. Costs and expenses
221. The applicant did not seek reimbursement of any costs and expenses incurred before the Conventioninstitutions and/orthe domestic courts. That being so, the Courtconsiders that no sum is to be awarded on that account to the applicant.
C. Default interest
222. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Joins to the merits, by a majority, the preliminary objection of failure to exhaust domestic remedies in respect of the complaint under Article 10 of the Convention and dismisses it;
2. Declares, by a majority, the application admissible as regards the complaints under Article 5 §§ 1 and 4 (lack of a speedy judicial review by the Constitutional Court) and Article 10 of the Convention;
3. Declares inadmissible, unanimously, the complaints under Article 5 §§ 3 (lawfulness of detention in police custody), 4 (lack of access to the investigation file) and 5 (right to compensation for unlawful detention)of the Convention;
4. Holds, by six votes to one, that there has been a violation of Article 5 § 1 of the Convention;
5. Holds, unanimously,that there is no need to examine separately the complaint that insufficient reasons were given for the judicial decisions ordering and extending the applicant’s pre-trial detention;
6. Holds, unanimously,that there has been no violation of Article 5 § 4 of the Convention onaccount of the alleged lack of a speedy judicial review by the Constitutional Court;
7. Holds, by six votes to one, that there has been a violation of Article 10 of the Convention;
8. Holds, unanimously,that there is no need to examine separately the complaint under Article 18 of the Convention;
9. Holds, by six votes to one,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,EUR 21,500 (twenty-one thousand five hundred euros), to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
10. Dismisses, unanimously,the remainder of the applicant’s claim for just satisfaction.
Done in French, and notified in writing on 20 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Robert Spano
Registrar President
_____________
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Judge Spano joined by Judges Bianku, Vučinić, Lemmens and Griţco;
(b) Partly dissenting opinion of Judge Ergül.
R.S.
S.H.N.
CONCURRING OPINION OF JUDGE SPANO JOINED BY JUDGES BIANKU, VUČINIĆ, LEMMENS AND GRIŢCO
1. Today the Court delivers important judgments on the merits in cases brought by two prominent journalists detained in Turkey after the attempted coup d’état of 15 July 2016. I agree with every word in the Court’s forceful reasoning. However, I write separately to comment on the arguments made by the ad hoc national judge in his dissenting opinion, which I respectfully disagree with, in particular his views on the principle of subsidiarity (see in particular paragraphs 2, 21, 23 and 24 of his opinion).
2. The principle of subsidiarity encapsulates a norm of power distribution between the Court and the member States, with the ultimate aim of securing to every person who finds himself or herself within the jurisdiction of a State the rights and freedoms provided by the Convention. Importantly, it is not the Strasbourg Court that is entrusted with the day-to-day responsibility of securing Convention rights; it is the member States. In other words, in accordance with Article 1 of the Convention, it is the national authorities which are the primary guarantors of human rights, subject to the supervision of the Court. When the member States fulfil their Convention role by applying in good faith the general principles deriving from the Court’s case-law, the principle of subsidiarity implies that the Court may defer to their findings in a particular case. Its aim is thus to incentivise national authorities to fulfil their obligations to secure Convention rights, thus raising the overall level of human rights protection in the European legal space.
3. The Court’s powers and jurisdictional competence are entrenched in Articles 19 and 32 of the Convention. It is the Court that is the final arbiter of the scope and content of the Convention. Member States demonstrate with their actions, in particular the reasoning provided by national courts, whether deference is due under the principle of subsidiarity. It follows that the operationalisation of the principle towards a more process-based review of domestic decision-making, within the conceptual framework of the margin of appreciation doctrine, does not in any way limit the Court’s competence to ultimately review substantive findings at national level at the stage of the application of Convention principles embedded in the domestic legal systems. In short and to be clear, the robust and coherent application of the principle of subsidiarity by the Court has nothing to do with taking power away from the Court.
4. Moreover, as flows directly from the language of Article 15 of the Convention, these principles apply equally where a State is confronted with a public emergency threatening the life of the nation. Such a situation does not give States carte blanche. In other words, a state of emergency is not an open invitation to member States to erode the foundations of a democratic society based on the rule of law and the protection of human rights. Only measures which are strictly required by the exigencies of the situation can be justified under the Convention, and it is ultimately for the Court to pass judgment at the European level on whether such justification has been adequately demonstrated on the facts.
5. Finally, the member States are under an international-law obligation, finding its expression in Article 46 of the Convention, to execute judgments rendered by the Court. When a State has decided to secure to everyone within its jurisdiction the rights and freedoms guaranteed by the Convention and at the same time has decided to come within the jurisdiction of the Court, this obligation to execute the Court’s judgments becomes mandatory and without exception. It follows that it is now for the competent Turkish authorities to faithfully and expeditiously execute today’s judgments under the supervision of the Committee of Ministers in a manner consistent with Turkey’s obligations under the Convention.
PARTLY DISSENTING OPINION OF JUDGE ERGÜL
(Translation)
I
1. I fully agree with my colleagues’ conclusion that the complaints alleging a violation of Article 5 §§ 3, 4 and 5 and Article 18 of the Convention should be rejected as inadmissible, or as disclosing no violation, or for any of the other reasons given in the judgment. However, I regret that I am unable to join the majority of the Court in finding that Article 5 § 1 and Article 10 of the Convention are both admissible and have been violated. I therefore disagree with the majority’s findings of a violation for two reasons, one relating to admissibility and the other to the merits.
2. Regarding admissibility, I would first like to reiterate the well-established principles and settled case-law in this area. Article 35 of the European Convention on Human Rights provides: “The Court may only deal with the matter after all domestic remedies have been exhausted …” It follows that in the Convention system, the domestic courts are the ordinary courts in relation to Convention law. They are entrusted with primary responsibility for enforcing the rights safeguarded by the Convention. This equates to the principle of subsidiarity, which underpins the Convention system (FrédéricSudre, Droit européen et international des droits de l’homme, 9th edition, PUF, Paris 2008, p. 204). The Court has repeatedly stated that “the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights” (see Handyside v. the United Kingdom, 7 December 1976, Series A no. 24; Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-70, 25 March 2014; and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX). The Convention leaves it first and foremost to the national authorities – and more specifically, the courts with jurisdiction in matters relating to the Convention – to secure the enjoyment of the rights and freedoms it enshrines. The Convention is therefore of a secondary nature in relation to national legislation, and its fundamental rules are in no way intended to replace the rules of domestic law. This rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Vučković and Others, cited above, §§ 69-70, and Brusco, cited above).
3. According to the Court’s case-law, in a legal system designed to protect fundamental rights and freedoms, it is incumbent on the aggrieved individual to test the extent of such protection (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006, and Independent News and Media and Independent Newspapers Ireland Limited v. Ireland (dec.), no. 55120/00, 19 June 2003). Furthermore, the applicant’s compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)). Nevertheless, in certain exceptional cases “the Court accepts that the last stage of such remedies may be reached shortly after the lodging of the application but before it determines the issue of admissibility” (see Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts)). Moreover, according to the Court’s case-law, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Vučković and Others, cited above, § 74). In my view, the last-mentioned principle should apply mutatis mutandis to a situation where the applicant has applied to the Court while his case was pending before a domestic court offering an effective remedy.
4. With regard to an individual application to the Constitutional Court, the Court has already held that it “can see no reason to doubt the legislature’s intention – as manifested in the explanatory report on the constitutional amendments … – to ensure identical protection to that provided by the Convention machinery: Law no. 6216 expressly states that the [Turkish Constitutional Court’s] jurisdiction rationemateriae covers the fundamental rights and freedoms safeguarded by the European Convention on Human Rights and the Protocols thereto, such rights and freedoms also featuring in the Turkish Constitution itself” (see Uzun v. Turkey (dec.), no. 10755/13, § 62, 30 April 2013).
5. In the present case, the applicant lodged an individual application with the Constitutional Court on 8 September 2016. He also applied to the European Court on 28 February 2017, under Article 34 of the Convention, while his application was still pending before the Constitutional Court. On 11 January 2018 the Constitutional Court gave a judgment in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press. Therefore, the applicant did not await the outcome of his individual application to the Constitutional Court.
II
6. An examination of this case in the light of the above principles reveals, firstly, that the applicant has not satisfied the requirement of exhaustion of domestic remedies. Furthermore, in my opinion, the approach taken in Karoussiotis v. Portugal and other cases cited in the judgment cannot be applied to the present case. The case involves a specific legal system for the protection of fundamental rights and freedoms, and individual applications to the Turkish Constitutional Court are regarded as effective remedies that must be used before an application can be lodged with the Court, as the Court has consistently held (see Uzun, cited above, and Mercan v. Turkey (dec.), no. 56511/16, 8 November 2016).
7. In addition, the European Court’s examination the present case cannot lead to a finding that the Constitutional Court has given judgment and that domestic remedies have therefore been exhausted. Instead, since the Constitutional Court’s judgment was in the applicant’s favour, he could no longer claim to be a “victim” within the meaning of Article 34 of the Convention in this case. As the Court has consistently held, “where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention” and “[w]hen those two conditions are satisfied, the subsidiary nature of the protective mechanism of the Convention precludes an examination by the Court” (see Eckle v. Germany, 15 July 1982, §§ 64-70, Series A no. 51; Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I; Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000-XI; Cataldo v. Italy (dec.), no. 45656/99, ECHR 2004-VI, Göktepe v. Turkey (dec.), no. 64731/01, 26 April 2005; and Yüksel v. Turkey (dec.), no. 51902/08, § 46, 9 April 2013).
8. Regarding the assize courts’ decisions refusing to release the applicant following the Constitutional Court’s judgment, he will certainly be entitled to apply to the Court anew once the Constitutional Court has given its judgment on the assize courts’ refusal. Indeed, on 30 January 2018 the applicant lodged a fresh individual application with the Constitutional Court, relying on Articles 5, 6 and 18 of the Convention and complaining mainly about his continued pre-trial detention despite the Constitutional Court’s judgment of 11 January 2018. The Constitutional Court has decided to treat the applicant’s application as a priority.
9. Hence, the reasons given by the majority to justify their position in the present case were unable to persuade me that the settled case-law and well-established principles outlined above should be disregarded. I can therefore see no reason to depart from the above-mentioned case-law and general principles in the present case.
10. According to the Preamble to the Constitution of the Republic of Turkey: “Having regard to the absolute supremacy of the will of the nation, sovereignty is vested fully and unconditionally in the Turkish nation and no individual or body authorised to exercise such sovereignty in the name of the nation may interfere with the liberal democracy enshrined in the Constitution or the legal order instituted in accordance with its requirements”. The above principles from the Preamble correspond to the principles of democracy, the rule of law and the protection of human rights referred to in the Preamble to the Statute of the Council of Europe, of which Turkey is one of the founding members. Unfortunately, on 15 July 2016 an attempted coup in Turkey flouted those principles and sought to suppress fundamental rights and freedoms and to disregard the will of the nation.
III
11. As to the merits, I would like first of all to stress the scale and the severity of the threat to Turkey during the night of 15 July 2016. It involved a bloody attempted military coup by members of a sui generis terrorist organisation that had infiltrated all areas of society and the State apparatus. There has never been such a serious threat to the life of the nation, democracy and fundamental rights in any of the States Parties to the European Convention on Human Rights.
12. During the night of 15 to 16 July 2016 a faction of the Turkish armed forces linked to a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”) attempted to carry out a military coup aimed at overthrowing the democratically elected government and President of Turkey and ending democracy. The organisation had already been declared a terrorist organisation in a court judgment and in an advisory decision by the National Security Council. The coup instigators issued a statement on behalf of the “Peace at Home Council”, announcing that martial law and a curfew had been declared throughout national territory. They also stated that the Turkish Grand National Assembly had been overthrown, that all political parties’ activities had been terminated and that all the police had been placed under the control of the martial-law commanders.
13. Using helicopters and fighter planes, the coup instigators attacked and bombarded a large number of locations, including the Turkish Grand National Assembly building, thepresidential compound, the Security Directorate headquarters, the Special Operations Command of the national police and the National Intelligence Organisation headquarters in the capital city, Ankara. They also attacked the hotel where the President was staying. Several senior military officers, including the Chief of General Staff and the commanders of the armed forces, were held hostage. In addition, the bridges over the Bosphorus linking Europe and Asia were sealed off, as were Istanbul’s airports, by tanks and armoured vehicles. Many public institutions in locations across the country were occupied, or attempts were made to occupy them. During the coup attempt, various institutions and organisations, such as the Türksat satellite communications and cable television operations company, were attacked with the aim of interrupting television broadcasts and Internet access throughout the country. The premises of certain private television broadcasters were occupied and attempt were made to interrupt their broadcasts.
14. The coup attempt was rejected by representatives of all constitutional authorities, first and foremost the President and also the Prime Minister and the Constitutional Court. At the President’s urging, the people gathered in the streets and public squares to act against the coup leaders. The security forces, acting under the orders and instructions of the legitimate authorities, took steps to counter the attempted coup. All political parties represented in the Turkish Grand National Assembly, together with civil-society organisations, condemned the despicable coup attempt and declared that they would not accept any undemocratic government. The civilians who gathered in public squares and the streets resisted the coup participants alongside the security forces, despite the attacks from fighter planes, helicopters, tanks, other armoured vehicles and weapons deployed by the coup leaders. As the judgment points out, hundreds of civilians lost their lives in these attacks and thousands of people were injured, most of them civilians.
15. The prosecuting authorities acted promptly in initiating investigations in respect of those taking part in the attempted coup; this is worth highlighting, since the coup had not yet been foiled. As a result, the attempted coup was entirely averted on 16 July thanks to the efforts of the legitimate constitutional institutions and national solidarity. Moreover, millions of citizens organised overnight democracy vigils in city squares for about a month in protest against the attempted coup.
IV
16. It should be borne in mind that the Statute of the Council of Europe affirms, in its Preamble, the member States’ conviction “that the pursuit of peace based upon justice and international cooperation is vital for the preservation of human society and civilisation”. Ibn Khaldun (1332-1406), a great thinker, legal scholar, historical philosopher and sociologist and the founder of the science of civilisation (umran), explains in his masterpiece Muqaddimah that “one cannot imagine a [State] without civilisation, while a civilisation without [a State or] authority is impossible” (Ibn Khaldun, Muqaddimah: an Introduction to History, IV, 19, translated by Franz Rosenthal, Princeton University Classics, 1967) and that human rights violations (or injustices) ruin civilisation, and the ruin of civilisation leads to the complete destruction of the State (ibid., III, 41). Despite the difference in eras, some striking similarities can be noted between the two perspectives. These words and principles assume full significance during a state of emergency following an attempted military coup. In order to assess the severity of the threat posed by an attempted military coup, consideration should also be given to the risks that might have arisen had the coup attempt not been foiled. Practice has shown that the most serious violations of fundamental rights tend to occur during such periods. Moreover, the alarming conditions in a number of States dominated by regimes installed as a result of a military coup and the tragic situation in such societies, at the present time and throughout the world, corroborate the aforementioned great thinker’s observations and the Council of Europe’s founding principles. By preventing this serious public emergency threatening the life of the nation, the Turkish people have demonstrated how a people can preserve democracy, the rule of law and civilisation and take control of its own destiny.
17. Consideration should be given to the fact that Turkey gave notice of a derogation from the Convention under Article 15 on 21 July 2016 following the declaration of the state of emergency. I share the majority’s opinion that the first formal requirement is easily satisfied, and also that, in view of the wide margin of appreciation left to the national authorities in this sphere, the attempted military coup undoubtedly gave rise to a “public emergency threatening the life of the nation” within the meaning of Article 15 of the Convention. Furthermore, the applicant’s complaints do not concern rights from which no derogation is permitted. As regards the proportionality of the measures taken in the context of the derogation, I differ from the majority, since in my view this point warrants a careful examination in the light of the threat to the life of the nation and to the rule of law, democracy, the constitutional order and human rights in Turkey.
18. In a judgment delivered before the attempted coup, the Turkish courts found that FETÖ/PDY was an armed terrorist organisation (Erzincan Assize Court, judgment of 16 June 2016,). Furthermore, judgments delivered after 15 July 2016 have established a link between this terrorist organisation and the attempted coup. The conclusions reached on this point by the Criminal Division of the Plenary Court of Cassation are fairly instructive: “From the first years of the organisation’s existence … it appears from statements by individuals who were formerly active in the organisation that their goal was to take control of all constitutional institutions (legislature, executive, judiciary) of the Republic of Turkey, and at the same time to become a major political/economic power with an international impact by taking advantage of pupils who were trained in accordance with their principles and aims in educational establishments set up abroad and in Turkey through funds collected by way of ‘favour’ (himmet), and by making use of the economic and political power thus acquired to promote the organisation’s interests and their ideology.” The Criminal Division went on to observe: “It is understood that FETÖ/PDY uses public powers that should be under State control to further its own organisational interests. After going through various stages, members of the organisation embarking on a career – while remaining FETÖ/PDY soldiers and maintaining very strong links to that organisation – within the Turkish armed forces, the police and the National Intelligence Organisation are required to undergo ideological training so that they are ready to exploit their own authorisation to use weapons and force in following the orders of this illegal organisational hierarchy. A person in this position is [described] as a servant by the head of the organisation: ‘persons linked to the service must be determined, persistent, obedient, responsible for everything, must not falter when attacked, must prioritise their rank within the service over their own rank when they have attained a high rank, must be aware that the duties to be accomplished can be difficult in the service, and must be ready to sacrifice their entire existence, life and love for the service [that is, the terrorist organisation] …” According to the judicial authorities’ findings, the following three principles have been established as FETÖ’s working principles: confidentiality, intra-organisational solidarity and strict hierarchical relations. FETÖ’s complex organisation is based on the principle of confidentiality, which it has faithfully observed since its creation, from the lowest cell to the highest branches.
19. On 20 July 2016 a state of emergency was declared for a period of three months as from 21 July 2016 to safeguard democracy, human rights and the rule of law, to remove elements that had infiltrated the State authorities and to eliminate any potential threats in future. The state of emergency has subsequently been extended several times by the Council of Ministers, chaired by the President, most recently with effect from 19 January 2018. On each occasion a notice of derogation from the Convention under Article 15 has been transmitted to the Secretary General of the Council of Europe.
20. In practice, the investigations and judicial proceedings and court judgments have shown that FETÖ/PDY is a complex, sui generis terrorist organisation carrying out its activities under a cloak of legality. In this context, the FETÖ/PDY media wing has played a significant role in legitimising the actions that gave rise to this organisation’s despicable attempted military coup by manipulating public opinion. The applicant was placed in pre-trial detention in the context of an investigation into the organisation’s media wing.
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21. The attempted military coup and its aftermath, together with other terrorist acts, have posed severe dangers to the democratic constitutional order, human rights and public security and order, amounting to a threat to the life of the nation within the meaning of Article 15 of the Convention. The applicant’s complaints should therefore be assessed with due regard to the notice of derogation issued on 21 July 2016 (and subsequently reiterated) under Article 15 of the Convention. The Court has found that the attempted military coup created a “public emergency threatening the life of the nation” within the meaning of the Convention. However, it reached a different conclusion concerning the proportionality of the measures, without giving detailed reasons. In the assessment of proportionality, two dimensions must be taken into account. Firstly, it must be borne in mind that the applicant’s complaints relate only to rights from which a derogation is permitted. That being so, the State should have had a greater margin of appreciation and the Court should have had regard to the risks and the difficulties with which the State was confronted.
22. Next, the Court’s assessment should not give rise to a legal hierarchy between rights from which a derogation is permitted. As was emphasised in the Vienna Declaration and Programme of Action, adopted by consensus at the World Conference on Human Rights by the representatives of 171 States on 25 June 1993, a legal hierarchy between human rights should not in principle be accepted: “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” However, Article 15 of the Convention does provide for a kind of hierarchy between right by classifying rights as derogable and non-derogable. Despite the clarity of the text of Article 15, a conclusion that creates a legal hierarchy between rights from which a derogation is permitted will run counter to the concern for practicality expressed by the drafters of the Convention. The derogation mechanism seeks to promote the balance which States must ensure between respect for human rights and preservation of the life of their nation.
23. In addition, it should be determined whether there is a sufficient basis to conclude that the measure of pre-trial detention linked to a right that remains within the scope of the derogation is strictly required by the exigencies of the situation of a public emergency threatening the life of the nation. In that regard, several factors are known to the Court, such as the severity of the threat to the life of the nation, the fact that the complaint concerns a judicial measure against which an objection may be lodged, the extreme complexity of the case concerning the media wing of the terrorist organisation behind the severe threat, the significant role of the FETÖ/PDY media wing in concealing the organisation’s illegal activities and in legitimising the actions that gave rise to the despicable attempted military coup, the declaration of a state of emergency on account of the coup attempt and its extension since 21 July 2016, on each occasion with the approval of the Turkish Grand National Assembly. On account of those factors, and as the case is strictly linked to the incidents that gave rise to the state of emergency and the derogation, it has to be concluded that the measures taken were strictly required by the exigencies of the situation. For that reason, the derogation relating to an exceptionally severe threat should have prevailed in the assessment of the merits of the case.
24. In conclusion, I consider that in the circumstances of the case, even though it concerned Articles 5 and 10 of the Convention, the subsidiarity principle should have prevailed in the context of admissibility. In addition, the derogation relating to an exceptionally severe threat should have prevailed in the assessment of the merits of the case. Having regard to all the foregoing considerations, and contrary to the majority, I conclude that there has been no violation of the provisions of the Convention.
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