12778\/17<\/a><\/p>\nJudgment 16.4.2019 [Section II]<\/p>\n
Article 5
\nArticle 5-1<\/p>\n
Lawful arrest or detention<\/p>\n
Procedure prescribed by law<\/p>\n
Pre-trial detention of a judge without prior lifting of immunity, on the basis of an unreasonable extension of the concept of in flagrante delicto: violation<\/p>\n
Article 5-1-c<\/p>\n
Reasonable suspicion<\/p>\n
Detention based on mere suspicion of membership of an illegal organisation, without any specific incriminating evidence: violation<\/p>\n
Article 15
\nArticle 15-1<\/p>\n
Derogation<\/p>\n
Detention based on mere suspicion of membership of an illegal organisation, without any specific incriminating evidence: not \u201cstrictly required\u201d<\/p>\n
Facts \u2013 Following the attempted military coup on 15\u00a0July 2016, for which the authorities attributed responsibility to a clandestine organisation (known as FET\u00d6\/PDY), a state of emergency was declared on 20\u00a0July 2016. The following day, Turkey gave notice to the Council of Europe of the exercise of its power of derogation under Article\u00a015 of the Convention.<\/p>\n
At the time, the applicant was a judge at the Turkish Constitutional Court. On 16\u00a0July 2016, together with some 3,000 other judges and prosecutors, he was arrested and taken into police custody. On 20\u00a0July 2016 a magistrate ordered his pre-trial detention on suspicion of being a \u201cmember of an armed terrorist organisation\u201d (Article 314 of the Criminal Code). In August 2016 the Constitutional Court dismissed the applicant from his post.<\/p>\n
In October 2017 the Court of Cassation delivered a leading judgment in another case, in which it held that the arrest of judges suspected of being members of an armed organisation was to be treated as a situation of discovery in flagrante delicto, meaning that pre-trial detention could be ordered under the ordinary procedure, without the prior lifting of immunity.<\/p>\n
The applicant challenged the lawfulness of the order for his detention in two respects: (i)\u00a0under the special law linked to his status, his immunity as a judge should first have been lifted by the Constitutional Court but had not been; and (ii)\u00a0his detention had been ordered even though no evidence against him had been produced at the time. In January 2018 the Constitutional Court dismissed his complaints, addressing his first argument with reference to the above-mentioned Court of Cassation judgment, and his second argument with reference to various items of incriminating evidence gathered since his initial detention.<\/p>\n
In July 2018 the state of emergency was lifted. In March 2019 the applicant was convicted.<\/p>\n
Law<\/p>\n
Article 15 (preliminary considerations): The application in the present case did not concern the measures taken to derogate from the Convention during the state of emergency, since the applicant\u2019s detention had been ordered on the basis of legislation which predated the state of emergency and had remained in force subsequently.<\/p>\n
Nevertheless, although the applicant\u2019s detention had begun the day before Turkey\u2019s application of Article\u00a015 of the Convention had taken effect, the difficulties facing the country in the aftermath of the attempted military coup a few days previously were undoubtedly a contextual factor to which the Court had to give full consideration in interpreting and applying Article\u00a05 in this case.<\/p>\n
Article 5 \u00a7 1<\/p>\n
(a)\u00a0\u00a0Whether the initial detention order followed a \u201cprocedure prescribed by law\u201d<\/p>\n
(i)\u00a0\u00a0Article 5 \u00a7 1 per se \u2013 The principle of legal certainty could be compromised if domestic courts introduced exceptions in their case-law which contradicted the wording of the applicable statutory provisions.<\/p>\n
The Turkish Code of Criminal Procedure gave a conventional definition of the concept of in flagrante delicto, linked to the discovery of an offence while or immediately after being committed. However, according to the courts\u2019 new interpretation of that concept, a suspicion of membership of a criminal organisation could be sufficient to characterise a case of discovery in flagrante delicto without the need to establish any current factual element or any other apparent indication of an ongoing criminal act.<\/p>\n
This amounted to an extensive interpretation of the concept of discovery in flagrante delicto, negating the procedural safeguards which members of the judiciary were afforded in order to protect them from interference by the executive. Protection of this kind was granted to judges to allow them to discharge their functions independently, without unlawful restrictions by bodies outside the judiciary, or even by judges performing a supervisory or review function. Moreover, immunity in this sphere did not mean impunity: the detention of a member of the Constitutional Court remained legally possible, provided that the safeguards enshrined in the Constitution and the Constitutional Court Act were observed.<\/p>\n
It was also unclear how the Court of Cassation\u2019s settled case-law on the concept of a continuing offence could have justified extending the scope of the concept of discovery in flagrante delicto.<\/p>\n
The application of the domestic law in the present case thus appeared manifestly unreasonable. The applicant\u2019s detention had consequently not followed a \u201cprocedure prescribed by law\u201d.<\/p>\n
(ii)\u00a0\u00a0Impact of Article 15\u00a0\u2013 An extensive interpretation of the concept of in flagrante delicto could not be regarded as an appropriate response to the state of emergency, since its legal consequences reached far beyond the legal framework of the state of emergency. That being so, it was in no way justified by the special circumstances of the state of emergency. To sum up, a pre-trial detention order that had not been made \u201cin accordance with a procedure prescribed by law\u201d could not be said to have been \u201cstrictly required by the exigencies of the situation\u201d.<\/p>\n
Conclusion: violation (six votes to one).<\/p>\n
(b)\u00a0\u00a0Whether there had been reasonable suspicion that the applicant had committed an offence<\/p>\n
(i)\u00a0\u00a0Article 5 \u00a7 1 per se\u00a0\u2013 The exigencies of dealing with organised crime could not justify stretching the notion of \u201creasonableness\u201d to the point where the essence of the safeguard secured by Article\u00a05 \u00a7\u00a01\u00a0(c) of the Convention was impaired.<\/p>\n
The offence referred to at the time of the applicant\u2019s initial detention was that of membership of an illegal organisation. However, the fact that he had been questioned in connection with that offence before being detained revealed, at most, that the police had suspected him, but it did not provide a persuasive indication that the offence in question could have been committed by him.<\/p>\n
The order for the applicant\u2019s detention did not point to any witness statements or facts or information to support a strong suspicion that he was a member of an illegal organisation. The vague and general references to the provisions of the Code of Criminal Procedure on pre-trial detention and to the evidence in the file were not sufficient to justify the \u201creasonableness\u201d of the suspicion on which the applicant\u2019s pre-trial detention was supposed to have been based, in the absence either of a specific assessment of the individual items of evidence in the file \u2013 which covered a total of fourteen suspects \u2013 or of any information that could have justified the suspicion against the applicant, or of any other kinds of verifiable material or facts.<\/p>\n
With regard to the items of evidence considered by the Constitutional Court in assessing the \u201creasonableness\u201d of the suspicion that the applicant was a member of an illegal organisation, they had been obtained long after his initial detention, which was the sole focus of his complaint in the present case. Likewise, the fact that the applicant had subsequently been convicted by the court determining the charges against him had no bearing on the examination of this complaint. Nor had the Government provided any other indications that there had been a \u201creasonable suspicion\u201d against the applicant at the time of his initial detention.<\/p>\n
(ii)\u00a0\u00a0Impact of Article 15\u00a0\u2013 The above findings indicated that the applicant\u2019s detention could not be said to have been \u201cstrictly required by the exigencies of the situation\u201d. To conclude otherwise would negate the minimum requirements of Article 5 \u00a7\u00a01\u00a0(c) regarding the reasonableness of a suspicion justifying deprivation of liberty and would defeat the purpose of Article\u00a05 of the Convention, especially in a case involving the detention of a member of the judiciary serving on a supreme court.<\/p>\n
Conclusion: violation (six votes to one).<\/p>\n
Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.<\/p>\n