SECOND SECTION
\nCASE OF ALPARSLAN ALTAN v. TURKEY
\n(Application no. 12778\/17)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n16 April 2019<\/p>\n
This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Alparslan Altan v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 12778\/17) against the Republic of Turkey lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Turkish national, Mr Alparslan Altan (\u201cthe applicant\u201d), on 16 January 2017.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr E.Y. Aras, a lawyer practising in Ankara. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that he had been deprived of his liberty in breach of Article 5 of the Convention.<\/p>\n 4.\u00a0\u00a0On 29\u00a0September 2017 notice of the complaints concerning Article\u00a05 \u00a7\u00a7\u00a01 and 3 was given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54\u00a0\u00a7\u00a03 of the Rules of Court. The applicant and the Government each filed observations on the admissibility and merits of the case.<\/p>\n 5.\u00a0\u00a0Ay\u015fe I\u015f\u0131l Karaka\u015f, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). Harun Mert was accordingly appointed by the President to sit as an ad hoc judge (Article 26 \u00a7 4 of the Convention and Rule\u00a029 \u00a7\u00a01).<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant, a former member of the Turkish Constitutional Court, is a Turkish national who was born in 1968 and lives in Ankara. He is currently detained.<\/p>\n A.\u00a0\u00a0The applicant\u2019s professional career<\/strong><\/p>\n 7.\u00a0\u00a0In 1993 the applicant began his career as a public prosecutor. In 2001 he was appointed as a rapporteur at the Constitutional Court. On 27\u00a0March 2010 he was appointed by the President of Turkey as a judge of the Constitutional Court for a term of office due to expire when he reached the age of 65. On 26 October 2011 he was elected Vice-President of the Constitutional Court (Anayasa Mahkemesi Ba\u015fkanvekili) by the court\u2019s judges for a four-year term, which ended on 26\u00a0October 2015. At the time of the events to which the application relates, he was a judge at the court.<\/p>\n B.\u00a0\u00a0Attempted coup of 15 July 2016 and declaration of a state of emergency<\/strong><\/p>\n 8.\u00a0\u00a0During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the \u201cPeace at Home Council\u201d attempted to carry out a military coup aimed at overthrowing the democratically installed parliament, government and President of Turkey.<\/p>\n 9.\u00a0\u00a0During the attempted coup, soldiers under the instigators\u2019 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, also attacked television channels and fired shots at demonstrators. During the night of violence, more than 250 people were killed and more than 2,500 were injured.<\/p>\n 10.\u00a0\u00a0The day after the attempted military coup, the national authorities blamed the network linked to Fetullah G\u00fclen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of an organisation known as FET\u00d6\/PDY (\u201cG\u00fclenist Terror Organisation\/Parallel State Structure\u201d). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in respect of suspected members of that organisation.<\/p>\n 11.\u00a0\u00a0On 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.<\/p>\n 12.\u00a0\u00a0On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article\u00a015.<\/p>\n 13.\u00a0\u00a0During the state of emergency, the Council of Ministers, chaired by the President, passed thirty-seven legislative decrees (nos. 667-703) under Article\u00a0121 of the Constitution. One of them, Legislative Decree no.\u00a0667, published in the Official Gazette on 23\u00a0July 2016, provided in Article\u00a03 that the Constitutional Court was authorised to dismiss any of its members who were considered to belong or be affiliated or linked to terrorist organisations or organisations, structures or groups found by the National Security Council to have engaged in activities harmful to national security. The legislative decrees also placed significant restrictions on the procedural safeguards laid down in domestic law for anyone held in police custody or pre-trial detention (for example, extension of the police custody period, and restrictions on access to case files and on the examination of objections against detention orders).<\/p>\n 14.\u00a0\u00a0The Government stated that during and after the coup attempt, prosecutors\u2019 offices had initiated criminal investigations in respect of individuals involved in the attempt and those who were not involved but had links to the FET\u00d6\/PDY organisation, including members of the judiciary. They specified in that connection that on 16\u00a0July 2016, in the context of a criminal investigation opened by the Ankara public prosecutor\u2019s office, some 3,000 judges and prosecutors, including two judges of the Constitutional Court (including the applicant) and more than 160 judges of the Court of Cassation and the Supreme Administrative Court, had been taken into police custody and subsequently placed in pre-trial detention. In addition, warrants had been issued for the arrest of thirty judges of the highest courts who were deemed to be fugitives.<\/p>\n 15.\u00a0\u00a0On 18 July 2018 the state of emergency was lifted.<\/p>\n C.\u00a0\u00a0The applicant\u2019s arrest and pre-trial detention<\/strong><\/p>\n 16.\u00a0\u00a0On 16 July 2016, in the course of the criminal investigation opened by the Ankara public prosecutor\u2019s office (see paragraph 14 above), the applicant was arrested and taken into police custody on the instructions of the same office, which described him as a member of the FET\u00d6\/PDY terrorist organisation and urged that he be placed in pre-trial detention. The relevant parts of the instructions were worded as follows:<\/p>\n \u201cThe offence of overthrowing the Government and the constitutional order through force and violence is currently being committed across the country; there is a risk that members of the [FET\u00d6\/PDY] terrorist organisation committing the offence in question might flee the country …\u201d<\/p>\n On the same day, the police conducted a search of the applicant\u2019s home and seized computers and other IT equipment belonging to him.<\/p>\n 17.\u00a0\u00a0On 19 July 2016 the applicant was questioned by the Ankara public prosecutor. He was suspected of having sought to overthrow the constitutional order (Article 309 of the Criminal Code) and being a member of the FET\u00d6\/PDY terrorist organisation (Article 314 of the Criminal Code). During the questioning, the applicant, who was assisted by a lawyer, denied all the allegations against him and argued that they could only have been based on his dissenting opinions as set out in judgments of the Constitutional Court. His lawyer challenged the applicant\u2019s detention in police custody, arguing that the requirements of a case of discovery in flagrante delicto were not satisfied and that his client could not be the subject of a criminal investigation without permission from the Constitutional Court. He requested that his client be released on bail.<\/p>\n 18.\u00a0\u00a0Later that day, the Ankara public prosecutor\u2019s office ordered the applicant, together with thirteen other suspects \u2013 six judges of the Supreme Administrative Court, six judges of the Court of Cassation and another judge \u2013 to appear before the 2nd Magistrate\u2019s Court (sulh ceza hakimli\u01e7i). He called for the applicant to be placed in pre-trial detention, bearing in mind that certain members of the FET\u00d6\/PDY organisation had fled after the events and that evidence had yet to be gathered.<\/p>\n 19.\u00a0\u00a0On 20 July 2016 the applicant, assisted by his lawyer, Mr\u00a0M.\u00a0Orak, appeared before the 2nd Magistrate\u2019s Court with the thirteen other suspects. According to the record of the questioning, they were suspected of attempting to overthrow the constitutional order and being members of the FET\u00d6\/PDY organisation, offences punishable under Articles\u00a0309 and 314 of the Criminal Code. The suspects\u2019 statements, including those made by the applicant, were recorded using the SEGB\u0130S sound and image information system (Ses ve G\u00f6r\u00fcnt\u00fc Bili\u015fim Sistemi). The transcripts of the recordings indicate that the applicant, after describing his career as a judge at the Constitutional Court, denied all the accusations against him. They also show that his lawyer challenged all the measures taken against his client, relying on the latter\u2019s special status linked to his position as a Constitutional Court judge. The relevant parts of the transcripts read as follows:<\/p>\n \u201cThe suspect\u2019s lawyer, Mr M. Orak: \u2018… it appears that Articles 109 and 114 [this in fact refers to Articles 309 and 314 of the Criminal Code] were mentioned in the record of the hearing; is the request for detention under Article 114 [314] also being made on the basis of Article 109\u00a0[309]?\u2019<\/p>\n The magistrate, M.C.: \u2018Not [on the basis of Article] 109 [309].\u2019<\/p>\n The suspect\u2019s lawyer, Mr M. Orak: \u2018OK … Since my client has been brought before you on the basis of Article 114 [314], this is not a case of discovery in flagrante delicto. So all the steps taken in connection with that offence have been ultra vires and unlawful … In this case, the criminal investigation and trial should be conducted from the start by the plenary Constitutional Court … There is no concrete evidence that could justify pre-trial detention, and the accusations were based on abstract allegations … [Furthermore], in this particular case, the cumulative conditions for pre-trial detention were not met, and in any event, we are asking for alternative measures to be ordered …\u201d<\/p>\n 20.\u00a0\u00a0On the same day, the magistrate ordered the pre-trial detention of the applicant and the thirteen other suspects, holding as follows:<\/p>\n \u201c… In view of the fact that some suspects and their representatives contended that the Ankara public prosecutor\u2019s office and our court did not have jurisdiction [to deal with the case], it should be noted that in accordance with section 16(1) of Law no.\u00a06216 …, the criminal investigation was governed by the ordinary rules, given that the offence of which the suspects were accused, namely membership of an armed terrorist organisation, was a \u2018continuing offence\u2019 (temadi olan su\u00e7) and that there was a case of discovery in flagrante delicto.<\/p>\n Following an examination of the investigation file, the suspects\u2019 pre-trial detention is ordered, regard being had to the nature of the alleged offence, the state of the evidence, [all the] records included in the file, the decisions of 17 July 2016 by the presidents\u2019 offices at the Court of Cassation and the Supreme Administrative Court, the reports on searches and seizures and the entire contents of the case file, and also the fact that there is concrete evidence giving rise to a strong suspicion that the offence in question has been committed. [It is also noted that] the alleged offence was among the so-called \u2018catalogue\u2019 offences listed in Article 100 of the Code of Criminal Procedure, that pre-trial detention is a proportionate measure in view of the length of the sentence provided for by law, and that alternative measures to detention are insufficient on account of the risks of absconding and of damage to evidence.\u201d<\/p>\n 21.\u00a0\u00a0Also 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.<\/p>\n In addition, on 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article\u00a015 (see paragraphs 11-13 above).<\/p>\n 22.\u00a0\u00a0On the same day, the applicant lodged an objection against the order for his pre-trial detention. In support of the objection, he argued that there was no concrete evidence that could justify detention, and that such a measure did not comply with the relevant domestic law. He also asked for alternative measures to be applied on the grounds that his son was severely disabled and dependent on his personal assistance.<\/p>\n 23.\u00a0\u00a0In a decision of 4 August 2016 the Constitutional Court, meeting in plenary session, dismissed the applicant from his post. In reaching that decision it noted, on the basis of Article 3 of Legislative Decree no.\u00a0667, that \u201cinformation from the social environment\u201d (sosyal \u00e7evre bilgisi) and the \u201ccommon opinion emerging over time\u201d (zaman i\u00e7inde olu\u015fan ortak kanaatleri) among members of the Constitutional Court suggested that the applicant had links to the organisation in question, making him no longer fit to practise his profession.<\/p>\n 24.\u00a0\u00a0On 9 August 2016 the 3rd Magistrate\u2019s Court dismissed the applicant\u2019s objection against the order for his detention.<\/p>\n 25.\u00a0\u00a0On 26 September 2016 the applicant applied for release on bail. In support of his application, he repeated his argument that his detention did not comply with the relevant domestic law. He argued firstly that as he had not been accused of having taken part in the attempted coup, this was not a case of discovery in flagrante delicto. He further noted that the cases of inflagrante delicto were listed in Article\u00a02 of the Code of Criminal Procedure (CCP) and that his own situation did not fall into any of those categories. In addition, he argued that the order for his detention did not contain any specific grounds relating to him and was not based on any fact justifying such a measure. Lastly, he again asked for alternative measures to be applied, referring to the health of his son, who was seriously disabled and dependent on his personal assistance.<\/p>\n 26.\u00a0\u00a0On various other occasions, the applicant applied for release on bail. In decisions adopted on 7 November and 5\u00a0December 2016, in line with an earlier decision of 21 September 2016, the competent magistrates refused his applications.<\/p>\n 27.\u00a0\u00a0In a letter dated 8 November 2017 the public prosecutor\u2019s office at the Court of Cassation forwarded the case file to the 10th Criminal Division of the same court. On several occasions the Criminal Division reviewed whether it was necessary to keep the applicant in pre-trial detention and ordered the extension of his detention.<\/p>\n D.\u00a0\u00a0Summary report by the Ankara public prosecutor\u2019s office<\/strong><\/p>\n 28.\u00a0\u00a0On 25 October 2017 the Ankara public prosecutor\u2019s office submitted a summary report (fezleke) to the public prosecutor\u2019s office at the Court of Cassation with a view to instituting criminal proceedings against the applicant. In the report it stated that the FET\u00d6\/PDY organisation was the instigator of the attempted coup of 15\u00a0July 2016 and that a judicial investigation was being conducted in respect of judges deemed to be members of that structure and to have acted under its orders and instructions. The public prosecutor\u2019s office pointed out that the risk of a coup had not been entirely eliminated and that a case of discovery in flagrante delicto was at issue, falling within the jurisdiction of the Assize Court; accordingly, a criminal investigation had been initiated in respect of the applicant on 16 July 2016 on the basis of the provisions of ordinary law. It noted that statements by anonymous witnesses and suspects, the content of communications between other individuals via the ByLock messaging service and information about signals from mobile telephones (see paragraphs 32-40 below) all showed that the applicant had committed the offence of membership of an armed terrorist organisation.<\/p>\n E.\u00a0\u00a0Individual application to the Constitutional Court<\/strong><\/p>\n 29.\u00a0\u00a0On 7 September 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been arbitrarily arrested and placed in pre-trial detention, in breach of the relevant law, namely the Constitutional Court Act (Law no. 6216) and that court\u2019s rules of procedure. He also alleged that there was no specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating his pre-trial detention. Furthermore, he maintained that the domestic courts had not given sufficient reasons for the decisions ordering his detention. He argued in addition that he had been arrested and detained for reasons other than those provided for in the Constitution. He also complained that the magistrates who had ordered his pre-trial detention were not independent and impartial, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment. In addition, he contended that his dismissal and the various measures taken against him had infringed his rights to a fair trial, to respect for his private life and home and to freedom of expression, and had constituted discrimination.<\/p>\n 30.\u00a0\u00a0On 11 January 2018 the Constitutional Court gave a judgment (no.\u00a02016\/15586) in which it decided, unanimously, to reject the following complaints as manifestly ill-founded: the complaint concerning the lawfulness of the detention order and the lack of reasonable suspicion justifying it; the complaint concerning the alleged lack of independence and impartiality of the magistrates who had ordered the applicant\u2019s pre-trial detention; and the complaints concerning the right to a fair trial, the right to respect for private life and the home and the prohibition of discrimination.<\/p>\n With regard to the complaint concerning the lawfulness of the applicant\u2019s detention in police custody, the Constitutional Court held that he should have brought an action under Article 141 \u00a7 1\u00a0(a) of the CCP but had refrained from doing so. It found that the same applied to his complaints concerning his dismissal. Furthermore, it noted that there was no information in his application or the appended material as to whether the applicant had lodged an objection under Article 91 \u00a7 5 of the CCP against his detention in police custody. Accordingly, it declared these complaints inadmissible for failure to exhaust the appropriate remedies.<\/p>\n 31.\u00a0\u00a0In its judgment the Constitutional Court, after describing the characteristics of the FET\u00d6\/PDY organisation and its covert structure within the judiciary, first summarised the evidence gathered by the Ankara public prosecutor\u2019s office (1) and then addressed the complaints concerning the lawfulness of the detention order and the alleged lack of reasonable suspicion justifying it (2).<\/p>\n 1.\u00a0\u00a0The evidence<\/em><\/p>\n 32.\u00a0\u00a0According to the Constitutional Court\u2019s judgment, the allegation that the applicant had knowingly joined the judicial branch of the FET\u00d6\/PDY organisation was based on the following facts and evidence:<\/p>\n (a)\u00a0\u00a0statements by anonymous witnesses;<\/p>\n (b)\u00a0\u00a0statements by a suspect;<\/p>\n (c)\u00a0\u00a0messages exchanged via ByLock; and<\/p>\n (d)\u00a0\u00a0other facts.<\/p>\n The evidence can be summarised as follows.<\/p>\n (a)\u00a0\u00a0Statements by anonymous witnesses<\/p>\n 33.\u00a0\u00a0An anonymous witness referred to as \u201cDefne\u201d made several statements to the Kahramanmaras and Ankara public prosecutors\u2019 offices.<\/p>\n In her statements of 4 August 2016 the witness said the following:<\/p>\n \u201c…I was appointed as a rapporteur at the Constitutional Court. While I was working at the Constitutional Court, we kept seeing friends who belonged to this structure [the FET\u00d6\/PDY organisation] … There, I noticed that certain files were monitored … Some practices came to my notice; for instance, applications relating to the election threshold and the funding of political parties … were monitored by the rapporteurs and members [of the Constitutional Court] belonging to the FET\u00d6\/PDY organisation. After such applications were lodged, [these rapporteurs and members of the Constitutional Court] started to keep track of the cases by enquiring about their outcome. The ones monitoring these cases were Alparslan Altan, who was the mentor, and the chief rapporteurs belonging to this structure. I recall that Alparslan Altan would write a dissenting opinion whenever a decision was not adopted [along the lines] that he wanted.\u201d<\/p>\n In her statement of 6 October 2016 the same witness said the following:<\/p>\n \u201cOn the basis of my own observations, the contacts I had while working at the Constitutional Court as a rapporteur, and the comments and behaviour of rapporteurs whom I know to be members of this structure, I can say that the former member and rapporteur of the Constitutional Court Alparslan Altan was a member of this cemaat [the term \u2018cemaat\u2019 literally means \u2018community\u2019; however, at the time of the events, the term was commonly used to denote followers of Fetullah G\u00fclen, the presumed head of the FET\u00d6\/PDY organisation \u2013 hereinafter \u2018the cemaat\u2019]. As in other judicial institutions there was a \u2018secret cell\u2019-type organisation within the Constitutional Court …\u201d<\/p>\n 34.\u00a0\u00a0In a statement taken on 27 December 2016 another anonymous witness, referred to as \u201cKitap\u00e7\u0131\u201d, said the following:<\/p>\n \u201c… When I started working at the Constitutional Court as a rapporteur, I was convinced that, given his social contacts, Alparslan Altan was a member of the cemaat. His social contacts were what led me to reach this conclusion …\u201d<\/p>\n (b)\u00a0\u00a0Statements by a suspect<\/p>\n 35.\u00a0\u00a0In addition, R.\u00dc., a former public prosecutor and a former rapporteur of the Constitutional Court who was accused of being a member of the FET\u00d6\/PDY organisation, made several statements to the Ankara public prosecutor\u2019s office. The relevant parts of his statement recorded on 9\u00a0September 2016\u00a0read as follows:<\/p>\n \u201c… Previously, I did not know that the former member of the Constitutional Court Alparslan Altan was a member of the cemaat … However, when I noticed that this member was always in the minority in [decisions on] individual applications in which members of the cemaat were involved, I became firmly convinced that he could be a member of the cemaat … I had already imagined, from conversations between members of the cemaat, that some members of the Constitutional Court might belong to [this structure]. But I did not know who. Over time, on account of his [positions] in these decisions, I became certain that this member [of the Constitutional Court] belonged to the cemaat …\u201d<\/p>\n 36.\u00a0\u00a0In statements taken on 21 October 2016 and 19 July and 5\u00a0September 2017 R.\u00dc. confirmed his previous statements and asserted that although he had not met the applicant at meetings held between members of the FET\u00d6\/PDY organisation, he was convinced that the applicant belonged to that structure. In particular, in his statements of 19 July and 5\u00a0September 2017 he mentioned that the applicant\u2019s codename was \u201cSelahattin\u201d.<\/p>\n (c)\u00a0\u00a0Messages exchanged via ByLock<\/p>\n 37.\u00a0\u00a0According to information in the case file, it was not established or alleged during the investigation that the applicant was a user of the ByLock encrypted messaging service.<\/p>\n However, transcripts of ByLock conversations between other individuals suspected of being members of the FET\u00d6\/PDY organisation, namely \u00d6.\u0130., S.E. and B.Y., indicate a number of references to the applicant. According to the investigating authorities, \u00d6.\u0130., a teacher, was the \u201clay imam\u201d responsible for members of the judiciary belonging to the FET\u00d6\/PDY organisation (according to the public prosecutor\u2019s office, each of the structure\u2019s cells that had infiltrated the administrative and judicial authorities was led by a \u201clay imam\u201d); S.E., a former rapporteur of the Constitutional Court, was in charge of the cell at that court; and B.Y., another former rapporteur of the Constitutional Court, was a member of the structure. Various measures had been taken against these three individuals in the course of the criminal investigations carried out in the aftermath of the attempted coup: in the case of \u00d6.\u0130., who had left the country, a warrant had been issued for his arrest; the same applied to S.E., who had been dismissed from his post and had fled; as for B.Y., he had been dismissed from his position as a judge by the Council of Judges and Prosecutors and had been placed in pre-trial detention on suspicion of being a member of the FET\u00d6\/PDY organisation.<\/p>\n According to the investigating authorities, in the messages in question each member of the FET\u00d6\/PDY organisation was designated by a codename. According to the suspect R.\u00dc., the applicant\u2019s codename was \u201cSelahattin\u201d (see paragraph 36 above).<\/p>\n It appears from the transcripts of messages exchanged between \u00d6.\u0130., S.E. and B.Y. via ByLock that the name \u201cSelahattin\u201d was mentioned on several occasions in connection with cases then pending before the Constitutional Court. The transcripts of the conversations also indicate that certain internal matters of the Constitutional Court, such as the election of the vice\u2011president, and various cases pending before the court had been discussed by \u00d6.\u0130. and the former Constitutional Court rapporteurs. More specifically, the conversations show that, in relation to certain cases that had been brought by suspected members of the FET\u00d6\/PDY organisation and rejected, the dissenting opinion by \u201cSelahattin\u201d had been praised. The transcripts also indicate that \u201cSelahattin\u201d had been provided with a telephone line by the FET\u00d6\/PDY organisation.<\/p>\n 38.\u00a0\u00a0The Government did not provide any information about the date on which these various items of evidence had been added to the case file. The applicant, however, stated that the Ankara public prosecutor\u2019s office had received the physical digital evidence of the ByLock conversations in December 2016, that the Ankara 3rd and 5th Magistrates\u2019 Courts had asked to have a copy of that evidence forwarded to them on 9\u00a0December 2016 and 24\u00a0March 2017, and that an expert report had been drawn up four months after the latter date.<\/p>\n (d)\u00a0\u00a0Other facts<\/p>\n 39.\u00a0\u00a0After information had been obtained to suggest that a telephone line had been supplied by the FET\u00d6\/PDY organisation to the individual known as \u201cSelahattin\u201d (see paragraph 37 above), investigations were carried out to ascertain whether the telephone line registered in the applicant\u2019s name (\u201ctelephone line no. 1\u201d) had sent signals from the same base station as the one used by the telephone line supplied by the FET\u00d6\/PDY organisation (\u201ctelephone line no. 2\u201d). It emerged that between 22\u00a0November 2015 and 16\u00a0July 2016 the two telephone lines had sent signals from the same base station. It also transpired that telephone line no. 2 was used solely for internet access and that both telephone lines had sent signals from the same location for twenty-nine days over different periods.<\/p>\n 40.\u00a0\u00a0It was also established that two other telephone lines had been used to call individuals who had subsequently been arrested on suspicion of being members of the FET\u00d6\/PDY organisation.<\/p>\n 2.\u00a0\u00a0The Constitutional Court\u2019s assessment of the complaints concerning the lawfulness of the order for the applicant\u2019s pre-trial detention and the alleged lack of reasonable suspicion justifying it<\/em><\/p>\n 41.\u00a0\u00a0Addressing the complaint about the lawfulness of the applicant\u2019s initial detention, the Constitutional Court held at the outset that this issue should be examined under Article 15 of the Constitution, by which, in an emergency, the exercise of fundamental rights and freedoms could be partially or fully suspended, or measures derogating from the guarantees enshrined in the Constitution for those rights and freedoms could be taken.<\/p>\n 42.\u00a0\u00a0As to the merits of the complaint, it held firstly that it was not disputed that the alleged offence \u2013 membership of an armed terrorist organisation \u2013 was an ordinary offence punishable by a heavy sentence and thus falling within the jurisdiction of the assize courts. Secondly, it noted:<\/p>\n \u201c123. The offence of which [the applicant] is accused, punishable under Article\u00a0314 of the Criminal Code, namely membership of an armed terrorist organisation, undoubtedly falls within the jurisdiction of the Assize Court, and this is not disputed by [him]. Moreover, although [the applicant] claims to have been prosecuted on account of his dissenting opinions as expressed in certain judgments of the Constitutional Court, he does not contend that the alleged offence is not an ordinary offence, that is to say, an offence [that was not] committed in connection with or during the performance of official duties. The classification of an offence (as an ordinary offence or as an offence linked to the performance of official duties) is a matter falling within the competence of the judicial authorities. The compliance of such classification with the law may also be reviewed in the context of an ordinary appeal or an appeal on points of law. Provided that there is no arbitrary interpretation \u2013 manifestly breaching the Constitution \u2013 and [entailing], as a result, [a violation of] rights and freedoms, it is primarily the task of the courts dealing with the case (derece mahkemeleri) to interpret and apply the law, including [the question of] the classification of an offence. It cannot be concluded that the classification of the offence of which [the applicant] is accused as an ordinary offence was unjustified and arbitrary, bearing in mind the findings reached and the reasons given [by the investigating bodies and judicial authorities], and in particular, the documents concerning [his] pre-trial detention.<\/p>\n 124. In the present case, when the investigating bodies found that this was a case of discovery in flagrante delicto, they based that finding on the attempted coup of 15\u00a0July 2016 and the fact that the offence of which [the applicant] was accused, namely membership of an armed terrorist organisation, is a continuing offence.<\/p>\n 125. According to the Court of Cassation\u2019s consistent practice, the offence of membership of an armed terrorist organisation is a continuing offence (temadi eden su\u00e7).<\/p>\n …<\/p>\n 127. … The plenary criminal divisions of the Court of Cassation have also held in a case concerning the conviction of two judges … that \u2018as the current and consistent position of the Court of Cassation makes clear, regarding the offence of membership of an armed terrorist organisation, which is a continuing offence, except in cases where [its continuing nature ends with] the dissolution of the organisation or termination of membership, the continuing nature [of the offence] may be interrupted by the offender\u2019s arrest. The time and place of the offence must therefore be established to that end. For this reason, there is a situation of discovery in flagrante delicto at the time of the arrest of judges suspected of the offence of membership of an armed organisation.\u2019<\/p>\n 128. Having regard to the Court of Cassation judgments cited above, and to the fact that [the applicant] was arrested on suspicion of membership of the FET\u00d6\/PDY organisation \u2013 deemed by the judicial authorities to constitute an armed terrorist organisation that premeditated the attempted coup \u2013 on 16 July 2016, at a time when [the authorities were taking steps to] defeat the coup attempt, it cannot be concluded that there was no factual and legal basis for the finding by the investigating bodies that the offence of membership of an armed terrorist organisation, of which [the applicant] was accused, involved a situation of discovery in flagrante delicto.<\/p>\n 129. In the light of the foregoing, the allegation that [the applicant], a Constitutional Court judge, was placed in pre-trial detention in an manner not complying with law and the safeguards enshrined in the Constitution and Law no.\u00a06216 is unfounded. Accordingly, the order for [the applicant\u2019s] detention had a legal basis.<\/p>\n 130. Before examining whether the detention order \u2013 which had a basis in law \u2013 pursued a legitimate aim and was proportionate, it should be ascertained whether there are \u2018facts giving rise to a strong suspicion that the offence has been committed\u2019, this being a prerequisite for pre-trial detention.<\/p>\n 131. The [impugned] detention order states, with reference to \u2018[all] the reports on searches and seizures and the entire contents of the case file\u2019, that there was concrete evidence giving rise to a strong suspicion in respect of the suspects, including [the applicant].<\/p>\n 132. It also appears from the summary report (fezleke) concerning [the applicant] that the accusation that [he] was a member of a terrorist organisation was based on the following evidence: statements by anonymous witnesses and a suspect, the contents of communications between other individuals and information concerning the signals from [the applicant\u2019s] mobile telephones.<\/p>\n 133. It should be noted that in the messages exchanged between other individuals (\u00d6.I., S.E. and B.Y.) via ByLock, certain references were made to [the applicant]. The investigating bodies found, on the basis of evidence such as the statements by suspects\/witnesses and the messages exchanged via ByLock, that \u00d6.I., who is in fact a teacher, was the \u2018lay imam\u2019 responsible for the judges belonging to the FET\u00d6\/PDY organisation, that S.E. (a rapporteur) was in charge of the organisation [within] the Constitutional Court and that B.Y. was a member of this structure. Among those individuals, an arrest warrant has been issued in respect of \u00d6.I., who has left the country. [Similarly], S.E., who has been dismissed from his post, has fled and a warrant has been issued for his arrest. As for B.Y., he has been dismissed from the position of judge by the Council of Judges and Prosecutors and has been placed in pre-trial detention on suspicion of being a member of the FET\u00d6\/PDY organisation.<\/p>\n …<\/p>\n [In paragraphs 134-37 of its judgment, the Constitutional Court assessed the evidence. It then went on to conclude:]<\/p>\n 138. It can therefore be observed that there is evidence in the file forming a basis for the suspicions against [the applicant].\u201d<\/p>\n The Constitutional Court also observed that, in view of the very specific circumstances surrounding the attempted coup, the extent to which the FET\u00d6\/PDY organisation had infiltrated the administrative and judicial authorities and the fact that the alleged offence was among the so-called \u201ccatalogue\u201d offences, the order for the applicant\u2019s pre-trial detention could be said to have been based on justifiable grounds and proportionate. In the Constitutional Court\u2019s view, there was a risk that individuals involved in the coup attempt and those who had not been directly involved but had links to the FET\u00d6\/PDY organisation \u2013 which was identified as the instigator of the attempted coup \u2013 might abscond, tamper with evidence or take advantage of the disorder that had emerged during or after the coup attempt. The Constitutional Court held that these particular circumstances entailed a higher risk than might arise in what could be described as \u201cnormal\u201d circumstances. It added that it was obvious that the applicant, as a member of that court himself, might be in an easier position than others to interfere with the evidence.<\/p>\n F.\u00a0\u00a0The indictment<\/strong><\/p>\n 43.\u00a0\u00a0On 15 January 2018 the public prosecutor\u2019s office at the Court of Cassation filed a bill of indictment in respect of the applicant, charging him in particular, under Article 314 of the Criminal Code, with being a member of an armed terrorist organisation, namely the FET\u00d6\/PDY organisation. After describing the characteristics of that organisation and its covert structure within the judiciary, it set out the following items of evidence against the applicant: the statements by two anonymous witnesses (see paragraphs\u00a033-34 above); the statements by a former rapporteur of the Constitutional Court accused of belonging to the FET\u00d6\/PDY organisation (see paragraphs 35-36 above); the messages exchanged via ByLock and other facts (relating to information about telephone lines and records of journeys abroad).<\/p>\n 44.\u00a0\u00a0In a summary judgment of 6 March 2019 the 9th Criminal Division of the Court of Cassation sentenced the applicant to eleven years and three months\u2019 imprisonment, in accordance with Article 314 \u00a7 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713), for membership of an armed terrorist organisation. The judgment indicated that the applicant had fifteen days in which to lodge an appeal with the plenary criminal divisions of the Court of Cassation.<\/p>\n G.\u00a0\u00a0Other individual applications<\/strong><\/p>\n 45.\u00a0\u00a0The applicant also lodged two further individual applications with the Constitutional Court. In his application of 3 July 2017 he alleged a violation of Articles 6, 8 and 14 of the Convention. In his application of 26\u00a0July 2018 he complained in particular that the length of his pre-trial detention had been excessive. According to the material available to the Court, both cases are still pending before the Constitutional Court.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0Relevant provisions of the Constitution<\/strong><\/p>\n 46.\u00a0\u00a0Article 11 of the Constitution provides:<\/p>\n \u201cThe 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.\u201d<\/p>\n 47.\u00a0\u00a0Article\u00a015 of the Constitution reads as follows:<\/p>\n \u201cIn 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 [in relation to those rights and freedoms] may be taken to the extent required by the situation, provided that obligations under international law are not violated.<\/p>\n Even in the circumstances listed in the first paragraph, there shall be no violation of: the individual\u2019s 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\u2019s innocence until a final conviction.\u201d<\/p>\n 48.\u00a0\u00a0The relevant parts of Article\u00a019 of the Constitution read as follows:<\/p>\n \u201cEveryone has the right to personal liberty and security.<\/p>\n …<\/p>\n 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.<\/p>\n …<\/p>\n 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 committed jointly 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 extended during a state of emergency or a state of siege or in time of war.<\/p>\n …\u201d<\/p>\n B.\u00a0\u00a0Law no.\u00a06216on the establishment and rules of procedure of the Constitutional Court<\/strong><\/p>\n 49.\u00a0\u00a0The relevant parts of Law no. 6216, published in the Official Gazette on 3 April 2011, provide as follows:<\/p>\n Preliminary examination (inceleme) and investigation (soru\u015fturma) in respect of the President and members [of the Constitutional Court]<\/p>\n Section 16<\/p>\n \u201c(1) The opening of an investigation in respect of the President and members [of the Constitutional Court] for offences allegedly committed in connection with or during the performance of their official duties, ordinary offences and disciplinary offences shall be subject to a decision by the plenary court. However, in cases of discovery in flagrante delicto falling within the jurisdiction of the assize courts (a\u011f\u0131r ceza mahkemesinin g\u00f6revine giren su\u00e7\u00fcst\u00fc h\u00e2llerinde), the investigation shall be conducted in accordance with the rules of ordinary law.<\/p>\n …<\/p>\n (3) Where appropriate, the President may appoint a member to carry out a preliminary examination of the case before it is referred to the plenary court. After completing the preliminary examination, the member thus appointed … shall submit a report to the President.<\/p>\n (4) Once the case has been placed on the agenda by the President, the plenary court shall deliberate on it. The member concerned may not take part in the deliberations. Where the plenary court decides not to open an investigation, the member concerned and the complainants shall be notified of the decision.<\/p>\n (5) Where a decision is taken to open an investigation, the plenary court shall elect three of its members to form the investigation committee. The investigation committee shall be chaired by the senior member. It shall be vested with all the powers conferred upon the public prosecutor by the Code of Criminal Procedure (Law no. 5271 of 4\u00a0December 2004). Any procedural steps requested by the investigation committee shall be carried out immediately by the competent local judicial bodies. …\u201d<\/p>\n Judicial investigation and prosecution<\/p>\n Section 17<\/p>\n \u201c(1) Except in cases of discovery in flagrante delicto of ordinary offences within the jurisdiction of the assize courts, preventive measures against the President and members [of the Constitutional Court] on account of alleged offences committed in connection with or during the performance of official duties may be ordered only in accordance with the provisions of this section.<\/p>\n (2) In cases of discovery in flagrante delicto of ordinary offences within the jurisdiction of the assize courts, the investigation shall be conducted in accordance with the rules of ordinary law. Where an indictment is drawn up, the prosecution shall be conducted by the plenary criminal divisions of the Court of Cassation [since 2\u00a0January 2017: \u2018by the appropriate criminal division of the Court of Cassation\u2019].<\/p>\n (3) In the case of alleged offences committed in connection with or during the performance of official duties and also of ordinary offences, except in cases of discovery inflagrante delicto of ordinary offences within the jurisdiction of the assize courts, where the investigation committee requests a preventive measure as provided for in Law no. 5271 [the CCP] and other laws the plenary court shall give a decision on the request.<\/p>\n (4) Where the investigation committee, after completing its investigation, considers that no charges are necessary, it shall give a decision not to prosecute. If the committee considers it appropriate to bring charges, it shall refer the matter to the Constitutional Court, in the case of offences linked to the performance of official duties, in order for it to adjudicate as the supreme court, or to the President [of the Constitutional Court], in the case of ordinary offences, in order for him or her to refer the case to the plenary criminal divisions of the Court of Cassation [since 2\u00a0January 2017: \u2018to the appropriate criminal division of the Court of Cassation\u2019]. The suspect and, where appropriate, the complainants shall be notified of the decisions of the investigation committee.\u201d<\/p>\n C.\u00a0\u00a0Law no. 5237 of 26 September 2004 instituting the Criminal Code<\/strong><\/p>\n 50.\u00a0\u00a0Article 309 \u00a7 1 of the Criminal Code is worded as follows:<\/p>\n \u201cAnyone 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 facto to prevent its implementation, whether fully or in part, shall be sentenced to aggravated life imprisonment.\u201d<\/p>\n 51.\u00a0\u00a0Article 314 \u00a7\u00a7 1 and 2 of the Criminal Code, which provides for the offence of membership of an illegal organisation, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Anyone 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\u2019 imprisonment.<\/p>\n 2.\u00a0\u00a0Any member of an organisation referred to in the first paragraph above shall be sentenced to five to ten years\u2019 imprisonment.\u201d<\/p>\n D.\u00a0\u00a0Law no. 5271 of 4 December 2004 instituting the Code of Criminal Procedure (CCP)<\/strong><\/p>\n 52.\u00a0\u00a0The relevant parts of Article 2 of the CCP provide:<\/p>\n \u201c…<\/p>\n (j) the following shall be classified as cases of discovery in flagrante delicto (su\u00e7\u00fcst\u00fc):<\/p>\n 1.\u00a0\u00a0an offence in the process of being committed;<\/p>\n 2.\u00a0\u00a0an offence that has just been committed, and an offence committed by an individual who has been pursued immediately after carrying out the act and has been apprehended by the police, the victim or other individuals;<\/p>\n 3.\u00a0\u00a0an offence committed by an individual who has been apprehended in possession of items or evidence indicating that the act was carried out very recently.<\/p>\n …\u201d<\/p>\n 53.\u00a0\u00a0Article 91 \u00a7 2 of the CCP provides:<\/p>\n \u201cPlacement in pre-trial detention shall be dependent on the necessity of this measure for the investigation and on evidence giving rise to a suspicion that the individual has committed an offence.\u201d<\/p>\n 54.\u00a0\u00a0Article 91 \u00a7 5 of the CCP provides that the arrested person or his or her representative, partner or relatives may lodge an objection against the arrest, the police custody order or the extension of the police custody period with a view to securing the person\u2019s release. The objection must be examined within twenty-four hours at the latest.<\/p>\n 55.\u00a0\u00a0The relevant parts of Article 100\u00a0\u00a7\u00a7 1 and 2 of the CCP provide:<\/p>\n \u201c1.\u00a0\u00a0If there are facts giving rise to a strong suspicion that the [alleged] offence has been committed and to a ground for pre-trial detention, a detention order may be made in respect of a suspect or an accused. Pre-trial detention may only be ordered in proportion to the sentence or preventive measure that could potentially be imposed, bearing in mind the significance of the case.<\/p>\n 2.\u00a0\u00a0In the cases listed below, a ground for detention shall be presumed to exist:<\/p>\n (a)\u00a0\u00a0if there are specific facts grounding a suspicion of a flight risk …;<\/p>\n (b)\u00a0\u00a0if the conduct of the suspect or accused gives rise to a suspicion<\/p>\n (1)\u00a0\u00a0of a risk that evidence might be destroyed, concealed or tampered with;<\/p>\n (2)\u00a0\u00a0of an attempt to put pressure on witnesses or other individuals …\u201d<\/p>\n For certain offences listed in Article 100 \u00a7 3 of the CCP (the so-called \u201ccatalogue offences\u201d), there is a statutory presumption of the existence of grounds for detention. The relevant passages of Article\u00a0100 \u00a7\u00a03 of the CCP read:<\/p>\n \u201c3.\u00a0\u00a0If there are facts giving rise to a strong suspicion that the offences listed below have been committed, it can be presumed that there are grounds for detention:<\/p>\n (a)\u00a0\u00a0for the following crimes provided for in the Criminal Code (no.\u00a05237 of 26\u00a0September 2004):<\/p>\n …<\/p>\n 11.\u00a0\u00a0crimes against the constitutional order and against the functioning of the constitutional system (Articles 309, 310, 311, 313, 314 and 315);<\/p>\n …\u201d<\/p>\n Article 101 of the CCP provides that reasons must be given for extending detention and for finding that alternative measures would be insufficient.<\/p>\n Under Article 109 of the CCP, as in force at the material time, even if all the grounds for detention were present, the court had the option of placing a suspect under judicial supervision instead of ordering detention where the suspect faced a maximum sentence of three years\u2019 imprisonment.<\/p>\n 56.\u00a0\u00a0Article\u00a0141 \u00a7 1 (a) of the CCP provides:<\/p>\n \u201cCompensation for damage … may be claimed from the State by anyone …:<\/p>\n (a)\u00a0\u00a0who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law;<\/p>\n …\u201d<\/p>\n 57.\u00a0\u00a0Article\u00a0142 \u00a7 1 of the CCP reads as follows:<\/p>\n \u201cThe 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.\u201d<\/p>\n 58.\u00a0\u00a0According to the practice of the Court of Cassation, it is not necessary to wait for a final decision on the merits of the case before ruling on a claim brought under Article\u00a0141 of the CCP for compensation for the excessive length of pre-trial detention (decisions E.2014\/21585, K.2015\/10868 and E.\u00a02014\/6167, K.\u00a02015\/10867).<\/p>\n E.\u00a0\u00a0Jurisdiction of the assize courts<\/strong><\/p>\n 59.\u00a0\u00a0Under section 12 of Law no. 5235 of 7\u00a0October 2004, the offence of membership of an armed organisation falls within the jurisdiction of the assize courts.<\/p>\n F.\u00a0\u00a0Relevant case-law<\/strong><\/p>\n 60.\u00a0\u00a0In a judgment of 20 April 2015 (E.2015\/1069, K.2015\/840) the 16th\u00a0Criminal Division of the Court of Cassation held as follows:<\/p>\n \u201c… The offence of membership of an armed organisation is committed by means of voluntary submission to the organisation\u2019s hierarchy and acceptance of the organisation\u2019s founding aims and its activities … Although the offence is completed by the act of joining the organisation, it continues to be committed throughout membership …\u201d<\/p>\n 61.\u00a0\u00a0In a judgment of 6 April 2016 (E.2015\/7367, K.2016\/2130) the same Criminal Division of the Court of Cassation held as follows:<\/p>\n \u201cThe continuing nature of an offence ends at the time of the arrest. Where acts of a certain seriousness that are capable of [achieving] the organisation\u2019s aims are carried out between the time of joining the organisation and the time of the arrest, consideration must be given both to the legal rules governing each of the offences and to the provisions governing the combination of offences …\u201d<\/p>\n 62.\u00a0\u00a0In a judgment of 18 July 2017 (E.2016\/7162, K.2017\/4786) the same division held:<\/p>\n \u201c… Membership of an organisation is punishable under Article\u00a0220 \u00a7\u00a02 of the Criminal Code.<\/p>\n …<\/p>\n A member of an organisation is a person who adheres to the hierarchy [of the structure] and as a result submits to the will of the organisation by being ready to discharge the duties entrusted to him or her. [Membership of] an organisation means joining it, having a bond with it and submitting to its hierarchical authority. A member of the organisation must have an organic link with it and participate in its activities.<\/p>\n Although it is not an essential prerequisite for punishment of a member of an organisation that the member has committed an offence in connection with the organisation\u2019s activities and for the achievement of its aims, the individual must nevertheless have made a specific material or moral contribution to the organisation\u2019s actual existence and moral reinforcement. As membership is a continuing offence, such acts must be of a certain intensity …<\/p>\n The fact of belonging to the organisation, which constitutes a continuing offence, is treated as a single offence up to the termination of a legal and factual situation. Membership of the organisation ends with the individual\u2019s arrest, the dissolution of the organisation, or the individual\u2019s exclusion or departure from the organisation.<\/p>\n …<\/p>\n Offence of creating and being a member of a terrorist organisation:<\/p>\n For a structure to be classified as a terrorist organisation under Article\u00a0314 of the Criminal Code, in addition to satisfying the essential requirements for the existence of an organisation as set forth in Article 220 of the Criminal Code, the organisation must also be established with the aim of committing the offences [listed in certain chapters of the Criminal Code] … and must also have access to sufficient weapons or the possibility of using them in order to achieve that aim …\u201d<\/p>\n 63.\u00a0\u00a0In a leading judgment of 10 October 2017 (E.2017\/YYB-997, K.2017\/404) the plenary criminal divisions of the Court of Cassation ruled on the jurisdiction of the assize courts in relation to alleged offences by members of the judiciary. They held as follows:<\/p>\n \u201c… as the current and consistent position of the Court of Cassation makes clear, regarding the offence of membership of an armed terrorist organisation, which is a continuing offence, except in cases where [its continuing nature ends with] the dissolution of the organisation or termination of membership, the continuing nature [of the offence] may be interrupted by the offender\u2019s arrest. The time and place of the offence must therefore be established to that end. For this reason, there is a situation of discovery in flagrante delicto at the time of the arrest of judges suspected of the offence of membership of an armed organisation, and [consequently] the investigation must be carried out in accordance with the provisions of ordinary law …\u201d<\/p>\n 64.\u00a0\u00a0In a judgment of 11 January 2018 (no. 2016\/23672) concerning the detention of a journalist, Mehmet Hasan Altan, the Constitutional Court examined a complaint concerning the lawfulness of that measure (see Mehmet Hasan Altan v.\u00a0Turkey,no. 13237\/17<\/a>, \u00a7\u00a7 35-44, 20 March 2018). After examining the evidence forming the basis for the applicant\u2019s pre-trial detention, it concluded that \u201cstrong evidence that an offence had been committed\u201d had not been sufficiently established in the case before it. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article 15 of the Constitution. 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 Mr Altan\u2019s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 \u00a7 3 of the Constitution, had been breached.<\/p>\n III.\u00a0\u00a0COUNCIL OF EUROPE DOCUMENTS<\/p>\n 65.\u00a0\u00a0The Government referred to Recommendation CM\/Rec(2010)12 of the Committee of Ministers to member States, entitled \u201cJudges: independence, efficiency and responsibilities\u201d and adopted on 17\u00a0November 2010. The relevant parts of the Recommendation read as follows:<\/p>\n \u201cLiability and disciplinary proceedings<\/p>\n 66.\u00a0\u00a0The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.<\/p>\n …<\/p>\n 68.\u00a0\u00a0The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to criminal liability, except in cases of malice.<\/p>\n …<\/p>\n 71.\u00a0\u00a0When not exercising judicial functions, judges are liable under civil, criminal and administrative law in the same way as any other citizen.\u201d<\/p>\n IV.\u00a0\u00a0NOTICE OF DEROGATION BY TURKEY<\/p>\n 66.\u00a0\u00a0On 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:<\/p>\n \u201cI communicate the following notice of the Government of the Republic of Turkey.<\/p>\n 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.<\/p>\n 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\u00a0July 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). …<\/p>\n 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.<\/p>\n 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.<\/p>\n …\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0PRELIMINARY QUESTION CONCERNING THE DEROGATION BY TURKEY<\/p>\n 67.\u00a0\u00a0The Government emphasised at the outset that all of the applicant\u2019s complaints should be examined with due regard to the derogation of which the Secretary General of the Council of Europe had been notified on 21\u00a0July 2016 under Article\u00a015 of the Convention. Article 15 provides:<\/p>\n \u201c1.\u00a0\u00a0In 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.<\/p>\n 2.\u00a0\u00a0No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles\u00a03, 4 (paragraph\u00a01) and\u00a07 shall be made under this provision.<\/p>\n 3.\u00a0\u00a0Any 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.\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 68.\u00a0\u00a0The Government submitted that in 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.<\/p>\n 69.\u00a0\u00a0The Government submitted in particular that recourse to pre-trial detention had been inevitable in the prevailing circumstances, since alternative measures to detention were manifestly inadequate. They pointed out that many individuals suspected of belonging to or providing aid and assistance to the FET\u00d6\/PDY organisation had fled the country despite being banned from doing so. That being so, the Government maintained that following the coup attempt, the detention of such individuals had been the only appropriate and proportionate choice.<\/p>\n 70.\u00a0\u00a0The applicant submitted in reply that Article 15 of the Convention permitted derogations from the obligations under the Convention only \u201cto the extent strictly required by the exigencies of the situation\u201d and that the Court should therefore find a violation of Article 5 of the Convention.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 71.\u00a0\u00a0The Court considers 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.<\/p>\n 72.\u00a0\u00a0In this connection, the Court notes firstly that the notice of derogation by Turkey, 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 Convention are to form the subject of a derogation. Instead, it simply announces that \u201cmeasures taken may involve derogation from the obligations under the Convention\u201d.<\/p>\n 73.\u00a0\u00a0However, the Court observes that the applicant did not dispute that the notice of derogation by Turkey satisfied the requirement laid down in Article 15 \u00a7 3 of the Convention. It further notes that in Mehmet Hasan Altan v. Turkey (no. 13237\/17<\/a>, \u00a7 93, 20 March 2018) it held, in the light of the Constitutional Court\u2019s findings on this point and all the other material in its possession, that the attempted military coup had disclosed the existence of a \u201cpublic emergency threatening the life of the nation\u201d within the meaning of the Convention. In addition, it takes note of the position expressed by the Turkish Constitutional Court, which in its judgment of 11\u00a0January 2018 found that the case brought by the applicant should be examined under Article 15 of the Constitution, by which, in an emergency, the exercise of fundamental rights and freedoms may be partially or fully suspended, or measures derogating from the guarantees enshrined in the Constitution in relation to those rights and freedoms may be taken (see paragraph 41 above).<\/p>\n 74.\u00a0\u00a0In the light of the foregoing, the Court is prepared to accept that the formal requirement of the derogation has been satisfied and that there was a public emergency threatening the life of the nation (see Mehmet Hasan Altan, cited above, \u00a7\u00a089). With regard to the scope ratione temporis and ratione materiae of the derogation \u2013 a question which the Court could raise of its own motion, seeing that the date of the applicant\u2019s initial detention under the relevant legislation was 20 July 2016, one day before the state of emergency took effect \u2013 it considers that, in view of its conclusion below (see paragraphs 119 and 148-49 below), it does not have to determine this issue here.<\/p>\n 75.\u00a0\u00a0In any event, the Court observes that the applicant\u2019s detention on 20\u00a0July 2016, following his arrest on 16\u00a0July 2016, occurred a very short time after the attempted coup \u2013 the event that prompted the declaration of a state of emergency. It considers that this is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article\u00a05 of the Convention in the present case (see, mutatis mutandis, Hassan v. the United Kingdom [GC], no.\u00a029750\/09, \u00a7 103, ECHR 2014).<\/p>\n II.\u00a0\u00a0ADMISSIBILITY<\/p>\n A.\u00a0\u00a0Complaints concerning the applicant\u2019s arrest and detention in police custody<\/strong><\/p>\n 76.\u00a0\u00a0The Government raised two objections of failure to exhaust domestic remedies in respect of the applicant\u2019s arrest and detention in police custody. Firstly, they argued that he should have lodged an objection against his arrest on the basis of Article\u00a091\u00a0\u00a7 5 of the CCP \u2013 a remedy that was capable of ending the deprivation of liberty complained of by the applicant. Secondly, they submitted that a compensation claim had been available to him under Article 141 \u00a7 1 (a) of the CCP. In support of their contentions, they produced two judgments delivered by the 12th Criminal Division of the Court of Cassation, from which it could be seen that the complainants had received compensation for being unlawfully deprived of their liberty.<\/p>\n 77.\u00a0\u00a0The applicant contested the Government\u2019s argument. He asserted that a compensation claim did not offer reasonable prospects of success in terms of securing his release.<\/p>\n 78.\u00a0\u00a0As regards complaints concerning the lawfulness of arrest and detention in police custody, the Court observes that the Turkish legal system provides two remedies in that respect, namely an objection aimed at securing release from custody (Article 91 \u00a7 5 of the CCP) and a compensation claim against the State (Article 141 \u00a7 1 (a) of the CCP) (see Mustafa Avci v. Turkey, no. 39322\/12, \u00a7\u00a063, 23 May 2017).<\/p>\n 79.\u00a0\u00a0The Court notes in this connection that the Turkish Constitutional Court dismissed the applicant\u2019s complaints concerning his arrest and detention in police custody, finding that he had not availed himself of the remedies afforded by the domestic system (see paragraph\u00a030 above).<\/p>\n 80.\u00a0\u00a0In the light of the Constitutional Court\u2019s conclusion on this issue, the Court considers that, as regards the above-mentioned complaints, the applicant was required to use at least one of the remedies afforded by the national legal system, namely an objection aimed at securing release from custody (Article 91 \u00a7 5 of the CCP) and a compensation claim against the State (Article 141 \u00a7\u00a01\u00a0(a) of the CCP).<\/p>\n However, it notes that the applicant did not avail himself of those remedies. It therefore allows the Government\u2019s objection and rejects the complaints concerning the applicant\u2019s arrest and detention in police custody for failure to exhaust domestic remedies, pursuant to Article\u00a035 \u00a7\u00a7\u00a01 and 4 of the Convention (see Mehmet Hasan Altan, cited above, \u00a7 101).<\/p>\n B.\u00a0\u00a0Complaints concerning the applicant\u2019s initial detention<\/strong><\/p>\n 81.\u00a0\u00a0With regard to the complaints under Article 5 of the Convention concerning the lawfulness of the order for the applicant\u2019s pre-trial detention, the Government again stated that a compensation claim had been available to him under Article 141 \u00a7 1 (a) and (d) of the CCP. They further submitted that in his individual application lodged on 7 September 2016 with the Constitutional Court (see paragraph 29 above), the applicant had not raised any complaints under Article\u00a05\u00a0\u00a7\u00a03 of the Convention. In that connection they drew the Court\u2019s attention to the individual application lodged with the Constitutional Court on 26 July 2018 in which the applicant had complained in particular of the length of his pre-trial detention. They pointed out that that application was still pending before the Constitutional Court (see paragraph 45 above). Accordingly, they urged the Court to declare these complaints inadmissible for failure to exhaust domestic remedies.<\/p>\n 82.\u00a0\u00a0In addition, after summarising the Constitutional Court\u2019s judgment rejecting the applicant\u2019s complaints concerning the lawfulness of his pre-trial detention and the alleged lack of reasonable suspicion that he had committed a criminal offence, the Government submitted that a decision had been adopted at national level on the issues of which they had been given notice by the Court and that a legal assessment had been conducted on the basis of those complaints. Referring to Pentik\u00e4inen v.\u00a0Finland ([GC], no. 11882\/10, \u00a7 111, ECHR 2015) and B\u00e9dat v.\u00a0Switzerland ([GC], no.\u00a056925\/08, \u00a7 54, 29 March 2016), they contended that the applicant did not have victim status.<\/p>\n 83.\u00a0\u00a0The applicant contested the Government\u2019s argument. He asserted that a compensation claim did not offer reasonable prospects of success in terms of securing his release.<\/p>\n 84.\u00a0\u00a0With regard to the applicant\u2019s complaints concerning his pre-trial detention, the Court reiterates that for a remedy in respect of the lawfulness of an ongoing deprivation of liberty to be effective, it must offer a prospect of release (see Mehmet Hasan Altan, cited above, \u00a7 103). It notes, however, that the remedy provided for in Article\u00a0141 of the CCP is not capable of terminating the applicant\u2019s deprivation of liberty.<\/p>\n The Court therefore concludes that the objection raised by the Government on this account must be dismissed.<\/p>\n 85.\u00a0\u00a0As to the applicant\u2019s victim status, the Court refers to its consistent and well-established case-law to the effect that a favourable decision or measure is not, in principle, sufficient to deprive applicants of their status as a \u201cvictim\u201d for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, among other authorities, G\u00e4fgen v. Germany [GC], no. 22978\/05, \u00a7 115, ECHR 2010). In the present case, it fails to see how a decision declaring all of the applicant\u2019s complaints inadmissible can deprive him of victim status.<\/p>\n 86.\u00a0\u00a0Lastly, the Court does not accept the Government\u2019s argument that the complaint under Article 5 \u00a7 3 of the Convention should be rejected for failure to exhaust domestic remedies on the grounds that the applicant had not raised such a complaint in the context of his individual application to the Constitutional Court giving rise to the judgment of 11 January 2018.<\/p>\n The Court observes firstly that the application before it does not concern the length of the applicant\u2019s pre-trial detention. Consequently, the individual application which the applicant lodged on 26\u00a0July 2018 \u2013 complaining of the length of his pre-trial detention \u2013 and which is still pending before the Constitutional Court (see paragraph 45 above) is of no relevance to the present case, seeing that, as the Government indicated, he did not raise a complaint of that kind before the Court.<\/p>\n However, the Court observes that in his application form the applicant raised a complaint alleging that insufficient reasons had been given for the order for his pre-trial detention. In this connection it would emphasise that it held in Buzadji v.\u00a0the Republic of Moldova ([GC], no. 23755\/07, \u00a7\u00a0102, 5\u00a0July 2016) that the requirement for the judicial officer to give relevant and sufficient reasons for the detention \u2013 in addition to the persistence of reasonable suspicion that the arrested person had committed an offence \u2013 already applied at the time of the first decision ordering detention on remand, that is to say \u201cpromptly\u201d after the arrest. When it gave notice of the application in the present case, the Court, referring to the case-law cited above and to Article 5 \u00a7\u00a7 1 (c) and 3 of the Convention, put a question to the parties concerning the alleged lack of reasons for the pre-trial detention order, given that the applicant had expressly raised this complaint before the Constitutional Court (see paragraph 29 above). Furthermore, the Court observes, in the light of the Constitutional Court\u2019s reasoning in its judgment, that this complaint \u2013 concerning solely the order for the applicant\u2019s pre-trial detention \u2013 was central to the assessment performed by that court, although it did not provide specific reasoning on that issue. The Court therefore dismisses this preliminary objection.<\/p>\n 87.\u00a0\u00a0Observing that the complaints concerning the lawfulness of the applicant\u2019s pre-trial detention, the alleged lack of reasonable suspicion that he had committed an offence and the alleged failure to provide reasons for his initial pre-trial detention are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention and are not inadmissible on any other grounds, the Court declares them admissible.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7\u00a7 1 AND 3 OF THE CONVENTION<\/p>\n 88.\u00a0\u00a0The applicant complained that he had been arbitrarily placed in pre-trial detention, in breach of domestic law, namely Law no. 6216.<\/p>\n He also argued that there had been no specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating pre-trial detention. In particular, he maintained that the domestic courts had given insufficient reasons for the decisions ordering his detention. He complained on that account of a violation of Article 5 of the Convention, without specifying the exact provisions on which he was relying.<\/p>\n The Court considers it appropriate to examine these complaints under Article\u00a05 \u00a7\u00a7\u00a01 and 3 of the Convention, the relevant parts of which provide:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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:<\/p>\n …<\/p>\n (c)\u00a0\u00a0the 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;<\/p>\n …<\/p>\n 3.\u00a0\u00a0Everyone arrested or detained in accordance with the provisions of paragraph\u00a01\u00a0(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.<\/p>\n …\u201d<\/p>\n 89.\u00a0\u00a0The Government contested the applicant\u2019s argument.<\/p>\n A.\u00a0\u00a0Lawfulness of the applicant\u2019s pre-trial detention<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n (a)\u00a0\u00a0The applicant<\/p>\n 90.\u00a0\u00a0The applicant submitted that on account of his position as a judge at the Constitutional Court, he enjoyed a special status in criminal investigations of which he was the subject. Under section\u00a016 of Law no.\u00a06216, the opening of a criminal investigation in respect of members of the Constitutional Court was in principle subject to a decision by the plenary court. He accepted that in cases of discovery in flagrante delicto falling within the jurisdiction of the assize courts, the investigation could be conducted under the rules of ordinary law. Nevertheless, he had not been specifically accused of having taken part in the attempted coup and this could therefore not be treated as a case of in flagrante delicto. Moreover, such cases were listed in Article 2 of the CCP and his situation clearly did not fall into any of the categories concerned.<\/p>\n 91.\u00a0\u00a0The applicant added that his alleged offence could only have been committed in connection with the performance of his official duties, given that it was said to relate to actions he had carried out under the instructions of the terrorist organisation.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 92.\u00a0\u00a0The Government stated firstly that the relevant Council of Europe instruments did not preclude the prosecution of a judge suspected of committing an offence. The applicant\u2019s pre-trial detention in the present case had been in accordance with domestic law, which itself was compatible with the Convention.<\/p>\n 93.\u00a0\u00a0The Government stated that the applicant had been placed in pre-trial detention on the basis of Article 100 of the CCP. They pointed out that he was suspected of being a member of the FET\u00d6\/PDY terrorist organisation. Although sections 16 and 17 of Law no.\u00a06216 provided for a special procedure for conducting criminal proceedings against members of the Constitutional Court, in cases of discovery in flagrante delicto falling within the assize courts\u2019 jurisdiction the investigation was conducted in accordance with the rules of ordinary law and preventive measures could be ordered.<\/p>\n 94.\u00a0\u00a0The Government submitted that the Ankara public prosecutor\u2019s office had called for the applicant to be detained on the basis of suspicion that he had committed the offences of \u201cattempting to overthrow or change the constitutional order\u201d and \u201cmembership of an armed terrorist organisation\u201d, in connection with the attempted coup of 15 July 2016. Referring to the position taken by the Constitutional Court (see paragraph\u00a0123 of the judgment cited in paragraph 42 above), they contended that it was obvious that these were ordinary offences falling within the jurisdiction of the Assize Court, as opposed to offences committed in connection with or during the performance of official duties.<\/p>\n 95.\u00a0\u00a0The Government further noted that the applicant\u2019s argument that he was entitled to the status granted to members of the Constitutional Court by sections 16 and 17 of Law no. 6216 had not been accepted by the judicial body that had ordered his detention, namely the 2nd Magistrate\u2019s Court. Moreover, the magistrate in question had found that the criminal investigation had been governed by the rules of ordinary law, on the grounds that the suspect\u2019s alleged offence \u2013 membership of an armed terrorist organisation \u2013 was a \u201ccontinuing offence\u201d and that there had been a case of discovery in flagrante delicto. The Government cited the findings of the Ankara public prosecutor\u2019s office in its summary report of 25\u00a0October 2017 in noting that the risk of a coup had not been entirely eliminated at the material time, that there had been a case of discovery in flagrante delicto falling within the jurisdiction of the Assize Court, and that an investigation had therefore been initiated in respect of the applicant on 16 July 2016 on the basis of the provisions of ordinary law.<\/p>\n 96.\u00a0\u00a0The Government further maintained that it was clearly established in the settled case-law of the Court of Cassation that the offence of membership of an armed terrorist organisation was a continuing offence falling within the jurisdiction of the Assize Court. In addition, they referred to the conclusion reached by the plenary criminal divisions of the Court of Cassation in their judgment of 10 October 2017, to the effect that \u201cthere is a situation of discovery in flagrante delicto at the time of the arrest of judges suspected of the offence of membership of an armed organisation, and [consequently] the investigation must be carried out in accordance with the provisions of ordinary law\u201d (see paragraph 63 above).<\/p>\n 97.\u00a0\u00a0The Government submitted in conclusion that, in view of the case-law referred to above and the circumstances of the present case, there had been a situation entailing discovery in flagrante delicto of the offence of membership of an armed terrorist organisation. In support of that argument, they noted that the applicant\u2019s arrest and detention in police custody had taken place following the coup attempt that had been foiled by the authorities during the night of 15 to 16\u00a0July 2016. In addition, the applicant had been placed in pre-trial detention on suspicion of the offence of membership of the FET\u00d6\/PDY organisation, a structure regarded as the instigator of the coup attempt and deemed by the courts to constitute an armed terrorist organisation.<\/p>\n 98.\u00a0\u00a0Accordingly, the Government argued that the applicant\u2019s complaint that he had been placed in pre-trial detention without being afforded the guarantees enshrined in the Constitution and Law no.\u00a06216 was unfounded, and that his detention in the present case had complied with the relevant legislation.<\/p>\n
\nRobert Spano, President,
\nPaul Lemmens,
\nJulia Laffranque,
\nIvana Jeli\u0107,
\nArnfinn B\u00e5rdsen,
\nDarian Pavli, judges,
\nHarun Mert, ad hoc judge,
\nand Stanley Naismith, Section Registrar,
\nHaving deliberated in private on 19 March 2019,<\/p>\n