Information Note on the Court’s case-law 238

March 2020

BaÅŸ v. Turkey - 66448/17

Judgment 3.3.2020 [Section II]

Article 5

Article 5-1

Procedure prescribed by law

Pre-trial detention of a judge on the basis of an unreasonable extension of the concept of in flagrante delicto : violation

Article 5-1-c

Reasonable suspicion

Detention based on mere suspicion of membership of an illegal organisation, without any specific incriminating evidence: violation

Article 5-4

Speediness of review

Detainee yet to be charged not given a hearing before a court throughout investigation lasting approximately one year and two months: violation

Article 15

Article 15-1

Derogation

Detention based on mere suspicion of membership of an illegal organisation, without any specific incriminating evidence: not “strictly required"

Facts – The applicant, a judge suspected of being a member of an armed terrorist organisation (FETÖ/PDY) that had premeditated the attempted military coup of 15 July 2016, was placed in pre-trial detention on 20 July 2016 and charged on 9 June 2017.

Subsequently, the first time he appeared before a judge deciding on his detention was at the first hearing on 19 September 2017, after his trial had begun.

On 19 March 2018 he was found guilty and sentenced by the Assize Court.

Law – Article 5 § 1

(a) Lawfulness of the initial pre-trial detention

(i) Article 5 § 1 per se – In the present case the Court reached the same conclusion as in the case of Alparslan Altan v. Turkey .

The principle of legal certainty could be compromised if domestic courts introduced exceptions in their case-law which ran counter to the wording of the applicable statutory provisions. In that connection, the Turkish Code of Criminal Procedure provided a conventional definition of the concept of in flagrante delicto , linked to the discovery of an offence during or immediately after its commission. However, according to the new interpretation by the Court of Cassation, a suspicion of membership of a criminal organisation could be sufficient to characterise the element of in flagrante delicto without the need to establish any current factual element or any other indication of an ongoing criminal act.

This amounted to an extensive interpretation of the concept of in flagrante delicto , negating the procedural safeguards that members of the judiciary were afforded in order to protect them from interference by the executive. Judicial protection of this kind was granted to judges to safeguard the independent exercise of their functions without unlawful restrictions by bodies outside the judiciary, or even by judges performing a supervisory or review function.

(ii) Impact of Article 15 – The extensive interpretation of the concept of in flagrante delicto had legal consequences reaching far beyond the legal framework of the state of emergency. Accordingly, it was in no way justified by the special circumstances of the state of emergency.

In the light of the foregoing, the decision to place the applicant in pre-trial detention, which had not been taken “in accordance with a procedure prescribed by law”, could not be said to have been strictly required by the exigencies of the situation.

Conclusion : violation (unanimously).

(b) Alleged lack of reasonable suspicion at the time of his initial pre-trial detention that the applicant had committed an offence

(i) Article 5 § 1 (c) per se – The magistrate’s court had based its finding of a reasonable suspicion that the applicant had committed the offence of membership of an armed terrorist organisation on the decision taken by the Council of Judges and Prosecutors (HSK) and on the request by the public prosecutor’s office to initiate an investigation in respect of him the day after the coup attempt. The HSK had suspended 2,735 judges and public prosecutors, including the applicant, on the basis of a strong suspicion that they were members of a terrorist organisation. However, its decision had not contained any facts or information relating directly and personally to the applicant. Nor could the vague and general references to the Code of Criminal Procedure and to the evidence available to the magistrate’s court be regarded as sufficient, in the absence either of a specific assessment of the individual items of evidence in the file, or of any information that could have justified the suspicion against the applicant, or of any other kinds of verifiable material or facts. Clearly, the applicant had not been suspected of having been involved in the coup attempt. Moreover, the instructions by the prosecutor’s office had not been based on any “facts” or “information” capable of serving as a factual basis.

The fact that, before being placed in pre-trial detention, the applicant had been questioned by the magistrate’s court in connection with an offence of membership of an illegal organisation revealed, at most, that the authorities had genuinely suspected him of having committed that offence; but that fact alone would not satisfy an objective observer that the applicant could have committed the offence in question. Likewise, the applicant’s subsequent conviction on the merits had no bearing on the examination of this complaint.

The evidence before the Court was insufficient to support the conclusion that there had been a reasonable suspicion against the applicant at the time of his initial detention. Nor had the Government provided any other indications of a “reasonable suspicion” against him.

(ii) Impact of Article 15 – The Court had to take into account the difficulties facing Turkey in the aftermath of the attempted coup in interpreting and applying Article 5. However, the exigencies of dealing with terrorist crime could not justify stretching the notion of “reasonableness” to the point where the essence of the safeguard secured by Article 5 § 1 (c) of the Convention was impaired.

The suspicion against the applicant had not reached the required minimum level of reasonableness. In such circumstances, the measure in issue could not be said to have been strictly required by the exigencies of the situation.

Conclusion : violation (unanimously).

Article 5 § 4:

(i) Article 5 § 4 per se – For a period of one year and two months, the applicant had not appeared before a court deciding on his detention. Such a lapse of time could not be described as “reasonable”.

(ii) Impact of Article 15 – While it was true that the difficulties with which the judicial system had had to contend in the first few months after the coup attempt had been such as to justify a derogation under Article 15 from the right of detainees to appear before the courts deciding on their detention, the same considerations had gradually become less forceful and relevant as the public emergency threatening the life of the nation, while still persisting, had declined in intensity. The exigency criterion therefore had to be applied more stringently.

Although it had indeed appeared impossible to hold a hearing during the automatic review of detention and of applications for release, a legislative decree had not ruled out that possibility in the case of objections. However, all the objections lodged by the applicant had been examined and dismissed without a hearing. The applicant had quite simply not appeared before a judge during the entire investigation, even though he had been detained without being charged.

Furthermore, just a few days after the end of the state of emergency, a law had introduced a requirement for a hearing every ninety days in the case of offences falling under the Prevention of Terrorism Act, whereas the Code of Criminal Procedure provided for a hearing every thirty days.

The manner in which the courts had reviewed the applicant’s detention, particularly during the first few months, did not suggest that they had considered whether the measure was lawful on its merits. They had given their decisions on the applicant’s detention at the same time as for dozens of other detainees, without providing specific reasons in each individual case, and the decisions did not indicate that consideration had been given to the arguments put forward by the applicant in his applications for release and his objections.

When a State was struggling against a public emergency threatening the life of the nation, it would be rendered defenceless if it were required to accomplish everything at once, to furnish from the outset each of its chosen means of action with each of the safeguards reconcilable with the priority requirements for the proper functioning of the authorities and for restoring peace within the community. The interpretation of Article 15 had to leave a place for progressive adaptations. Nevertheless, in a situation entailing interference with a fundamental Convention right, such as the right to liberty, and given the potential adverse impact of detention without charge, the fact that for such a lengthy period the applicant had not appeared before the courts deciding on his detention had impaired the very essence of the right guaranteed by Article 5 § 4, and this lack of a hearing could not reasonably be regarded as having been strictly required for the preservation of public safety.

Conclusion : violation (six votes to one).

In addition, the Court rejected as manifestly ill-founded the complaint under Article 5 § 4 alleging a lack of independence and impartiality on the part of the magistrates’ courts, having regard, in particular, to the constitutional and legal safeguards such courts enjoyed, and in the absence of any relevant arguments giving cause to doubt their independence and impartiality in the applicant’s particular case.

(See also Alparslan Altan v. Turkey , 12778/17, 16 April 2019, Information Note 228 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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