PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE YÃœKSEL

I agree with the findings of the judgment in the present case in so far as they concern the applicant’s complaints under Article 5 § 4 of the Convention and Article 3 of Protocol No. 1 to the Convention. However, I am unable to share the majority’s view that there have been violations of Article 5 §§ 1 and 3, Article 10, and Article 18 of the Convention.

That said, while I share the position of the majority with regard to their conclusion that Article 3 of Protocol No. 1 has been violated, I cannot subscribe to certain arguments they have advanced under that provision.

1. In the present case, in concluding that there has been a violation of Article 10 of the Convention, the Grand Chamber opted to examine the foreseeability of the constitutional amendment of 20 May 2016 concerning the lifting of parliamentary immunity and the lawfulness of Article 314 §§ 1 and 2 of the Criminal Code on directing and/or membership of an armed terrorist organisation, as applied in the particular circumstances of the applicant’s case. In the majority’s view, the interference with the applicant’s freedom of expression was not prescribed by law owing to the fact that the constitutional amendment and Article 314 §§ 1 and 2 of the Criminal Code as interpreted and applied did not comply with the requirement of the quality of law under Article 10 of the Convention. I respectfully disagree with the majority on this point, for the following reasons.

2. I believe that the interference observed in the present case was prescribed by law and thus satisfied the requirement of lawfulness (see my dissenting opinion in Ragıp Zarakolu v. Turkey , no. 15064/12, 15 September 2020, for the interplay between Articles 5 and 10 of the Convention as regards the issue of lawfulness). Therefore, the interference in the present case fell to be examined by applying the necessity test within the meaning of Article 10 of the Convention, for the reasons I will elaborate upon below (see, in this connection, Mehmet Hasan Altan v. Turkey , no. 13237/17, §§ 202 ‑ 14, 20 March 2018; Steel and Others v. the United Kingdom , 23 September 1998, § 110, Reports of Judgments and Decisions 1998 ‑ VII; and Kandzhov v. Bulgaria , no. 68294/01, § 73, 6 November 2008).

3. According to the Court’s well-established case-law, a rule is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012). Furthermore, a norm must be formulated with sufficient precision in order to enable persons to regulate their conduct. In fact, individuals need to foresee, to a reasonable degree, the consequences which a given action may entail (see, among other authorities, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 124, 17 May 2016; Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015; and Centro Europa 7 S.r.l. and Di Stefano , cited above, § 141). Foreseeability does not require that all the procedures regarding the application of a norm should be laid down in the text of the norm itself (see Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 94, 20 January 2020).

4. It is of the utmost importance that in examining an individual application brought under Article 34 of the Convention, the task of the Court is not to review domestic law in the abstract, but to determine whether the way in which it was applied to the applicant gave rise to a breach of the Convention (ibid., § 96). In my view, although the Grand Chamber eloquently laid down the general principles concerning the “prescribed by law” requirement under Article 10 of the Convention, its assessment based on those principles appears to be an abstract review of the constitutional amendment and Article 314 §§ 1 and 2 of the Criminal Code and, as such, contrary to our established case-law.

5. In view of the above, I will address the following points: (i) the foreseeability of the constitutional amendment, (ii) the question whether Article 314 §§ 1 and 2 of the Criminal Code as interpreted and applied in the applicant’s case, satisfied the “quality of law” requirement, and (iii) the question whether the interference with the applicant’s rights under Article 10 of the Convention was justified.

(i) As regards the constitutional amendment, I would reiterate at the outset that the Chamber in its judgment of 20 November 2018 has already examined, albeit under Article 5 § 1 of the Convention, the applicant’s complaint that the constitutional amendment did not satisfy the “quality of law” requirement and declared that complaint inadmissible as being manifestly ill-founded. I would furthermore like to underline that the constitutional amendment in question was adopted on the basis of a large consensus in Parliament, including members of parliament belonging to opposition parties. Without prejudging and entering into a discussion about the substance of the constitutional amendment, it could be argued that it was a legitimate constitutional amendment adopted pursuant to Article 175 of the Constitution, which emphasises the importance of constituent power. It does not appear that there were any judicial findings showing that the amendment had been carried out in breach of the relevant constitutional and parliamentary procedures.

6. The Grand Chamber’s examination regarding the constitutional amendment appears to be based on two pillars. Firstly, the majority held that the domestic courts had unjustifiably refused to examine whether the applicant’s speeches were covered by the first paragraph of Article 83 of the Constitution, that is to say, whether the domestic courts’ failure to examine whether the applicant’s statements fell within Article 83 § 1 of the Constitution was erroneous. [2] Secondly, the majority came to the conclusion that the constitutional amendment itself had had the effect of depriving the applicant of the protection afforded to him by the second paragraph of Article 83.

7. As regards the first point, which I consider to be inextricably linked to the content of the applicant’s speeches, I have to underline that the domestic judicial authorities, namely the public prosecutors and judges, implicitly considered that the applicant could not benefit from the protection of his parliamentary non-liability under Article 83 § 1 of the Constitution. In my view, there was no element capable of providing a basis for finding that the domestic courts disregarded Turkish law and practice.

8. As regards the second point, namely whether the constitutional amendment of 20 May 2016 had the effect of depriving the applicant of the protection afforded to him, I would like to underline that it did not narrow down or alter the definition and general concepts of non-liability or inviolability. The constitutional amendment only amended the procedure governing the lifting of the immunities of members of parliament in respect of whom investigation reports had already been submitted to Parliament by the date of its adoption (see paragraph 137 of the judgment). Thus, it effectively entailed a change in the scope of the procedural safeguards regarding the lifting of immunities of members of parliament. While that fact was acknowledged by the majority, paragraph 268 of the judgment relies on it in order to conclude that “the amendment created a situation that was not foreseeable for the members of parliament concerned”. I respectfully do not share the majority’s approach in addressing the applicant’s inability to benefit from certain procedural safeguards from the perspective of the foreseeability of the constitutional amendment. A distinction should have been made between the conformity of these safeguards with the Convention and the foreseeability of the constitutional amendment.

9. The majority do not appear to have sufficiently considered the issue as to whether the applicant could still have been prosecuted in accordance with Article 83 of the Constitution even in the absence of the constitutional amendment. In fact, the provisions concerning the non-liability and inviolability of members of parliament are still in force.

10. Although I have deep hesitations as to whether the foreseeability of a constitutional amendment can be considered in the same way as that of ordinary law, to my understanding it is difficult, if not impossible, to speak of the foreseeability of constitutional amendments without duly taking into account the case-law criteria referred to above. In that connection, it is equally difficult to discern a causal link between the alleged failure of the domestic courts to examine whether the applicant’s speeches were protected under the first paragraph of Article 83 of the Constitution and the foreseeability of the constitutional amendment. I cannot agree that a development – that is to say, the domestic courts’ alleged failure to examine the applicant’s claims under Article 83 § 1 of the Constitution – which took place after the constitutional amendment could have had an effect on its foreseeability.

11. Under these circumstances, I am respectfully unable to agree with the majority’s line of reasoning, which, in my opinion, has lowered the Court’s threshold in its examinations concerning the foreseeability of constitutional amendments.

(ii) As regards the question whether the interpretation and application in the applicant’s case of the provisions governing terrorism-related offences satisfied the “quality of law” requirement, it transpires from the case file that the applicant did not explicitly maintain before the Grand Chamber his complaint regarding this point under Article 10. Therefore, I do not consider that the separate examination of this question was warranted by the applicant’s submissions.

12. It is true that the majority stressed in paragraph 275 of the judgment that they were “mindful of the difficulties linked to preventing terrorism and formulating anti-terrorism criminal laws. The member States inevitably have recourse to somewhat general wording, the application of which depends on its practical interpretation by the judicial authorities.” However, I am not sure whether the majority’s conclusion in the present application could easily be regarded as being mindful of the difficulties linked to terrorism. The finding that the interpretation and application of terrorism-related offences were not prescribed by law is a profoundly serious one which must be supported by equally serious and convincing reasons, as well as an explicit claim from the applicant, which, in my view, was not the case in the present application.

13. I respectfully disagree with the majority’s conclusion that “the interpretation and application in the applicant’s case of the provisions governing terrorism-related offences” posed a problem in respect of the quality of the law in question. I believe that it should have been necessary to ascertain the scope of the examination of legality carried out by our Court as referred to above. That brings me to the last part of my examination under Article 10.

(iii) As I explained above, I would prefer to have examined the question whether the interference in the present case was necessary in a democratic society. In that connection, I am prepared to accept that the legitimate aims pursued by the interference were those of combating terrorism and protecting national security and public safety, in pursuance of Article 10. As for necessity, it is true that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate of questions of public interest. In fact, interferences with the freedom of expression of an opposition member of parliament call for the closest scrutiny on the part of the Court (see Castells v. Spain , 23 April 1992, § 42, Series A no. 236). However, I harbour doubts that the applicant’s impugned speeches cannot be viewed as glorifying and praising the use of violence and can be seen as entirely peaceful and as contributing to a debate in the public interest, regard being had in particular to the tense situation prevailing in the region at the time as a result of the armed clashes between the Turkish security forces and the PKK (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV). At this juncture, I would also like to point out that the criminal proceedings against the applicant are still pending before the domestic courts and, in accordance with the principle of presumption of innocence, I shall exercise caution so as not to prejudice their outcome in any way.

14. In view of the above, I conclude that the interference with the applicant’s rights was prescribed by law, as being both foreseeable and compliant with the “quality of law” requirement, and was necessary in a democratic society as corresponding to a pressing social need and proportionate to the legitimate aim pursued.

15. The applicant complained of the lack of reasonable suspicion against him, both during the initial period immediately after his arrest and during the subsequent periods when his pre-trial detention had been authorised and extended by the judicial authorities. On this point, I am respectfully not able to follow the majority’s conclusion regarding the alleged lack of reasonable suspicion under Article 5 § 1 (c) of the Convention. I see no reason requiring the Grand Chamber to depart from the Chamber’s decision on this issue, which was based on the Court’s well-established case-law (see, among many other authorities, Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, Series A no. 182; O’Hara v. the United Kingdom , no. 37555/97, ECHR 2001-X; and Çiçek v. Turkey (dec.), no. 72774/10, § 62, 3 March 2015). I specifically refer to the Court’s case-law to the effect that Article 5 § 1 (c) of the Convention does not presuppose that the investigating authorities have obtained sufficient evidence to bring charges at the time of arrest. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kingdom , 28 October 1994, § 55, Series A no. 300-A, and Yüksel and Others v. Turkey , nos. 55835/09 and 2 others, § 52, 31 May 2016) . In this context, the Court must examine, as the Constitutional Court and the Chamber did, all the relevant evidence in the criminal case file that may confirm or dispel the concrete suspicion grounding the initial detention, and it cannot be bound only by the evidence adduced at first instance (see, mutatis mutandis , Yüksel and Others , cited above, §§ 51-59, Tekin v. Turkey (dec.), no. 3501/09, §§ 55 ‑ 62, 18 November 2014; and Metin v. Turkey (dec.), no. 77479/11, §§ 53 ‑ 64, 3 March 2015).

16. As to the substance of the complaint under Article 5 § 1 of the Convention, I fully endorse the Chamber’s findings in its judgment of 20 November 2018 . In this regard, I would like to note three items of evidence in particular, as can be seen from the file: the applicant’s statements at a demonstration that they would put up a sculpture of the leader of the PKK and his speech at the offices of a political party on 21 April 2013 in which he referred, inter alia , to the first terrorist attacks by the PKK as the “coup in 1984” and the “resistance in Şemdinli [and] Eruh” (see paragraph 79 of the judgment); the transcripts of conversations among leading members of the PKK and between them and the applicant (paragraph 79 of the judgment); and the tweets published from the official HDP Twitter account on 6 October 2014 (see paragraph 20 of the judgment). In the light of the evidence, the facts, and the requirements of Article 5 § 1 of the Convention as to the level of factual justification needed at the stage of suspicion, I consider that the applicant can be said to have been arrested and detained on “reasonable suspicion” of having committed a criminal offence.

17. In the light of the foregoing, I believe that the national authorities had sufficient grounds to conclude that there was a reasonable suspicion that the applicant had committed an offence. Accordingly, I am of the opinion that there has been no violation of Article 5 § 1 of the Convention.

18. As I am of the opinion that the applicant could no longer claim to be the victim of a violation of Article 5 § 3, I voted against the findings of the majority in relation to the merits of the complaint under that provision.

19. Regarding the applicant’s complaint under Article 3 of Protocol No. 1 to the Convention, I concur with the finding that, in the particular circumstances of the present case, there has been a violation of that provision in so far as the competent magistrates and assize courts did not assess the applicant’s allegations that his continued detention was unreasonable on account of his status as a member of parliament and the co-chair of a political party. On this point, I agree with the conclusions of the majority, which were also taken into consideration, albeit under Article 5 § 3, by the Constitutional Court in its second judgment.

20. Nevertheless, I respectfully dissociate myself from certain parts of the reasoning, which concern the references made to the findings of violations of Article 10 and Article 5 § 1 of the Convention in the majority’s assessment under Article 3 of Protocol No. 1 (see, in particular, paragraph 394 of the judgment).

21. I voted against the finding of a violation of Article 18 in conjunction with Article 5 of the Convention because I have serious doubts as to whether such a finding is compatible with the Court’s case-law (see, in particular, Merabishvili v. Georgia [GC], no. 72508/13, 28 November 2017), considering the circumstances of the present case.

22. It appears from the Court’s case-law that in cases where there is a complaint under Article 18 in conjunction with Article 5, the Court first examines whether the deprivation of liberty of the applicant pursued an aim that is compatible with the Convention (see Rasul Jafarov v. Azerbaijan , no. 69981/14, §§ 153-63, 17 March 2016, and Khodorkovskiy v. Russia , no. 5829/04, §§ 254-61, 31 May 2011). Second, the Court examines whether there is proof that the authorities’ actions were actually driven by improper reasons and it must base its decision on “evidence in the legal sense” in accordance with the criteria laid down by it in the Merabishvili judgment (cited above, §§ 309-17), and its own assessment of the specific relevant facts (see my dissenting opinion in Kavala v. Turkey , no. 28749/18 , 10 December 2019).

23. As regards the first limb, for the reasons set out above, I am of the opinion that the applicant could be said to have been detained on “reasonable suspicion” of having committed a criminal offence. In other words, the applicant was deprived of his liberty for a purpose prescribed by Article 5 § 1 (c) of the Convention. Therefore, I cannot share the majority’s view that “the purposes put forward by the authorities for the applicant’s pre-trial detention were merely cover for an ulterior political purpose”. In that connection, I would first point out that Turkish law has a higher standard of protection concerning the “reasonable suspicion” criterion under Article 5 § 1. [3] In the present case, the national courts, including the Constitutional Court, examined the applicant’s detention and held that there were sufficient grounds for a strong suspicion that he had committed an offence. In other words, they ascertained the existence of a higher level of suspicion than that of “reasonable suspicion” required under Article 5 § 1 (c). Secondly, the fact that the majority have reached the aforementioned view after meticulously subjecting the grounds of the applicant’s detention to scrutiny implies that those grounds were not devoid of any basis or otherwise fabricated. I would like to point out that the Chamber also carried out an examination of the applicant’s detention and concluded that “... there was sufficient information in the criminal case file to satisfy an objective observer that the applicant might have committed at least some of the offences for which he had been prosecuted” (see paragraph 169 of the Chamber judgment). Having regard to these factors, I am not entirely convinced that cogent reasons were put forward to justify a departure from the domestic courts’ and Chamber’s conclusions as regards the “reasonable suspicion” requirement under Article 5 § 1 (c). These circumstances have led me to conclude that the applicant’s detention was in pursuance of a legitimate aim that was prescribed by the Convention. It is thus difficult for me to accept the majority’s view that the applicant’s detention was a mere cover for an ulterior purpose.

24. As regards the second limb, I consider that improper reasons were not present in the instant case, in view of the following factors.

25. Firstly, the applicant’s main complaint is that he and other persons from his party were specifically targeted because of their position in the Turkish political scene. However, it transpires from the materials submitted by the parties that there were members of parliament from other political parties who were also subject to criminal proceedings (see paragraphs 57 and 58 of the judgment). Therefore, it cannot easily be said that the domestic judicial authorities specifically targeted certain members of parliament.

26. Secondly, it primarily falls within the authority of the national judiciary to ensure that, in any given case, the pre-trial detention of an accused person is imposed with the utmost care and in accordance with the requirements of the Convention and the Court’s relevant case-law. In this connection, it appears from the case file that the applicant’s pre-trial detention was examined on several occasions by the domestic judges, either of their own motion or at the request of the applicant. In fact, the domestic courts examined the question of the applicant’s detention regularly and in a speedy manner from 4 November 2016 onwards. Furthermore, in a judgment of 9 June 2020, the Constitutional Court unanimously held that there had been a violation of Article 19 of the Constitution, finding that in extending the applicant’s pre-trial detention, the national judicial authorities had failed to put forward relevant and sufficient reasons in respect of his arguments concerning his right to stand for election and to carry out political activities. Nevertheless, the fact that certain aspects of the judicial review of the applicant’s detention were found to have disclosed a breach of Article 19 of the Constitution is not sufficient in itself to warrant the conclusion that the applicant was detained for purposes other than those provided for by the Convention. Moreover, in a judgment of 11 July 2018, the applicant was awarded compensation under Article 141 of the Code of Criminal Procedure . Accordingly, I am unable to conclude that the judicial authorities acted improperly and in blatant disregard of the Convention.

27. Furthermore, I respectfully disagree with the majority when it comes to certain passages in their reasoning under Article 18 of the Convention.

28. Firstly, I must point out that the structure of the Supreme Council of Judges and Prosecutors is irrelevant for the purposes of the Grand Chamber’s examination under Article 18 of the Convention (see paragraph 434 of the judgment). In fact, the majority criticise the changes to the structure of that body which were brought about by a referendum which was accepted by a sovereign nation, and they fail to assess how those changes had any bearing on the applicant in the present case or to explain the relevance of this point. In the absence of a causal link between the new structure and the purported ulterior purpose, this point amounts to an in abstracto examination of the constitutional amendments laid down in the referendum. Thus, I am not sure whether, in the present case, there was any call for the Grand Chamber to delve into this matter of its own motion.

29. Secondly, whilst the Grand Chamber acknowledged that it did not have access to the content of the criminal proceedings against the other detained members of parliament, it held, in the light of the reports and opinions of international observers, that the main reason for depriving them of their liberty lay in their political speeches, concluding in that respect that the applicant’s detention was not an isolated case (see paragraph 428 of the judgment). At this junction, I must underline that the cases of some of those members of parliament are currently pending before our Court. Thus, the line of reasoning accepted by the majority goes, in my humble opinion, beyond the legal questions the Grand Chamber was called upon to examine.

30. In view of the foregoing considerations, I believe that there is no sufficient evidence that is capable of supporting the applicant’s allegation that the entire judicial mechanism of Turkey acted in line with the political agenda by instituting criminal investigations in respect of him. Inasmuch as the majority’s line of reasoning hinges on the applicant’s second detention, which was, in their view, based on “the same factual context”, namely the 6 ‑ 8 October events that had also formed part of the factual grounds for his first detention, I would like to make the following observations (see paragraphs 432-33 and 440-42 of the judgment).

31. Although I have addressed certain aspects of this issue in my separate opinion under Article 46 of the Convention, its importance merits a reiteration of part of that analysis. Firstly, I must point out again that the legal and factual questions regarding the applicant’s second detention are the subject of an individual application he lodged with the Constitutional Court; hence this issue is currently pending before the domestic authorities. Secondly, in the present case, the majority assessed the complaint under Article 18 in conjunction with Article 5 of the Convention. However, under Article 5 of the Convention, the subject of the Grand Chamber’s examination was the applicant’s first detention, from 4 November 2016 to 7 December 2018, and not his second detention, which was ordered on 20 September 2019 and is still ongoing. Whilst the majority’s approach might arguably imply that the applicant’s second detention is in effect the continuation of his first detention, given that both detention orders were purportedly based on the same factual context, I am unable to agree with that view for the reasons that I indicated in my separate opinion under Article 46 of the Convention, and also for the following reasons. It is true that circumstantial evidence which is information about the primary facts, or contextual facts or sequences of events, may be taken into account in assessing the general and wider context when the Court examines complaints under Article 18 (see Merabishvili , cited above, § 317). However, where the circumstantial evidence takes the form of legal questions relating to the applicant, the Court’s approach may be different. Indeed, in Navalnyy v. Russia ([GC], nos. 29580/12 and 4 others, § 171, 15 November 2018), the Court took into account the two sets of criminal proceedings contemporaneous to the criminal proceedings against the applicant in its assessment under Article 18 (regarding the general context of the case) by referring to previous judgments in which it had established the relevant facts and determined the legal questions raised in those two sets of proceedings (reference was made to Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, §§ 116-19, 23 February 2016, and to Navalnyye v. Russia , no. 101/15, §§ 83-84, 17 October 2017).

32. In the light of the above, the applicant’s second detention in the present case is not, from my perspective, merely circumstantial evidence; it is a legal question pending before the domestic courts and does not form part of the Court’s examination under Article 5, in conjunction with which the complaint under Article 18 was examined. Under these circumstances, the majority’s approach may risk widening the scope of the case before the Grand Chamber in an unprecedented way and I am hesitant to accept that position. In addition to such a novel approach, the majority also went on to examine the grounds of the applicant’s second detention not under Article 5 (owing to the fact that the second detention was not included in the scope of its examination under that Article), but under Article 18 of the Convention, only to conclude that “... the domestic authorities do not appear to be particularly interested in the applicant’s suspected involvement in an offence allegedly committed between 6 and 8 October 2014, some five years previously, but rather in keeping him detained, thereby preventing him from carrying out his political activities” (see paragraph 433 of the judgment). With all due respect, I remain sceptical as to whether such a finding, stemming from a legal problem that is pending before the domestic courts and not covered by the complaint under Article 5, is in conformity with the principle that the Court must base its decision on evidence in the legal sense. Therefore, I can neither accept the majority’s approach nor their conclusion.

33. For the reasons set out above, I believe that Article 18 of the Convention in conjunction with Article 5 has not been violated in the present case.

[1] The fourth and fifth parts in question provide respectively for “offences against State security” and “offences against the constitutional order and its functioning”.

[2] Paragraph 1 of Article 83 of the Constitution reads as follows: “Members of the Turkish Grand National Assembly shall not be liable for their votes and statements in the course of the Assembly’s work, for the views they express before the Assembly or for repeating or disseminating such views outside the Assembly, unless the Assembly decides otherwise at a sitting held on a proposal by the Bureau.”

[3] Pursuant to paragraph 3 of Article 19 of the Constitution, individuals may be detained provided that there is a strong suspicion that they have committed an offence. In accordance with Article 100 of the Code of Criminal Procedure, an individual may be placed in pre-trial detention where there is concrete evidence giving rise to a strong suspicion that she or he has committed an offence and where the detention is justified on one of the grounds laid down in the same provision.