PARTLY DISSENTING OPINION OF JUDGE MERT

1. I respectfully dissent from the majority ’ s finding that there has been a violation of Article 5 § 1 and Article 5 § 1 (c) of the Convention in the present case on account of the unlawfulness of the applicant ’ s pre-trial detention and the lack of reasonable suspicion, at the time of his initial pre-trial detention, that he had committed an offence.

I

2. The majority conclude that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant ’ s initial pre-trial detention.

3. The applicant was arrested on 16 July 2016, immediately after the coup attempt, and was taken into police custody on the same day. He was placed in pre-trial detention on 20 July 2016 on suspicion of being a member of the FETÖ/PDY armed terrorist organisation, which is regarded as the instigator of the 15 July 2016 coup attempt.

4. The applicant claimed that under section 16 of Law no. 6216, the opening of a criminal investigation in respect of members of the Constitutional Court was subject to a decision by the plenary court, and that since he was accused of being a member of a terrorist organisation, there could not be a case of in flagrante delicto . The first subsection of section 16 of Law no. 6216 reads as follows:

“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, the investigation shall be conducted in accordance with the rules of ordinary law.”

5. The applicant ’ s argument that he was entitled to the status granted to members of the Constitutional Court by Law no. 6216 was not accepted by the magistrate who ordered his pre-trial detention. The magistrate found that the criminal investigation was governed by the rules of ordinary law, on the grounds that the suspect ’ s alleged offence – membership of an armed terrorist organisation – was a “continuing offence” and that there had been a case of discovery in flagrante delicto .

6. This decision was based on the settled case-law of the Court of Cassation to the effect that the offence of membership of an armed organisation is a “continuing offence” falling within the jurisdiction of the assize courts. The magistrate had also taken into account the state of the evidence and other circumstances in his decision (see paragraph 20 of the judgment).

7. The plenary criminal divisions of the Court of Cassation subsequently confirmed the above-mentioned settled case-law in their leading decision of 10 October 2017, by accepting that “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” (see paragraph 63 of the judgment).

8. The majority criticise the case-law of the Court of Cassation as amounting to an “extensive interpretation” of the concept of discovery in flagranto delicto , which negates the procedural safeguards that members of the judiciary are afforded in order to protect them from interference by the executive. According to the majority, Article 2 of the Code of Criminal Procedure (CCP) provides a conventional definition of the concept of in flagrante delicto , but the interpretation by the domestic courts in their case-law was contrary to the wording of the applicable law (see paragraphs 111 and 112 of the judgment).

9. Cases of discovery in flagrante delicto are defined in Article 2 of the CCP as follows:

“...

(j) the following shall be classified as cases of discovery in flagrante delicto :

1. an offence in the process of being committed;

2. an 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;

3. an offence committed by an individual who has been apprehended in possession of items or evidence indicating that the act was carried out very recently.

...”

10. As can be seen, there are three different cases of discovery in flagrante delicto set forth in the CCP. The situation of the applicant falls into the first category of these cases, as is apparent from the case-law of the Court of Cassation. Since the offence of membership of a terrorist organisation is a “continuing” offence, it is considered to be “an offence in the process of being committed”.

11. In other words, as established in the Court of Cassation ’ s case-law and by legal scholars, joining a criminal organisation, affiliation with it and subordination to the hierarchical power prevailing in the organisation are regarded as constituting membership of an organisation. Joining an organisation is also possible on the basis of unilateral will, and the consent of the executives of the organisation is not necessary. The offence of membership of a terrorist organisation is unlike offences such as murder and theft, which are committed through an act confined to a certain amount of time and completed upon the commission of that act. For this reason, membership of an organisation continues to be committed as long as the organisation itself and the affiliation with its hierarchical structure continue to exist.

12. In the framework of the definition of discovery in flagrante delicto under Article 2 (j-1) of the CCP, as long as a person knowingly and willingly remains a member of a terrorist organisation, the continuous character persists and the offence is considered to be a continuing offence. Therefore, in consideration of this explanation, it can be said that the Court of Cassation ’ s interpretation of the concept of discovery in flagranto delicto in its case-law is in conformity with Article 2 of the CCP.

13. On the other hand, the Court says that “... according to the case-law of the Court of Cassation ..., a suspicion – within the meaning of Article 100 of the CCP – of membership of a criminal organisation may be sufficient to characterise a case of discovery in flagrante delicto without the need to establish any current factual element or any other indication of an ongoing criminal act” (see paragraph 111 of the judgment). The judgment also states that “In the Court ’ s view, the national courts ’ extension of the scope of the concept of in flagrante delicto and their application of domestic law in the present case ... appear manifestly unreasonable” (see paragraph 115).

14. I think that there is a misinterpretation by the Court on this point. The key aspect here is that a distinction should be drawn between the procedural provisions on pre-trial detention for an offence and the level of proof required for such detention. From this point of view, t he case-law of the Court of Cassation lays down the principle that membership of a criminal organisation is a continuing offence, which is being committed throughout membership. The case-law does not say that there is no need to establish any evidence or indication of an offence that is being committed. The presence of a factual basis in relation to a continuing offence is another issue, to be considered separately.

15. The applicant ’ s argument that his pre-trial detention was not “in accordance with a procedure prescribed by law” was also raised before the Constitutional Court, and following a detailed analysis, that court held, with reference to the case-law of the Court of Cassation, that the measure in question, ordered in accordance with the rules of ordinary law, had complied with the relevant legislation.

16. For these reasons, in my view, the interpretation by the Court of Cassation and the application by the national courts of the concept of discovery in flagrante delicto have a reasonable legal basis.

17. When evaluating this issue, we also need to fully take into account the severity of the threat to Turkey which has been posed by the 15 July 2016 coup attempt. In addition, it is crucial to keep in mind the sui generis covert structure of the FETÖ/PDY organisation, which had extensively infiltrated influential State institutions and the judiciary under the guise of lawfulness (for general information on the events that occurred during the coup attempt and the aim and structure of the FETÖ/PDY organisation, see paragraphs 11-15 and 18 of the p artly dissenting opinion of Judge Ergül in Mehmet Hasan Altan v. Turkey, no. 13237/17, 20 March 2018). Likewise, the applicant ’ s complaints should be assessed in the light of the notice of derogation given on 21 July 2016 under Article 15 of the Convention, a day after the Government had declared a state of emergency.

18. In this regard, I agree with the findings expressed in the judgment that “the attempted military coup had disclosed the existence of a ‘ public emergency threatening the life of the nation ’ within the meaning of the Convention” (see paragraph 73) and that “In any event, the Court observes that the applicant ’ s detention ... occurred a very short time after the attempted coup – the event that prompted the declaration of a state of emergency ... This is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article 5 of the Convention in the present case” (see paragraph 75). However, I regret to say that the judgment has not sufficiently taken into consideration the specific circumstances which Turkey experienced immediately after the coup attempt, and the notice of derogation.

19. Of course, the judiciary has a special role in a democratic society (see paragraph 102 of the judgment) and it is necessary to fully respect the independence of judges. Nevertheless, when considering this matter, it is essential to keep in mind the unlawful aims of the FETÖ/PDY organisation and its covert structure in the judiciary, including the Constitutional Court. It is well known that members of this terrorist organisation within the judiciary acted only in accordance with the demands of the organisation and irrespective of any legal principles or rules. Accordingly, abusing judicial powers and safeguards – granted to members of the judiciary in order to exercise their functions independently and impartially – by acting under the instructions of a terrorist organisation should not give rise to a broadly interpreted form of legal protection.

20. As mentioned in the judgment, “It is well established in the Court ’ s case-law on Article 5 § 1 of the Convention that ... where the ‘ lawfulness ’ of detention is in issue, ... the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof” (see paragraph 101). In the present case, the investigation in respect of the applicant was conducted in accordance with the rules of ordinary law, pursuant to section 16(1) of Law no. 6216, since there had been a case of discovery in flagrante delicto falling within the jurisdiction of the assize courts; the pre-trial detention order was given by the competent judge; and the conditions for detention set forth in Article 100 of the CCP were satisfied. The judicial practice applied was in conformity with the substantive and procedural rules of Turkish law. Also, the relevant legislation – as outlined in paragraphs 45-57 of the judgment – was foreseeable and there was no problem in terms of the principle of legal certainty. So, under these circumstances, I can say that the order for the applicant ’ s pre-trial detention was not arbitrary and was made “in accordance with a procedure prescribed by law”.

21. Therefore, I disagree with the conclusion in the judgment that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant ’ s pre-trial detention.

II

22. The majority conclude that there has been a violation of Article 5 § 1 (c) of the Convention on account of the lack of reasonable suspicion, at the time of the applicant ’ s initial pre-trial detention, that he had committed an offence .

23. It can be seen that the competent magistrate detained the applicant because of the indication of a strong suspicion that he was a member of a terrorist organisation, with reference to Article 100 of the CCP and the evidence in the file. In addition to other documents, he especially referred to the reports on searches and seizures in the file. The magistrate also indicated that there was a risk that individuals who had links to the FETÖ/PDY organisation might abscond, tamper with evidence or take advantage of the disorder that had emerged after the coup attempt.

24. The aforesaid reports of the searches and seizures dated 16 July 2016, the day on which the applicant was arrested, mention that there was a list of members of the Constitutional Court (known by the authorities to be) linked to the FETÖ/PDY organisation. It is understood that the applicant ’ s name was on that list. On the basis of this information and other evidence, appropriate steps were taken by the competent judicial authorities.

25. As specified in the judgment, “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. The purpose of questioning during detention ... is to further the criminal investigation by confirming or dispelling the concrete suspicion grounding the arrest. Thus, facts which raise a suspicion at the initial stage 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 paragraph 127). In other words, “the standard of proof required for making an arrest [and ordering pre-trial detention] is lower than that required for a criminal charge and subsequently a conviction” (see B. Rainey, E. Wicks, and C. Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights, 7th edition, 2017, p. 246).

26. Such an approach would provide relevant justification that the factual basis was sufficient for pre-trial detention in the present case. As a matter of fact, the evidence assessed by the authorities during the investigation, such as the witness statements, ByLock messages and other facts, confirmed the initial suspicion that the applicant had committed the alleged offence. As a consequence of the trial before the Court of Cassation, the applicant was sentenced to eleven years and three months ’ imprisonment on 6 March 2019 for the offence of membership of an armed terrorist organisation.

27. In this context, due consideration should also be given to the above-mentioned specific circumstances of the coup attempt, the illegal activities of the FETÖ/PDY organisation, and the notice of derogation. On this point, the observation that “such ... circumstances might mean that the ‘ reasonableness ’ of the suspicion justifying detention cannot be judged according to the same standards as are applied in dealing with conventional offences” (see paragraph 135 of the judgment) is highly valid. In other words, in the case of fighting against terrorism, especially in extraordinary times, the level of “reasonable suspicion” needs to be lower than for ordinary offences.

28. The Court, in principle, “ considers that the very specific context of the present case calls for a high level of scrutiny of the facts. In this connection, it is prepared to take into account the difficulties facing Turkey in the aftermath of the attempted military coup of 15 July 2016” (see paragraph 134 of the judgment). However , I cannot see that the relevant circumstances have been considered thoroughly in the judgment in the present case.

29. On the other hand, following the individual application lodged by the applicant, the evidence and the special circumstances of this case were assessed in detail by the Constitutional Court in its decision. It observed that “in view of the very specific circumstances surrounding the attempted coup, the extent to which the FETÖ/PDY organisation had infiltrated the administrative and judicial authorities and the fact that the alleged offence was among the so-called ‘ catalogue ’ offences, the order for the applicant ’ s pre-trial detention could be said to have been based on justifiable grounds and proportionate” (see paragraph 42 of the judgment). In the Constitutional Court ’ s 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 FETÖ/PDY organisation – which was identified as the instigator of the attempted coup – might abscond, tamper with evidence or take advantage of the disorder that had emerged during or after the coup attempt ... These particular circumstances entailed a higher risk than might arise in what could be described as ‘ normal ’ circumstances ... 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” (ibid.).

30. In my opinion, the findings in the decision of the Constitutional Court are more relevant to the present case. In the light of the explanations above, it cannot be said that there was a lack of reasonable suspicion at the time of the applicant ’ s pre-trial detention.

31. Therefore, I do not subscribe to the conclusion in the judgment that there has been a violation of Article 5 § 1 (c) of the Convention.