PARTLY DISSENTING OPINION OF JUDGE KARAKAÅž

(Translation)

1. 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 §§ 1, 3 and 4, Article 10 and Article 34 of the Convention and Article 3 of Protocol No. 1 to the Convention.

2. However, I am unable to agree with the majority’s conclusion that there has been a violation of Article 18 of the Convention in conjunction with Article 5 § 3. In view of all the conclusions reached by the Court under Article 5 §§ 1 and 3 of the Convention and Article 3 of Protocol No. 1, it was unnecessary in my opinion to exa-+6-mine the complaint under Article 18, which was based on the same facts. Indeed, the Court decided along those lines in two recent judgments in cases against Turkey (see Mehmet Hasan Altan v. Turkey , no. 13237/17, § 216, 20 March 2018, and Şahin Alpay v. Turkey , no. 16538/17, § 186, 20 March 2018).

3. That aside, seeing that the majority concluded that it was necessary to examine this complaint as submitted by the applicant, I consider, in the light of the approach adopted by the Court in interpreting Article 18 of the Convention in Merabishvili v. Georgia ([GC], no. 72508/13, 28 November 2017), that there has been no violation of Article 18 of the Convention, for the following reasons.

4. As the majority note, Article 18 of the Convention can only be breached after a significantly high threshold has been crossed (see paragraph 260 of the judgment). In the circumstances of the case, the Court found that the applicant could be said to have been deprived of his liberty on “reasonable suspicion” of having committed a criminal offence, within the meaning of sub-paragraph (c) of Article 5 § 1 of the Convention (see paragraph 170). The applicant’s pre-trial detention therefore pursued an aim provided for by that Article.

5. In the context of the present case, the applicant’s political activities could be taken into account as part of a contextual analysis. Nevertheless, it is clear from the Court’s case-law that the status of a politician, even one with a leading role, cannot be treated as a guarantee of immunity (see, mutatis mutandis , Khodorkovskiy v. Russia , no. 5829/04, § 258, 31 May 2011). The mere fact that politicians have been prosecuted or placed in pre-trial detention, even during an election campaign, does not automatically indicate that the aim pursued by such measures was to restrict political debate (see Merabishvili , cited above, § 323).

6. In the present case, I note that the applicant did not produce any persuasive concrete evidence that there was any “hidden agenda” on the part of the judicial authorities. Although the applicant may have had suspicions as to the national authorities’ real purpose in keeping him in pre-trial detention, I consider that in the absence of concrete evidence, such suspicions cannot suffice from a legal perspective to warrant the conclusion that in ordering his continued pre-trial detention, the judicial authorities acted improperly and in blatant disregard of the Convention (see, mutatis mutandis , Năstase v. Romania (dec.), no. 80563/12, § 109, 18 November 2014, and Tchankotadze v. Georgia , no. 15256/05, § 114, 21 June 2016).

7. The same applies to the statements by the President of the Republic of Turkey concerning the criminal investigation carried out in respect of the applicant. In my view, such statements could only be seen as adequate proof of an ulterior purpose behind the judicial authorities’ decisions, in line with the government authorities’ own agenda, if the Court had found that the Turkish justice system was not sufficiently independent from the executive (compare Merabishvili , cited above, § 324). In the absence of such a conclusion (see paragraph 271 of the judgment), the majority should in my view have avoided engaging in speculation, as for example when they asserted that the applicant’s continued detention had had a negative effect on the “no” campaign relating to the proposed Bill to amend the Constitution with a view to introducing a presidential system, or that the political climate in recent years had created an environment capable of influencing certain decisions by the national courts.

8. In the circumstances of the present case, therefore, I can see no indication that the judicial authorities misused their powers by extending the applicant’s detention for any purpose other than the one for which it was intended. Accordingly, I consider that it has not been established beyond reasonable doubt that the main purpose of the applicant’s pre-trial detention was to stifle pluralism or to limit freedom of political debate.