CONCURRING OPINION OF JUDGE SPANO JOINED BY JUDGES BIANKU, VUČINIĆ, LEMMENS AND GRIŢCO

1. Today the Court delivers important judgments on the merits in cases brought by two prominent journalists detained in Turkey after the attempted coup d ’ état of 15 July 2016. I agree with every word in the Court ’ s forceful reasoning. However, I write separately to comment on the arguments made by the ad hoc national judge in his dissenting opinion, which I respectfully disagree with, in particular his views on the principle of subsidiarity (see in particular paragraphs 2, 21, 23 and 24 of his opinion).

2. The principle of subsidiarity encapsulates a norm of power distribution between the Court and the member States, with the ultimate aim of securing to every person who finds himself or herself within the jurisdiction of a State the rights and freedoms provided by the Convention. Importantly, it is not the Strasbourg Court that is entrusted with the day-to-day responsibility of securing Convention rights; it is the member States. In other words, in accordance with Article 1 of the Convention, it is the national authorities which are the primary guarantors of human rights, subject to the supervision of the Court. When the member States fulfil their Convention role by applying in good faith the general principles deriving from the Court ’ s case-law, the principle of subsidiarity implies that the Court may defer to their findings in a particular case. Its aim is thus to incentivise national authorities to fulfil their obligations to secure Convention rights, thus raising the overall level of human rights protection in the European legal space.

3. The Court ’ s powers and jurisdictional competence are entrenched in Articles 19 and 32 of the Convention. It is the Court that is the final arbiter of the scope and content of the Convention. Member States demonstrate with their actions, in particular the reasoning provided by national courts, whether deference is due under the principle of subsidiarity. It follows that the operationalisation of the principle towards a more process-based review of domestic decision-making, within the conceptual framework of the margin of appreciation doctrine, does not in any way limit the Court ’ s competence to ultimately review substantive findings at national level at the stage of the application of Convention principles embedded in the domestic legal systems. In short and to be clear, the robust and coherent application of the principle of subsidiarity by the Court has nothing to do with taking power away from the Court.

4. Moreover, as flows directly from the language of Article 15 of the Convention, these principles apply equally where a State is confronted with a public emergency threatening the life of the nation. Such a situation does not give States carte blanche. In other words, a state of emergency is not an open invitation to member States to erode the foundations of a democratic society based on the rule of law and the protection of human rights. Only measures which are strictly required by the exigencies of the situation can be justified under the Convention, and it is ultimately for the Court to pass judgment at the European level on whether such justification has been adequately demonstrated on the facts.

5. Finally, the member States are under an international-law obligation, finding its expression in Article 46 of the Convention, to execute judgments rendered by the Court. When a State has decided to secure to everyone within its jurisdiction the rights and freedoms guaranteed by the Convention and at the same time has decided to come within the jurisdiction of the Court, this obligation to execute the Court ’ s judgments becomes mandatory and without exception. It follows that it is now for the competent Turkish authorities to faithfully and expeditiously execute today ’ s judgments under the supervision of the Committee of Ministers in a manner consistent with Turkey ’ s obligations under the Convention.

PARTLY DISSENTING OPINION OF JUDGE ERGÃœL

(Translation)

I

1. I fully agree with my colleagues ’ conclusion that the complaints alleging a violation of Article 5 §§ 3, 4 and 5 and Article 18 of the Convention should be rejected as inadmissible, or as disclosing no violation, or for any of the other reasons given in the judgment. However, I regret that I am unable to join the majority of the Court in finding that Article 5 § 1 and Article 10 of the Convention are both admissible and have been violated. I therefore disagree with the majority ’ s findings of a violation for two reasons, one relating to admissibility and the other to the merits.

2. Regarding admissibility, I would first like to reiterate the well-established principles and settled case-law in this area. Article 35 of the European Convention on Human Rights provides: “The Court may only deal with the matter after all domestic remedies have been exhausted ...” It follows that in the Convention system, the domestic courts are the ordinary courts in relation to Convention law. They are entrusted with primary responsibility for enforcing the rights safeguarded by the Convention. This equates to the principle of subsidiarity, which underpins the Convention system ( Frédéric Sudre , Droit européen et international des droits de l ’ homme , 9th edition, PUF, Paris 2008, p. 204). The Court has repeatedly stated that “the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights” (see Handyside v. the United Kingdom , 7 December 1976, Series A no. 24; Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-70, 25 March 2014; and Brusco v. Italy ( dec. ), no. 69789/01, ECHR 2001 ‑ IX). The Convention leaves it first and foremost to the national authorities – and more specifically, the courts with jurisdiction in matters relating to the Convention – to secure the enjoyment of the rights and freedoms it enshrines. The Convention is therefore of a secondary nature in relation to national legislation, and its fundamental rules are in no way intended to replace the rules of domestic law. This rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Vučković and Others , cited above, §§ 69-70, and Brusco , cited above).

3. According to the Court ’ s case-law, in a legal system designed to protect fundamental rights and freedoms, it is incumbent on the aggrieved individual to test the extent of such protection (see Mirazović v. Bosnia and Herzegovina ( dec. ), no. 13628/03, 16 May 2006, and Independent News and Media and Independent Newspapers Ireland Limited v. Ireland ( dec. ), no. 55120/00, 19 June 2003). Furthermore, the applicant ’ s compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court (see Baumann v. France , no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). Nevertheless, in certain exceptional cases “the Court accepts that the last stage of such remedies may be reached shortly after the lodging of the application but before it determines the issue of admissibility” (see Karoussiotis v. Portugal , no. 23205/08, § 57, ECHR 2011 (extracts)). Moreover, according to the Court ’ s case-law, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Vučković and Others , cited above, § 74). In my view, the last-mentioned principle should apply mutatis mutandis to a situation where the applicant has applied to the Court while his case was pending before a domestic court offering an effective remedy.

4. With regard to an individual application to the Constitutional Court, the Court has already held that it “can see no reason to doubt the legislature ’ s intention – as manifested in the explanatory report on the constitutional amendments ... – to ensure identical protection to that provided by the Convention machinery: Law no. 6216 expressly states that the [Turkish Constitutional Court ’ s] jurisdiction ratione materiae covers the fundamental rights and freedoms safeguarded by the European Convention on Human Rights and the Protocols thereto, such rights and freedoms also featuring in the Turkish Constitution itself” (see Uzun v. Turkey ( dec. ), no. 10755/13, § 62, 30 April 2013).

5. In the present case, the applicant lodged an individual application with the Constitutional Court on 8 September 2016. He also applied to the European Court on 28 February 2017, under Article 34 of the Convention, while his application was still pending before the Constitutional Court. On 11 January 2018 the Constitutional Court gave a judgment in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press. Therefore, the applicant did not await the outcome of his individual application to the Constitutional Court.

II

6. An examination of this case in the light of the above principles reveals, firstly, that the applicant has not satisfied the requirement of exhaustion of domestic remedies. Furthermore, in my opinion, the approach taken in Karoussiotis v. Portugal and other cases cited in the judgment cannot be applied to the present case. The case involves a specific legal system for the protection of fundamental rights and freedoms, and individual applications to the Turkish Constitutional Court are regarded as effective remedies that must be used before an application can be lodged with the Court, as the Court has consistently held (see Uzun , cited above, and Mercan v. Turkey ( dec. ), no. 56511/16, 8 November 2016).

7. In addition, the European Court ’ s examination the present case cannot lead to a finding that the Constitutional Court has given judgment and that domestic remedies have therefore been exhausted. Instead, since the Constitutional Court ’ s judgment was in the applicant ’ s favour, he could no longer claim to be a “victim” within the meaning of Article 34 of the Convention in this case. As the Court has consistently held, “where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention” and “[w]hen those two conditions are satisfied, the subsidiary nature of the protective mechanism of the Convention precludes an examination by the Court” (see Eckle v. Germany , 15 July 1982, §§ 64-70, Series A no. 51; Caraher v. the United Kingdom ( dec. ), no. 24520/94, ECHR 2000-I; Hay v. the United Kingdom ( dec. ), no. 41894/98, ECHR 2000-XI; Cataldo v. Italy ( dec. ), no. 45656/99, ECHR 2004-VI, Göktepe v. Turkey ( dec. ), no. 64731/01, 26 April 2005; and Yüksel v. Turkey ( dec. ), no. 51902/08, § 46, 9 April 2013).

8. Regarding the assize courts ’ decisions refusing to release the applicant following the Constitutional Court ’ s judgment, he will certainly be entitled to apply to the Court anew once the Constitutional Court has given its judgment on the assize courts ’ refusal. Indeed, on 30 January 2018 the applicant lodged a fresh individual application with the Constitutional Court, relying on Articles 5, 6 and 18 of the Convention and complaining mainly about his continued pre-trial detention despite the Constitutional Court ’ s judgment of 11 January 2018. The Constitutional Court has decided to treat the applicant ’ s application as a priority.

9. Hence, the reasons given by the majority to justify their position in the present case were unable to persuade me that the settled case-law and well-established principles outlined above should be disregarded. I can therefore see no reason to depart from the above-mentioned case-law and general principles in the present case.

10. According to the Preamble to the Constitution of the Republic of Turkey: “Having regard to the absolute supremacy of the will of the nation, sovereignty is vested fully and unconditionall y in the Turkish nation and no individual or body authorised to exercise such sovereignty in the name of the nation may interfere with the liberal democracy enshrined in the Constitution or the legal order instituted in accordance with its requirements”. The above principles from the Preamble correspond to the principles of democracy, the rule of law and the protection of human rights referred to in the Preamble to the Statute of the Council of Europe, of which Turkey is one of the founding members. Unfortunately, on 15 July 2016 an attempted coup in Turkey flouted those principles and sought to suppress fundamental rights and freedoms and to disregard the will of the nation.

III

11. As to the merits, I would like first of all to stress the scale and the severity of the threat to Turkey during the night of 15 July 2016. It involved a bloody attempted military coup by members of a sui generis terrorist organisation that had infiltrated all areas of society and the State apparatus. There has never been such a serious threat to the life of the nation, democracy and fundamental rights in any of the States Parties to the European Convention on Human Rights.

12. During the night of 15 to 16 July 2016 a faction of the Turkish armed forces linked to a terrorist organisation known as FETÖ/PDY (“ Gülenist Terror Organisation/Parallel State Structure”) attempted to carry out a military coup aimed at overthrowing the democratically elected government and President of Turkey and ending democracy. The organisation had already been declared a terrorist organisation in a court judgment and in an advisory decision by the National Security Council. The coup instigators issued a statement on behalf of the “Peace at Home Council”, announcing that martial law and a curfew had been declared throughout national territory. They also stated that the Turkish Grand National Assembly had been overthrown, that all political parties ’ activities had been terminated and that all the police had been placed under the control of the martial-law commanders.

13. Using helicopters and fighter planes, the coup instigators attacked and bombarded a large number of locations, including the Turkish Grand National Assembly building, the presidential compound, the Security Directorate headquarters, the Special Operations Command of the national police and the National Intelligence Organisation headquarters in the capital city, Ankara. They also attacked the hotel where the President was staying. Several senior military officers, including the Chief of General Staff and the commanders of the armed forces, were held hostage. In addition, the bridges over the Bosphorus linking Europe and Asia were sealed off, as were Istanbul ’ s airports, by tanks and armoured vehicles. Many public institutions in locations across the country were occupied, or attempts were made to occupy them. During the coup attempt, various institutions and organisations, such as the Türksat satellite communications and cable television operations company , were attacked with the aim of interrupting television broadcasts and Internet access throughout the country. The premises of certain private television broadcasters were occupied and attempt were made to interrupt their broadcasts.

14. The coup attempt was rejected by representatives of all constitutional authorities, first and foremost the President and also the Prime Minister and the Constitutional Court. At the President ’ s urging, the people gathered in the streets and public squares to act against the co up leaders . The security forces, acting under the orders and instructions of the legitimate authorities, took steps to counter the attempted coup. All political parties represented in the Turkish Grand National Assembly, together with civil-society organisations, condemned the despicable coup attempt and declared that they would not accept any undemocratic government. The civilians who gathered in public squares and the streets resisted the coup participants alongside the security forces, despite the attacks from fighter planes, helicopters, tanks, other armoured vehicles and weapons deployed by the coup leaders. As the judgment points out, hundreds of civilians lost their lives in these attacks and thousands of people were injured, most of them civilians.

15. The prosecuting authorities acted promptly in initiating investigations in respect of those taking part in the attempted coup; this is worth highlighting, since the coup had not yet been foiled. As a result, the attempted coup was entirely averted on 16 July thanks to the efforts of the legitimate constitutional institutions and national solidarity. Moreover, millions of citizens organised overnight democracy vigils in city squares for about a month in protest against the attempted coup.

IV

16. It should be borne in mind that the Statute of the Council of Europe affirms, in its Preamble, the member States ’ conviction “that the pursuit of peace based upon justice and international cooperation is vital for the preservation of human society and civilisation”. Ibn Khaldun (1332-1406), a great thinker, legal scholar, historical philosopher and sociologist and the founder of the science of civilisation ( umran ), explains in his masterpiece Muqaddimah that “one cannot imagine a [State] without civilisation, while a civilisation without [a State or] authority is impossible” (Ibn Khaldun , Muqaddimah : an Introduction to History , IV, 19, translated by Franz Rosenthal, Princeton University Classics, 1967) and that human rights violations (or injustices) ruin civilisation, and the ruin of civilisation leads to the complete destruction of the State ( ibid., III, 41). Despite the difference in eras, some striking similarities can be noted between the two perspectives. These words and principles assume full significance during a state of emergency following an attempted military coup. In order to assess the severity of the threat posed by an attempted military coup, consideration should also be given to the risks that might have arisen had the coup attempt not been foiled. Practice has shown that the most serious violations of fundamental rights tend to occur during such periods. Moreover, the alarming conditions in a number of States dominated by regimes installed as a result of a military coup and the tragic situation in such societies, at the present time and throughout the world, corroborate the aforementioned great thinker ’ s observations and the Council of Europe ’ s founding principles. By preventing this serious public emergency threatening the life of the nation, the Turkish people have demonstrated how a people can preserve democracy, the rule of law and civilisation and take control of its own destiny.

17. Consideration should be given to the fact that Turkey gave notice of a derogation from the Convention under Article 15 on 21 July 2016 following the declaration of the state of emergency. I share the majority ’ s opinion that the first formal requirement is easily satisfied, and also that, in view of the wide margin of appreciation left to the national authorities in this sphere, the attempted military coup undoubtedly gave rise to a “public emergency threatening the life of the nation” within the meaning of Article 15 of the Convention. Furthermore, the applicant ’ s complaints do not concern rights from which no derogation is permitted. As regards the proportionality of the measures taken in the context of the derogation, I differ from the majority, since in my view this point warrants a careful examination in the light of the threat to the life of the nation and to the rule of law, democracy, the constitutional order and human rights in Turkey.

18. In a judgment delivered before the attempted coup, the Turkish courts found that FETÖ/PDY was an armed terrorist organisation (Erzincan Assize Court, judgment of 16 June 2016,). Furthermore, judgments delivered after 15 July 2016 have established a link between this terrorist organisation and the attempted coup. The conclusions reached on this point by the Criminal Division of the Plenary Court of Cassation are fairly instructive: “From the first years of the organisation ’ s existence ... it appears from statements by individuals who were formerly active in the organisation that their goal was to take control of all constitutional institutions (legislature, executive, judiciary) of the Republic of Turkey, and at the same time to become a major political/economic power with an international impact by taking advantage of pupils who were trained in accordance with their principles and aims in educational establishments set up abroad and in Turkey through funds collected by way of ‘ favour ’ ( himmet ), and by making use of the economic and political power thus acquired to promote the organisation ’ s interests and their ideology.” The Criminal Division went on to observe: “It is understood that FETÖ/PDY uses public powers that should be under State control to further its own organisational interests. After going through various stages, members of the organisation embarking on a career – while remaining FETÖ/PDY soldiers and maintaining very strong links to that organisation – within the Turkish armed forces, the police and the National Intelligence Organisation are required to undergo ideological training so that they are ready to exploit their own authorisation to use weapons and force in following the orders of this illegal organisational hierarchy. A person in this position is [described] as a servant by the head of the organisation: ‘ persons linked to the service must be determined, persistent, obedient, responsible for everything, must not falter when attacked, must prioritise their rank within the service over their own rank when they have attained a high rank, must be aware that the duties to be accomplished can be difficult in the service, and must be ready to sacrifice their entire existence, life and love for the service [that is, the terrorist organisation] ...” According to the judicial authorities ’ findings, the following three principles have been established as FETÖ ’ s working principles: confidentiality, intra-organisational solidarity and strict hierarchical relations. FETÖ ’ s complex organisation is based on the principle of confidentiality, which it has faithfully observed since its creation, from the lowest cell to the highest branches.

19. On 20 July 2016 a state of emergency was declared for a period of three months as from 21 July 2016 to safeguard democracy, human rights and the rule of law, to remove elements that had infiltrated the State authorities and to eliminate any potential threats in future. The state of emergency has subsequently been extended several times by the Council of Ministers, chaired by the President, most recently with effect from 19 January 2018 . On each occasion a notice of derogation from the Convention under Article 15 has been transmitted to the Secretary General of the Council of Europe.

20. In practice, the investigations and judicial proceedings and court judgments have shown that FETÖ/PDY is a complex, sui generis terrorist organisation carrying out its activities under a cloak of legality. In this context, the FETÖ/PDY media wing has played a significant role in legitimising the actions that gave rise to this organisation ’ s despicable attempted military coup by manipulating public opinion. The applicant was placed in pre-trial detention in the context of an investigation into the organisation ’ s media wing.

V

21. The attempted military coup and its aftermath, together with other terrorist acts, have posed severe dangers to the democratic constitutional order, human rights and public security and order, amounting to a threat to the life of the nation within the meaning of Article 15 of the Convention. The applicant ’ s complaints should therefore be assessed with due regard to the notice of derogation iss ued on 21 July 2016 (and subsequently reiterated) under Article 15 of the Convention. The Court has found that the attempted military coup created a “public emergency threatening the life of the nation” within the meaning of the Convention. However, it reached a different conclusion concerning the proportionality of the measures, without giving detailed reasons. In the assessment of proportionality, two dimensions must be taken into account. Firstly, it must be borne in mind that the applicant ’ s complaints relate only to rights from which a derogation is permitted. That being so, the State should have had a greater margin of appreciation and the Court should have had regard to the risks and the difficulties with which the State was confronted.

22. Next, the Court ’ s assessment should not give rise to a legal hierarchy between rights from which a derogation is permitted. As was emphasised in the Vienna Declaration and Programme of Action, adopted by consensus at the World Conference on Human Rights by the representatives of 171 States on 25 June 1993, a legal hierarchy between human rights should not in principle be accepted: “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” However, Article 15 of the Convention does provide for a kind of hierarchy between right by classifying rights as derogable and non- derogable . Despite the clarity of the text of Article 15, a conclusion that creates a legal hierarchy between rights from which a derogation is permitted will run counter to the concern for practicality expressed by the drafters of the Convention. The derogation mechanism seeks to promote the balance which States must ensure between respect for human rights and preservation of the life of their nation.

23. In addition, it should be determined whether there is a sufficient basis to conclude that the meas ure of pre-trial detention linked to a right that remains within the scope of the derogation is strictly required by the exigencies of the situation of a public emergency threatening the life of the nation. In that regard, several factors are known to the Court, such as the severity of the threat to the life of the nation, the fact that the complaint concerns a judicial measure against which an objection may be lodged, the extreme complexity of the case concerning the media wing of the terrorist organisation behind the severe threat, the significant role of the FETÖ/PDY media wing in concealing the organisation ’ s illegal activities and in legitimising the actions that gave rise to the despicable attempted military coup, the declaration of a state of emergency on account of the coup attempt and its extension since 21 July 2016, on each occasion with the approval of the Turkish Grand National Assembly. On account of those factors, and as the case is strictly linked to the incidents that gave rise to the state of emergency and the derogation, it has to be concluded that the measures taken were strictly required by the exigencies of the situation. For that reason, the derogation relating to an exceptionally severe threat should have prevailed in the assessment of the merits of the case.

24. In conclusion, I consider that in the circumstances of the case, even though it concerned Articles 5 and 10 of the Convention, the subsidiarity principle should have prevailed in the context of admissibility. In addition, the derogation relating to an exceptionally severe threat should have prevailed in the assessment of the merits of the case. Having regard to all the foregoing considerations, and contrary to the majority, I conclude that there has been no violation of the provisions of the Convention.