CONCURRING OPINION OF JUDGE KOSKELO, JOINED BY JUDGE RANZONI

108. The present judgment is remarkable in an unusual and highly problematic sense. The Court concludes, in effect, that it is faced with a situation that renders it unable to fulfil its function, and this conclusion is reached, moreover, in the context of core aspects of core rights enshrined in Article 5 of the Convention. Having found a violation of Article 5 § 1 on the ground of the unlawfulness, in terms of domestic law, of the applicants’ initial pre-trial detention (points 3 and 4 of the operative provisions), the Court leaves the other complaints raised by the applicants under Article 5 unexamined (point 5).

109. I have voted in favour of this extraordinary outcome, reluctantly and with great misgivings. Why so?

110. It is well established that there are situations where complaints raised under different provisions of the Convention rely on a factual basis and on legal arguments which present similarities, to the extent that the Court may be justified in considering that, once a violation is found under one provision, it is not necessary to separately examine the issue from the standpoint of another provision also invoked by the applicant. The present joined cases, however, do not fall into that category of situations because, in this instance, the Court refrains from examining all other complaints raised under Article 5 apart from the issue of lawfulness. This exclusion covers, in particular, complaints pertaining to the requirement of reasonable suspicion, which under the Court’s well-established case-law is an essential and necessary condition for pre-trial detention to be in accordance with Article 5 § 1 (c) of the Convention, and thus at the very core of one of the core rights. The issues raised under those complaints and the complaints based on the lack of lawfulness are not “overlapping”. In fact they concern Convention safeguards which are distinct and fundamentally important.

111. Furthermore, based on the cases already examined by the Court, such as Alparslan Altan v. Turkey and BaÅŸ v. Turkey (both cited in the present judgment), as well as the related circumstances transpiring from them, it must be presumed that many of those other complaints might be well ‑ founded.

112. Nor can it be said, under such circumstances, that the present situation would fall within the criterion used by the Court in certain cases where it may find it appropriate to limit its examination to the “main legal questions” raised by the complaints before it (see, for instance, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

113. It is also quite clear that the present situation is not comparable with so-called pilot judgment proceedings, where the Court may strike out applications in the same series for the purpose of “returning” the issues to be addressed at the domestic level. In the present situation, it is already evident that the applicants’ recourse to domestic remedies failed and that no further domestic action can be expected to address the alleged violations of Article 5.

114. From a strictly legal point of view, there is hardly any plausible justification for leaving all the other complaints, including those relating to the core issue of reasonable suspicion, unexamined.

115. Moreover, the complaints arise from the detention of judges and prosecutors in very large numbers, which makes the situation even more serious. At the same time, it is precisely the volume of the problem which lies at the heart of the Court’s dilemma (see paragraph 98 of the judgment).

116. The decision not to examine the applicants’ other complaints raised under Article 5 of the Convention thus has a critically novel quality. I have nonetheless arrived at the conclusion that the time has come to acknowledge the reality as it presents itself: if alleged violations occur on a large scale and the rights concerned are no longer protected through domestic remedies, even the international supervision entrusted to the Court reaches its practical limits. The fact that core rights are at stake renders the state of affairs particularly sad and serious but cannot in itself change it. In circumstances where it has become clear that the complaints cannot, and therefore will not, be processed within a reasonable time-frame, or without paralysing the Court’s activity more generally, it is better to make this impasse transparent rather than maintain illusions about the situation. Any further conclusions remain for other bodies to consider.

117. For the reasons set out above (and in paragraph 98 of the judgment itself), the wording used in the operative provision (point 5 – “no need to examine”) is not, in my view, appropriate in the present context. Despite this, however, I voted in favour of this provision as I agree with its outcome.

118. As a final point, I affirm my agreement with the finding of a violation on the grounds that the applicants’ pre-trial detention was not lawful within the meaning of Article 5 § 1, albeit with one additional remark. It concerns the Government’s argument that the lawfulness of the detention of those applicants who were ordinary judges or prosecutors did not, under the relevant domestic law, depend on the existence of discovery in flagrante delicto but on whether the offence in question was a “personal” offence or a “duty-related” one, i.e. an offence committed in connection with or in the course of official duties (see paragraphs 41 and 76 of the present judgment). The Government have submitted that under domestic law, the offence of membership in a terrorist organisation – of which the applicants were suspected – qualifies as a “personal offence”, rendering the specific procedural safeguards and rules governing ordinary judges and prosecutors inapplicable.

119. While acknowledging that it is primarily a prerogative of the domestic courts to interpret domestic law, the position relied on by the Government nonetheless raises a fundamental question in the present context. In their observations before the Court, the Government have consistently described the organisation in question (“FETÖ/PDY”) as one which had the aim of infiltrating various public institutions, including the judicial system, and of creating a “parallel State”, the latter expression being also used in the wording adopted by the Government to denote that organisation. More specifically, the Government have submitted that judges and prosecutors belonging to that organisation took instructions from its hierarchy when dealing with cases entrusted to them. It is difficult to understand how such submissions can be reconciled with the proposition that membership of this particular organisation nonetheless remains to be characterised as a “personal offence” which is not linked with the exercise of the suspects’ duties as judges or prosecutors. In the specific circumstances of these cases, such an interpretation of domestic law appears neither reasonable nor consistent with the Convention requirements of foreseeability and legal certainty.