Coup in Turkey. Temporary detention of Judge as suspected terrorist member violated ECHR

JUDGMENT

Baş v. Turkey 03.03.2020 (no. 66448/17)

see here  

SUMMARY

The case concerned the pre-trial detention of Mr Baş, a judge at the time, following the attempted
coup of 15 July 2016.

The Court found that according to the case-law of the Court of Cassation, a suspicion of membership
of a criminal organisation could be sufficient to characterise the element of in flagrante delicto
without the need to establish any current factual element or any other indication of an ongoing
criminal act. Accordingly, the Court concluded that the national courts’ extension of the scope of the
concept of in flagrante delicto and their application of domestic law, namely section 94 of Law
no. 2802, were not only problematic in terms of legal certainty, but also appeared manifestly
unreasonable.

The Court found that the mere reference by the Kocaeli magistrate’s court to the decision taken by
the Council of Judges and Prosecutors on 16 July 2016 to suspend 2,735 judges and prosecutors was
insufficient to support the conclusion that there had been a reasonable suspicion justifying the pretrial detention of this particular judge. The evidence before the Court did not warrant the conclusion that there had been a reasonable suspicion against the applicant at the time of his initial detention.

Thus, while accepting the Constitutional Court’s conclusion in a separate case that the measures
implemented in the aftermath of the coup attempt could be said to have been strictly required for
the protection of public safety, the Court observed that in the present case Mr Baş had not appeared
before a court for approximately one year and two months, a much longer period than the one
previously assessed by the Constitutional Court.

PROVISIONS

Article 5§1,

Article 5 par. 1 c) ,

Article 5 §4,

PRINCIPAL FACTS

The applicant, Hakan Baş, is a Turkish national who was born in 1978 and lives in Kocaeli (Turkey).

During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces attempted to
carry out a military coup aimed at overthrowing the National Assembly, the government and the
President of Turkey. The day after the attempted military coup, the authorities blamed the network
linked to Fetullah Gülen, a Turkish citizen living in the United States and considered to be the leader
of an organisation referred to as “FETÖ/PDY” (“Gülenist Terror Organisation/Parallel State
Structure”).

On 20 July 2016 the government declared a state of emergency for a period of three months, which
was subsequently extended. On 21 July 2016 the Turkish authorities gave notice to the Secretary
General of the Council of Europe of a derogation from the Convention under Article 15.
During the state of emergency, the Council of Ministers passed several legislative decrees. Article 3
of Legislative Decree no. 667 provided that the Council of Judges and Prosecutors (“the HSK”) was
authorised to dismiss any judges or prosecutors who were considered to belong or be affiliated or
linked to terrorist organisations or organisations, structures or groups found by the National Security
Council to have engaged in activities harmful to national security. The state of emergency was lifted
on 18 July 2018.

On 16 July 2016 the HSK suspended 2,735 judges and prosecutors – including the applicant – from
their duties for a period of three months, pursuant to sections 77(1) and 81(1) of Law no. 2802 on
judges and prosecutors, on the grounds that there was a strong suspicion that they were members
of the terrorist organisation that had instigated the attempted coup and that keeping them in their
posts would hinder the progress of the investigation and undermine the authority and reputation of
the judiciary.

Also on 16 July 2016, the Kocaeli public prosecutor initiated a criminal investigation in respect of the
judges serving in Kocaeli suspected of being members of FETÖ/PDY, including the applicant. On 18
July 2016 the applicant was placed under police supervision. On 19 July 2016 he gave evidence to
the Kocaeli public prosecutor, who informed him that he had been suspended from his duties as a
result of the HSK’s decision of 16 July 2016, on the grounds of his suspected membership of
FETÖ/PDY. The applicant denied being a member of or having any links with that organisation. Later
that day, he was brought before the Kocaeli 1st Magistrate’s Court. On 20 July 2016 the magistrate
decided to place him in pre-trial detention on suspicion of membership of a terrorist organisation.
An objection by the applicant against the order for his detention was dismissed.

On 24 August 2016, applying Article 3 of Legislative Decree no. 667, the plenary HSK dismissed 2,847
judges and prosecutors including the applicant, all of whom were considered to be members of or
affiliated or linked to FETÖ/PDY.

On 27 December 2017 the Constitutional Court declared an individual application by the applicant
inadmissible, finding that his complaints were manifestly ill-founded.

On 19 March 2018 the 29th Assize Court found Mr Baş guilty of the offence of membership of an
armed terrorist organisation, sentenced him to seven years and six months’ imprisonment and,
taking into account the period already spent in detention, ordered his release. Mr Baş’s conviction
was upheld on appeal. The case is currently pending before the Court of Cassation.

THE DECISION OF THE COURT…

Article 5 §§ 1 and 3

Lawfulness of the applicant’s initial pre-trial detention

Mr Baş’s pre-trial detention had been ordered on the basis of the ordinary rules governing
detention, that is, Articles 100 et seq. of the Code of Criminal Procedure (CCP).

The Court pointed out that in circumstances similar to those of the present case, it had held that the
national courts’ extension of the scope of the concept of in flagrante delicto and their application of
domestic law appeared manifestly unreasonable and were problematic in terms of the principle of
legal certainty (Alparslan Altan v. Turkey, no. 12778/17, 16 April 2019). The Court could see no
reason to reach a different conclusion as regards the courts’ interpretation of the concept of in
flagrante delicto and the application of section 94 of Law no. 2802 in the circumstances of the present case.

The Court observed that it had not been alleged that the applicant had been arrested and placed in
pre-trial detention while in the process of committing an offence linked to the attempted coup,
although the Ankara public prosecutor’s office had initially mentioned the offence of attempting to
overthrow the constitutional order. That offence had not been taken into consideration by the
Kocaeli magistrate’s court in ordering the applicant’s pre-trial detention. The applicant had been
deprived of his liberty on suspicion of membership of FETÖ/PDY. In the view of the Kocaeli
magistrate’s court, there had been a case of discovery in flagrante delicto within the meaning of
section 94 of Law no. 2802, but the magistrate had provided no legal basis for that finding.
The Court noted that in its leading judgment adopted on 26 September 2017, the Court of Cassation
had held that at the time of the arrest of judges suspected of the offence of membership of an
armed organisation, there was a situation of discovery in flagrante delicto. The leading judgment
indicated that in cases involving the offence of membership of a criminal organisation, it was
sufficient that the conditions laid down in Article 100 of the CCP were satisfied in order for a suspect
who was a member of the judiciary to be placed in pre-trial detention on the grounds that there was
a case of discovery in flagrante delicto.

The Court emphasised that the principle of legal certainty could be compromised if courts
introduced exceptions in their case-law which ran counter to the applicable statutory provisions.
Article 2 of the CCP provided a conventional definition of the concept of in flagrante delicto, relating to the discovery of an offence during or immediately after its commission. However, according to the case-law of the Court of Cassation, a suspicion of membership of a criminal organisation could be sufficient to characterise the element of in flagrante delicto without the need to establish any
current factual element or any other indication of an ongoing criminal act. In the Court’s view, this
amounted to an extensive interpretation of the concept of in flagrante delicto, expanding the scope
of that concept so that judges suspected of belonging to a criminal association could be deprived of
the judicial protection afforded by Turkish law to members of the judiciary. Furthermore, the Court
could not see how the Court of Cassation’s settled case-law concerning the concept of a continuing
offence could have justified extending the scope of the concept of in flagrante delicto, which related
to the existence of a current criminal act, as provided in Article 2 of the CCP.

The Court found that the national courts’ extension of the scope of the concept of in flagrante
delicto and their application of domestic law, namely section 94 of Law no. 2802, in the present case
were not only problematic in terms of legal certainty, but also appeared manifestly unreasonable.
It considered that the mere application of the concept of in flagrante delicto and the reference to
section 94 of Law no. 2802 in the order of 20 July 2016 for the applicant’s detention had not fulfilled
the requirements of Article 5 § 1 of the Convention.

In the Court’s view, an extensive interpretation of the concept of in flagrante delicto could clearly
not be regarded as an appropriate response to the state of emergency. Such an interpretation,
which, moreover, had not been adopted in response to the exigencies of the state of emergency,
was not only problematic in terms of the principle of legal certainty, but also negated the procedural
safeguards which members of the judiciary were afforded in order to protect them from
interference by the executive. It had legal consequences reaching far beyond the legal framework of
the state of emergency. It was in no way justified by the special circumstances of the state of
emergency. The Court concluded that the decision to place the applicant in pre-trial detention,
which had not been taken “in accordance with a procedure prescribed by law”, could not be said to
have been strictly required by the exigencies of the situation.

There had therefore been a violation of Article 5 § 1 of the Convention on account of the
unlawfulness of the applicant’s initial pre-trial detention.

Alleged lack of reasonable suspicion that the applicant had committed an offence

The Court observed that the Constitutional Court had referred to Mr Baş’s use of the ByLock
messaging application. It had to be noted that the relevant evidence had not been adduced until
long after the applicant’s initial detention. The Constitutional Court had not explained how evidence
obtained several months after Mr Baş’s initial pre-trial detention could have formed a basis for a
reasonable suspicion that he had committed the offence of which he had been accused.

In the present case, the Court observed that it appeared from the order for the applicant’s pre-trial
detention that the Kocaeli magistrate’s court had based its finding of a reasonable suspicion that the
applicant had committed the alleged offence on the decision taken by the HSK on 16 July 2016 and
on the request by the Ankara public prosecutor’s office to initiate an investigation in respect of him.
In its decision, the HSK had suspended 2,735 judges and public prosecutors, including the applicant,
on the basis of strong suspicion that they were members of the terrorist organisation that had
instigated the attempted coup. The HSK had referred to a number of disciplinary and criminal
investigations that had been initiated in respect of a number of judges and prosecutors prior to the
coup attempt. However, its decision did not contain any facts or information relating to the
applicant personally. He did not feature among the individuals mentioned as being the subject of
disciplinary and criminal investigations. Accordingly, the disciplinary and criminal investigations
mentioned in the HSK’s decision could not have formed the basis for the suspicion giving rise to the
order for the applicant’s detention. The Court further noted that in its decision, the HSK had made a  general reference to information from the intelligence services, without providing any clarification of its contents or explaining how it related to the applicant and his situation.

The Court took the view that the Government had not provided a sufficient factual basis for the
HSK’s decision in the present case. It found that the mere reference by the Kocaeli magistrate’s court
to the HSK’s decision was insufficient to support the conclusion that there had been a reasonable
suspicion justifying the applicant’s pre-trial detention. The magistrate’s court had sought to justify its
decision by referring to Article 100 of the CCP and to the evidence in the file, but it had simply cited
the wording of the Article in question. The vague and general references to the wording of
Article 100 of the CCP and to the evidence in the file could not be regarded as sufficient to justify the
“reasonableness” of the suspicion on which the applicant’s detention was supposed to have been
based, in the absence either of a specific assessment of the individual items of evidence in the file,
or of any information that could have justified the suspicion against the applicant, or of any other
kinds of verifiable material or facts.

The Court also observed that the applicant had not been suspected of having been involved in the
events of 15 July 2016. Admittedly, on 16 July 2016, the Ankara public prosecutor’s office had issued
instructions describing the applicant as a member of FETÖ/PDY and calling for his pre-trial detention.
However, the Government had not produced any facts or information capable of serving as a factual
basis for those instructions by the Ankara public prosecutor’s office. The fact that, before being
placed in pre-trial detention, the applicant had been questioned by the Kocaeli 1st Magistrate’s
Court on 19 and 20 July 2016 in connection with an offence of membership of an illegal organisation
revealed, at most, that the authorities had suspected him of having committed that offence. That
fact alone would not satisfy an objective observer that the applicant could have committed the
offence in question.

The Court found that the evidence before it did not warrant the conclusion that there had been a
reasonable suspicion against the applicant at the time of his initial detention. It considered that the
requirements of Article 5 § 1 (c) of the Convention regarding the reasonableness of a suspicion
justifying detention had not been satisfied.

The Court concluded that there had been a violation of Article 5 § 1 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.

Article 5 § 4

Mr Baş had been placed in pre-trial detention on 20 July 2016 after being heard by the Kocaeli
magistrate’s court and had next appeared before a court at the first hearing on 19 September 2017,
after his trial had begun. Throughout this period of approximately one year and two months, he had
not appeared before any of the courts deciding on his detention. His applications for release and his
objections had all been examined without his having been heard by the courts. The last objection
lodged by the applicant had been dismissed by the Assize Court on 15 August 2017, without a
hearing. The Government argued that the situation complained of by the applicant was covered by
the notice of derogation under Article 15 which the Turkish authorities had submitted to the
Secretary General of the Council of Europe on 21 July 2016.

The Court reiterated that the difficulties facing Turkey in the aftermath of the attempted military
coup of 15 July 2016 were a contextual factor which had to be fully taken into account in
interpreting and applying Article 15 (Alparslan Altan v. Turkey, no. 12778/17, 16 April 2019). It
accepted the conclusion reached by the Constitutional Court in the case of Aydın Yavuz and Others
to the effect that the measures implemented in the aftermath of the coup attempt and the fact for a
period of eight months and eighteen days the applicants had not appeared before the judges
deciding on their detention could be said to have been strictly required for the protection of public
safety. The Court observed, however, that in the present case Mr Baş had not appeared before a judge for approximately one year and two months, a much longer period than the one assessed by the Constitutional Court in its Aydın Yavuz and Others judgment.

The Court therefore concluded that there had been a violation of Article 5 § 4 on account of the
length of time during which the applicant had not appeared in person before a judge.

Moreover, as regards the complaint of a restriction of access to the investigation file, the Court
considered it unnecessary to examine the matter any further. Regarding the non-disclosure of the
public prosecutor’s opinion, it held that this complaint was manifestly ill-founded and rejected it.
Lastly, the Court considered that, having regard to the constitutional and legal safeguards afforded
to the magistrates’ courts, and in the absence of any relevant arguments giving cause to doubt their
independence and impartiality in the applicant’s case, the complaint alleging a lack of independence
and impartiality on the magistrates’ part should be rejected as being manifestly ill-founded.

Just satisfaction (Article 41)

The Court held that Turkey was to pay the applicant 6,000 euros (EUR) in respect of non-pecuniary
damage and EUR 4,000 in respect of costs and expenses.

Separate opinions

Judge Bårdsen expressed a concurring opinion and Judge Yüksel expressed a partly dissenting
opinion. The opinions are annexed to the judgment.


ECHRCaseLaw

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