On 16 April 2018 the Court issued its judgment in the case of Altan v Turkey. During and after the coup attempt, the Ankara public prosecutor’s office opened a criminal investigation in which some 3,000 judges and prosecutors were taken into police custody and placed in pre-trial detention. Mr Alparslan, a former member of the Turkish Constitutional Court, was detained on 19 July 2016 in connection with this investigation and remains in custody. Mr Alparslan was suspected of seeking to overthrow the constitutional order under Article 309 of the Turkish Criminal Code, and being a member of the FETO/PDY group (a designated terrorist organization under Article 314 of the Turkish Criminal Code) claimed to be behind the 15 July 2019 coup attempt. He was dismissed from the Constitutional Court following a plenary session held by the court on 4 August 2016. Mr Alparslan applied to the European Court of Human Rights (ECtHR) challenging his pre-trial detention, and the Court delivered its judgement in this case on 16 April 2019.
Prior to applying to the ECtHR, Mr Alparslan lodged an individual application with the Constitutional Court – complaining of both arbitrary detention and a lack of specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating his pre-trial detention. In addition, he maintained that the domestic courts had not given sufficient reasons for ordering his detention, that the magistrates who ordered his pre-trial detention were not independent and impartial, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment. Lastly, he argued that the process of his dismissal had infringed his rights to a fair trial, to respect for his private life and home, to freedom of expression, and constituted discrimination.
With regard to the lawfulness of his detention and his dismissal, the Constitutional Court held on 11 January 2018 that he had failed to bring an appropriate compensation claim under Article 141(1) of the Turkish Code of Criminal Procedure (CCP) and had therefore not exhausted all remedies. All remaining complaints were held to be manifestly ill founded.
Before the ECtHR, the applicant complained that he had been arbitrarily placed in pre-trial detention, and argued there had been no specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating pre-trial detention. In particular, he maintained that the domestic courts had given insufficient reasons for the decisions ordering his detention. The ECtHR examined the complaints under Article 5(1) and 5(3) of the Convention – finding Turkey to be in violation of 5(1)(c).
In its evaluation, the Court paid special attention to Mr Alparslan’s position as a member of the Constitutional Court, emphasizing the “special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties” (para. 102). The Court noted that they must be “particularly attentive to the protection of members of the judiciary when reviewing the manner in which a detention order was implemented from the standpoint of the provisions of the Convention.” The Court went on to highlight the importance of the general principle of legal certainty and the requirement that any law outlining conditions for deprivation of liberty should be clearly defined, foreseeable in its application, so that it meets the standard of lawfulness.
The ECtHR found that the Constitutional Court’s interpretation of Article 100 of the CCP, which formed the legal basis of the applicant’s pre-trial detention, to be both in breach of the principle of legal certainty and manifestly unreasonable. The Court found that the national courts’ extension of the scope of the concept of in flagrente delicto and its application in the present case did not take place in accordance with a procedure prescribed by law as required by Article 5(1) of the Convention. A leading judgement adopted in October 2017 by the Court of Cassation in Turkey 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 flagrente delicto – warranting pre-trial detention.
In the Court’s view, “this amount[ed] to an extensive interpretation of the concept of discovery in flagrante delicto, expanding the scope of that concept so that judges suspected of belonging to a criminal association are deprived of the judicial protection afforded by Turkish law to members of the judiciary […] negat[ing] the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive.” Moreover, the Court held that this extensive interpretation could not be regarded as an appropriate response to a state of emergency. Such an approach (which was not adopted in response to the exigencies of the situation as required under Article 15 of the Convention) was found not only to be problematic in terms of legal certainty, but also negates procedural safeguards affording judges independence from the executive, and has “legal consequences reaching far beyond the legal framework of the state of emergency” which could in no way be justified.
Regarding the alleged lack of reasonable suspicion that the applicant committed an offence, a safeguard guaranteed by Article 5(1)(c) of the Convention, the Court noted that the items of evidence used to justify the applicants continued detention were gathered long after his pre-trial detention. Given that the case in question concerned his pre-trial detention, it was found that they need not examine the items of evidence to determine whether the suspicion grounding the order for his detention was “reasonable.” Although the subsequent gathering of evidence in relation to the charge against the applicant could have reinforced a suspicion linking him to the commission of terrorist-type offences, it could not have formed the sole basis of a suspicion justifying his initial detention. The Court went on to find that “[t]he detention order was based on a mere suspicion of membership of a criminal organisation. Such a degree of suspicion cannot be sufficient to justify an order for a person’s detention.”
As regards the notion of “reasonableness” of the suspicion on which the arrest or detention had to be based during the state of emergency, the Court observed that the difficulties facing Turkey in the aftermath of the attempted military coup were undoubtedly a contextual factor which had to be taken into account when interpreting and applying Article 5 of the Convention in the present case. This did not mean, however, that the authorities had carte blanche under Article 5 to order an individual’s detention during the state of emergency without any verifiable evidence or information, or without a sufficient factual basis satisfying the minimum requirements of Article 5 § 1 (c) regarding the reasonableness of a suspicion. After all, the “reasonableness” of the suspicion on which deprivation of liberty had to be based formed an essential part of the safeguard laid down in Article 5 § 1 (c).
The judgment is an important one, highlighting key issues concerning the importance of maintaining procedural safeguards– even in the context of a state of emergency. It is the first decision concerning the pre-trial detention of a judge following the coup attempt, and has the potential to set precedent for other cases concerning the ongoing detention of a number of judges and prosecutors.
On 29 January 2019, the ECtHR adopted two inadmissibility decisions in the cases of Elçi v. Turkey and Ahmet Tunç and Others v. Turkey concerning the alleged human rights violations that occurred during curfews and counter-terrorism operations in South-Eastern Turkey. The curfew cases as a whole address violations of the right to life, arbitrary detention, impact on private and family life, the associated impunity of the security forces and lack of effective remedies for victims in Turkish courts. The applicants in the Ahmet Tunç and Others case, for example, were shot by security forces, denied access to medical care and left to die in an area under curfew, despite an interim measures order in their favour delivered by the ECtHR. Despite the grave allegations of unlawful conduct by security forces, and complaints about the passiveness of the judicial authorities in response to those allegations, the Court found that no special circumstances had been established to exempt the applicants from the requirement to exhaust domestic remedies - in this case the Constitutional Court.
The ECtHR handed down its judgment in Selahattin Demirtaş v. Turkey (No.2) on 20 November 2018. The Court found that the detention of Selahattin Demirtaş, the former co-chair of HDP (a pro-Kurdish political party) and two times presidential candidate, constituted a violation of his rights protected under Article 5(3) and Article 3 of Protocol 1 of the Convention. The Court held that the continued detention of the applicant lacked a sufficient legal basis and “pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate” and was therefore in violation of Article 18 of the Convention (limitation on use of restrictions on rights) in conjunction with Article 5(3) (the right to be brought promptly before a judge).
The case concerned the detention of journalist Sahin Alpay. In a judgement handed down on 20 March 2018, the Court found that there had been a violation of Article 5(1) (right to liberty and security), and a violation of Article 10 (freedom of expression). However, no violation of Article 5(4) (right to a speedy review of the lawfulness of detention) was found. While the Court emphasised the fact that the continued use of pre-trial detention, despite the Turkish Constitutional Court’s ruling against such a measure, raised doubts as to the effectiveness of the remedy, it would not depart from the previous finding in Kocintar v Turkey (para. 44) that the right to appeal to the Constitutional Court constituted an effective remedy for those deprived of their liberty.
The case concerned the detention of professor and journalist Mehmet Altan. In a judgment handed down on 20 March 2018, the Court held that there had been a violation of Article 5(1) (right to liberty and security), and a violation of Article 10 (freedom of expression). No violation of Article 5(4) (right to a speedy review of the lawfulness of detention) was found. While the court emphasised the fact that the continued use of pre-trial detention despite the Turkish Constitutional Court’s ruling against the measure raised doubts as to the effectiveness of the remedy, it would not depart from the previous finding in Kocintar v Turkey (para. 44) that the right to appeal to the Constitutional Court constituted an effective remedy for those deprived of their liberty. Concerning the alleged lack of speedy judicial review of the applicant’s continued detention (14 months and three days) by the Turkish Constitutional Court, the Court held that the case was exceptional in light of the Constitutional Court’s current caseload. On the grounds of failure to exhaust domestic remedies, the Court rejected the complaint with regard to the lawfulness of detention in police custody.
The case concerns Mr Köksal’s dismissal by legislative decree. On the 6 June 2017, the Court dismissed the application for failure to exhaust domestic remedies, finding that Mr Köksal had to use the remedy provided for under Legislative Decree no. 685. i.e. a newly established Commission tasked with adjudicating appeals against measures adopted directly by Legislative Decrees issued in the context of the state of emergency (including the dismissals of civil servants). The Court found that the line of domestic remedies has to be exhausted before introducing an application to the ECtHR. Decisions of the Commission can be appealed before the administrative courts, and subsequently before the Constitutional Court by individual petition. When that highest court had examined a case and given judgment, then an individual could submit a complaint under the European Court of Human Rights.
The applicant was dismissed from his post in accordance with the legislative decrees passed following the attempted coup. The applicant applied straight to the ECtHR and did not seek any domestic remedies on the grounds that the avenues available were not effective. Firstly, he argued that he could not appeal the measures taken under the legislative decree in the context of the state of emergency, and secondly, that the Constitutional Court is not capable of reaching an impartial decision given that several of its members had been arrested and detained. In a judgement delivered on 7 March 2017, the Court rejected these arguments holding that the Supreme Administrative Court and the possibility of individual appeal to the Constitutional Court – were not “obviously futile” avenues of redress.
The case concerns the dismissal of a judge by the Supreme Council of Judges in accordance with a legislative decree adopted during the state of emergency. In a judgement handed down on 29 November 2016, the Court rejected the application on the grounds that she had not exhausted domestic remedies which became available at the time of the decision of the Court. Namely, the new remedy (in Legislative Decree no. 685 adopted in January 2017) allowing for judges and prosecutors to challenge their dismissal before the Supreme Administrative Court. The decision of this body in turn can be challenged via individual application to the Constitutional Court, “putting an end to the dispute as to whether the domestic courts had jurisdiction to judicially review the measures taken by the Supreme Council of Judges.” The Court also held however, that this conclusion did not “in any way prejudice a possible re-examination of the question of the effectiveness of the remedy in question.”
Recent Communicated Cases
On 8 January 2019, the European Court of Human Rights communicated the case of Hüseyin Uzun v Turkey with the Turkish Government. The applicant, Mr Uzun, challenges Emergency Legislative Decree No. 677 on the grounds that it violated his right to education protected by Article 2 of Protocol 1 of the Convention. On 2 August 2016, the applicant Mr Uzun, was placed in pre-trial detention in Burdur Prison on suspicion of being a member of the FETÖ / PDY organisation. At the time, Mr Uzun was enrolled in a training program at the Anadolu University of the Faculty of Public Administration. On 23 November 2016, the prison administration sent Mr Uzun a copy of decree law no. 677 notifying him that he could not, under Article 4 of the Decree, participate in exams for the duration of the state emergency, and the entire duration of his detention. On 22 December 2016 the applicant lodged an individual petition before the Constitutional Court, alleging that the ban introduced by the emergency decree law violated his right to education. Mr Uzun’s appeal was dismissed as manifestly ill-founded by the Constitutional Court on 18 June 2018. The Court held that the refusal to allow the applicant to sit his exam was based on an emergency law pursuing a legitimate aim, namely to ensure the discipline and security within the prison establishment. The Court indicated that as a result of the attempted coup, many persons accused of terrorist offences had been detained and/or convicted on similar charges, and therefore the number of officers responsible for the safety and protection of detainees had decreased significantly. In light of these elements and the Court’s previous decision in Mehmet Ali Eneze, it could not be said that the restriction on the applicants right to education was not necessary to achieve a legitimate aim. This case is important as it is one of the first to evaluate interference with the right to education during a state of emergency.
On 5 March 2019, the European Court of Human Rights communicated the case of Kerestecioglu Demir v. Turkey with the Turkish Government. The applicant, Ms Kerestecioglu, challenges the waiver of her parliamentary immunity through a constitutional amendment procedure allowing a prosecutor to pursue a criminal investigation against her on account of her participation in a peaceful public assembly as a Parliamentarian. The applicant alleges that she is being prosecuted due to her political views as an opposition politician, amounting to a violation of her right to freedom of opinion and expression protected under Article 10 of the Convention.On 1 November 2015 the applicant was elected as a deputy and since then she has been carrying out her role as parliamentarian in the National Assembly. A prosecutor filed an investigation report against the applicant for her attendance at a public assembly, which was transmitted to the Parliament for the waiver of her immunity. On 20 May 2016 the National Assembly passed a constitutional amendment by inserting a provisional Article in the 1982 Constitution. Pursuant to the amendment, parliamentary immunity was lifted in all cases where requests for waivers of immunity had been transmitted to the National Assembly before the date of its adoption. This case is important as it is one of the first to evaluate the stripping of parliamentary immunity of an MP and potential repercussions of a criminal prosecution on the freedom of expression and political activities of an opposition politician.