ECHR judgment of April 16, 2019 in the case of Alparslan Altan v. Turkey (application No. 12778/17).
In 2017, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Turkey.
In the case, the application on the applicant’s detention on remand, based only on suspicion of participation in the activities of an illegal organization, in the absence of any specific indictment, was successfully examined. The case has violated the requirements of paragraph 1 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
On July 15, 2016, after an attempted military coup d'etat, for which the authorities blamed an underground organization (the so-called FETÖ / PDY), a state of emergency was announced on July 20, 2016. The next day, the Turkish authorities informed the Council of Europe of the application of the right to derogation from the obligations provided for in Article 15 of the Convention.
The applicant, during the period relevant to the circumstances of the case, was a judge of the Turkish Constitutional Court. On 16 July 2016 the applicant was arrested and detained, as were 3,000 other judges. On July 20, 2016, the justice of the peace decided to detain the applicant on the basis of suspicion that the applicant was “a member of an armed terrorist organization” (Article 314 of the Turkish Criminal Code). In August 2016, the Turkish Constitutional Court removed the applicant from office.
In October 2017, the Turkish Court of Cassation issued a ruling in another case, according to which the detention of judges suspected of participating in an armed organization should be considered as related to the situation of “apparent crime”, therefore, a decision on detention can be taken in accordance with the general criminal procedure without preliminary deprivation of immunity.
The applicant challenged the lawfulness of his detention on two counts: i) in accordance with a special law related to his status, the Turkish Constitutional Court had previously had to deprive him of judicial immunity, but this was not done, ii) the decision to detain him adopted on the basis of the case file, in which at that time there was no evidence of indictment. In January 2018, the Turkish Constitutional Court dismissed the applicant’s complaint, citing the first paragraph of the decision of the Turkish Court of Cassation as mentioned above, and the second point of various indictment obtained after his detention.
In July 2018, the state of emergency was lifted. In March 2019, the applicant was convicted.
QUESTIONS OF LAW
Concerning compliance with article 15 of the Convention (preliminary considerations). Measures taken in derogation from obligations in emergency situations are not the subject of this complaint: the decision to detain the applicant was taken on the basis of legislation that already existed before the introduction of the state of emergency and continued to operate subsequently.
However, although the applicant’s detention took place the day before the Turkish authorities brought Article 15 into effect, the difficulties they encountered after the attempted military coup a few days earlier certainly represented the contextual aspect that the Court should have to take fully into account for the interpretation and further application of Article 5 of the Convention.
Regarding compliance with Article 5 § 1 of the Convention. (a) Compliance with the “procedure established by law” when making the initial decision on detention.
(i) Compliance with Article 5 § 1 of the Convention as such. The principle of legal certainty may be compromised if the courts of the respondent State introduce exceptions to their judicial practice that are contrary to the wording of the applicable legal provisions.
The Turkish Code of Criminal Procedure contains a classic definition of the term “apparent crime” related to the current nature of the crime or its commission immediately before detection. However, according to the position of the Turkish judges, a new interpretation of this concept of suspicion of participation in activities in a criminal organization could be sufficient to describe the evidence of a crime without the need to establish the currently existing factual element or other obvious evidence of a continuing criminal act.
In this case, there is a broad interpretation of the concept of “apparent crime”, which negates the procedural guarantees provided to judges to protect them from encroachments by the executive branch. This form of protection is provided to judges in order to allow them to fulfill their duties in full independence, without unlawful restrictions on the part of bodies other than the judiciary, or even on the part of judges exercising oversight or complaints handling functions. Moreover, this immunity does not mean impunity: the detention of a member of the Turkish Constitutional Court remained possible under the law, provided that the guarantees provided by the Turkish Constitution and the Law on the Turkish Constitutional Court were respected.
At the same time, it is unclear how the established judicial practice of the Court of Cassation of Turkey on the issue of the concept of “continuing crime” could justify the expansion of the scope of the concept of “apparent crime”.
Accordingly, the manner in which the Turkish law was applied in the present case is manifestly ill-founded. Consequently, the applicant’s detention was not carried out “in the manner prescribed by law”.
(ii) Concerning the effect of Article 15 of the Convention. A broad interpretation of the concept of “apparent crime” cannot be considered as an adequate response to a state of emergency, since its legal consequences far exceed the legal framework of a state of emergency. For this reason, such an interpretation is completely unfounded given the special circumstances of the state of emergency. In any case, a detention order that was not issued “in the manner prescribed by law” cannot be considered as adopted “only to the extent that this is due to the extreme circumstances”.
RESOLUTION
In the case there was a violation of the requirements of paragraph 1 of Article 5 of the Convention (adopted by six votes in favor, with one - against).
(b) Regarding the existence of a reasonable suspicion that the applicant has committed a crime. (i) Concerning compliance with Article 5 § 1 of the Convention as such. The need to combat organized crime cannot justify the extension of the concept of “reasonableness” up to an encroachment on the very essence of the guarantee provided for in article 5, paragraph 1, subparagraph c of the Convention.
The crime referred to at the stage of the detention order consisted of participation in the activities of an illegal organization. However, the fact that the applicant was questioned on this matter prior to his detention shows, at best, that the police had suspicions against him, but did not give him any confidence that he could have committed the crime.
The decision to detain the applicant does not contain any evidence or other evidence or information that would confirm that he had serious suspicions of involvement in an illegal organization. Uncertain and general references to the provisions of the Turkish Code of Criminal Procedure on detention, as well as to the case file, are not enough to confirm the “validity” of suspicions designed to serve as the basis for the applicant's detention, in the absence, on the one hand, of an individual and specific assessment of the materials case, which in the present case concerned 14 suspects, and, on the other hand, in the absence of information that could justify suspicions of the applicant, or of other types okazatelstv or verifiable facts.
As regards the evidence taken into account by the Turkish Constitutional Court in order to establish the “reasonableness” of the suspicions of the applicant’s participation in the activities of an illegal organization, they were obtained much later than the detention order, which is the sole subject of this complaint. Furthermore, the fact that the applicant was subsequently convicted by a court having jurisdiction to decide on the merits of the charges also does not make any difference in the consideration of this complaint. The Government did not provide any other evidence of a “good reason” for suspecting the applicant at the time of his detention.
(ii) Concerning the effect of Article 15 of the Convention. It follows from the foregoing that the impugned detention order cannot be regarded as adopted “only to the extent that this is due to the extreme circumstances”. A different conclusion would negate the minimum requirements of subparagraph “c” of paragraph 1 of Article 5 of the Convention, as regards the necessary justification of suspicions justifying deprivation of liberty, and would be contrary to the purpose pursued by Article 5 of the Convention, all the more so since the impugned detention order referred to in this case of a member of the judiciary, sitting in addition to the highest judicial instance.
RESOLUTION
In the case there was a violation of the requirements of paragraph 1 of Article 5 of the Convention (adopted by six votes in favor, with one - against).
COMPENSATION
In application of Article 41 of the Convention. The Court awarded the applicant EUR 10,000 in respect of non-pecuniary damage; the claim for pecuniary damage was rejected.