ECHR decision of March 03, 2020 in the case "Bash (Bas) V. Turkey"(aplication N 66448/17).
In 2017, the applicant was assisted in preparing the aplication. The aplication was subsequently communicated to Turkey.
The case successfully considered an aplication about the legality of the detention of an applicant suspected of participating in an armed terrorist organization. The case violated the requirements of article 5, paragraph 1, of the Convention for the protection of human rights and fundamental freedoms.
The applicant was a judge suspected of participating in an armed terrorist organization (FETÖ/PDY) that attempted to carry out a military coup in the country on 15 July 2016. He was remanded in custody as part of a pre-trial measure on July 20, 2016, and charged on June 9, 2017.
The applicant first appeared before the judge who decided on the applicant's detention on 19 September 2017, after the trial had begun.
On 19 March 2018, the applicant was found guilty and sentenced to criminal punishment by the assize court ("asliye").
POINT OF LAW
Regarding compliance with article 5, paragraph 1, of the Convention. (a) the Lawfulness of detention under the chosen preventive measure.
(i) article 5, Paragraph 1, of the Convention per se. In the present case, the court reached the same conclusions as in Alparslan Altan V. Turkey (Judgment of 16 April 2019, application No. 12778/17).
The principle of legal certainty may be violated if domestic courts introduce exceptions to their case law that contradict the provisions of applicable law. In this regard, the Turkish code of Criminal procedure defined the concept of in flagrante delicto, which is related to the detection of a crime during its Commission or immediately after. However, according to the new interpretation of the court of Cassation, suspicion of participation in a criminal organization could be sufficient to characterize the element in flagrante delicto without the need to establish any current factual circumstances or other evidence of the crime being committed.
This was an extended interpretation of the concept of in flagrante delicto, denying the procedural guarantees provided to members of the judicial community to protect them from interference by the Executive. This judicial protection was granted to judges in order to ensure their independent work without unlawful restrictions by non-judicial bodies or even by other judges who exercise a Supervisory or Supervisory function.
(ii) Article 15 of the Convention. The broad interpretation of the concept of in flagrante delicto had legal consequences that went beyond the scope of the legal rules governing the state of emergency. Consequently, this interpretation was not in any way justified by the special circumstances of the state of emergency.
In the light of the above, it cannot be considered that the decision to detain the applicant as part of a preventive measure that was not taken "in accordance with the procedure provided for by law" would have been strictly based on the urgency of the situation.
The case violated the requirements of article 5, paragraph 1, of the Convention (adopted unanimously).
(b) the Alleged absence at the time of the applicant's initial detention of a reasonable suspicion that the applicant had committed a crime.
(i) Subparagraph "c" of paragraph 1 of article 5 of the Convention per se. The magistrate's court based its conclusion that there was a reasonable suspicion that the applicant had committed a crime of involvement in the activities of an armed terrorist group on the decision of the Council of judges and prosecutors (HSK) and on the request of the Prosecutor's office to launch an investigation against the applicant the day after the attempted military coup. HSK suspended the powers of 2,735 judges and prosecutors, including the applicant, on the basis of serious suspicion that they were members of a terrorist organization. However, the HSK decision did not contain facts or information that directly or personally concerned the applicant. General and vague references to the Turkish code of Criminal procedure and to the evidence available to the world court could not be considered sufficient in the absence of either a special examination of individual evidence from the case file, or any information that could justify suspicion of the applicant, or any other type of material or facts to be proved. It is clear that the applicant was not suspected of participating in the attempted military coup. Moreover, the Prosecutor's office's instructions were not based on any "facts" or "information" that could serve as a factual justification for actions against the applicant.
The fact that the applicant had been questioned by a magistrate's court in connection with the applicant's involvement in an illegal organization before being taken into custody indicated at most that the authorities did suspect the applicant of having committed the crime in question, but this fact alone would not have convinced an objective observer that the applicant had committed the crime in question. Furthermore, the applicant's subsequent conviction on the merits was not relevant to the consideration of this complaint.
The evidence before the court was insufficient to allow it to accept the conclusion that there was any reasonable suspicion of the applicant at the time of his initial detention. Nor did the Turkish authorities provide any other grounds for "reasonable suspicion" against the applicant.
(ii) Article 15 of the Convention. In interpreting and applying article 5 of the Convention, the European Court had to take into account the problems faced by the Turkish authorities after the attempted military coup in the country. However, difficulties in dealing with terrorism-related issues could not justify expanding the concept of "reasonableness" to the extent that the essence of the guarantee provided for in article 5, paragraph 1 (c), of the Convention was violated. The suspicion against the applicant did not reach the required minimum level of"validity". In such circumstances, it cannot be considered that the measure in question was strictly necessary due to the complexities of the situation.
The case violated the requirements of article 5, paragraph 1 (c), of the Convention (adopted unanimously).
Regarding compliance with article 5, paragraph 4, of the Convention.
(i) article 5, Paragraph 4, of the Convention per se. For one year and two months, the applicant did not appear before the court, which decided on his detention. Such a period of time could not be called "justified".
(ii) Article 15 of the Convention. Indeed, the difficulties that the judicial system was forced to face in the first period after the attempted coup d'etat in the country were such as to justify a derogation under article 15 of the Convention from the right of prisoners to appear before a court that decides on their detention.these arguments gradually lost their force and relevance, while the state of emergency in the state, which threatens the health of the nation, although maintained, became less tense. In this regard, the criterion of extreme necessity should have been applied more strictly.
At a time when it seemed impossible to hold a court hearing with automatic extensions of the period of detention of a person and consideration of applications for release from custody, the law did not exclude this possibility if the participants in the process objected. However, all the applicant's objections in the case were considered and rejected without a court hearing. The applicant never appeared before a judge during the preliminary investigation, although he was detained without charge.
In addition, just a few days after the state of emergency was lifted in the country, a change was made to the legislation, according to which court hearings in cases of crimes falling under the law "on the prevention of terrorist activities" were to be held every 90 days, while the Criminal procedure code of Turkey required a court session every 30 days.
The manner in which the Turkish courts dealt with the issue of the applicant's detention, especially in the first few months, did not imply that the domestic courts had examined whether the measure was inherently lawful. They made decisions against the applicant at the same time as they made decisions against dozens of other prisoners, without specifying individual reasons in each particular case, and the decisions taken in the applicant's case do not indicate that the courts considered the applicant's arguments set out in his requests for release and in the objections to the application of this measure.
When a state is dealing with an emergency that threatens the life of a nation, it will be left defenseless if it is required to do everything at once, to provide from the very beginning each of its chosen actions with every guarantee that meets the priority requirements of the proper functioning of the authorities and the restoration of peace in the community. The interpretation of article 15 of the Convention should leave room for progressive changes. However, in a situation that interfered with a fundamental Convention right, such as the right to liberty, and given the potentially negative consequences of holding a person in custody without charge, the fact that the applicant had not been brought before a court for a long period of time to decide on his detention violated the very essence of the right guaranteed by article 5, paragraph 4, of the Convention, and the failure to hold a trial could not reasonably be considered strictly necessary in view of the need to preserve public safety.
The case violated the requirements of article 5, paragraph 4, of the Convention (adopted by six votes in favor and one against).
The court also rejected as manifestly unfounded the complaint of a violation of article 5, paragraph 4, of the Convention on the alleged dependence and bias of the magistrates ' courts, taking into account, in particular, the constitutional and legal guarantees enjoyed by these courts and the absence of any relevant arguments indicating reasons to doubt the impartiality and impartiality of the courts in the applicant's case.