Individual Application

The Facts

The applicant, a judge suspended from judicial office in the aftermath of the coup attempt of 15 July for having a link with the Fethullahist Terrorist Organisation/Parallel State Structure (“the FETÖ/PDY”), was detained on remand for his alleged membership of the said terrorist organisation. He was then released pending trial, and his case has been still pending before the incumbent assize court. 

The Applicant’s Allegations

The applicant maintained that his right to personal liberty and security had been violated as his pre-trial detention had been ordered in the absence of any concrete evidence and against the procedural safeguards afforded to members of the judiciary.

The Court’s Assessment

In adjudicating several individual applications lodged with respect to the pre-trial detention of judicial members in the aftermath of the coup attempt of 15 July, the Court examined the question whether there was a legal obstacle -stemming from the procedural safeguards pertaining to the judicial office- to their placement in pre-trial detention. Accordingly, the Court has concluded at the end of the assessments as to the judges holding office at the Court of Cassation and the Council of State (“the Supreme Courts”) that for conducting an investigation against these members even on account of any personal offence, a decision needs to be issued by the relevant boards of the Supreme Courts; and that the only exception to this necessity is the cases of in flagrante delicto.

The main ground underlying the inferior courts’ acknowledgement that there was a situation of discovery in flagrante delicto in respect of the judges of the Supreme Courts placed in pre-trial detention in the aftermath of 15 July is the coup attempt itself. As also noted in several judgments rendered with a sufficient factual basis by the Turkish judicial bodies including the Court, the FETÖ/PDY is the mastermind of the coup attempt. Therefore, it is not unfounded to extend the scope of the concept of discovery in flagrante delicto to the individuals considered to have an organisational link with this organisation, perpetrator of the coup attempt, during a period involving the ongoing efforts to supress the coup attempt, as well as the ongoing severe threat posed to the existence of the State and national security.

The Court, also dealing with the question whether the procedural safeguards, which members of the judiciary are afforded, posed a legal obstacle to the pre-trial detention of the judicial members -detained on remand following the coup attempt- other than the judges serving at the Supreme Courts, has considered that the membership of a terrorist organisation necessitating their detention is a personal offence and characterised as a concept of in flagrante delicto.

“On the other hand, in its Hakan Baş v. Turkey judgment, which has not been finalised yet, the European Court of Human Rights (“the ECHR”) held mainly on the basis of its findings in the Alparslan Altan v. Turkey judgment that the applicant’s detention did not comply with the domestic law as he had been deprived of the procedural safeguards pertaining to judicial office. It accordingly found a violation of Article 5 § 1 (c) of the European Convention on Human Rights (“the Convention”). In this judgment, the ECHR did not accept the Government’s objection to the effect that there was no special procedure for conducting an investigation against, and ordering pre-trial detention of, the applicant due to his personal offences as he was not a judge serving at the Supreme Courts. It appears that in reaching this conclusion, the ECHR reiterated its approach as to the provisions in the Turkish law regarding the concept of in flagrante delicto and as to their interpretation, adopted in its judgment Alparslan Altan v. Turkey where the applicant was serving as a judge at the Constitutional Court at the time of his pre-trial detention. From the ECHR’s point of view, the Turkish judicial bodies’ assessment extending the scope of the concept of in flagrante delicto to the members of the judiciary detained in the aftermath of the attempted coup is ambiguous.

This issue needs to be re-assessed comprehensively in the light of the ECHR’s interpretation of the provisions in the Turkish Law where the procedures to conduct an investigation and/or prosecution against the members of the judiciary and to place them under pre-trial detention are laid down. In this sense, the procedure –within the Turkish law– regarding the pre-trial detention of the judicial members according to their respective positions, as well as the nature of the offences forming a basis for their detention must be clarified.

Accordingly, it should be primarily ascertained whether the Court’s assessment in this respect would impair the binding nature of the ECHR’s judgments. In interpreting the constitutional provisions, notably the ones concerning the fundamental rights and freedoms, the Court takes into consideration in particular the international conventions to which the Republic of Turkey is a party, as well as the remarks of the bodies authorised to interpret such conventions. The first and foremost of such international instruments is the Convention. That is because, the Convention is different than the other international conventions for both pertaining to human rights and being under the supervision of the ECHR, a judicial body the decisions/judgments of which are binding on Turkey.

The Court avails itself of the ECHR’s case-law to a significant extent notably in its examinations and assessments as to individual applications and pays regard to the latter’s approach in determining the meaning and extent of the constitutional provisions on fundamental rights and freedoms. In this sense, the Court also endeavours not to lead to any contradiction with the ECHR’s case-law as a result of its interpretation of fundamental rights and freedoms. Indeed, one of the fundamental aims of the supervision/trial mechanism founded by the Convention is to ensure the establishment of a common European standard in the field of human rights. Therefore, the Court takes into account the ECHR’s case-law in its assessments as to fundamental rights and freedoms, as a requisite of its role to minimise the possible contradictions between national law and international law with respect to the issues on human rights.

The ECHR’s final decisions/judgments are binding; however, it is for the Turkish authorities, holder of public power, and ultimately for the national courts to interpret the provisions of domestic law relating to the pre-trial detention of the members of the judiciary. Although the ECHR is entitled to examine whether the Turkish courts’ interpretation as to domestic law has been in breach of the rights and freedoms safeguarded by the Convention, it should not replace the domestic courts and interpret the national law at first hand. The Turkish courts are in a much better position than the ECHR to interpret the provisions of domestic law.

For this reason, the ECHR reiterates that it is primarily for the national judicial authorities to interpret the domestic law and that its duty is limited to determining whether the effects of such interpretation are compatible with the Convention. The ECHR also points out the fact that it cannot in principle substitute its own assessment for that of the national courts. In this regard, it notes that it is primarily incumbent on the national authorities –in particular the national courts– to resolve the issues related to the interpretation of domestic law.

In this context, it should be underlined that the finding of the ECHR, through the interpretation of the relevant provisions of the Turkish law, to the effect that the detention of the members of the judiciary did not comply with the domestic law is not related to the interpretation of the Convention. In fact, the aforementioned finding of the ECHR is just an explanation regarding the relevant provisions of the Turkish law. This is also the main reason for the Court’s review of a given issue following the relevant judgments of the ECHR. As such, the fact that the Turkish judicial authorities, especially the Constitutional Court, reaches a different conclusion in their determinations and assessments related to the domestic law than the ECHR’s interpretation as to the Turkish law –within the framework mentioned above– should not be regarded as contradicting the place and importance of the judgments of the ECHR in the Turkish legal system.” (see Yıldırım Turan, §§ 113-119).

In the light of the explanations above, the Court has found it useful to examine (anew) thoroughly the statutory provisions regarding the investigation and/or prosecution as well as detention of the members of the judiciary.

The procedure for investigating and prosecuting the members of the judiciary other than the judges serving at the Supreme Courts is regulated by Law no. 2802. According to the relevant Law, as a rule, judges and prosecutors can be investigated for the offences, which are related to their profession or which they have committed while holding office, only upon the permission to be granted by the competent authorities. In the same vein, they can be prosecuted for the offences related to their profession only upon the decision of the competent authority.

On the other hand, there is no statutory provision seeking a permission or decision given by a competent authority in order for an investigation or prosecution to be conducted against judges and prosecutors for their personal offences. However, it should be borne in mind that conducting an investigation merely against the supreme court judges and elected members of the High Council of Judges and Prosecutors (HSYK), even if they are charged with a personal offence, is conditioned upon a decision/permission of certain authorities, save for the cases of in flagrante delicto.

Although Law no. 2802 does not stipulate that there must be a permission or decision given by a competent authority to investigate or prosecute judges and prosecutors for their personal offences –except for the cases of in flagrante delicto– there is a separate regulation included therein regarding the investigation and prosecution authorities. Accordingly, at the time of the applicant’s detention, it was the chief public prosecutor’s office at the assize court closest to the assize court having jurisdiction in respect of his place of residence which was authorised to investigate the personal offences committed by judges and prosecutors, and the said assize court was authorised to conduct the final investigation.

Therefore, these provisions regarding the determination of investigation and prosecution authorities cannot be said to require a permission or decision for the investigation or prosecution of personal offences at the time of the applicant’s detention and in the subsequent period. Hence, there is no legal regulation that prevents judges and prosecutors from being investigated or prosecuted for their personal offences and thereby preventing the application of preventive measures, including detention, or seeking a permission or decision of the administrative authority.

In this case, the determination of whether the membership of an armed terrorist organisation for which the applicant was detained constitutes an individual offence or an offence related to his profession has a decisive importance in terms of the lawfulness of his detention.

As stated in the relevant statutory provisions as well as judicial decisions, the membership of a terrorist organisation imputed to the applicant is a personal offence, and therefore there is no need for a permission or decision of any administrative authority to conduct an investigation against him for the imputed offence and to order his detention as part of preventive measures. Thus, there is no legal obstacle to detain the applicant, who was serving as a judge, for his membership of a terrorist organisation, which constitutes a personal offence.

In this case, as regards the applicant, who was serving as a judge in the first instance court, it does not matter in terms of the lawfulness of his detention whether the membership of an armed terrorist organisation constitutes a case of in flagrante delicto.

In addition, it cannot be said that Law no. 2802 deprives judges and prosecutors from procedural safeguards in case of any personal offence. In this regard, in the absence of a certain decision of the competent judicial authority against the judge and prosecutor concerned, the law enforcement officials cannot apply any preventive measures on ground of their having committed a personal offence.

As a result, the applicant’s allegation that he had been detained in contravention of the procedural safeguards afforded to him by virtue of his profession has been considered ill-founded. Thus, the applicant’s detention had a legal basis.

Besides, it has been considered that the witness statements can be regarded as a strong indication of guilt on the part of the applicant. In addition, the grounds for the applicant’s detention, such as the risks of tampering with the evidence and fleeing, had factual basis. Lastly, the investigation of terrorist offences poses serious difficulties for the public authorities. Considering in particular the scope and nature of the investigations related to the coup attempt or the FETÖ/PDY as well as the characteristics of the FETÖ/PDY, it is obvious that such investigations are much more difficult and complex than other criminal investigations. That being the case, considering the severity of the punishment imposed due to the imputed offence, along with the nature and gravity of the impugned act, it has been concluded that the applicant’s detention was proportionate.

Consequently, the Court has found inadmissible, as being manifestly ill-founded, the alleged violation of the right to personal liberty and security due to the unlawfulness of detention.