003-6654580-8844100

issued by the Registrar of the Court   ECHR 081 (2020)   03.03.2020   The pre-trial detention of Mr Baş, a judge, following the attempted coup   of 15 July 2016 breached the Convention   In today’s Chamber judgment1 in the case of Baş v. Turkey (application no. 66448/17) the European   Court of Human Rights held:   by six votes to one, that there had been a violation of Article 5 § 1 (right to liberty and security) of   the European Convention on Human Rights as regards the alleged unlawfulness of the applicant’s   initial pre-trial detention;   unanimously, 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, and   unanimously, that there had been a violation of Article 5 § 4 (right to speedy review of the   lawfulness of detention) on account of the length of the period during which the applicant had not   appeared in person before a judge.   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 pre-   trial 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.   Principal facts   The applicant, Hakan Baş, is a Turkish national who was born in 1978 and lives in Kocaeli (Turkey).   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   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.   Complaints, procedure and composition of the Court   Relying on Article 5 §§ 1, 3 and 4 (right to liberty and security/right to be brought promptly before a   judge/right to speedy review of the lawfulness of detention), the applicant complained about being   placed in pre-trial detention. He disputed that there had been a case of in flagrante delicto. He   argued that there had been no specific evidence giving rise to a reasonable suspicion that he had   committed the alleged offence and thus necessitating his pre-trial detention. He submitted that the   domestic courts had given insufficient reasons for the decisions on his detention. The applicant also   complained that no hearing had been held during the reviews of his detention, that he had not been   provided with a copy of the public prosecutor’s opinion and that access to the investigation file had   been restricted. Lastly, he alleged a lack of independence and impartiality on the part of the   magistrates who had decided on his pre-trial detention.   The application was lodged with the European Court of Human Rights on 30 January 2017.   Judgment was given by a Chamber of seven judges, composed as follows:   Robert Spano (Iceland), President,   Marko Bošnjak (Slovenia),   Valeriu Griţco (Republic of Moldova),   Egidijus Kūris (Lithuania),   Ivana Jelić (Montenegro),   Arnfinn Bårdsen (Norway),   Saadet Yüksel (Turkey),   and also Stanley Naismith, Section Registrar.   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.   The judgment is available in English and French.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. To receive   the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter   @ECHR_CEDH.   Press contacts   [email protected] | tel.: +33 3 90 21 42 08   Denis Lambert (tel: + 33 3 90 21 41 09)   Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)   Inci Ertekin (tel: + 33 3 90 21 55 30)   Patrick Lannin (tel: + 33 3 90 21 44 18)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member   States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   6