Analysis by SCF
A recent judgment by the European Court of Human Rights (ECtHR, the Strasbourg Court) in the case of Hakan Baş v. Turkey contains important findings on Turkey’s interpretation of the principles of criminal law, particularly related to discovery in flagrante delicto and pre-trial practices during a two-year state of emergency declared after a coup attempt on 15 July 2016. With the state of emergency the Turkish government, invoking Article 15 of the European Convention on Human Rights (ECHR, or the Convention) and Article 4 of the International Covenant on Civil and Political Rights (ICCPR), derogated from these international human rights treaties and notified the Council of Europe (CoE) and the United Nations (UN) of this circumstance.
During the state of emergency the Turkish government took quite extensive measures seen by the Council of Europe as ‘blatant violations of principles enshrined in the ECHR, the case-law of the European Court of Human Rights, standards of the Council of Europe, as well as other relevant international standards.’ 
Yet unfortunately only a few cases that originated in Turkey during the state of emergency have thus far found their way to the Strasbourg Court. Hakan Baş is one of them. That is because the Court, recognizing in Köksal v Turkey an ad hoc administrative commission (the Inquiry Commission on the State of Emergency Measures) established due to pressure from the CoE, as an effective remedy, dismissed applications of thousands of other victims of the state of emergency on the grounds of non-exhaustion of domestic remedies. The Inquiry Commission was authorized to consider almost all state of emergency acts and actions (dismissals, dissolutions, confiscations, etc.) of the government with a few exceptions, arrests and pre-trial detentions being two of them. Hence all cases (so far four, Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Hakan Baş) that happened to be reviewed by the Court on the merits involved only the pre-trial detention of the applicants.
In the Hakan Baş judgement, the Court upheld almost all complaints of the applicant on major issues, except one, thus shedding light on the compatibility of Turkey’s emergency practices with the Convention. For this reason, the case deserves a closer look.
- Factual background of the case
Hakan Baş, a judge serving in Turkey’s Kocaeli province, was placed under police supervision on 18 July 2016, three days after the coup attempt of 15 July, at the hospital where he had been admitted for treatment. On 19 July 2016, when he left the hospital to testify to the Kocaeli public prosecutor, he learned that he had been suspended from the bench by a decision of the Council of Judges and Prosecutors (Hakimler ve Savcılar Kurulu, HSK) dated 16 July on the grounds of his suspected membership in the ‘Fetullahist Terrorist Organisation/Parallel State Structure (FETÖ/PDY)’ –- a term coined by the Turkish government for adherents of the faith-based Gülen movement –- held by the Turkish government authorities as being responsible for the coup attempt, an accusation the Gülen movement strongly denies. The applicant denied being a member of or having any links to that organisation. Yet the next day, he was placed in pre-trial detention on suspicion of membership in a terrorist organization. All his subsequent objections to the detention orders by various Turkish courts were dismissed on the grounds that the coup attempt was still ongoing, that the applicant had been suspended from his job by the HSK on the charge of being a member of the organisation that had instigated the attempted coup, that there was a risk not only of flight but also of collusion and reoffending. The relevant Turkish courts also mentioned the nature of the alleged offence and the fact that it was a “catalogue” offence listed in Article 100 § 3 of the CCP according to which there is a statutory presumption of the existence of grounds for detention. Furthermore, they found that there was a situation of discovery in flagrante delicto governed by section 94 of Law no. 2802 on judges and prosecutors.
On 26 December 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been detained in breach of the procedural safeguards afforded to judges in domestic law, that he could not reasonably be suspected of having committed the offence in question and that the reasons given for his detention had been insufficient. He argued that neither the order for his detention nor the decisions extending it had referred to any evidence of a reasonable suspicion that he had committed the alleged acts and that the grounds for his detention were neither relevant nor sufficient. Yet, his application was found manifestly ill-founded and thereby inadmissible by the Constitutional Court on 27 December 2017.
The applicant continued to file objections against his pre-trial detention to no avail. Finally, he was found guilty by the Istanbul 29th Assize Court on 19 March 2018 of the offence with which he was charged (membership in an armed terrorist organisation) and sentenced to seven years, six months’ imprisonment. In reaching its decision, the court relied on the applicant’s use of the ByLock messaging application and evidence given by a witness to the effect that they both belonged to the organisation (Gülen movement).
The applicant brought his case before the ECtHR. He alleged a violation of Article 5 §§ 1, 3 and 4 of the Convention.
The Turkish government invoked its derogation from the Convention during the state of emergency pursuant to Article 15 § 1, which reads as follows:
“[i]n time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”
The Strasbourg Court endorsed Turkey’s derogation by observing that ‘the attempted military coup disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention.’ (para 115). It must be noted that this finding of the court is consistent with its earlier jurisprudence on the legitimacy of Turkey’s derogation from the Convention.
- b) Lawfulness of the pre-trial detention
After dismissing some preliminary procedural objections of the respondent government, the Court started its review on the merits of the case first on the lawfulness of the pre-trial detention under Article 5 § 1 of the Convention, to wit whether he was deprived of his liberty “in accordance with a procedure prescribed by law.” The Court clarified that
‘[T]he Convention refers [by lawfulness] essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness.’ (para 143)
For that purpose, the Court must further establish whether domestic law itself conforms the Convention, including the general principles expressed or implied therein, notably the principle of legal certainty.
The principle of legal certainty relates to the ‘quality of the law,’ hence requires the impugned domestic law be compatible with the rule of law, a concept inherent in all the Articles of the Convention. “‘Quality of the law’ in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness.” (para 143)
The Court observed that in Turkish law, investigations and proceedings concerning offences committed by judges and public prosecutors except the most senior ones are governed by Law no. 2802, which differentiates between offences committed in connection with or in the course of official duties and personal offences. In accordance with section 82 of Law no. 2802, the initiation of a criminal investigation with respect to judges or prosecutors for offences committed in connection with or in the course of their official duties was subject to authorisation by the Ministry of Justice except in cases of discovery in flagrante delicto, in which case there is no need to observe to obtain the Ministry of Justice’s authorization. The applicant’s pre-trial detention was justified, obviously, by domestic courts on a leading judgement of the plenary criminal divisions of the Court of Cassation dated 26 September 2017 in which it 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 which suffices to put a member of the judiciary in pre-trial detention without observing the procedural safeguards.
The Court then observed that although the national courts have the primary responsibility for interpreting and applying domestic law, it has to verify whether the way in which domestic law is interpreted and applied in the cases before it is consistent with the Convention. Thus, noting that Article 2 of the Turkish Code of Criminal Procedure provides a conventional definition of the concept of in flagrante delicto, which is linked to the discovery of an offence while or immediately after it is committed, the Court rejected the unconventional and far-fetched interpretation made by the Court of Cassation of the concept of in flagrante delicto dated 26 September 2017. According to the Court, the Court of Cassation’s qualification of the continuing offence as discovery in flagrante delicto, ‘without the need to establish any current factual element or any other indication of an ongoing criminal act’:[A]mounts 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, including the applicant. As a result, this interpretation negates the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive. (para 153, see also Alparslan Altan, para 112)
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, in the present case are not only problematic in terms of legal certainty, but also appear to be manifestly unreasonable. (para 156, see also Alparslan Altan, para 115)
Thus, intervening in the substance of a domestic case, the Court made it clear that such a ‘twisted’ interpretation of a principle of the Criminal Procedure (in flagrante delicto) falls foul of the Convention, which has previously been characterised by the Court as the constitutional instrument of European public order.
b.1) The impact of the derogation on the Court’s assessment
The Court always examines an emergency measure first under the higher threshold of the limitation clauses of the relevant substantive articles of the Convention. If the impugned emergency measure fails thereunder, the Court tries to see whether it can be justified under the lower threshold of Article 15.
Under its review under Article 15 of the Convention, the Court noted that the legislation applicable in this case, namely Article 100 of the CCP and the provisions of Law no. 2802, were not subjected to any amendments during the state of emergency. The pre-trial detention of the applicant was effected on the grounds of legislation which was in force prior to and indeed after the declaration of the state of emergency. Accordingly, the Court held that:[A]n extensive interpretation of the concept of in flagrante delicto can clearly not be regarded as an appropriate response to the state of emergency. Such an interpretation, which, moreover, was not adopted in response to the exigencies of the state of emergency, is not only problematic in terms of the principle of legal certainty, but also, as already noted, negates the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive. In addition, it has legal consequences reaching far beyond the legal framework of the state of emergency. Accordingly, it is in no way justified by the special circumstances of the state of emergency.
Therefore, the Court found a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant’s initial pre-trial detention.
- c) Reasonable suspicion that the applicant committed an offence
Under the reasonable suspicion clause as set forth by Article 5 § 1 (c), the applicant alleged that there had been no facts or information that could satisfy an objective observer that he had committed the offence he was accused of. He further complained that that the successive magistrates’ courts that had decided on his detention had not referred to any concrete evidence linked to the alleged offence. No earlier than 4 April 2017, more than eight months after his initial detention, had a decision on the subject been based on a specific item of evidence, namely a police report on the ByLock messaging application, indicating his use of the application. The applicant also disputed the reliability of the statements by the witness C.U., who had likewise been suspected and detained on grounds linked to the ‘FETÖ/PDY’ organisation and had subsequently been released after giving evidence against him.
On its examination under this article, the Court made it clear that ‘[h]aving a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.’ (para 171). However, ‘facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation.’ (para 172) It has, after all, consistently held that:
When assessing the “reasonableness” of a suspicion, the Court must be able to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. Consequently, the respondent Government has to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence.’ (para 174)
The Court, although acknowledging the difficulties facing Turkey in the aftermath of the attempted military coup, emphasised that “the exigencies of dealing with terrorist crime cannot justify stretching the notion of “reasonableness” to the point where the essence of the safeguard secured by Article 5 § 1 (c) of the Convention is impaired.” (para 184).
The Court then pointed to the fact that the relevant evidence, to wit, he was a user of the ByLock application, was not adduced until long after the applicant’s initial detention. The magistrates ruling pointing for the first time at this piece of evidence as a ground for rejecting his objection to his pre-trial detention was given on 4 April 2017, more than eight months after he had been placed in pre-trial detention, and that all his repeated objections on this score were dismissed or left unaddressed by local courts including the Constitutional Court.
With respect to the HSK’s decision with which it 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 and which had constituted the preliminary legal basis for the applicant’s pre-trial detention, the Court noted that ‘the HSK relied on information and documents in the files on the investigations it had conducted prior to the coup attempt, and on information subsequently obtained following research by the intelligence services’ (para 187). The Court accordingly made it clear that HSK’s decision “does not contain any “facts” or “information” relating directly and personally to the applicant. He does not feature among the individuals mentioned as being the subject of disciplinary and criminal investigations in the decision, and his name does not appear at all.” (ibid).
Under such circumstances, not seeing it necessary to address the question whether information from the intelligence services can be taken into consideration as the basis for detention, “the Court considered that the mere reference by the Kocaeli magistrate’s court to the HSK’s decision is insufficient to support the conclusion that there was reasonable suspicion justifying the applicant’s pre-trial detention.” (paras 189, 190) Hence the Court found that the requirements of Article 5 § 1 (c) regarding the “reasonableness” of a suspicion justifying detention had not been satisfied.
c.1) The impact of the derogation on the Court’s assessment
On the impact of the derogation, the Court reaffirmed that:[W]hen it comes to consider a derogation under Article 15 of the Convention, it allows the national authorities a wide margin of appreciation to decide on the nature and scope of the derogating measures necessary to avert the emergency. Nonetheless, it is ultimately for the Court to rule whether the measures were “strictly required”. In particular, where a derogating measure encroaches upon a fundamental Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine response to the emergency situation, that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse. (para 196)
The Court first observed that the applicant’s detention was ordered by the Kocaeli magistrate’s court on suspicion of membership of a terrorist organisation in accordance with Article 100 of the CCP, a provision that was not amended during the state of emergency. According to the Court ‘the difficulties facing Turkey in the aftermath of the attempted military coup of 15 July 2016 are undoubtedly a contextual factor which the Court fully considered in interpreting and applying Article 5 in the present case, it does not mean that ‘the authorities have carte blanche under Article 5 of the Convention to order the detention of an individual 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.’ (para 199)
Noting that the applicant’s pre-trial detention on 20 July 2016 was effected in the absence of any reasonable suspicion, thus the suspicion against him at that time did not reach the required minimum level of reasonableness, the Court declared that the measure in issue cannot be said to have been strictly required by the exigencies of the situation. Therefore, the Court concluded that there has 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. (para 201).
- d) Lack of a hearing during the review of detention
Relying on Article Article 5 § 4 the applicant also complained that the reviews of his detention had taken place without a hearing for a period of approximately fourteen months and that this could not be deemed proportionate from the standpoint of Article 15 of the Convention.
The Court noted that the applicant was placed in pre-trial detention on 20 July 2016 after being heard by the Kocaeli magistrate’s court and that the next time he appeared before a court was on 19 September 2017 when his trial had begun, approximately one year and two months after his initial pre-trial detention. Both his applications for release and his objections were examined by the courts without a hearing. In the Court’s view, where personal liberty is at stake, a period of one year and two months without a court hearing – as in the present case – cannot be described as “reasonable.”
The impact of the derogation on the Court’s assessment
Under its assessment on the impact of Turkey’s derogation the Court argued that:
In the Court’s view, given the difficult situation in the Turkish judicial system in the aftermath of the coup attempt, as outlined by the Constitutional Court in its Aydın Yavuz and Others judgment […], the restriction by Legislative Decrees nos. 667 and 668 of the right of detainees to appear before the judges deciding on their detention was undoubtedly a genuine response to the state of emergency and was justified in the light of the very special circumstances of the emergency. (para 222)
“While it is true that the difficulties with which the country, and specifically its judicial system, had to contend in the first few months after the coup attempt were such as to justify a derogation under Article 15 of the Convention, the same considerations have gradually become less forceful and relevant as the public emergency threatening the life of the nation, while still persisting, has declined in intensity. The exigency criterion must therefore be applied more stringently. (para 224)
Thus, the relevant emergency legislation on pre-trial detention remained in force throughout the duration of the state of emergency for a period of about two years. The restrictions were not eased over time. The Strasbourg Court noted that the domestic courts’ manner of reviewal of the applicant’s detention does not indicate that they considered whether this restrictive measure was necessary. According to the Court:
When giving their decisions on the applicant’s detention, the judges in question were doing the same for dozens of other detainees without providing specific reasons in each individual case, and the decisions do not contain any indication that consideration was given to the arguments put forward by the applicant in his applications for release and his objections. (para 228)
The Court held that the fact that for such a lengthy period the applicant did not appear before the courts deciding on his detention impaired the very essence of the right guaranteed by Article 5 § 4 of the Convention, and this lack of a hearing cannot reasonably be regarded, even in the situation of an emergency, as having been strictly required for the preservation of public safety. The Court therefore concluded that there has been a violation of Article 5 § 4 of the Convention on account of the length of time during which the applicant did not appear in person before a judge. (para 230, 231)
- e) Alleged lack of independence and impartiality of the magistrates’ courts
The applicant alleged that the magistrates’ courts that had ordered his initial and continued pre-trial detention were not independent because they had not based their decisions on specific evidence showing that he had committed the offence with which he had been charged. He claimed that the day after the coup attempt, the magistrates’ courts had ordered on a massive scale the pre-trial detention of 2,735 judges and prosecutors, acting on the instructions of the Ankara public prosecutor and relying solely on the decision by the HSK. The applicant made similar allegations towards the Constitutional Court and the Court of Cassation, citing some reports to that effect by NGOs and international organizations such as the Parliamentary Assembly of the Council of Europe, the Council of Europe Commissioner for Human Rights and the EU.
The Court noted that “both independence and impartiality are important constituent elements of the notion of a ‘court’ within the meaning of Article 5 § 4 of the Convention.” (para 266) The Court further pointed out that “in deciding whether there is a legitimate reason to fear that a court lacks independence or impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether such fears can be held to be objectively justified.” (para 268)
The Court then commented on the magistrates’ courts. According to the Court:
– “the magistrates’ courts have been established by law… [they are] therefore the rightful judicial authorit[ies] for matters relating to detention.” (para 270)
– “the establishment of the magistrates’ courts was designed, firstly, to end the dual system of first-instance courts in criminal matters (criminal courts of first instance and criminal courts) and, secondly, to allow specialisation regarding preventive measures. The purpose of the legislation was, by promoting specialisation among judges, to harmonise the implementation of preventive measures and achieve a standard.” (para 271)
-“there is no indication that the magistrates ruling on the applicant’s detention harboured any prejudice or bias against him personally.” (para 272)
– “magistrates enjoy constitutional safeguards in the performance of their duties, including security of tenure.” (para 273)
– “there is no indication that the Minister of Justice, a member of the HSK, was able to issue instructions to judges in the performance of their judicial functions, or that there was any relationship of subordination in terms of duties and organisational structure” (para 274)
Furthermore, according to the Court the allegation that the executive controlled the judiciary in general – either because judges gave decisions along similar lines to statements by the executive, or because sanctions were imposed on them (transfers or reassignments) for adopting particular decisions or for supporting the YARSAV trade union for judges and prosecutors – amounts to criticism of the judiciary in general, and not of the magistrates’ courts specifically (para 275).
Consequently, the Court “is unable to establish, on the basis of the material in its possession, any correlation between the statements by the executive and the decisions by the magistrates’ courts, or indeed between the transfer of judges and those decisions. The Court observes in this connection that the decisions relating to the transfers in question were taken by the HSK, the body authorised by law to take such decisions.” (para 276).
The Court then takes one step further and strangely enough distorts the argument of the applicant. The Court claimed that “[t]he applicant did not maintain that the magistrates who had decided on his detention had been transferred or assigned different duties before the expiry of their terms of office.” Of course, this is not what the applicant claimed. What he on the contrary claimed is that the magistrate courts who decided and later on maintained his pre-trial detention were under such heavy pressure and influence of the executive that they could not have but ordered his pre-trial detention. To that effect he adduces statements and reports from credible international organizations which the Court unfortunately ignored. Conversely in Selahattin Demirtaş v Turkey (No 2) App no 14305/17 (ECtHR, 20 November 2018) the Court found a predominant ulterior purpose behind the pre-trial detention of a prominent politician, thus established for the first time a bad faith on the part of Turkey under Article 18 of the Convention which stipulates that the rights enshrined in the Convention be limited only on the limitation grounds provided by the Convention. In arriving at this conclusion the Court pointed to the “the reports and opinions by international observers, in particular the observations by the Commissioner for Human Rights, [that indicated] that the tense political climate in Turkey during recent years has created an environment capable of influencing certain decisions by the national courts, especially during the state of emergency.” (Selahattin Demirtaş v Turkey, para 271). Furthermore, according to the Court, “an objective observer might suspect that the extension of the pre-trial detention of the applicant was politically motivated, even though the offences with which he was charged were not overtly political.” (ibid para 264)
The Court then considers that:[H]aving 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, pursuant to Article 35 §§ 3 and 4 of the Convention.” (Hakan Baş, para 278)
Yet, this holding of the Court comes with this caveat: “[t]his conclusion in no way prejudices any subsequent review of the question of the independence and impartiality of the magistrates’ courts.” (para 281)
Thus, the Court found that Hakan Baş’s pre-trial detention was unlawful and devoid of any reasonable suspicion under Article 5 § 1, and too lengthy under Article 5 § 4 of the Convention. Furthermore, these those excesses cannot be said to have been strictly required by the exigencies of the emergency situation. In other words, the existence of an emergency cannot legitimize those violations. Thereby the Strasbourg Court rejected two objectionable practices that have been plaguing the Turkish judicial system in the Erdoğan era: Firstly, using pre-trial detention as a punitive rather than a preventive measure, that is, arresting people on political motivations and then subsequently providing (in many cases, concocting) evidence to substantiate the detention; and secondly, distorting the universal principles and concepts of the law such as discovery in flagrante delicto to obtain a desired outcome.
One deplorable fact is the Court’s failure to see the true nature and function of the magistrates’ courts. They have been established not “to end the dual system of first-instance courts in criminal matters” and “to allow specialisation regarding preventive measures” as portrayed by the Court. On the contrary, they have been established to be used as a scourge against dissidents through handing down arrest decisions in line with the will of the government. This misconception and misrepresenting of the function of the magistrates’ courts by the Strasbourg Court can be attributed on the one hand to the enormous workload that would originate from Turkey in the event of a judgement questioning the independence and impartiality of those courts. On the other hand, it also has to do with the failure of the applicant and his lawyer to sufficiently substantiate their claims.
 Hakan Baş v Turkey App no 66448/17 (ECtHR, 3 March 2020)
 The Commissioner for Human Rights, ‘Memorandum on freedom of expression and media freedom in Turkey’ CommDH(2017)5, 15 February 2017, para 22
 Köksal v Turkey App no 70478/16 (Admissibility Decision) (ECtHR, 12 June 2017)
 Mehmet Hasan Altan v Turkey App no13237/17 (ECtHR, 20 March 2018)
 Şahin Alpay v Turkey App no 16538/17 (ECtHR, 20 March 2018)
 Alparslan Altan v Turkey App no 12778/17 (ECtHR, 16 April 2019)
 See Şahin Alpay v Turkey, para 77; Mehmet Hasan Altan v Turkey, para 93; Alparslan Altan v Turkey, paras 73-74). Yet, the Court notes that the applicant was initially detained one day before the state of emergency took effect (21 July)
 European Court of Human Rights, ‘Guide on Article 15 of the European Convention on Human Rights; Derogation in Time of Emergency’ (European Court of Human Rights, updated on 31 December 2018 available at <https://www.echr.coe.int/Documents/Guide_Art_15_ENG.pdf> pp. 6-9; see also A. and Others v the United Kingdom [GC] App no 3455/05 (ECHR,10 February 2009), para 161
 Selahattin Demirtaş v Turkey (No 2) App no 14305/17 (ECtHR, 20 November 2018)