- On April 16, 2019, ECHR held an individual application lodged by the former member of the Constitutional Court (CC), Alparslan Altan, and decided that there had been two violations of the right to liberty and security (Article 5). On the one hand, this decision concerns all judges and prosecutors arrested after July 15, 2016, while on the other hand, they contain justification for the vast majority of those arrested after the coup attempt. Therefore, it deserves legal evaluation.
- Alparslan Altan, a former CC member, was taken into custody on July 16, 2016 and arrested on 20 July 2016 on charges of being a member of a terrorist organization. Mr. Altan appealed immediately to the arrest decision, stating that he had been arrested without any concrete evidence and his arrest was contrary to domestic law.
- On August 4, 2016, the General Assembly of the Constitutional Court cancelled Mr. Altan’s CC membership in accordance with Decree No. 677 article 3. “Social information” and ” public opinion formed in time” were shown as the justification to the decision to cancel his membership. 
- On August 9, 2016, Ankara Criminal Court of Peace refused the appeal. Mr. Altan’s subsequent eviction requests were also rejected by various judges. After the indictment was issued (civil lawsuit), the 9th Criminal Chamber of the Supreme Court decided the continuation of Mr. Altan and the applicant was jailed pending trial.
- On September 7, 2016.Mr. Altan submitted an individual application to the Constitutional Court.
- On January 11, 2018, Constitutional Court rejected the application. The CC considered that there was a suspect of strong offenses based on “secret witness statements, a suspect’s statement (CC former rapporteur), telephone signaling information, and the use of ByLock. Having regard to the extraordinary circumstances of the particular incident, the Constitutional Court decided that the arrest of the applicant was modest and based on legitimate grounds. The applicant’s complaint that he was a member of the CC and that he was therefore subject to special investigative and judicial proceedings was dismissed by the CC on the ground that he had been accused of membership of an armed terrorist organization which was under the jurisdiction of assize court.
- On 15 January 2018 (18 months after the date of his arrest) an indictment against the applicant was prepared by Supreme Court Prosecutor’s Office in accordance with Turkish Criminal Law Article No. 314 on the charge of being a member of a terrorist organization called “FETÖ/PDY”.
- On March 6, 2019, the Supreme Court 9. Penal Chamber sentenced Mr. Altan to 11 years and 3 months’ imprisonment on charges of membership to a terrorist organization.
- As of the date of this decision, the applicant Mr. Altan is a detainee and the trial is pending at the appeal stage. The applicant’s two separate applications are pending before the CC in the decision date.
B. Applicant’s Complaints
- On his first application to ECHR on January 16, 2017, he claimed that he had been arrested in the breach of domestic law (CC Law no. 6216)
- Secondly, he claimed that he had been arrested without any specific evidence of a criminal offense and that his detention had been extended by the domestic courts on the grounds of insufficient reasons.
C. ECHR Evaluation
- ECHR analyzed the applicant’s complaints under the ECHR articles 5 §§ 1 and 3.
a) Complaint that detention is in breach of domestic law
- Since the applicant Mr. Altan was a member of the Constitutional Court at the time of the arrest, he maintained that unless he had been subjected to heavy punishment in the light of his conviction and that the General Assembly of the Constitutional Court had not decided, no investigation could be opened and he could not be arrested in accordance with the article No. 16 of the Constitutional Court Act Law No. 6216. He argued that he had been detained on the basis of unlawful act despite the fact that he was not in flagrante delicto case but had been deprived of his liberty not in accordance with a procedure prescribed by law.
- Pursuant to Article 16 of Law No. 6216, the president and members of the Constitutional Court shall be investigated in accordance with the provisions of the general law (CCP) in the case of an flagrante delicto which falls within the jurisdiction of the Assize Court. He can therefore be arrested in accordance with the provisions of the CCP.
- ECHR first examines what flagrante delicto means. ECHR examined Supreme Court’s decision on this issue, dated October 10, 2017 and Law of Criminal Procedure Article No. 2. together in order to decide whether the applicant was in flagrante delicto state.
- As stated in the ECHR decision, Supreme Court’s judgment on October 10, 2017: “If a judge is caught on suspicion of a member of an armed organization, he is in flagrante delicto” as being a member of a terrorist organization is a continual crime.
- However, according to ECHR, CCP article No. 2 has defined the state clearly. According to this decision: “flagrante delicto state states crime that is being committed or just after the crime has been committed…or the suspect caught with stuff explicitly showing that he has committed the crime”.
- As stated in the ECHR judgment, according to Supreme Court’s Decision on October 10, 2017, “There is a sufficient suspicion of membership in the armed organization and there is no need for any actual facts or evidence of concrete crime being committed.”
- According to the ECHR, this interpretation of the Supreme Court, is against the definition of flagrante delicto state in CCP Article No.2. and the definition of flagrante delicto state was extended. However, it has not been explained in the Supreme Court’s decision how the “concept of constant crime” legitimized the extension of the concept of an flagrante delicto state that is linked to the existence of the offense being committed. According to ECHR, the extension of the concept of flagrante delicto state by the national judicial bodies and the application of it in the present case posed a problem in terms of legal certainty and it seems manifestly unreasonable.
- Therefore, the deprivation of the applicant from his liberty was to deprive the applicant of the procedural safeguards granted to the Constitutional Court by Law no. 6216, by holding the applicant deprived of his liberty. 5 § 1 ordered “in accordance with the procedure prescribed by law” that it is contrary to the retention policy (equivalent phrase, “flagrante delicto” concept, it leads to the conclusion that the applicant was arrested ignoring legal safeguards. Added).
- According to ECHR, extensive interpretation of flagrante delicto state and its implementation is not only problematic in terms of legal security policy but also protecting judiciary bodies from the interference of Executive bodies. This extensive interpretation and practice has led to legal consequences beyond The State of Emergency and cannot be justified by the special circumstances of the State of Emergency.
- As a result, according to the ECHR, the deprivation of the applicant from his liberty was not in accordance with “a procedure prescribed by law” (in breach of domestic law) (According to Article 5 § 1 of ECHR, depriving suspects from their liberties should be based on domestic law and detentions should be in accordance with domestic law).
- Since the applicant was deprived of liberty in violation of domestic law 6216, § 16, ECHR Article 5 § 1 was also violated.
b) Complaint about arrest without reasonable doubt
- The ECHR analyzed whether there was objective information or findings indicating the existence of a reasonable suspicion at the time of the first detention . In this respect, ECHR noted in particular that it could decide whether there were any objective evidence of the applicant’s detention and detention during the first deprivation of liberty.
- First, the rationale in the Constitutional Court’s judgment was summarized. According to this decision, it was determined that CC rejected the complaint of being detained without reasonable doubt on the grounds of “two secret witness statements, witness statements of the former rapporteur of CC, messaging with other people through ByLock, signal information on the telephone line, and records for overseas visits”
- According to the findings of the ECHR, the above-mentioned evidence was obtained much later than the date on which the applicant was taken into custody. The first was obtained on August 4, 2016, more than two weeks after the date of arrest. Other witness statements and evidence were obtained after a considerable period of time. The applicant contended in his all submissions that there was no concrete evidence to substantiate his detention on a permanent basis. The Constitutional Court rejected the application without examining this argument. The government remained silent in this respect.
- ECHR noted that there was no evidence at the time of the applicant’s first arrest , and that the evidence in question was subsequently obtained and added:, Subsequently, the evidence collected did not exclude the obligation of the national authorities to provide sufficient factual basis to justify the applicant’s detention . “National authorities as of the first arrest, are obliged to present material evidence that would justify detention. Otherwise, the article eliminates the reason for the existence of ECHR’s 5th article (protecting individuals against arbitrary and unlawful deprivation of freedom).
- After ECHR determined that Mr. Altan had not participated in the events of 15 July 2016, he was charged only with the membership of a terrorist organization and dispatched by Ankara public prosecutor’s office with the charge of “being a member of terrorist organization.” However, he stated that the Government had been unable to submit any substantive evidence or factual basis to indicate that the prosecution’s claim was correct.
- ECHR noted that there had been no substantive evidence of a strong suspicion of a criminal offense in the arrest warrant. According to the ECHR, that the criminal court of peace made general and undisclosed references to the statements of the detention conditions in CCP article No.100 is not sufficient to show the existence of reasonable doubt; in this respect, the arrest warrant is devoid of any material facts or findings which may be used to individually assess the evidence elements, to justify the suspicion against the applicant, or to check the accuracy of the facts.( In respect of the ECHR, there is no point in giving the general statements written in the law in the arrest order; To indicate suspicion of a crime, it is necessary to specify and examine the concrete evidence elements in the file individually in order to indicate the applicant’s suspicion that he / she has committed a crime, and / or any other material findings or facts which can be controlled in reality. Added)
- ECHR determined, in the first arrest warrant, that no reasonable doubt (of the specified type) or concrete evidence (specific event or information) had been found which would justify the arrest however Mr. Altan had still been arrested.
- In the light of the aforementioned analyzes, ECHR considers that there is insufficient evidence to substantiate the arrest at the stage of detention and that the Government’s explanations are not in accordance with the Convention. 5 § 1 (c) ‘s.
- According to ECHR, the existence of reasonable doubt (based on concrete facts, information, evidence or material evidence) on the deprivation of liberty forms the main part of the assurance provided in Article 5 § 1 (c).
- As a result, the deprivation of the applicant’s liberty is based on a “mere suspicion” in terms of membership to a criminal organization and such suspicion cannot legitimize a person’s detention. The measure of arrest is not a measure which is definitely required by the situation in the concrete case, but thinking the opposite means eliminating the cause of existence of the ECHR Article 5 § 1 (c) (anyone cannot be deprived of the liberty without reasonable doubt based on concrete evidence) and article 5 (arbitrary arrest cannot be made). Moreover, the detention of a member of a supreme court (the Constitutional Court) in the present case is in question, and ECHR considers these situation as particularly important.
- ECHR concludes that the ECHR Article 5 § 1 (c) has been violated (the applicant had been arrested without reasonable suspicion).
c) Complaint about continued detention for insufficient reasons
- Having decided that ECHR Article 5 § 1 (c) was violated, ECHR did not find it necessity to examine whether the continuation of detention pending had sufficient and relevant grounds (Article 5 § 3)
- ECHR sentenced the Republic of Turkey to pay10 000 euros to the applicant for non-pecuniary damage.
D. Results of the ECHR’s Alparslan Altan Decision
a) Results for judicial members arrested after July 15, 2016
- ECHR’s decision of Alparslan Altan and Turkey is very important in terms of being the first case-law for all judges and prosecutors who were arrested for allegedly being in “flagrante delicto” after 15 July 2016.
- The ECHR did not accept national jurisdictions that the members of the judiciary who did not participate in the events of 15 July 2016, committed a criminal offense by being the member of a terrorist organization. Just as the UN Working Group on Arbitrary Detention (UN WGAD), ECHR did not accept the interpretation of the Supreme Court, which was contrary to the definition “flagrante delicto” in law.
- In February 2019, UN WGAD reiterated the same case-law about a former Supreme Court member, Hamza Yaman, and rejected the defense of the Turkish authorities that there had been an flagrante delicto at any moment for this crime and the offense of membership in a terrorist organization continued.
- The doctrine of flagrante delicto state imposed on nearly 4000 judges and prosecutors was not accepted by the ECHR and the first and second degree judges and prosecutors had been deprived of their liberties in not accordance with Law No. 2802 Article 88 (violation of domestic law). For this reason, it is highly probable that all the members of the judiciary who have exhausted the domestic law and applied to the ECHR in this respect are likely to be exposed to violation in this respect.
- Since it is assumed that he is not in a flagrante delicto state, all first and second degree court judges and prosecutors have been arrested and prosecuted by unauthorized judges, and it is useful for those who are arrested to put forward all these complaints in accordance with this procedure.
- In the arrest of former Supreme Court and Council of State members, the possibility of a similar decision to Alparslan Altan’s, a former member of the Constitutional Court, is very high; According to the laws of the Supreme Court and the Council of State, members of these courts can only be arrested under the general provisions in case of heavy punishment. The possibility of a violation is almost certain, as in the instant case, the offense is not accepted as flagrante delicto.
Violation of the right to trial for judges and prosecutors before a court established by law (ECHR Article 6)
- In addition to those described above, besides the right to liberty and security, the judges and prosecutors whose prosecutions are concluded and whose penalties have been imposed by the Supreme Court are justified by a very important violation which must be brought before the CC and the ECHR in the case of ‘ right to a fair trial.
- On July 16, 2016, HSYK 3. Chamber issued an “investigation permit” about 2745 judges and prosecutors and this permit was also approved by HSYK president.
- HSYK decision dated 16/07/2016 No. 2016/7900 and decision No. 2016/9052
- The following statements in the last part of the 70-page decision of the Chamber is written: Regarding “The aforementioned (2740 judges and prosecutors), It was unanimously decided to make a proposal to the Chairman of the Board for permission to investigate these Judges and Prosecutors in accordance with Law No. 2802 Article. 82. As the offense, “Violating the Constitution, crimes against the legislature, crimes against the government, armed rebellion and armed organization offenses against the Republic of Turkey” are shown.
- On page 44 of the 667-page HSYK decision dated 16/7/2016, the following statement was taken: “the proposal (regarding 2745 judges and prosecutors) of High Council of Judges and Prosecutors 3. Chamber dated 16/07/2016 No. 2016/7900 and investigation permit No. 2016/9052 was “approved” by President of Board on 16/07/2016. The Supreme Board of Judges and Prosecutors examined the preliminary report and its annexes dated 16/07/2016, which were arranged by HSYK Chief Inspector Ömer KARA assigned with the assignment No. 2016/282 on 16/07/2016.”
- As we can see from these two documents, it is an absolute fact that on July 16, 2016, HSYK granted a permission to investigate 2745 judges and prosecutors.
- In accordance with Article 159 § 9 of the Constitution, it is compulsory for judges and prosecutors to be given permission to investigate only for crimes committed during the duty or for duty. In case of personal offenses (Article 93 of Law no. 2802) and in case of heavy punishment (Article 94 of Law No. 2802), an investigation permit is not given; the authorized prosecutor opens and conducts direct investigation.
- According to Article 159 § 9 of the Constitution, after 15 July 2016, the investigation permit was granted, and judges and prosecutors tried after the coup were tried for 9 “duty offenses. Thinking the otherwise leads to the conclusion that the HSYK is wasting its time. It is obvious that HSK consisting of a minimum 20 years experienced legal experts may not waste its time.
- Furthermore, the provision of Article 161 § 8, which was added to the CCP in 2014, cannot be applied to judges and prosecutors since it cannot be contrary to the Constitution (Article 159 § 9).Pursuant to Article 161 § 8 of CCP, in the case of terrorist offenses , the prosecutor may conduct a direct investigation without the permission of the public official who is alleged to have committed a crime due to his / her duty or during the duty. However, it is an obligation to “obtain an investigation permit” in the duty offenses of judges and prosecutors which stem from the Constitution. Therefore, in accordance with the provision of the Constitution, no investigation can be made without the permission of HSK on duty offenses; No inquiry can be made. Laws cannot be contrary to the Constitution (CC Article 11).
- Considering the investigation permission of HSYK on 16 July 2016, since the first and second degree judges and prosecutors were tried for “duty offenses, the judicial authority for duty offenses was given in Article 90 of Law no.2802. According to this provision, the trial (prosecution) of the first-degree judges and prosecutors can only be done by Supreme Court 16. Chamber and Appeal authority is General Board od Supreme Court. Other judges and prosecutors can be tried Assize Courts of the province closest to where they are working.
- However, judges and prosecutors tried after July 15, 2016, were tried in the Assize Court of Provinces where Regional Court of Justice (the court they are working for was under its authority) was located. On 20 July 2016, the appellate courts (which were subsequently established) did not need retrial and, without repeating all proceedings, approved the decisions on the file.
Given the fact that the Supreme Court was not a fully-authorized court, judges and prosecutors had not been tried by a “court established by law, and that their right to a fair trial had been violated (ECHR Article 6, CC Article 37, 142).
- Same situation is valid for the members of the former Supreme Court and Council of State, district governors and governors, diplomats and so on. (the provisions of the Decree Law no. 680). The members of the former Supreme Court and the Council of State were tried by courts(Supreme Court 9. Chamber) accepted with a Decree (not even by law) and appeal authority was also determined by Decree. However, in accordance with the CC Article. 37 and 142, courts can only be established and authorized by law. As a result, the former members of the Supreme Court and the Council of State are tried and convicted in violation of their right to fair trial before “courts previously established by law “This includes former CC members Alparslan Altan and Erdal Tercan.
- What should be done in this case is as follows: The above-mentioned must be brought before Courts and it should be noted that the right to a fair trial had been violated. As reference, ECHR’s decision on Coeme and others v. Belgium and Lavents v. can be noted. After the punishment was approved and confirmed by Supreme Court, it must be asserted that he had made an individual application to the Constitutional Court within 30 days which is the legitimate time period and that his right to a fair trial had been violated due to an unlawful trial.
- It should not be forgotten that this new application is independent of the right to freedom and security. If there is a violation of the right to a fair trial (Article 6 of the ECHR), all proceedings will collapse and a retrial will be made. However, ECHR Article. 5 means “illegal deprivation of liberty”.
- Our recommendation is that all judges and prosecutors (civil servants, diplomats, etc.) in this case must submit the complaint to the Constitutional Court with justification and submit to the ECHR within the term after the CC decision and claim that the right to a fair trial had been violated. In addition, the execution of the sentence based on the court which was not established by the law can be brought forward as a violation of the right to liberty and security since it is not based on the punishment imposed by an independent, impartial and pre-established court in the sense of ECHR Article 5 § 1 (a). This complaint is a different complaint from the one summarized above regarding Mr. Alparslan Altan.
- In addition, it can be and should be asserted that the trial courts are not independent and impartial, taking reports released on internet named as “independent reports regarding independence” into account. Both the Supreme Court and the first and second-degree courts have lost their independence and impartiality.
b) Results in terms of all suspects arrested
- As can be understood from the ECHR judgment, reasonable doubt (domestic law stipulates strong suspicion in terms of arrest) must be justified by concrete evidence as of the first arrest warrant. However, when the decisions of the Criminal Courts of Peace are examined, it is seen that the decisions of arrest are made with the expressions which are general and unclear. This practice concerns everyone, including judges and prosecutors.
- In this respect, the fact that he was arrested without showing any concrete evidence before, and the continuation of the detention based on concrete evidence (witness statement, ByLock, etc.) after months does not eliminate the violation. In this respect, the subsequent concrete evidence does not justify arrest. However, the CC also rejects the applications after months of the first arrest warrant judges by deciding that the arrest is based on strong suspicion and /or the elements written in the indictment. ECHR does not accept this practice even if the CC applied to this practice in the decision of Alparslan Altan. This application of the Constitutional Court in the Alparslan Altan decision of the ECHR it is completely contrary to the case law .
- For this reason, everyone should be able to determine the date on which the concrete evidence of the crime was first entered into the file, and if possible they should state it before CC and ECHR and claim that ECHR Articles 5 § 1 (c) have been violated.
- For example, the first evidence for suspect A, who was arrested on August 18, 2016 , is to use the ByLock claim and this claim is first written in the decision of the continuation of detention on 17 March 2017 .This evidence does not in any way justify the initial detention of the applicant (this explanation was made irrespective of whether ByLock had constituted a reasonable suspicion).
- There are benefits for those detained and especially lawyer to claim their rights before CC and ECHR by taking the ECHR’s Alparslan Altan v. Turkey decisions and their justification.
- In addition, lawyers who want ECHR to pay the fees for attorneys are required to submit invoices or similar documents regarding the fees of the attorneys at this stage when they submit their second opinions. Without submitting a document, the ECHR does not rule on legal fees.
- If all judges and prosecutors and illegal detainees apply to the ECHR and an average of 5 000 – 10 000 euros per person is awarded for non-pecuniary damage, it is up to the executives to consider what the cost will be. Regardless of the amount of compensation, it is clear that what is meant by the ECHR is that a state constantly violates human rights.
- Our assessment is that it seems to be beneficial to collectively eliminate all grievances in domestic law without continuing the unlawful practices. In view of the fact that all applicants can again apply to the ECHR in terms of the right to a fair trial, the sustainability of this process does not seem reasonable. The appreciation belongs to the decision-makers.
 This evaluation was made on 18 April 2019.
 Impartiality means that there is no prejudice in the judge.In our opinion, this justification shows that all other members of the CC, who had signed the resolution, lost their neutrality.