Turan and Others v. Turkey: Mass Arbitrary Detentions of the Purged Members of Judiciary and the White Flag of the Strasbourg

[Hakan Kaplankaya is a former Turkish diplomat, jurist and INSTITUDE member.]

The European Court of Human Rights (ECtHR), on 23 November 2021, handed down a landmark judgment, Turan and Others v. Turkey, concerning the lawfulness of pre-trial detentions of the judges and prosecutors suspended from office in the wake of the coup attempt that took place on the 15^th of July, 2016. The ruling addresses the complaints of the 427 purged judges/prosecutors detained by incompetent courts on account of the arbitrary interpretation of the ‘in flagrante delicto’ concept, alleged and feigned presence of which stripped the applicants of enjoying essential special procedural safeguards. Examining their allegations, ECtHR unanimously found the pre-trial detention of all applicants unlawful and awarded each of the applicants a lump sum of € 5000 in respect to non-pecuniary damages, costs and expenses.

Previously, ECtHR already examined similar applications of dismissed members of the Constitutional Court, Alparslan Altan and Erdal Tercan and of a purged judge Hakan Baş who were detained pursuant to provisions of discovery in flagrante delicto considering that the membership to a terrorist organisation amounts to a continuing offence, just following the foiled coup. The Court ruled in these judgments that their pre-trial detentions had been unlawful due to not only the absence of ‘reasonable suspicion of committing an offence’ at the time of their initial detentions but also the total disregard of the procedural safeguards provided for in the relevant legislations regarding their security of tenure. Nevertheless, in the Yıldırım Turan case, the Turkish Constitutional Court (TCC) refused to comply with ECtHR’s Baş and Altan judgments in clear breach of article 46 of the Convention as it deemed that domestic courts are better positioned to construe the provisions of national law than an international court. By virtue of the Turan and Others v. Turkey ruling, ECtHR has sent a firm message to TCC reaffirming its judicial stance and case-law concerning the unlawfulness of the pre-trial detention of the members of the judiciary and the unreasonable interpretation by Turkish courts of the notion of in flagrante delicto with a view to evading procedural safeguards.

Facts of the Case

Just a few hours after the controversial coup attempt staged on the 15^th of July, 2016, an unprecedented mass detention practice has been started in Turkey. The targeted individuals were mainly alleged members of the Gülen Group, which has been blamed for orchestrating the coup and designated as a terrorist organisation by the Turkish government. The jailed persons were belonging to various social and professional circles including the Turkish judiciary. Moreover, enacting decree laws under the state of emergency that were not subject to the constitutional review, more than 4500 members of the judiciary were purged, and half of them were detained on grounds of alleged links to the Gülen Group. Nonetheless, it is widely accepted that these mass detentions were relying on often questionable evidence and carried out arbitrarily.

In the same vein, just hours after the onset of the attempted coup of 15 July, Ankara Chief Public Prosecutor’s Office launched criminal investigations and issued arrest warrants against thousands of judges and prosecutors including the applicants of the present case. They had apparently been subject to illegal profiling and blacklisted beforehand, in contradiction to statutory investigation procedures envisaged for the members of the judiciary.

Simultaneously, during the very early hours of the coup, the High Council of Judges and Prosecutors (HSYK) convened to initiate investigations against 2735 judges and prosecutors and made a decision to suspend them. Similarly, the Presidency Boards of Court of Cassation and Council of State revoked the competences of some of their members, whose names were included in criminal investigations instituted by the Ankara Chief Public Prosecutor. At the end of these botchy but preplanned investigations, they were all dismissed from their positions within the Turkish judiciary pursuant to the Emergency Decree Law (KHK) no. 667.

Being kept in custody for a while, the applicants were placed in pre-trial detention by criminal peace judgeships mainly relying on the decision of HSYK to suspend the applicants. The accusations were considered as ‘continuing offences’ and the applicants were caught supposedly in flagrante delicto governed by ordinary procedural provisions. Afterward the objections of the applicants against their detention were dismissed again by criminal peace judgeships in a horizontal appeal system about which the Venice Commission had stated that it “does not offer sufficient prospects of an impartial, meaningful examination of the appeals”. In addition, endorsing their “court” character in terms of article 5 (4) in Baş case, the Court had also stressed that it would reconsider these courts’ independence problem subsequently. Finally, TCC consistently rejected petitions of all applicants regarding article 5 complaints as well.  

Applicants’ Claims 

The applicants mainly claimed that they, as members of the judiciary, had been detained despite a lack of findings justifying the existence of ‘reasonable suspicion’ regarding the commission of the accused offence and in total disregard of the statutory safeguards afforded to members of judiciary in relation to the initiation of criminal investigations against judges/prosecutors. They suggested that if they were being accused of being a member of an armed terrorist organisation, this charge could only be meaningful in the context of their acts done in performance of their official duties. In this connection, the alleged offences committed in relation to their official capacity automatically required the observance of special procedural guarantees envisaged in legislation. Besides, they stressed that the interpretation by the Turkish judiciary of the notion of in flagrante delicto in their case was quite far-fetched and a clear violation of law. Some applicants also asserted that the length of the pre-trial detention had been excessive, the periodic reviews by the competent courts in respect to their detention had not been conducted in accordance with applicable legislation, and the domestic remedies to obtain compensation for the alleged infringements were not effective. Therefore, applicants claimed that the articles 5(1), 5(1)(c), 5(3), 5(4) and 5(5) of the Convention had been breached by Turkey on account of their detentions.

The Court’s Assessment

In the beginning, the Court referred to its findings in  Hakan Baş and Alparslan Altan cases regarding the expansive and erroneous interpretation and application by the Turkish judiciary of the concept of in flagrante delicto in respect of judges’ and prosecutors’ detention. 

Considering the Turkish judiciary’s unwillingness to abide by these findings as explained above, the Court further acknowledged in Turan and Others v. Turkey case as a principle the better position of national courts in interpreting the domestic law. However, it underlined that the Court holds the authority assigned by the Convention to review the cases and ultimately determine if the national authorities’ manner of interpretation and application brought about apposite legal consequences incompatible with the Convention.

The Court has subsequently observed that the concept of in flagrante delicto in the applicants’ cases was not invoked foreseeably. Therefore, the requirements of legal certainty were not fulfilled by Turkish courts. Accordingly, the pre-trial detention of the members of the judiciary was unlawful and not strictly required by the exigencies of the situation. Thus, it found that Turkey had violated article 5(1) of the Convention on account of the unlawfulness of the pre-trial detention of all applicants.

Nevertheless, the Court confined itself to the examination of the applicants’ complaints under article 5(1) of the Convention. As to the reasons why the Court dispensed with the examination of the rest of the applicants’ allegations, it expressed a number of points: It has limited resources; the individualized examination of the remaining complaints would cause delays in regard to the processing of the accumulated cases instituted against Turkey; the Court may otherwise run the risk of a serious weakening in the long-term effectiveness of the Convention system. It also made references to its previous rulings in Baş and Altan cases as a model approach concerning the rest of the complaints.

Commentary

First and foremost, this ruling has not only exposed the infringements committed by the Turkish government in the detention of the respective members of the Turkish judiciary, but also implicitly revealed the arbitrary and systematic nature of these arrests considering the great number of applicants being victims of exactly the same erroneous and unlawful proceedings. In this vein, the UN Working Group on Arbitrary Detention (WGAD) formerly ascertained in its various opinions that arbitrary detentions faced by plenty of Turkish applicants since the coup attempt are of a systematic and widespread pattern, and accordingly convenient to constitute crimes against humanity. In this context, the Turan and Others v. Turkey judgment of the Strasbourg Court is in line with the findings of WGAD and has a great potential to be a source of reference for eventual future prosecutions of crimes against humanity. Likewise, instituDE report entitled “Human Rights Violations in Turkey Rising to the Level of Crimes Against Humanity: Case of Gülen Group” suggests that the arbitrary mass detention practice of Turkey is liable to constitute crimes against humanity.

It is obvious that the arbitrariness of the post-coup mass detention practice of Turkey has been confirmed by the Strasbourg Court through this judgment. The widespread pattern of the mass detention practice of the judiciary on grounds of alleged membership to a social group has been condemned as well. In light of the grievances endured by at least 427 members of Turkish judiciary who had, though, firm legal shield provided by tenure against arbitrary detentions, the scale, gravity and intensity of the overall human rights violations resulting from the arbitrary mass detention practice of Turkey can roughly be estimated. Therefore, irrespective of the shortcomings of the present judgment, it can be concluded that the Court shed light on the most pervasive and prevalent human rights abuses by the Turkish government, namely, the arbitrary deprivation of liberty.

The Court decided to examine the applicant’s complaints under Article 5 with regard only to their unlawful detention arising from not observing the special procedural safeguards provided by the relevant legislation, and left unanswered their remaining complaints under the different paragraphs of the same article. The Court had already prioritized this question in the aforementioned judges’ cases -something that I consider quite flawed choice- and had reached the same conclusion whereas it had not sufficiently examined the domestic courts’ assessments on the existence of reasonable suspicion, which had been based not on evidence but on a notion of an alleged crime by association. 

This approach would indeed be most welcomed by the Turkish government as it overshadows the unlawfulness of mass detentions of former members of the judiciary on the merits of their cases. However, the Turkish judiciary has reacted in an unfavorable way even to these judgments and rejected to abide by the Court’s conclusion. Therefore, the Court should have delved into the genuine problem this time by sending a more powerful and clear message that the detention of these judges and prosecutors had not been relied on reasonable suspicion of having committed an offence.

Last but not least, this ruling appears to constitute a new ‘judicial policy’ adopted by the Court. It is understandable and plausible to some extent that the choice of the Court not to examine the remaining claims is an outcome of the real concerns of the existing heavy caseload, limited resources and possible delays to be faced in the processing of the pending cases. Nevertheless, it risks to be understood as a white flag of the Court in the face of systematic and extensive human rights violation records of autocratic regimes that provokes a floodgate of cases to Strasbourg. In this regard, Judges Koskelo, Ranzoni and Kūris note their opposition to the wording in the operative provision ‘no need to examine’. Judge Kūris further underlines the risk that this judgment may be read as a signal that a member State can escape responsibility for violating the Convention ‘en masse’, since the Court might be flooded with complaints against that State to such an extent that it becomes unable to cope with them and decides not to examine them.