The ‘reasonable suspicion’ test of Turkey’s post-coup emergency rule under the European Convention on Human Rights

Abstract

Since the 15 July 2016 failed coup, Turkey has seen the mass arrests and detention of hundreds of thousands of individuals; among them are judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians who have been deprived of their liberty on an array of terrorism-related charges. While this has raised numerous human rights issues, this article focuses on those relating to pre-trial restrictions imposed on the right to liberty and security of individuals during the post-coup state of emergency. Building on the theory and use of the reasonableness concept in the field of pre-trial detention through a particular focus on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (ECHR or the Convention), the article analyses the role of the European Court of Human Rights (the Court or the ECtHR) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala. Against the background of pre-existing Convention standards on pre-trial reasonable suspicion in states of emergency, it finds that the ECtHR has adopted a stronger supervisory stance regarding the compatibility of Turkish post-coup detention practices than the more hesitant approach shown in the prior derogation context of Northern Ireland. While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s arbitrary detention practices during the state of emergency, the article argues that there is further scope for the Court to strengthen its protection in this respect. Notably, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.

1. Introduction

In one of his best-known works, The Trial, Franz Kafka tells the terrifying story of Joseph K. ¹ One morning, Kafka’s protagonist gets arrested even though he knows he has done nothing wrong. Despite his efforts to understand the reasons for his arrest, the guards leave him with no explanation. When summoned by the guards’ supervisor, he feels a sense of gratification at finally finding himself in the presence of a person with whom he can discuss his situation. K., filled with hopes that his questions will be answered, this time directs them to the supervisor. The supervisor in turn famously replies: ‘I cannot inform you that you have been charged with anything or, rather, I do not know whether you have been or not. You have been arrested, that is a fact, and that is all I know’. ²

In a turn of events that would not look altogether unfamiliar on the pages of a Kafka novel, since the 15 July 2016 failed coup in Turkey, more than 250,000 people, including judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians, have been deprived of their liberty on an array of terrorism-related charges. ³ Indeed, these mass arrests and detention in post-coup Turkey bear striking resemblances to Joseph K.’s unwarranted and unreasonable arrest. In the vast majority of cases, the individuals concerned have been arrested and detained on the basis of a mere suspicion with almost no evidence corroborating their involvement in terrorist activities, and have ultimately fallen victim to political and legal injustices without any recourse to an effective remedy that they can use to meaningfully challenge their detention. ⁴

While this situation raises many human rights issues, the particular focus of this article is on the pre-trial restrictions imposed on the right to liberty and security of individuals during Turkey’s post-coup state of emergency (Section 2). The role of the European Court of Human Rights (the Court or the ECtHR) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala is viewed through this lens. ⁵ When the Court’s findings on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (ECHR or the Convention) are assessed against the background of pre-existing Convention standards on ‘reasonable suspicion’ in emergency settings in the field of pre-trial detention (Section 3), it is clear that the ECtHR has adopted a strong supervisory stance regarding the reasonable suspicion standard exercised domestically during the Turkish post-coup state of emergency (Section 4). While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s post-coup detention practices, the article argues that there is further scope for the Court to strengthen its protection in this respect. In particular, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.

2. Pre-trial detention practices during turkey’s post-coup state of emergency

Lack of respect for the right to liberty has unfortunately become a fundamental marker of Turkey’s legal landscape. ⁶ Under Turkish law, the existence of a ‘strong suspicion based on solid evidence’ that the person arrested has committed an offence is a condition sine qua non for the lawfulness of detention on remand. ⁷ However, for certain offences, in particular those against State security and constitutional order, there is a statutory presumption of the existence of grounds for detention. In particular, Article 100(3) of the Turkish Code of Criminal Procedure (CCP) provides a list of offences (termed ‘catalogue crimes’) in respect of which a judge may authorise detention on the sole basis of a determination that the alleged crime falls within this category, without a need to provide explicit reasoning justifying detention. Even after the 2016 Buzadji judgment in which the Court’s Grand Chamber emphasised the need for ‘special diligence’ from domestic courts in reviewing whether ‘relevant and sufficient reasons’ exist to justify the further pre-trial detention of individuals, ⁸ as will be shown in Section 4, abstract and standard reasoning continue to be frequently applied by Turkish judges. The ECtHR has also previously concluded in a number of decisions that Turkish courts failed to give consideration to other non-custodial measures foreseen by domestic law, choosing instead to (re-)order the detention of applicants and employing identical and stereotyped wording referring to ‘the nature of the offence, the state of the evidence and the content of the file’. ⁹

During the state of emergency, protections of the right to liberty dwindled yet further. Shortly after the failed coup attempt, ¹⁰ on 21 July 2016, Turkey derogated from the ECHR pursuant to Article 15, relying on the failed coup and ‘other terrorist acts’. ¹¹ An equivalent notice was lodged with the United Nations (UN) under Article 4 of the International Covenant on Civil and Political Rights (ICCPR). ¹² Further to the 21 July declaration, the state of emergency was extended seven times for a total period of 24 months until it was finally lifted on 17 July 2018. In the wake of the initial declaration, the Turkish authorities adopted a wide range of emergency decrees ¹³ which granted ‘very far-reaching, almost unlimited discretionary powers for administrative authorities and the executive in many areas’ ¹⁴ and targeted anyone deemed a terrorist regardless of whether or not they were connected to the coup attempt. In support of these wide-reaching powers, the government relied on the aim of countering the severe dangers to public order and security arising from terrorist activities. ¹⁵ There is now ample evidence that the state of emergency culminated in mass detentions, collective dismissals and broad institutional closures, in part due to Turkey’s haphazard restrictions of basic rights in reliance on, in many cases, a tenuous connection with the raison d’être of the state of emergency. ¹⁶ With the rule of law all but suspended, the Turkish government instigated a sweeping crackdown on those it viewed as its political opponents, stifling all forms of dissent.

More specifically, the emergency decrees imposed drastic procedural and substantive restrictions on the pre-trial detention rights set out in Articles 5 and 6 of the ECHR. As early as 22 July 2016, the first emergency Decree No. 667 was issued, which authorised detention without access to a judge for up to 30 days ‘due to the difficulty of collecting evidence or a higher number of suspects’. ¹⁷ This 30-day period of unsupervised detention applied to all terror-related organised crimes and substantially exceeded the upper limit the ECtHR has held to be justifiable in times of derogation under Article 15. ¹⁸ While the later Decree No. 684 of 23 January 2017 reduced to seven days, with the possibility of an extension of a further seven days, the timeframe within which a suspect had to be brought before a competent judicial authority, ¹⁹ unsupervised detention periods of 30 days persisted over a six-month period during which an overwhelming number of criminal proceedings were conducted. In August 2017, Decrees No. 693 and 694 increased the maximum period of pre-trial detention for terror charges from five to seven years, ²⁰ giving rise to valid concerns that its use had become a form of summary punishment. ²¹

The emergency decrees in Turkey also imposed significant restrictions on the right to access an effective legal defence. Decrees No. 667 and 668 authorised, inter alia, a five-day initial period of incommunicado detention, ²² the recording of meetings between a detainee and their lawyer, and judicial powers stopping a detainee from accessing legal advice. ²³ The ability of lawyers to examine the contents of the case file was limited; any documents exchanged with a detainee could be seized. ²⁴ Defendants were prevented from hearing all the evidence brought against them and, in some cases, from having a lawyer present at their trial. ²⁵ Family visits and phone calls were also restricted, rendering detainees yet more vulnerable to ill treatment. ²⁶ Notwithstanding the potential for abuse created by these limitations, Decree No. 667 granted full immunity from legal, administrative, financial and criminal liabilities to government officials who could otherwise face criminal investigation and prosecution. ²⁷ This effectively prevented accountability for any and all abuses that might have been perpetrated during this time. ²⁸

Against this backdrop, and of particular relevance to the imposition of pre-trial detention, Turkey’s broad-reaching Anti-terrorism Legislation, passed in 1991 and frequently renewed since then, offers only broad and vague definitions of ‘terrorism’ (under Article 1) and ‘terrorist offender’ (under Article 2), lacking the level of legal certainty required by international human rights law. ²⁹ Concerns have been raised that this legislation is used widely and arbitrarily for politically motivated prosecutions of political opponents, human rights defenders and journalists, in particular for alleged ‘membership of a terrorist organisation’; as per the succinct conclusion of an Amnesty International report dating back to before the coup, ‘when correctly viewed, everyone’s a terrorist’ in Turkey. ³⁰ Added to this, the ‘stereotypical, formulaic and abstract nature’ of detention orders, ³¹ the ‘quasi-automaticity of detention’ in respect of catalogue crimes, ³² and the ‘highly problematic’ extension of the time limit for detention on remand without judicial control to 30 days ³³ of post-coup Turkey conflict strongly with the right to liberty as envisioned and protected by Article 5 of the ECHR. ³⁴ This manner of governing pre-trial detention is reflected by the statistics – figures from the Turkish Ministry of Justice reveal that the number of untried prisoners grew from 32,470 in 2012 to 79,121 in 2017. ³⁵

In turn, the Court condemned Turkey’s post-coup pre-trial detention practices in four important decisions in Mehmet Hasan Altan, ³⁶ Şahin Alpay, ³⁷ Alparslan Altan ³⁸ and Kavala. ³⁹ These cases are of vital importance, constituting as they do the Court’s first judgments on the merits of complaints concerning arrest and pre-trial detention on charges related to the attempted coup. ⁴⁰ In all four decisions, the ECtHR was unconvinced that the pre-trial detention of the applicants satisfied its reasonable suspicion standard. ⁴¹ The Court held that the difficulties facing Turkey during the post-coup period could not provide carte blanche under Article 5 to detain anyone without any verifiable evidence or information or without a sufficient factual basis. ⁴² These decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s post-coup detention practices and, it is hoped, any similar situations in the future where governments place undue reliance on national security concerns in attempting to justify sweeping rights violations. As will be explored in Section 4, there is yet further scope for the Court to strengthen its protections in this respect. Nonetheless, even its existing stance contrasts strongly with that of the Turkish courts, namely, one that is deferential to the government’s discretionary exercise of power, resulting in deficient scrutiny where national security matters are involved. ⁴³ During the post-coup state of emergency, moreover, it can be argued that Turkish courts, including the Turkish Constitutional Court (the TCC), abdicated their judicial duty to perform a meaningful legal review to assess whether the enacted emergency measures were proportionate and directly connected to genuine security concerns. ⁴⁴

In order to gauge the significance of the Turkish post-coup decisions, however, it is first necessary to establish the relevant jurisprudential context. To this end, the following Section identifies developments in the Court’s review of reasonable suspicion arising from the conflict situation and subsequent emergency legislation in Northern Ireland. While the cases were not decided within the framework of a formal derogation, ⁴⁵ they provide a useful lens for contextualising and evaluating the significance of the ECtHR’s findings in the Turkish post-coup cases in Section 4, since similar considerations regarding the threshold of evidence required to ground a suspicion in emergency settings arose within the legal reasoning.

3. The theory and use of reasonableness in the field of pre-trial detention – pre-existing convention standards on ‘reasonable suspicion’ in emergency settings

The Court’s use of the reasonable suspicion principle poses particular difficulties since it is tasked with applying it in a manner that is Convention compliant, while granting an appropriate margin of appreciation to Contracting States. An important matter to consider is the extent to which the Court should defer to States in their own elaboration of reasonableness. As has long been accepted by the ECtHR, as witnessed by the creation and adoption of the margin of appreciation and subsidiarity concepts, ⁴⁶ States are adjudged to have a more astute awareness of the issues within their borders. Pursuant to the Court’s approach, national authorities are better placed to assess what is ‘reasonable’ within their own domestic contexts; indeed, problems in this area are said to ‘arise at the level of the facts’. ⁴⁷ Where States have engaged in legislative or judicial processes to define reasonableness (or its equivalent concept), it is in line with the Court’s general approach to defer greatly to these domestic interpretations, with national decisions marking the starting point for Article 5 § 1 (c) review. ⁴⁸ However, in the context of detention, the Court does not always revert solely to a State’s conception of reasonableness – for instance, it will not find a violation of Article 6 § 1 simply by virtue of a domestic time limit being exceeded. ⁴⁹

As shown in this Section, determinations of reasonableness by the ECtHR involve a careful balance between granting discretion to States in regulating domestic laws and ensuring that the standards enshrined within those laws, regardless of disparities in wording, attain the objective threshold of suspicion demanded by the Convention. ⁵⁰ Within this context, a State’s reliance on a subjective standard of suspicion is not in itself a violation of Article 5, but does serve to heighten the Court’s scrutiny of the impugned arrest or detention to ensure that the level of information required by the objective Convention standard is in place. ⁵¹ Nonetheless, the ECtHR’s standards on ‘reasonable suspicion’ when assessing, for instance, the use of emergency legislation in Northern Ireland were not always uniform. ⁵² Adopting the conflict situation in Northern Ireland as the relevant jurisprudential background, the following analysis shows that objective Convention reasonableness conceptually falls on a sliding scale, with domestic thresholds of the level of suspicion required pulling reasonableness in the direction of either lesser or greater scrutiny.

In the earliest judgment under review, Fox, Campbell and Hartley, the Court found that, although the arrest and detention of the applicants were based on an honest suspicion, insufficient elements had been furnished by the government to support the conclusion that there had been a reasonable suspicion within the meaning of Article 5 § 1 (c). ⁵³ The Court further highlighted that the applicants’ prior convictions for terrorist acts could not form the sole basis of a suspicion justifying their arrest seven years later; such information could only reinforce a suspicion linking them to the commission of terrorist-type offences. ⁵⁴ The fact that all the applicants, during their detention, were questioned about specific terrorist acts merely confirmed that the arresting officers had a genuine suspicion that they had been involved in those acts, but it could not satisfy an objective observer that the applicants may have committed them. ⁵⁵ The objective standard demanded by the Convention was therefore not reached.

The judgment in Murray v the United Kingdom, ⁵⁶ however, handed down four years after Fox, Campbell and Hartley, marked a departure from this firm stance. The Court’s consideration of the fact that, some weeks prior to her arrest, two of the applicant’s brothers had been convicted in the USA of offences connected with the purchase of arms for the Provisional IRA, and that she had visited the USA and had contacts with her brothers there, marks a stark contrast with the manner in which the applicants’ prior convictions for terror offences (albeit dating back to an earlier time) were viewed in Fox, Campbell and Hartley. ⁵⁷

The Court had noted in Fox, Campbell and Hartley that, having regard to the challenges of investigating and prosecuting terrorist-type offences, the reasonableness of the suspicion justifying such arrests could not always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime could not justify stretching the notion of reasonableness to the point where the essence of the safeguard secured by Article 5 § 1 (c) was impaired. ⁵⁸ As seen by the divergence in findings between Fox, Campbell and Hartley and Murray, however, a certain level of discretion is retained. In the 2001 case of O’Hara, the Court again seemed to be moving further from the principles set out in Fox, Campbell and Hartley, concluding that the, on its own admission, ‘sparse’ evidence ⁵⁹ adduced by the government was sufficient to give rise to an Article 5-compliant reasonable suspicion. The majority did not engage with the issue of whether there were at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence.

Within this context, it has been argued that, beyond the stricter oversight of Fox, Campbell and Hartley, the Court exercised only a ‘light touch’ control over army and police arrest powers under the emergency legislation in Northern Ireland, resulting in the extension of ‘more or less carte blanche to arresting officers to act on whatever their superior officers told them to do’. ⁶⁰ Thus while the principles underlying the manner in which the Court’s reasonableness analysis is affected by domestic legislation can be identified within its case-law, emergency contexts hamper the predictability of how the sliding scale will ultimately be arranged. Indeed, on a review of subsequent case-law, it appears that the principles set out in Fox, Campbell and Hartley have slowly been eroded. The Turkish cases analysed in Section 4 therefore offer particularly fertile ground for testing the Court’s resolution in upholding reasonableness standards in emergency contexts.

4. Reasonable suspicion in the Turkish post-coup cases

This Section seeks to explore whether the hesitance revealed on the part of the Court in maintaining the Article 5 threshold for suspicion in the UK line of case-law persists in the Turkish post-coup judgments of Mehmet Hasan Altan, Şahin Alpay and Alparslan Altan. The more recent judgment of Kavala v Turkey, which concerns both alleged pre and post-coup activity, will also be analysed on the basis of its findings on reasonableness within emergency settings.

4.1 The earliest cases – Şahin Alpay and Mehmet Hasan Altan

Şahin Alpay and Mehmet Hasan Altan were both journalists known for their criticism of the Turkish government. Following the attempted military coup, they were arrested and tried on charges of attempting to overthrow the constitutional authorities and of committing offences on behalf of a terrorist organisation without being members of it. After numerous unsuccessful applications challenging their detention on remand, they lodged individual applications with the TCC. In their separate applications before the Court, Alpay and Altan complained that their initial and continued pre-trial detention was a breach of their right to liberty and security under Article 5 of the Convention and of their right to freedom of expression under Article 10. The TCC found a violation of the right to liberty (Article 19 of the Turkish Constitution) and of freedom of expression (Articles 26 and 28 of the Turkish Constitution) in respect of both journalists. ⁶¹ While the TCC concluded that the attempted coup disclosed the existence of a public emergency threatening the life of the nation, it held that the detention of the two journalists was unlawful as this was based solely on newspaper articles written by them, which did not constitute concrete evidence that they had committed the alleged crimes. Moreover, the TCC stressed that the applicants’ prosecution and detention did not correspond to any pressing social need and were thus neither necessary nor proportionate, even in the context of a public emergency. The Turkish government strongly condemned the decisions, accusing the TCC of going ‘beyond the boundaries drawn out by the constitution’. ⁶² Echoing this criticism, four Istanbul assize courts refused to implement the TCC’s decisions, alleging a lack of jurisdiction on the part of the TCC in assessing the evidence in the case file and holding that the judgments were not in compliance with the law and amounted to usurpation of power. ⁶³

This caused an unprecedented constitutional crisis. ⁶⁴ Scholars have criticised lower courts’ non-abidance by the TCC rulings as signalling ‘a new phase of decay’ in Turkish constitutionalism, ⁶⁵ as ‘an utter defiance of constitutional authority’ ⁶⁶ and as exposing the Turkish legal system to a ‘dangerous level of uncertainty’. ⁶⁷ Following a separate application filed by Alpay, and in a move to bring this crisis to an end, the TCC rendered a further judgment on 15 March 2018 strongly asserting its competence and the binding nature of its judgments. ⁶⁸ The assize court in this instance followed the ruling and ordered Alpay’s release. ⁶⁹ Altan, meanwhile, had already been convicted of attempting to overthrow the constitutional order and sentenced to life imprisonment on 16 February 2018. ⁷⁰

On 20 March 2018, the Strasbourg Court echoed the TCC’s findings, holding that the detention of Alpay and Altan constituted a breach of their rights to liberty under Article 5 § 1 and freedom of expression under Article 10. It should be noted that the Turkish government had not provided any justification for the pre-trial detention of the applicants that could persuade the Court to depart from the findings reached by the TCC. ⁷¹

The TCC had concluded that the guarantees of the right to liberty and security would be meaningless if it were accepted that people could be placed on remand without any strong evidence that they had committed an offence; ⁷² it therefore characterised the deprivation of liberty as disproportionate to the strict exigencies of the situation. The ECtHR adopted this approach – having regard to Article 15 of the Convention and Turkey’s derogation, a measure of pre-trial detention that was unlawful and had not been effected pursuant to a procedure prescribed by law on account of a lack of reasonable suspicion could not be said to have been strictly required by the exigencies of the situation. ⁷³ This represents a clear and renewed commitment by the Court to ensuring that derogations do not grant States carte blanche to do away with the content and guarantees of Article 5 rights. ⁷⁴ Any possible concerns that the Court may have adopted only a ‘light touch’ ⁷⁵ when scrutinising the acts of the Turkish authorities have, to this extent, been alleviated. The adoption of the stricter Fox, Campbell and Hartley approach in the review of the reasonableness of a suspicion, rather than the more deferential stance of Murray and O’Hara (set out in Section 3 above), even within the context of a formal derogation, is to be welcomed, especially since Fox, Campbell and Hartley predates Murray and O’Hara.

Despite these positive findings, the great weight given to reasonable suspicion as a guarantor of the right to liberty is somewhat tempered by the Court’s subsequent rejection of the argument that recourse to the TCC is no longer an effective remedy. ⁷⁶ This jars with the Court’s prior express acceptance that the manner of review of the reasonableness of the suspicion required by the domestic courts fell below Convention standards, as well as its admission that serious doubts are raised as to the effectiveness of the remedy. ⁷⁷ In this respect, the Court references the 2014 decision in Koçintar, the relevance of which is hard to ascertain since the case made clear that the Court could not at that time characterise recourse to the TCC as ineffective despite a lack of further examples of persons released as a result of a TCC decision. ⁷⁸ The TCC rulings in that case were enforced the following day, in stark contrast to the treatment of the TCC decisions by the Turkish assize courts pertaining to Altan and Alpay. This represents a missed opportunity by the Court to strengthen the protection offered by Article 5 § 1 (c), the significance of which it itself emphasises, especially in the light of the country context of these cases (irrelevant in pre-coup Koçintar).

It is therefore hard to see how the protection granted by the requirement of a reasonable suspicion is to be guaranteed in the absence of a domestic remedy capable of upholding it. ⁷⁹ While the Court reinstated its strong scrutiny of the reasonableness of a suspicion in the context of alleged terrorist crimes by adopting the firm Fox, Campbell and Hartley standard, the procedural guarantees ensuring that the standard is respected domestically (in line with the structure of the Convention system) were not upheld. Although the concept of reasonable suspicion is itself not diluted by the existence of a derogation, the risk previously outlined of the notion losing clarity when placed within a terrorism context is instead realised by the lack of concrete protection sought by the Court from the national authorities. This lack of due credence paid to the procedural aspect of Article 5 § 1 (c) thus materialises as a ‘fall at the last hurdle’ – while the standard of reasonable suspicion is strongly upheld, requiring applicants to traverse an ineffective remedy before being able to reach Strasbourg imposes a barrier to their capacity to quickly and effectively assert their vital right to liberty. ⁸⁰

4.2 The Alparslan Altan case

On 16 April 2019, the Court handed down its judgment in the case of Alparslan Altan. At the time of the attempted coup, the applicant was a judge of the TCC. On 16 July 2016, along with some 3,000 other judges and prosecutors, he was arrested, and four days later a magistrate ordered his pre-trial detention on suspicion of being a member of an armed terrorist organisation. In August 2016, he was dismissed from his post at the TCC. Before the ECtHR, Altan pointed to a lack of evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating pre-trial detention. In particular, he maintained that the domestic courts had given insufficient reasons for the decisions ordering his detention.

While the Court was ‘prepared to take into account’ the difficulties facing Turkey in the aftermath of the attempted military coup, ⁸¹ it emphasised the need for a high level of scrutiny of the facts. ⁸² The judgment subsequently focused on whether there were sufficient objective elements at the time of Altan’s initial detention to satisfy an objective observer that he could have committed the relevant offence.

The TCC had referred to items of evidence such as statements by anonymous witnesses and by a former rapporteur of the TCC accused of belonging to FETÖ/PDY, and messages exchanged via the ByLock messaging service. ⁸³ These items were gathered long after the applicant’s initial detention – the first item, an anonymous statement accusing the applicant of being a member of FETÖ/PDY, was recorded more than two weeks after the applicant had been detained on remand, and the other statements and evidence were acquired at a much later stage. The TCC and the Turkish government had failed to address the absence of any concrete evidence justifying the applicant’s pre-trial detention, with the ECtHR concluding that ‘an examination of the various items of evidence made available to the Court bears out [the applicant’s] contentions’ ⁸⁴ – namely, that any such evidence was in fact lacking. The Court was even firmer on this point – in contrast to the TCC, it did not consider it necessary to examine items of evidence gathered long after the applicant’s detention in order to ascertain whether the suspicion grounding the order for his initial detention was reasonable. ⁸⁵ Echoing early Fox, Campbell and Hartley principles, ⁸⁶ while the subsequent gathering of evidence connected to the charge against the applicant could have reinforced a pre-existing suspicion linking him to the commission of the alleged offences, it could not have formed the sole basis of a suspicion retrospectively justifying his initial detention. The subsequent gathering of such evidence therefore did not free the Turkish authorities of their obligation to offer a sufficient factual basis capable of justifying the applicant’s detention.

The Court concluded that the applicant had clearly not been suspected of having been involved in the attempted coup. While being questioned in connection with an offence of membership of an illegal organisation prior to being detained on remand showed at most that the police genuinely suspected him of having committed that offence, that in itself would not satisfy an objective observer that he could have committed the offence in question. ⁸⁷ Although the magistrate who ordered Altan’s detention had sought to justify his decision by referring to Article 100 of the CCP and to the evidence in the file, he had merely cited the wording of the provision and listed the material in the file without identifying specific relevant items, though these related to fourteen suspects. This was not sufficient to ground the reasonableness of the suspicion on which the applicant’s detention should have been based. ⁸⁸

With regards to the derogation context, the Court accepted that the formal requirement of the derogation had been satisfied and that there was a public emergency threatening the life of the nation. Concerning the scope ratione temporis and ratione materiae of the derogation – a question which the Court could raise of its own motion since the applicant was initially detained one day prior to the beginning of the state of emergency – it considered that it did not have to determine this issue prior to its Article 5 analysis. The Court noted that the applicant’s detention on 20 July 2016, following his arrest on 16 July 2016, occurred a very short time after the attempted coup, the event that prompted the declaration of a state of emergency. This ‘undoubtedly’ contextual factor was fully considered in the Court’s interpretation and application of Article 5. ⁸⁹ In Alparslan Altan v Turkey, as in Mehmet Hasan Altan, therefore, the Court found that the requirements of derogation had been satisfied. ⁹⁰

The Court therefore applies the same criteria of reasonable suspicion to derogation cases before assessing whether the context provides justification for the respondent government to have fallen short of Convention standards. Alparslan Altan again highlighted that, regardless of the circumstances, States cannot have carte blanche under Article 5 to order the detention of an individual during a state of emergency without any verifiable evidence or information or without a sufficient factual basis satisfying the minimum requirements of Article 5 § 1 (c). ⁹¹ This suggests the Court’s eagerness to continue applying equivalent standards both within and outside of derogation settings as far as possible, while maintaining a level of flexibility regarding the scope ratione temporis and ratione materiae of the relevant derogation. Although the judgment found the derogation to be valid, even within the confines of the ‘strict exigencies’ of the situation, the requirement of a reasonable suspicion was strongly upheld.

Indeed, the suspicion against Altan did not reach the required minimum level of reasonableness. The judgment somewhat vaguely adds to this that ‘these considerations are especially important in the present case, given that it involves the detention of a judge serving on a high-level court, in this instance the Constitutional Court’. ⁹² It is unclear here whether the Court is identifying certain categories of employment or contextual factors in respect of which the threshold of reasonableness becomes stricter, or if this is a reference to the extension of the concept of in flagrante delicto at the domestic level. The judgment in Baş similarly noted that the requirements for reasonable suspicion under Article 5 are ‘especially important for members of the judiciary’. ⁹³ It is hoped that the Court takes the opportunity to expand on this point in any future cases where this issue may arise, since this could usefully contribute to the development of the concept of Convention reasonable suspicion.

4.3 The most recent case – Kavala

The most recent judgment discussed in this Section was handed down on 10 December 2019. Osman Kavala, a businessman and prominent civil society activist, was arrested on suspicion of attempting to overthrow the government and constitutional order through force and violence, charges linked to the Gezi Park events ⁹⁴ and to the attempted coup.

Kavala v Turkey offers a further interesting illustration of how the Court takes into account domestic conceptions of reasonableness, since in this case the standard was not lower than that set out in the Convention, such as the honest and genuine suspicion discussed in the Northern Irish cases, but in fact higher. The applicant was placed in detention on remand on the application of Article 100(1) of the CCP, which requires the presence of ‘facts giving rise to a strong suspicion that the [alleged] offence has been committed’ (emphasis added). ⁹⁵ This provision was not amended during the state of emergency, ⁹⁶ and not only did the evidence fail to meet this higher threshold, but also that of Convention reasonable suspicion, attaining only the level of mere suspicion. The ECtHR continued to test the factual matrix against the Convention reasonable suspicion standard, without raising it to that of domestic ‘strong suspicion’.

Another important addition to the Court’s reasonableness arsenal comes in the form of its finding in Kavala that the inclusion of facts that could not be reasonably considered behaviour criminalised under domestic law, as well as facts largely related to the exercise of Convention rights, within the bill of indictment diminished the reasonableness of the suspicions in question. ⁹⁷ The Court’s findings on reasonableness are thereby further affected where, after a conclusion that relevant evidence capable of satisfying an objective observer that the applicant may have committed the offence is lacking, the reasonableness of a suspicion can be further diminished by aggravating factors – here, the grounding of pre-trial detention measures on facts falling beyond the scope of criminal law and those pertaining to the exercise of Convention rights. The latter is dealt with in detail by the Court through the medium of its assessment of the alleged (and ultimately established) violation of Article 18 taken in conjunction with Article 5 § 1, in particular within the context of charges against the applicant being brought subsequent to public speeches given by Turkey’s President in which he referred to the applicant by name, accused him of ‘[providing] all manner of support for…acts of terror’ and of being financed by the ‘famous Hungarian Jew G.S. [George Soros]’, ⁹⁸ statements that are truly chilling in more ways than one. The Court noted a clear link between these accusations and the phrasing of the bill of indictment, filed three months after they were made. ⁹⁹ The Court in this way effectively uses Article 18 as a way of upholding the reasonableness requirement in Article 5 § 1 (c) in those instances where it is further derailed by reliance on facts pertaining to the exercise of Convention rights. ¹⁰⁰

5. Conclusion

Following the 15 July 2016 failed coup, Turkey declared a nationwide state of emergency and derogated from its obligations under the ECHR pursuant to Article 15. In the wake of the declaration, State authorities adopted numerous emergency decrees that introduced sweeping measures resulting in strongly curtailed rights. Turkey’s post-coup period has been clearly marked by the mass arrests and detention of hundreds of thousands of people including judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians.

While the Turkish post-coup pre-trial detention practices impact a wide range of human rights, the present article has examined them primarily through the lens of the reasonable suspicion requirement under Article 5 § 1 (c) ECHR. This is because, as noted above, in the vast majority of cases, arrests and detentions resulted from a mere suspicion with little to no evidence corroborating involvement in terrorist activities. Moreover, the emergency decrees introduced many drastic procedural restrictions in the field of pre-trial detention at the blatant expense of significant elements of the right to liberty and security of the person, which Turkey has covenanted to protect.

Weighing the Court’s findings in the Turkish post-coup cases against its prior jurisprudence on the Article 5 suspicion threshold in emergency settings, it can be concluded that the Court has strongly advanced the safeguard of the reasonable suspicion standard. It has made clear that, even in the light of a wide margin of appreciation, the impugned measures could not be said to have been strictly required by the exigencies of the situation since this would negate the minimum requirements of Article 5 § 1 (c) regarding the reasonableness of a suspicion justifying deprivation of liberty, and would thereby defeat the purpose of Article 5. ¹⁰¹ The hesitance revealed on the part of the Court in maintaining the Article 5 threshold for suspicion in the UK line of case-law is markedly absent in the Turkish post-coup judgments. The unwavering commitment to these standards notwithstanding Turkey’s derogation from the Convention thus marks a welcome change from the inconsistent approach of the ECtHR’s jurisprudence concerning the conflict situation in Northern Ireland.

Nonetheless, the question remains whether, despite these positive aspects, by continuing to support the notion that the domestic legal landscape is capable of addressing violations of this provision – the structure of European human rights being such as to allocate primary responsibility for redressing rights violations to States themselves ¹⁰² – the Court itself negates the minimum requirement of Article 5 § 1 (c) by failing to lend practical support to its full enactment. In the next such case that comes before it, it may be apt for the Court not only to review its stance on the effectiveness of recourse to the TCC as a remedy, but also to consider how to tackle the underlying structural issues so clearly at play in Turkey, potentially by recourse to the pilot-judgment procedure. ¹⁰³