The European Court of Human Rights condemns Turkey for the detention of 427 judges and prosecutors

The European Court of Human Rights (ECtHR), in its Turan and Others decision which was announced yesterday (23 November 2021), ruled that the right to freedom and security was violated (ECHR article 5/1) regarding the detention of 427 judges and prosecutors who were aressted and detained right after the coup attempt even before the military official took part in the coup. The Court further decided to pay 5,000 Euros to the applicants as non-pecuniary damages and litigation expenses and dismissed the remaining request like pecuniary damages.

Through that judgment, it was once again determined that there was no flagrante delicto in the detention of 427 judges/prosecutors, as was the case in the previous applications of Alpaslan Altan, Hakan Baş and Erdal Tercan, which were decided on before. In paragraphs 84 to 96 of the judgment, it was clearly emphasized that the concept of flagrante delicto was not foreseeable, and therefore the arrests were made in violation of the “guarantee attributed to judges and prosecutors by law “.

In summary: The strong findings in the previous decisions that the detention did not meet the legality requirement and that it was against the guarantee of judgeship were also included in this decision. Therefore, with the decision, the approach that the detention was illegal was consolidated once again.

However, the ECtHR did not find it necessary to examine whether there was “strong suspicion”, which is a condition for detention, finding it sufficient to determine that the detention was unlawful. In the public; At least, there was an expectation that a violation decision would be made on the grounds that the arrests were made without “reasonable suspicion”, as was the case in the Altan, Baş and Tercan decision. However, although this decision contained more comprehensive complaints, it largely lagged behind previous decisions in terms of violation detection.

This judgment revealed that the pilot decision proceedings which was recently adopted by the ECtHR in order to ease insurmountable workload of the Court could manipulated and misused in such a way that it fails to be a solution mechanism against mess violations of the member states. The amount of the applications was considered as a reason to decrease seriousness of the violations and the amount of just satisfaction for it. With this practice, a format that is far from individualization was decided and very serious complaints were ignored.

In the words of Judge Egidijus Kūris, “If only 2 judges/prosecutors had been wrongfully arrested, their every complaint would have been examined. However, when 427 judges/prosecutors are unjustly arrested, one has to say ‘sorry but we are full’”. According to Kūris, failing to decide on other complaints eliminates the possibility of Turkey taking action in these matters in domestic law or practice.

Some other words of Judge Kuris are clearly points out the imminent threat that such decision posed against the entire system of protection of human rights: He says: There is a risk that some may read this judgment, by which so many complaints of so many applicants have been denied examination, as a signal that a member State can escape responsibility for violating the Convention en masse, since the Court may 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. To be frank: if a regime decides to go rogue, it should do it in a big way. And if responsibility can be escaped by “doing it big”, why not give it a try?

In the face of this fact can a state party to the ECHR, which detains 427 judges/prosecutors arbitrarily, provide effective remedies to ordinary individuals? In Turan and Others v. Turkey, ECtHR held that it does not have resources to deal with other issues relating to the detention of judges. (para. 98)

The European Convention system was founded, following the 2nd World War, to prevent mass violations of human rights in the continent. Now the very same system denies to examine mass violations due to limited resources. This is a ringing bell for the future of European ideals!

Another issue that has been criticized is the amount of compensation. The ECtHR has stated that its main task is to ensure that human rights are respected by making decisions that set European-wide human rights standards, rather than to compensate the applicants in detail for all their harm. But this approach contradicts with its previous practices.

The Court further stated that the concrete application was not an application for discharge from profession, but for detention, and therefore, the deprived income could not be claimed as pecuniary compensation. The opponent of the notion can be deduced from the message that he will also rule on pecuniary damages in expulsion applications.

Before the ECtHR, there were approximately 1,300 applications regarding unjust detention of judges/prosecutors who had been notified to the government. As of yesterday, the applications about 427 people have been decided. It is possible to foresee that the applications against approximately 840 people will be concluded with a similar result within the next year, and therefore the violation decisions of the same nature will continue.

The total number of members of the judiciary arrested after 15 July is around 2,500-3,000 thousand. It is seen that only half of the judges/prosecutors follow or are able to follow the legal remedies to the end. However, this decision revealed that not only the applicants but also all judges and prosecutors were unfairly detained as they were all arrested under the same conditions and in the same way.

The applicant judges and prosecutors were dismissed with the Decree No. 667 regarding the measures taken within the scope of the state of emergency declared after the coup attempt, on the grounds that they were members of the “FETÖ/PDY”. The Turkish government’s argument that the dismissed judges and prosecutors were in “flagrante delicto” due to their “organizational affiliation” was not accepted by the ECtHR. Therefore, it is possible to conclude that dismissal and conviction decisions made without complying with the procedural provisions have no legal

This decision is a clear indication that thousands of judges/prosecutors have been arrested and detained in violation of their professional guarantees recognized by the law and the constitution. Therefore, it means that they are subsequently tried by courts without jurisdiction and authority. Thus, a very important procedural defect in the investigation and prosecution phase was revealed by the decision of the ECtHR. This situation needs to be taken into account by the instance and appeal courts.

Similarly, persons arrested without reasonable suspicion point out that their conviction was unlawful if they were subsequently convicted on the same evidence. That is, if a case of evidence is not sufficient to detain an arrest, it is not possible for the same standard of evidence to be sufficient for conviction. Because, “reasonable suspicion” and even “strong suspicion” according to domestic law is necessary for arrest, while a certain conviction free from all kinds of doubt is required for conviction.

However, judges and prosecutors were arrested without any evidence. When this decision is evaluated together with the ECtHR’s decision on Altan, Baş, Tercan and the newly finalized Akgün, the Bylock claim, which was added to the file of some people later on, will not change the unfairness of the arrests.

All the applicants naturally applied to the ECtHR after exhausting all domestic remedies, including the Constitutional Court (AYM). Due to the superficial inadmissibility decisions made by the Constitutional Court, the chance of solving the problem in domestic law has been lost. With this decision, the AYM, whose role as an effective remedy in terms of the Convention has become even more questionable, should align its case-laws with the ECtHR, otherwise the ECtHR should consider re-evaluating the position of the Constitutional Court as an effective remedy

Unjust arrests determined by this decision can be evaluated within the scope of “execution of a certain plan”, which is an element of the “crime against humanity” in Article 77 of the Turkish Penal Code as the decision can be interpreted as systematic and collective detentions by the international judicial body. On the morning of the coup attempt, even the judges and prosecutors working in the most remote corners of Turkey were detained on the pretext of the coup. Even though it was known that they had nothing to do with the incident, those on the lists based on filing were arrested, disregarding national and international law.

In view of the above despite the role of the judgment as a good start it is far from being neither “just” nor “satisfactory” referring to its role as providing just satisfaction. The ECtHR made a terrible choice by fulfilling its historical duty to ensure the Rule of Law prevails in the states party to the Convention and the personal comfort of its staff in the Turkish Division. So there no further to say except for “the history itself will judge the ECtHR” for this very choice.