The ‘reasonable suspicion’ test of Turkey’s post-coup emergency rule under the European Convention on Human Rights
Author | Sabina Garahan,Emre Turkut |
DOI | 10.1177/0924051920967182 |
Published date | 01 December 2020 |
Date | 01 December 2020 |
Article
The ‘reasonable suspicion’
test of Turkey’s post-coup
emergency rule under the
European Convention on
Human Rights
Emre Turkut
University of Ghent Faculty Library of Law and Criminology, Universitestraat, Belgium
Sabina Garahan
University of Essex, Colchester, UK
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 emer-
gency. 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 ortheConvention),thearticle 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,S¸ ahin
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 prac-
tices 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
Corresponding author:
Emre Turkut, University of Ghent Faculty Library of Law and Criminology, Universitestraat 4 Gent, 9000 Belgium.
E-mail: emreturkut@gmail.com
Netherlands Quarterly of Human Rights
2020, Vol. 38(4) 264–282
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0924051920967182
journals.sagepub.com/home/nqh
NQHR
NQHR
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.
Keywords
Turkey, derogation, emergency, ECHR, reasonable suspicion, detention
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 explana-
tion. 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 prose-
cutors, military personnel, police officers, journalists, lawyers, human rights defenders and oppo-
sition 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 corro-
borating 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
1. Franz Kafka, The Trial (Oxford World Classics 2009).
2. ibid. at 13.
3. In November 2019, Turkish Ministry of Interior figures revealed that since the 2016 attempted coup, 559,064 individuals
had at that point been investigated on related terrorism charges, 261,700 taken into custody and 91,287 arrested – see
’Turkey orders detention of 237 suspected of Gu
¨len movement ties in last 2 days’ Turkish Minute, 26 November 2019
<https://www.turkishminute.com/2019/11/26/turkey-orders-detention-of-237-suspected-of-gulen-movement-ties-in-
last-2-days/> accessed 14 October 2020. See also ‘_
Ic¸is¸leri Bakanı Soylu ac¸ıkladı: FETO
¨’den 511 bin kis¸i go¨zaltına
alındı’ (Interior Minister Soylu explained: 511 thousand people were taken into custody from FETO
¨)(CNN TURK,20
November 2019) <https://www.cnnturk.com/turkiye/icisleri-bakani-soylu-acikladi-fetoden-511-bin-kisi-gozaltina-
alindi> accessed 3 September 2020.
4. The Commissioner for Human Rights of the Council of Europe has for example noted that persons in detention ‘were not
provided with evidence against them and were unable to defend themselves in an adversarial manner in many cases’ –
see Nils Muiˇ
znieks, ‘Memorandum on the human rights implications of the measures taken under the state of emergency
in Turkey’, CommDH(2016)35,7 October 2016 <https://rm.coe.int/ref/CommDH(2016)35> accessed3 September 2020.
Turkut and Garahan 265
To continue reading
Request your trial