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

Date01 December 2020
AuthorSabina Garahan,Emre Turkut
Published date01 December 2020
Subject MatterArticles
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
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.
Netherlands Quarterly of Human Rights
2020, Vol. 38(4) 264–282
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0924051920967182
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.
Turkey, derogation, emergency, ECHR, reasonable suspicion, detention
In one of his best-known works, The Trial, Franz Kafka tells the terrifying story of Joseph K.
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’.
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.
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.
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
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)
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 /CommDH(2016)35> accessed3 September 2020.
Turkut and Garahan 265
cases of Mehmet Hasan Altan,S¸ahin Alpay ,Alparslan Altan and Kavala is viewed through this
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 s upport the notion that the Turkish legal landscape i s 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.
Lack of respect for the right to liberty has unfortunately become a fundamental marker of Turkey’s
legal landscape.
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.
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 emphasise d 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,
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
5. The Court has most recently found in Bas¸ v Turkey App no 66448/17 (ECtHR, 3 March 2020) that the pre-trial detention
of a judge violated Article 5 § 1 on account of the lack of a reasonable suspicion that he had committed an offence. This
later case reiterates many of the Court’s findings in Mehmet Hasan Altan,S¸ahin Alpay,Alparslan Altan and Kavala and
thus does not fall to be considered separately within this article.
6. As a telling sign of the extent of the problem, between its establishment in 1959 and 2018 the ECtHR delivered 755
judgments against Turkey finding a breach of the right to liberty and security, out of a total number of 3,778 judgments
concerning Article 5ECHR, ‘Violations by Article and by State’
2018_ENG.pdf> accessed 3 September 2020.
7. Pre-trial detention is governed by Article 100 et seq. of the Turkish Code of Criminal Procedure (the CCP). In
accordance with Article 100, a person may be detained on remand where there is concrete evidence giving rise to a
strong suspicion that the person has committed an offence and where the detention is justified on one of the following
grounds: if the suspect has absconded or there is a risk that they will do so, or if there is a risk that the suspect will
conceal or tamper with evidence or influence witnesses. For the relevant pre-trial provisions of the CCP, see S¸ ahin Alpay
v Turkey App no 16538/17 (ECtHR, 20 March 2018), paras 58-63.
8. Buzadji v The Republic of Moldova App no 23755/07 (ECtHR, 5 July 2016).
266 Netherlands Quarterly of Human Rights 38(4)
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’.
During the state of emergency, protections of the right to liberty dwindled yet further.
Shortly after the failed coup attempt,
on 21 July 2016, Turkey derogated from the ECHR
pursuant to Article 15, relying on the failed coup and ‘other terrorist acts’.
An equivalent
notice was lodged with the United Nations (UN) under Article 4 of the International Covenant
on Civil and Political Rights (ICCPR).
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
which granted ‘very far-reaching, almost unlimited dis-
cretionary powers for administrative authorities and the executive in many areas’
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.
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
9. See, inter alia, Cahit Demirel v Turkey App no 18623/03 (ECtHR, 7 July 2009) para 45; Mehmet Yavuz v Turkey, App
no 47043/99 (ECtHR, 24 July 2007), para 40; Duyum v Turkey App no 57963/00 (ECtHR, 27 March 2007) para 38; and
Getiren v Turkey App no 10301/03 (ECtHR 22 July 2008) para 107.
10. The failed coup is alleged to have been perpetrated by a faction within the Turkish army loyal to the Gu
¨len Movement,
a group named after its exiled leader Fethullah Gu
¨len and originally regarded as a religious (liberal Islamist) orga-
nisation – see Bu
¨lent Aras and O
¨mer C¸ aha, ‘Fethullah Gulen and his liberal ‘Turkish Islam’ movement’ (2000) 4(4)
Middle East Review of International Affairs 30. Since the 1990s, the movement had gained a wide support base across
social, political and economic landscapes in Turkey and abroad, and developed into a broad transnational network of
individuals and institutions, including educational establishments, cultural foundations and charities. With the rise to
power of the Justice and Development Party (the AKP) in 2002, the AKPand the Gu
¨len Movement formed an alliance,
with each political office initially strengthening the other’s social and bureaucratic power. Over time, however, this
developed into a fierce power struggle – see Hakkı Tas¸, ‘A history of Turkey’s AKP-Gu
¨len conflict’ (2018) 23(3)
Mediterranean Politics 395. The 15 July 2016 failed coup is widely believed to be the result of this struggle. While the
group’s reach and activities largely remain a matter of speculation, Turkish authorities have for some time (prior to the
2016 coup) denounced what is termed the ‘Fetullahist Terrorist Organisation/Parallel State Structure’ (FETO
¨/PDY) as
an ‘armed terrorist organisation’ and a threat to national security – see Venice Commission, ‘Turkey: Memorandum
prepared by the Ministry of Justice of Turkey for the visit of the delegation of the Venice Commission to Ankara on 3-4
November 2016 in connection with the emergency decree laws’, CDL-REF(2016)067, 23 November 2016, 5, 15
¼CDL-REF(2016)067-e> accessed 3 Septem-
ber 2020.
11. Council of Europe, ‘Note Verbale’, 22 July 2016 accessed 3 September 2020.
12. ‘Turkey: Notification under Article 4(3) ICCPR’, 2 August 2016
580.2016-eng.pdf> accessed 3 September 2020.
13. After the first Decree (No 667) of 23 July 2016, a total of 32 emergency decrees were adopted during the 24-month
state of emergency. For an overall analysis of these decrees, see, for example, Ali Yıldız, ‘Did Turkey’s Recent
Emergency Decrees Derogate from the Absolute Rights?’ (Verfassungsblog, 28 September 2019)
did-turkeys-recent-emergency-decrees-derogate-from-the-absolute-rights/> accessed 3 September 2020.
14. Council of Europe, Commissioner’s Memorandum (n 4), para 11.
15. See Republic of Turkey Ministry of Justice, ‘Observations of the Ministry of Justice of the Republic of Turkey
Concerning the Memorandum of 7 October 2016 by the Council of Europe’s Commissioner for Human Rights’, 31
October 2016, , para 22.
Turkut and Garahan 267
restrictions of basic rights in reliance on, in many cases, a tenuous connection with the raison
ˆtre of the state of emergency.
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 restric-
tions 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
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.
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,
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,
giving rise to valid
concerns that its use had become a form of summary punishment.
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,afive-
day initial period of incommunicado detention,
the recording of meetings between a detai-
nee and their lawyer, and judicial powers stopping a detainee from accessing legal advice.
16. Tom Ruys and Emre Turkut, ‘Turkey’s Post-Coup ‘‘Purification Process’’: Collective Dismissals of Public Servants
under the European Convention on Human Rights’ (2018) 18(3) Human Rights Law Review 539 and Hasan Aydin and
Koksal Avincan, ‘Intellectual Crimes and Serious Violation of Human Rights in Turkey: A Narrative Inquiry’ (2020)
The International Journal of Human Rights 1.
17. See Decree No. 667 on Measures to be Taken Under the State of Emergency, 22 July 2016.
18. For instance, the ECtHR held in Aksoy v Turkey App no 21987/93 (ECtHR, 18 December 1996) paras 70-78 that
holding a suspect for fourteen days, and in Nuray Sen v Turkey App no 41478/98 (ECtHR 17 June 2003) para 28 for
eleven days, without judicial intervention, was not a proportionate derogation from Article 5 ECHR. The Court has
similarly noted, in the absence of a derogation but in the context of emergency anti-terrorism legislation, that the
‘special features’ of such a case cannot be used to distort the Article 5 § 3 requirement of promptness – see Brogan and
Others v the United Kingdom App nos 11209/84, 11234/84, 11266/84 and 11386/85 (ECtHR, 29 November 1988)
paras 61-2 and, inter alia,Magee and Others v the United Kingdom, App nos 26289/12, 29062/12 and 29891/12
(ECtHR, 12 May 2015) paras 77-8. On whether the Brogan judgment had the effect of acting as an invitation to the UK
government to derogate, see Edward Crysler, ‘Brannigan and McBride v. U.K.: A New Direction on Article 15
Derogations under the European Convention on Human Rights?’ (1994) 2 Revue Belge de Droit International 603, 611.
19. Decree No. 684 on Specific Regulations Under the State of Emergency, 23 January 2017.
20. Article 102(2) of the CCP stipulates that ‘[w]here the crime is under the jurisdiction of the court of assize, the max-
imum period of detention is two years. This period may be extended by explaining the reasons in necessary cases, but
the extension shall not exceed 3 years’. Decrees Nos. 693 and 694 increased the maximum detention period to 7 years –
see Decree Law Nos. 693 and 694 on Specific Regulations Under the State of Emergency, 23 August 2017.
21. Human Rights Watch, ‘Turkey: Events of 2018’ accessed 3
September 2020.
22. Article 3(1)(m) of Decree No. 668. This five-day period was later revoked in January 2017 – see Article 11 of Decree
No. 684. In Salduz v Turkey App no 36391/02 (ECtHR, 27 November 2008) paras 53 and 62, the ECtHR stated that
access to a lawyer is at the core of the concept of a fair trial and found that Turkey violated the Convention because ‘the
absence of a lawyer while [the applicant] was in police custody irretrievably affected [the applicant’s] defence rights’.
23. See generally Article 6(1) of Decree No. 667 and Article 3(1) of Decree No. 668.
268 Netherlands Quarterly of Human Rights 38(4)
The ability of lawyers to examine the contents of the case file was limited; any documents
exchanged with a detainee could be seized.
Defendants were prevented from hearing all the
evidence brought against them and, in some cases, from having a lawyer present at their
Family visits and phone calls were also restricted, rendering detainees yet more
vulnerable to ill treatment.
Notwithstanding the potential for abuse created by these limita-
tions, Decree No. 667 granted full immunity from legal, administrative, financial and criminal
liabilities to government officials who could otherwise face criminal investigation and pro-
This effectively prevented accountability for any and all abuses that might have
been perpetrated during this time.
Against this backdrop, and of particular re levance 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 offen-
der’ (under Article 2), lacking the level of legal certainty required by international human rights
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’
24. Article 3(1)(l) of Decree No. 668.
25. See Decree No. 667.
26. The UN Special Rapporteur on torture, Nils Melzer, in his report at the conclusion of his mission to Turkeyexpressed
serious concerns about the increasing allegations of torture and other ill-treatment in police custody. He referred to
persistent reports of severe beatings, extended blindfolding and handcuffing, sleep deprivation, threats and verbal
abuse, and sexual assault – see UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment on his mission to Turkey, A/HRC/37/50/Add.1, 18 December 2017,
para 26. See also Human Rights Watch, ‘A Blank Check: Turkey’s Post-Coup Suspension of Safeguards Against
Torture’ (Human Rights Watch, 25 October 2016),
post-coup-suspension-safeguards-against-torture> accessed 3 September 2020 and Human Rights Watch, ‘In Custody:
Police Torture and Abductions in Turkey’ (Human Rights Watch, 12 October 2017)
tody/police-torture-and-abductions-turkey> accessed 3 September 2020. Turkish authorities have strenuously denied
these claims, labelling them part of a ‘misinformation campaign’ – see ‘Turkish minister denies Amnesty International
report on coup detainee torture’ (Hu¨rriyet Daily News, 26 July 2016)
amnesty-international-report-on-coup-detainee-torture.aspx?pageID¼238&nID¼102094&NewsCatID¼338> acces-
sed 3 September 2020.
27. See Article 9 of Decree No. 667. Article 37 of Decree No. 668 and its subsequent amendment (Article 121 of Decree
No. 696, 27 December 2017) extended this immunity to civilians (those ‘who have adopted decisions and executed
decisions or measures with a view to suppressing the coup attempt and terrorist actions performed on 15/7/2016 and the
ensuing actions ...without having regard to whether they held an official title or were performing an official duty or
not’), thus raising concerns of pro-state vigilantism – see VOA News, ‘Critics Say Turkey’s New Emergency Decree
Could Incite Vigilante Groups’ (VOA News, 25 December 2017)
keys-new-emergency-decree-could-incite-vigilante-groups> accessed 3 September 2020.
28. See Article 6(1)(e) of Decree No. 667.
29. The ECtHR recently condemned Turkey’s legal framework on terrorism in two important decisions. In Imret v Turkey
(No. 2) App no 57316/10 (ECtHR, 10 July 2018) paras 55 and 59 and Is¸ıkırık v Turkey App no 41226/09 (ECtHR, 14
November 2017) paras 66 and 70, the Court held that Sections 6 and 7 of Article 220 of the Turkish Criminal Code
imputing membership of an illegal organisation to the mere fact of a person having acted ‘on behalf of’ that organi-
sation or for having ‘aided an illegal organisation knowingly and willingly’ respectively were not foreseeable in their
application since they did not afford the applicants legal protection against arbitrary interference with their rights to
freedom of assembly and association under Article 11 ECHR.
Turkut and Garahan 269
in Turkey.
Added to this, the ‘stereotypical, formulaic and abstract nature’ of detention orders,
the ‘quasi-automaticity of detention’ in respect of catalogue crimes,
and the ‘highly problematic’
extension of the time limit for detention on remand without judicial control to 30 days
of post-
coup Turkey conflict strongly with the right to liberty as envisioned and protected by Article 5 of
the ECHR.
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.
In turn, the Court condemned Turkey’s post-coup pre-trial detention practices in four important
decisions in Mehmet Hasan Altan,
S¸ ahin Alpay,
Alparslan Altan
and Kavala.
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.
In all four decisions, the ECtHR was unconvinced that the pre-trial detention of the applicants
satisfied its reasonable suspicion standard.
The Court held that the difficulties facing Turkey
30. AmnestyInternational, ‘PunishmentWithout Trial: Pre-Trial Detentionin Turkey’ (Amnesty International,11November
2011) /punishment-without-trial-pre-trial-detention-in-turkey/> accessed3 September 2020.
31. Third party intervention by the Council of Europe Commissioner for Human Rights under Article 36, paragraph 3, of
the European Convention on Human Rights: Application No. 28749/18 Mehmet Osman Kavala v. Turkey (Com-
missioner for Human Rights, 20 December 2018), para 29
court-of-human-rights-cas/1680906e27> accessed 3 September 2020.
32. ibid.
33. Venice Commission, Opinion on Emergency Decree Laws Nos. 667-676 Adopted Following the Failed Coup of 15
July 2016’ CDL-AD(2016)037, 12 December 2016, para 227,
pdffile¼CDL-AD(2016)037-e> accessed 3 September 2020.
34. The extent of the pre-trial detention problem in post-coup Turkey is closely linked to the country’s system of
magistrates’ courts. The magistrates, who are also known as criminal judgeships or judges of the peace, are tasked with,
inter alia, issuing search, arrest and detention warrants and judicially reviewing the decisions of public prosecutors not
to prosecute. Since their creation in 2014, these courts have faced criticism relating to their role in human rights
violations, especially in the field of pre-trial detention. This is mainly due to the fact that they work as a closed circuit –
the decision of a magistrate can only be appealed to another such magistrate, all of whom are hierarchically equal. The
Venice Commission has concluded that the ‘system of horizontal appeals against decisions by the criminal peace
judges does not offer sufficient prospects of an impartial, meaningful examination of the appeals’ – Venice Com-
mission Opinion No. 852/2016 on the duties, competences and functioning of the criminal peace judgeships, CDL-
AD(2017)004, 13 March 2017, para 86. See also International Commission of Jurists, ‘The Turkish Criminal Peace
Judgeships and International Law’ (International Commission of Jurists, 2018), 15,
uploads/2019/02/Turkey-Judgeship-Advocacy-Analysis-brief-2018-ENG.pdf> accessed 3 September 2020, which
concludes that ‘[t]he system of the criminal peace judges in Turkey does not meet international standards for inde-
pendent and impartial review of detention’.
35. World Prison Brief, Institute for Crime and Justice Policy Research, ‘Turkey: Pre-trial/remand prison population:
trend’ accessed 14 October 2020.
36. Mehmet Hasan Altan v Turkey App no 13237/17 (ECtHR, 20 March 2018).
37. S¸ahin Alpay v Turkey (n 7).
38. Alparslan Altan v Turkey App no 12778/17 (ECtHR, 16 April 2019).
39. Kavala v Turkey App no 28749/18 (ECtHR, 10 December 2019).
40. As mentioned previously, the more recent case of Bas¸ v Turkey reiterates many of the Court’s findings within these
judgments – see (n 5) above.
41. Mehmet Hasan Altan v Turkey (n 36), para 143, S¸ahin Alpay v Turkey (n 7), para 122, Alparslan Altan v Turkey (n 38),
para 119 and Kavala v Turkey (n 39), para 155. A similarly robust stance towards reviewing Turkey’s far-reaching post-
coup detention practices has also been adopted by UN bodies. In the O
¨zc¸elik, Karaman and I.A. communication, the
UN Human Rights Committee concluded that the detention of two Turkish nationals (the complaint by I.A. was
withdrawn) violated the right to liberty and security under Article 9 (1-3) of the ICCPR as they were not informed of the
270 Netherlands Quarterly of Human Rights 38(4)
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.
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 situa-
tions 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 protec tions 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.
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 revie w to assess whether the enacted emergency
measures were proportionate and directly connected to genuine security concerns.
charges against them or of the reasons for their arrest – see UNHRC, Communication No 2980/2017, _
Ismet O
Turgay Karaman and I.A. v. Turkey, UN Doc. CCPR/C/125/D/2980/2017. Similarly, in nine out of the ten total
opinions handed down between June 2017 and January 2020 concerning allegations against Turkey of arbitrary
deprivations of liberty, the UN Working Group on Arbitrary Detention (WGAD) consistently found that the detentions
of the individuals concerned lacked any legal basis, and deplored the widespread practice of ‘guilt-by-association’
(findings under categories I and III) – see Rebii Metin Gou
¨rgec¸ v. Turkey, WGAD Opinion No. 1/2017, 8 June 2017;
Mesut Kacmaz, Meral Kacmaz and two minors v. Pakistan and Turkey, WGAD Opinion No.11/2018, 25 May 2018;
Muharrem Gencturk v. Turkey, WGAD Opinion No. 44/2018, 2 October 2018; Ahmet Caliskan v. Turkey, WGAD
Opinion No. 43/2018, 11 October 2018; Mestan Yayman v. Turkey, WGAD Opinion No. 42/2018, 18 October 2018;
Hamza Yaman v. Turkey, WGAD Opinion No. 78/2018, 31 January 2019; Andrew Craig Brunson v. Turkey, WGAD
Opinion No. 84/2018, 15 February 2019; Mustafa Ceyhan v. Turkey, WGAD Opinion No/ 10/2019, 26 June 2019; and
Melike Goksan and Mehmet Fatih Goksan v. Turkey, WGAD Opinion No. 53/2019, 18 September 2019. The most
recent decision in January 2020 – Ercan Demir v. Turkey, WGAD Opinion No. 79/2019, 16 January 2020 – is the only
exception (although the WGAD found the impugned detention to be arbitrary on other grounds).
42. See inter alia Mehmet Hasan Altan v Turkey (n 36) paras 140-142, S¸ahin Alpay v Turkey (n 7) paras 119-121.
43. A detailed report on access to justice and the state of emergency in Turkey concluded that ‘[t]he lack of institutional
independence of the judiciary, the chilling effect of the mass dismissals and the diminished quality and experience of
the members of the judiciary that resulted from it ...clearly undermine the capacity of the judiciary as a whole to
provide an effective remedy for human rights violations, both in regard to measures taken under the state of emergency,
and in general’ – see International Commission of Jurists, ‘Justice Suspended: Access to Justice and the State of
Emergency in Turkey’ 2018, 21
2018-ENG.pdf> accessed 3 September 2020.
44. From the outset of the state of emergency, the TCC refused to carry out its judicial duty of reviewing the emergency
decrees and resulting derogation measures, marking a radical departure from its long-established standards. On 25 July
2016, the Republican People’s Party (CHP) lodged two separate appeals before the TCC seeking annulment of pro-
visions in the earliest emergency decrees (Decree Nos. 668 and 669) on the ground that they violated the Turkish
Constitution. On 12 October 2016, the TCC rejected both appeals stating that it lacked jurisdiction to review whether or
not the decrees were proportionate – see TCC, Constitutionality Review, Plenary Assembly, Docket No. 2016/166,
Decision No. 2016/159, 12 October 2016 and TCC, Constitutionality Review, Plenary Assembly, Docket No. 2016/
167, Decision No.2016/160, 12 October 2016. The TCC rendered this decision despite clear legal precedent to the
contrary – see TCC Constitutionality Review, Plenary Assembly, Docket No. 1990/25, Decision No. 1991/1, 10
January 1991. Moreover, in a number of constitutionality review decisions following the lapse of the post-coup state of
emergency, the TCC upheld several controversial provisions originally adopted through emergency decrees, including
provisions authorising a 14-day detention period and granting ‘full immunity’ to government officials – see (n 27). See
also TCC Constitutionality Review, Plenary Assembly, Docket No. 2016/205, Decision No. 2019/63, 24 July 2019,
paras 130-137 and TCC Constitutionality Review, Plenary Assembly, Docket No. 2016/205, Decision No. 2019/63, 24
July 2019, paras 78-79. Furthermore, the TCC dismissed two of its members (Alparslan Altan and Erdal Tercan) based
Turkut and Garahan 271
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 Sec-
tion 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,
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.
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
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 ‘reason-
able’ within their own domestic contexts; indeed, problems in this area are said to ‘arise at the level
of the facts’.
Where States have engaged in legislative or judicial processes to define reason-
ableness (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.
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.
solely on ‘the information from the social circle’ and ‘the common conviction formed by the members of the TCC’ in
breach of the procedural safeguards laid down in the Turkish Law on the Constitutional Court No. 6216 – see TCC,
Plenary Assembly, Docket No. 2016/6, Decision No. 2016/12, 4 August 2016. The ECtHR’s consideration of Alparslan
Altan’s application is elaborated in Section 4 below. The lack of oversight by the TCC allowed the government to
proceed unhindered and resulted in the dismissal of more than 100,000 public servants on the basis of the emergency
decrees – see Venice Commission (n 33), paras 9 and 104-5. On the compatibility of this unprecedented purge with
Turkey’s obligations under the ECHR, see Ruys and Turkut (n 16).
45. For a discussion on the Court’s and Commission’s varying approaches to the consideration of special circumstances in
the context of a potential formal derogation, see Crysler (n 18), 610-611.
46. Enshrined in the Preamble to the Convention since the Brighton Declaration, adopted at the High Level Conference on
the Future of the European Court of Human Rights, 18–20 April 2012
Brighton_FinalDeclaration_ENG.pdf> accessed 14 October 2020 and in Protocol No. 15 amending the Convention on
the Protection of Human Rights and Fundamental Freedoms, adopted on 24 June 2013, Council of Europe Treaty Series
- No. 213 accessed 14 October 2020.
47. Kavala v Turkey (n 39) para 128.
48. ibid para 137.
49. Mitkus v Latvia App no 7259/03 (ECtHR, 2 October 2012) para 88.
272 Netherlands Quarterly of Human Rights 38(4)
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 Con vention.
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.
Nonetheless, the
ECtHR’s standards on ‘reasonable suspicion’ when assessing, for instance, the use of emer-
gency legislation in Northern Ireland were not always uniform.
Adopting the conflict situ-
ation 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, insuf-
ficient elements had been furnished by the government to support the conclusion that there
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.
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.
The objective standard demanded by the Convention was therefore
not reached.
The judgment in Murray v the United Kingdom,
however, handed down four years after Fox,
Campbell and Hartley, marked a departure from this firm stance. The Court’s consideration of the
50. On restrictive interpretations of Article 5 § 1 (c), see Claire Macken, ‘Preventive detention and the right to personal
liberty and security under Article 5 ECHR’ (2006) 10(3) The International Journal of Human Rights 195, 196-200. See
also Lonneke Stevens, ‘Pre-trial Detention: The Presumption of Innocence and Article 5 of the European Convention
on Human Rights Cannot and Does Not Limit its Increasing Use’ (2009) 17 European Journal of Crime, Criminal Law
and Criminal Justice 165, 172.
51. Francesc G. Lasierra, ‘The Deprivation of Liberty by the Police. International Parameters and the Jurisprudence of the
European Court of Human Rights’ in Ralf Alleweldt and Guido Fickenscher (eds.) The Police and International
Human Rights Law (Springer 2018) 116.
52. See Flaherty who argues that the emergency legislation in Northern Ireland was aimed specifically at obtaining
confession-based convictions at the expense of procedural rights – Martin Flaherty, ‘Human Rights Violations against
Defense Lawyers: The Case Against Northern Ireland’ (1994) 7 Harvard Human Rights Journal 87, 95.
53. For a more detailed history of the development of arrest powers in the context of the conflict in Northern Ireland, see
Brice Dickson, ‘Powers of Arrest’ in Brice Dickson, The European Convention on Human Rights and the Conflict in
Northern Ireland (Oxford University Press 2010). See also Elizabeth Kondonijakos, ‘The Reasonable Suspicion Test of
Northern Ireland’s Emergency Legislation: A Violation of the European Convention of Human Rights’ (1996) 3(1)
Buffalo Journal of International Law 99.
54. Fox, Campbell and Hartley v the United Kingdom App nos 12244/86, 12245/86 and 12383/86 (ECtHR, 30 August
1990) para 35.
55. ibid.
56. Murray v the United Kingdom App no 14310/88 (ECtHR, 28 October 1994).
Turkut and Garahan 273
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.
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)wasimpaired.
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
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 officer s told them to do’.
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 stan-
dards in emergency contexts.
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
57. Unsurprisingly, the judgment in Murray attracted several dissenting opinions – see the joint dissenting opinion of
Judges Loizou, Morenilla and Makarczyk, the partly dissenting opinion of Judge Mifsud Bonnici, and the partly
dissenting opinion of Judge Jambrek. The Court later imputed the discrepancies between Fox, Campbell and Hartley
and Murray to the existence of ‘a fine line between those cases where the suspicion grounding the arrest is not suf-
ficiently founded on objective facts and those which are’ – O’Hara v the United Kingdom App no 37555/97 (ECtHR,
16 October 2001) para 41.
58. Fox, Campbell and Hartley (n 54), para 32.
59. O’Hara v the United Kingdom (n 57), para 42.
60. Dickson (n 53), 117.
274 Netherlands Quarterly of Human Rights 38(4)
Turkish post-coup judgments of Mehmet Hasan Altan,S¸ahin 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
S¸ ahin Alpay and Mehmet Hasan Altan were both journalists known for their criticism of the
Turkish government. Followin g the attempted military coup, they were arrested and trie d 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 expres-
sion (Articles 26 and 28 of the Turkish Constitution) in respect of both journalists.
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
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 usurpa-
tion of power.
This caused an unprecedented constitutional crisis.
Scholars have criticised lower courts’ non-
abidance by the TCC rulings as signalling ‘a new phase of decay’ in Turkish constitutionalism,
‘an utter defiance of constitutional authority’
and as exposing the Turkish legal system to a
61. TCC, Mehmet Hasan Altan (ind. app.) Plenary Assembly, App no 2016/23672, 11 January 2018 and TCC, S¸ahin Alpay
(ind. app.), Plenary Assembly, App no 2016/16092, 11 January 2018.
62. Hu
¨rriyet Daily News, ‘Constitutional court exceeded limits, Turkish deputy PM says’ (Huu¨rriyet Daily News,14
January 2018) <
125715> accessed 3 September 2020.
63. S¸ahin Alpay v Turkey (n 7), paras 39 and 42 and Mehmet Hasan Altan v Turkey (n 36), para 53. See also International
Commission of Jurists, ‘Turkey: The Judicial System in Peril’, 2016, 21-22
2016/07/Turkey-Judiciary-in-Peril-Publications-Reports-Fact-Findings-Mission-Reports-2016-ENG.pdf> accessed 3
September 2020 and Bas¸ak C¸ alı, ‘Will Legalism be the End of Constitutionalism in Turkey?’ (Verfassungsblog,22
January 2018) accessed 3 Sep-
tember 2020.
64. On the performance of the TCC during and after the state of emergency, see (n 44).
65. C¸ alı (n 63).
66. Dilek Kurban, ‘A Love Letter from Strasbourg to the Turkish Constitutional Court’ (Verfassungsblog, 27 March 2018)
accessed 3 September
Turkut and Garahan 275
‘dangerous level of uncertainty’.
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.
The assize court in this instance
followed the ruling and ordered Alpay’s release.
Altan, meanwhile, had already been convicted
of attempting to overthrow the constitutional order and sentenced to life imprisonment on 16
February 2018.
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.
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 offen ce;
it therefore characterised the deprivation of liberty as
disproportionate to the strict exigencies of the situation. The ECtHR adopt ed 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.
This represents a clear and renewed commitment by the Court to
ensuring that derogations do not grant St ates carte blanche to do away with the content and
guarantees of Article 5 rights.
Any possible concerns that the Court may have adopted only a
‘light touch’
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 c ontext 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.
This jars with the Court’s prior express
acceptance that the manner of review of the reasonableness o f the suspicion required by the
67. Massimo Frigo, ‘The Constitutional Conflict in Turkey: Is There Still an Effective Remedy for Human Rights Vio-
lations?’ (Opinio Juris, 26 January 2018)
there-still-an-effective-remedy-for-human-rights-violations/> accessed 3 September 2020.
68. TCC, S¸ahin Alpay (2), Ind. App. Plenary Assembly, App no 2018/3007, 15 March 2018, para 63.
69. Senem Gurol, ‘Resuscitating the Turkish Constitutional Court: The ECtHR’s Alpay and Altan Judgments’ (Strasbourg
Observers, 3 April 2018)
the-ecthrs-alpay-and-altan-judgments/> accessed 3 September 2020.
70. ibid.
71. S¸ahin Alpay v Turkey (n 7) para 119.
72. TCC, Mehmet Hasan Altan (ind. app.) (n 61), para 156.
73. Mehmet Hasan Altan v Turkey (n 36) para 140; S¸ahin Alpay v Turkey (n 7) para 119.
74. On the validity of derogations from Article 5 ECHR, see Mark Elliott, ‘United Kingdom: Detention Without Trial and
the War on Terror’ (2006) 4(3) International Journal of Constitutional Law 553.
75. As per Dickson’s assessment of the Court’s approach in respect of the Northern Ireland emergency powers – see
Dickson (n 53) 117.
76. Mehmet Hasan Altan v Turkey (n 36) para 142; S¸ahin Alpay v Turkey (n 7) para 121.
276 Netherlands Quarterly of Human Rights 38(4)
domestic courts fell below Convention standards, as well as its admission that serious doubts are
raised as to the effectiveness of th e remedy.
In this respect, the Court refe rences the 2014
decision in Koc¸ intar, 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.
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),thesignificance of which it itself
emphasises, especially in the light of the country context of these cases (irrelevant in pre-coup
Koc¸ intar).
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.
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 guar-
antees 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.
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
77. ibid.
78. Koc¸intar v Turkey App no 77429/12 (ECtHR, 1 July 2014) para 43.
79. A consideration of possible non-jurisprudential motivations for the Court’s acceptance of the TCC as capable of
providing an effective remedy falls beyond the scope of this article, the aim of which is to assess the Court’s findings in
the post-coup cases against its existing Article 5 standards. On the impact of non-legal considerations on the devel-
opment of the Court’s case-law, see Shai Dothan, ‘Margin of Appreciation and Democracy: Human Rights and
Deference to Political Bodies’ (2018) 9(2) Journal of International Dispute Settlement 145.
80. See Kurban (n 66) who describes the lower courts’ defiance of the TCC rulings in these cases as ‘a blessing in disguise’
for the Court. Since the TCC had already handed down its judgments in respect of Alpay and Altan (in contrast to the 15
other applications by journalists then pending before the ECtHR), the Court was able to ‘frame the non-implementation
of constitutional judgments as the sole obstacle to the effectiveness of domestic remedies in Turkey without having to
conclude that the constitutional complaint mechanism is ineffective (which it might have felt compelled to do had the
TCC rejected the pending cases of remaining detained journalists)’. These criticisms would seem to be supported by the
later judgment in Alparslan Altan (n 38) – despite the TCC in fact rejecting his application and the Court finding
numerous Convention violations (see Section 4.2), the position of the TCC as an effective mechanism was not
reconsidered. By centring its assessment of TCC effectiveness on ‘any subsequent developments in the case-law of the
first-instance courts ...regarding the authority of the Constitutional Court’s judgments’ (S¸ahin Alpay v Turkey (n 7)
para 121) and Mehmet Hasan Altan v Turkey (n 36) para 142), the ECtHR appears to be willingly shielding from view a
more piercing insight into the true nature of the remedy.
Turkut and Garahan 277
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 necessitat-
ing 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,
it emphasised the need for a high level of scrutiny
of the facts.
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 FETO
¨/PDY, and messages exchanged via
the ByLock messaging service.
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
¨/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’
– 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.
Echoing early Fox, Campbell and Hartley principles,
while the
subsequent gathering of evidence connected to the charge against the applicant could have rein-
forced a pre-existing suspicion linking him to the commission of the alleged offences, it could not
have formed the sole basis of a suspicion retr ospectively 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 itsel f would not satisfy an objective
observer that he could have committed the offence in question.
Although the magistrate who
81. Alparslan Altan v Turkey (n 38) para 134. See also Emre Turkut, ‘The discovery in flagrante delicto, the Kafkaesque
fate of a Supreme judge and the Turkish Constitutional Court: the Alparslan Altan case in Strasbourg’ (Strasbourg
Observers, 6 May 2019) com/2019/05/06/the-discovery-in-flagrante-delicto-the-kafkaesque-fate-
of-a-supreme-judge-and-the-turkish-constitutional-court-the-alparslan-altan-case-in-strasbourg/> accessed 3 September
82. ibid, para 134.
83. ibid para 137.
84. ibid para 138.
85. ibid para 139; the Court maintained its firm stance on this point in Bas¸ v Turkey (n 5) see paras 185-6.
86. Fox, Campbell and Hartley (n 54) para 35.
87. Alparslan Altan v Turkey (n 38) para 141.
278 Netherlands Quarterly of Human Rights 38(4)
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 reasonab leness of the suspicion on which the
applicant’s detention should have been based.
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.
In Alparslan Altan v
Turkey,asinMehmet Hasan Altan, therefore, the Court found that the requirements of derogation
had been satisfied.
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 circum-
stances, 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).
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’.
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 Bas¸similarly noted that the requirements for reasonable suspicion
under Article 5 are ‘especially important for members of the judiciary’.
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
88. ibid para 148.
89. ibid paras 74-5.
90. ibid paras 73-74; Mehmet Hasan Altan v Turkey (n 36) para 93.
91. Alparslan Altan v Turkey (n 38) para 147.
92. ibid para 148.
93. Bas¸ v Turkey (n 5) para 184.
Turkut and Garahan 279
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 an d violence,
charges linked to the Gezi Park events
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 discusse d 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).
provision was not amended during the state of emergency,
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
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 ques-
The Court’s findings on reasonableness are thereby further affected wher e, after a
conclusion that relevant evidence capable of satisfying an objective observer that the appli-
cant 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 mea-
sures 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 con-
junction 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]’,
ments 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
94. In response to the Turkish government’s urban development project that would have required the demolition of Gezi
Park in order to clear space for a shopping centre, a peaceful environmental sit-in was organised in May 2013. The
police responded with violence and raided the park with tear gas and pressurised water in order to disperse
the campaigners. Protests escalated over the following months and spread to several cities across Turkey, resulting in
the deaths of eight individuals, including three protesters, and thousands of people sustaining injuries – see Alev
Yaman, ‘The Gezi Park Protests: The Impact on Freedom of Expression in Turkey’ (PEN International, 14 March
2014) accessed 3 September 2020.
95. Kavala v Turkey (n 39) para 72.
96. ibid para 158.
97. ibid para 157.
98. ibid para 229.
280 Netherlands Quarterly of Human Rights 38(4)
The Court in this way effectively uses Article 18 as a way of upholding the reason-
reliance on facts pertaining to the exercise of Convention rights.
Following the 15 July 2016 failed coup, Turkey declared a nationwide state of emergency and
derogatedfrom its obligations under the ECHR pursuantto Article 15. In the wake of the declaration,
State authoritiesadopted numerous emergency decreesthat 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 per-
sonnel, 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 throu gh 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 corrobor-
ating 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.
Weighingthe Court’s findings in the Turkish post-coupcases 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 suspicionstandard. 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.
The hesitance revealed on the part of the Court in
maintainingthe Article 5 threshold for suspicion in the UK line of case-lawis 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
– 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
99. ibid.
100. See also Emre Turkut, ‘Osman Kavala v. Turkey: Unraveling the Matryoshka Dolls’ (2020) 3 European Human Rights
Law Review 288.
101. Alparslan Altan v Turkey (n 38) paras 116 and 148; see also Kavala v Turkey (n 39) para 158. A detailed assessment of
the use of the margin of appreciation doctrine in derogation settings can be found in Oren Gross and Fionnuala N´ı
Aol´ain, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the
Context of Article 15 of the European Convention on Human Rights’ (2001) 23(3) Human Rights Quarterly 625.
102. ‘[I]n accordance with Article 1 of the Convention, it is the national authorities which are the primary guarantors of
human rights, subject to the supervision of the Court. It is in the name of rapid and efficient, and thus a priori
effective, protection of the rights of individuals that the principle of subsidiarity legitimises the primary responsibility
of the member States’ – Kavala v Turkey (n 39) para 99.
Turkut and Garahan 281
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
Declaration of conflicting interests
The author(s) declared no potential co nflicts of interest with respect to the research, authorship, and/or
publication of this article.
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publi-
cation of this article: This research was supported in part by a grant by the Minerva Center for the Rule of Law
under Extreme Conditions at the Faculty of Law and Department of Geography and Environmental Studies,
University of Haifa, Israel.
Emre Turkut
103. A discussion of the merits of launching the pilot-judgment procedure in respect of Turkey falls beyond the scope of
this article. For a consideration of the merits of employing the procedure in this sphere, see Lindsay Parrott, ‘Tools of
persuasion: the efforts of the Council of Europe and the European Court of Human Rights to reform the Russian pre-
trial detention system’ (2015) 31(2) Post-Soviet Affairs 136. For a broader overview, see Dominik Haider, The Pilot-
Judgment Procedure of the European Court of Human Rights (Brill 2013), and for more recent reflections on the
challenges raised by the procedure see Lize R. Glas, ‘The Functioning of the Pilot-Judgment Procedure of the
European Court of Human Rights in Practice’ (2016) 34(1) Netherlands Quarterly of Human Rights 41.
282 Netherlands Quarterly of Human Rights 38(4)

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