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Court: Turkey wrong to detain former Constitutional Court judge after attempted coup

Authorities in Turkey were wrong to detain Alparslan Altan, a judge at the country’s Constitutional Court, following the attempted coup of 15 July 2016.

They declared today that holding Altan was unlawful and in breach of the European Convention on Human Rights.

In today’s Chamber judgment in the case of Alparslan Altan v. Turkey (application no. 12778/17) the European Court of Human Rights held, by a majority, that there had been:

a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights on account of the unlawfulness of the applicant’s initial pre-trial detention, and

a violation of Article 5 § 1 on account of the lack of reasonable suspicion, at the time of the applicant’s initial pre-trial detention, that he had committed an offence.

The applicant, Alparslan Altan, a former member of the Turkish Constitutional Court, is a Turkish national who was born in 1968 and lives in Ankara (Turkey). He is currently detained.

As Just Satisfaction (Article 41), the court held that Turkey was to pay the applicant 10,000 euros in respect of non-pecuniary damage.

Altan was deprived of his liberty primarily on suspicion of membership of an armed terrorist organisation, FETÖ/PDY. The Constitutional Court found that this constituted the factual and legal basis for a case of discovery in flagrante delicto.

In a judgment adopted on 10 October 2017 the Court of Cassation had held that a situation of discovery in flagrante delicto arose at the time of a judge’s arrest on suspicion of membership of an armed organisation.

The court found that this extension by the courts of the scope of the concept of in flagrante delicto meant that Altan could not have known that the fact of being suspected of membership of a criminal organisation was sufficient to deprive him of the procedural safeguards afforded to Constitutional Court members.

Regarding the order for Altan’s pre-trial detention on 20 July 2016, the Court found that the evidence before it did not support the conclusion that there had been a reasonable suspicion at the time of his initial detention.

That being so, the suspicion against him at that time had not reached the minimum level of “reasonableness” required by Article 5 § 1 (c).

Although it had been imposed under judicial supervision, the detention order had been based on a mere suspicion of membership of a criminal organisation, independently of any pending criminal proceedings.

Such a degree of suspicion could not be sufficient to justify an order for the detention of a judge serving on a high level court, in this instance the Constitutional Court.

The court also observed that the measures taken against the applicant could not be said to have been strictly required by the exigencies of the situation for the purposes of Article 15 (derogation in time of emergency) of the convention.

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