CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 mars 2020

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margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3B53EBD4 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:9pt }   SECOND SECTION CASE OF BAŞ v. TURKEY (Application no. 66448/17)     JUDGMENT   Art 5 § 1 • Procedure prescribed by law • Pre-trial detention of a judge on the basis of an unreasonable extension of the concept of in flagrante delicto • Negation of procedural safeguards afforded to judges Art 5 § 1 (c) • Reasonable suspicion • Detention based on mere suspicion of membership of an illegal organisation, without any specific incriminating evidence Art 5 § 4 • Speediness of review • Detainee yet to be charged not given a hearing before a court throughout investigation lasting approximately one year and two months Art 15 • Derogation in time of emergency • not “strictly required”   STRASBOURG 3 March 2020   FINAL   07/09/2020     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Baş v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Marko Bošnjak,   Valeriu Griţco,   Egidijus Kūris,   Ivana Jelić,   Arnfinn Bårdsen,   Saadet Yüksel, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 28 January 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 66448/17) against the Republic of Turkey lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hakan Baş (“the applicant”), on 30   January 2017. 2.     The applicant was represented by Mr A. Benlahcen, a lawyer practising in Paris. The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicant alleged, in particular, that he had been deprived of his liberty in breach of Article 5   §§   1 and 3 of the Convention and that the proceedings concerning his objections against his detention had not satisfied the requirements of Article 5 § 4 of the Convention. 4.     On 19   June 2018 the Government were given notice of the complaints concerning Article 5 §§ 1, 3 and 4 of the Convention and the remainder of the application was declared inadmissible. The applicant and the Government each filed observations on the admissibility and merits of the case. In addition, third-party comments were received from the International Commission of Jurists (ICJ), which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule   44 §   3 of the Rules of Court). THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1978 and lives in Kocaeli. Background to the case Attempted coup of 15 July 2016 and declaration of a state of emergency 6.     During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically installed National Assembly, government and President of Turkey. 7.     During the coup attempt, the instigators, using fighter planes and helicopters, bombarded several strategic State buildings, including the National Assembly building and the presidential compound, as well as the police special operations command and the secret services headquarters, attacked the hotel where the President of Turkey was staying, held the Chief of General Staff hostage, attacked and occupied a number of institutions, including Türksat (a Turkish satellite telecommunications operator in Ankara), occupied television channels, sealed off bridges over the Bosphorus and Istanbul Airport and fired shots at demonstrators. During the night of violence, 251 people were killed and 2,194 were injured. 8.     The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of an organisation referred to by the Turkish authorities as “FETÖ/PDY” (“Gülenist Terror Organisation/ Parallel State Structure”). 9.     On 16 July 2016 the Bureau for Crimes against the Constitutional Order at the Ankara public prosecutor’s office initiated a criminal investigation. In instructions issued to the Directorate General of Security on the same day, the Ankara Chief Public Prosecutor noted that the offence of attempting to overthrow the government and the constitutional order by force was still ongoing and that there was a risk that members of the FETÖ/PDY terrorist organisation who were suspected of committing the offence in question might flee the country. He asked the Directorate General of Security to contact all the regional authorities with a view to taking into police custody all the judges and public prosecutors whose names were listed in the appendix to the instructions – among them the applicant – and to ensure that they were brought before a public prosecutor to be placed in pre-trial detention under Article 309 §   2 of the Criminal Code (CC). 10.     During and after the coup attempt, acting on the instructions of the Ankara public prosecutor’s office, regional and provincial prosecutors’ offices initiated criminal investigations in respect of individuals suspected of being involved in the attempt and others who were not directly involved but were alleged to have links to the FETÖ/PDY organisation, including certain members of the judiciary. 11.     On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers. 12.     On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article   15 (for the contents of the notice, see paragraph 109 below). 13.     During the state of emergency, the Council of Ministers passed several legislative decrees under Article 121 of the Constitution (see paragraph   52 below). One of them, Legislative Decree no.   667, published in the Official Gazette on 23   July 2016, provided in Article 3 that the Council of Judges and Prosecutors ( Hakimler ve Savcılar Kurulu – “the HSK”) was authorised to dismiss any judges or prosecutors who were considered to belong or be affiliated or linked to terrorist organisations or organisations, structures or groups found by the National Security Council to have engaged in activities harmful to national security. 14.     On 18 July 2018 the state of emergency was lifted. Suspensions and dismissals 15.     On 16 July 2016 the 3rd Chamber of the HSK noted that, in accordance with the instructions of the Ankara Chief Public Prosecutor, a criminal investigation had been initiated in respect of judges and prosecutors suspected of being members of FETÖ/PDY. It decided to submit a proposal to the chairman of the HSK to approve the opening of an investigation, to be carried out by an inspector from the HSK, in accordance with section 82 of Law no.   2802 on judges and prosecutors (“Law no.   2802”). 16.     On the same day, the 2nd Chamber of the HSK held an extraordinary meeting. It noted that the proposal by the 3rd Chamber to approve an investigation had been accepted by the chairman of the HSK and that the presidency of the Inspection Board of the Ministry of Justice had appointed a chief inspector. On the basis of the report drawn up by the chief inspector, the 2nd Chamber of the HSK suspended 2,735 judges and prosecutors – including the applicant – from their duties for a period of three months, pursuant to sections 77(1) and 81(1) of Law no.   2802, on the grounds that there was strong suspicion that they were members of the terrorist organisation that had instigated the attempted coup and that keeping them in their posts would hinder the progress of the investigation and undermine the authority and reputation of the judiciary. Its decision was based on information and documents in the investigation files that it had been sent prior to the coup attempt and on information obtained following research by the intelligence services. 17.     In reaching its 669-page decision, the 2nd Chamber of the HSK had regard to the following: information and documents sent by the Ankara public prosecutor’s office; the activities of the judges and prosecutors concerned during their training; information about their attendance of in-service and external training courses; information about their appointment to special courts and public prosecutors’ offices or to administrative posts requiring special authorisation, and the criteria taken into consideration for that purpose; and information relating to appointments within the Inspection Board of the Ministry of Justice or the administrative authorities. The 2nd   Chamber of the HSK also had regard to: information and documents in the judges’ and prosecutors’ personnel files ( özlük dosyası ); their posts on social media; complaints and reports to the HSK about them, and the investigation files produced and decisions issued as a result; acts carried out by the judges and prosecutors responsible for cases relating to FETÖ/PDY and any decisions delivered in that context; and lastly, disciplinary files concerning investigations it had conducted in respect of the judges and prosecutors with links to FETÖ/PDY. 18.     In its decision the 2nd Chamber of the HSK mentioned detailed information about the activities of FETÖ/PDY within the judicial system, concerning in particular: the organisation’s strategy within the judiciary; the hierarchical structure among the judges and prosecutors belonging to the organisation; action taken by the organisation against judges and prosecutors not belonging to it, in particular the opening of illegal disciplinary investigations by inspectors; the links between judges and prosecutors belonging to the organisation; the financial support provided to the organisation; the conduct of certain members of the organisation; activities carried out to ensure the selection of organisation members for posts at the highest courts and other prominent positions within the judiciary; unlawful investigations and proceedings conducted by members of the organisation for the purpose of supplanting the judiciary and the State administrative authorities; instructions received by judges and prosecutors belonging to the organisation from their superiors in the organisation in delivering their decisions; activities carried out by the organisation to infiltrate the judges’ and prosecutors’ trade union; and the use of the ByLock messaging system by judges and prosecutors belonging to the organisation. 19.     In its decision the 2nd Chamber of the HSK also provided detailed information about the unlawful activities uncovered during the disciplinary investigations initiated in respect of judges and prosecutors with links to FETÖ/PDY (pages 246-436 of the decision). 20.     Furthermore, on pages 437-535 of its decision, the 2nd Chamber of the HSK referred to posts on social media discovered in the course of the disciplinary investigations carried out in respect of the judges and prosecutors suspected of belonging to the organisation, praising acts and actions carried out by suspected members of the organisation. 21.     On 24 August 2016, applying Article 3 of Legislative Decree no.   667, the plenary HSK dismissed 2,847 judges and prosecutors – including the applicant – considered to be members of or affiliated or linked to FETÖ/PDY. In addition to the material referred to in the decision of 16   July 2016, the HSK considered evidence such as messages exchanged via the encrypted messaging systems used by the organisation’s members, statements taken from judges and prosecutors during the investigations in respect of them, and statements by informers. The HSK found that the position of the judges and prosecutors concerned within structures that were incompatible with the principles of independence and impartiality and their activities within the organisation’s hierarchy, coupled with their underlying sense of allegiance, were likely to undermine the reputation and authority of the judiciary. It held that the fact that judges and prosecutors obeyed the instructions of a hierarchical structure outside the State apparatus represented a genuine obstacle to the right of citizens to a fair trial. 22.     On 29 November 2016 the plenary HSK rejected an application by the applicant for a review of the decision to dismiss him. The applicant’s personal situation The applicant’s arrest and pre-trial detention 23.     On 16 July 2016, in the context of the investigation opened by the Ankara public prosecutor’s office, the Kocaeli public prosecutor initiated a criminal investigation in respect of the judges serving in Kocaeli suspected of being members of FETÖ/PDY. 24.     On 18 July 2016 the applicant was placed under police supervision at the hospital where he had been admitted for treatment. 25.     Also on 18 July 2016, the Kocaeli 1st Magistrate’s Court decided, on the basis of Article 153 § 3 of the Code of Criminal Procedure (CCP), to restrict the applicant’s and his lawyer’s access to the investigation file in order to avoid hindering the progress of the investigation. 26.     On 19 July 2016 the applicant left hospital to give evidence to the Kocaeli public prosecutor. The prosecutor informed him that he had been suspended from his duties as a result of the HSK’s decision of 16   July 2016, on the grounds of his suspected membership of FETÖ/PDY. The applicant denied being a member of or having any links with that organisation. His lawyer stated that neither he nor his client knew on what evidence he had been accused of the offence in question. 27.     Later on 19 July 2016, at about 9 p.m., the applicant was brought before the Kocaeli 1st Magistrate’s Court. On that occasion he reiterated the statement he had given to the public prosecutor and complained that no evidence whatsoever had been produced to substantiate the accusations against him. Following questioning, on 20 July 2016 the magistrate decided to place the applicant in pre-trial detention on suspicion of membership of a terrorist organisation. He noted that the coup attempt was still ongoing, that the applicant had been suspended from his duties by the HSK on the grounds that he was a member of the organisation that had instigated the attempted coup, and that the HSK had asked for an investigation to be opened by the Bureau for Crimes against the Constitutional Order at the Ankara public prosecutor’s office. The magistrate took into consideration the nature of the alleged offence, the state of the evidence and the potential sentence. He also noted that investigations into the coup attempt were being conducted across the country, that statements had not yet been taken from all the suspects and that the alleged offence was among the “catalogue” offences listed in Article   100 §   3 of the CCP. The judge held that detention appeared to be a proportionate measure at that stage and that judicial supervision would be insufficient. Lastly, he found that there was a situation of discovery in flagrante delicto governed by section   94 of Law no. 2802. In addition, he held that it was unnecessary to detain the applicant in connection with the offence of attempting to overthrow the constitutional order. 28.     On 29 July 2016 the Kocaeli 2nd Magistrate’s Court dismissed an objection by the applicant against the order for his detention, on the same grounds as those put forward in the original order. On that occasion the magistrate did not seek the opinion of the public prosecutor. Decisions concerning the applicant’s continued pre-trial detention and the dismissal of his objections, adopted before his application to the Constitutional Court 29.     On 19 August 2016 the Kocaeli 1st Magistrate’s Court, in the course of its automatic periodic review of the detention of several suspects, ruled on applications for release submitted by the applicant on 4   and 9   August 2016, thus acting in accordance with paragraph 1 (ç) of Article   3 of Legislative Decree no. 668 (see paragraph 81 below). The magistrate observed that the public prosecutor had requested a review of the detention under Article   108 of the CCP and had sought its continuation. He also noted that many of the individuals suspected of being members of FETÖ/PDY had absconded and were still wanted. In view of the resources available to FETÖ/PDY and the nature of the organisation, there was a risk not only of absconding but also of collusion and reoffending. The magistrate also emphasised the serious nature of the alleged offence and the fact that not all the evidence had yet been gathered, and found that the decision to detain the applicant had been consistent with the information, documents and evidence in the investigation file. He added that there was still a clear and present danger associated with the attempted coup. Detention appeared to be a proportionate measure at that stage, and judicial supervision would be insufficient. Accordingly, the magistrate upheld the public prosecutor’s request and ordered the applicant’s continued pre-trial detention. 30.     On 7 September 2016 the Kocaeli 2nd Magistrate’s Court, in the course of its automatic periodic review of detention, considered an application for release submitted by the applicant on 22   August 2016, thus acting in accordance with paragraph 1 (ç) of Article 3 of Legislative Decree no.   668. The magistrate observed that the public prosecutor had requested a review of the detention under Article 108 of the CCP and had sought its continuation. He upheld the public prosecutor’s request, which also concerned thirty-two other suspects. The magistrate relied mainly on the same grounds as in his previous decision of 29 July 2016. He pointed out that as the suspects were former judges and prosecutors, there was a risk that they might attempt to exert influence or pressure on serving judges and prosecutors. He also dismissed the suspects’ objections to the application of section 94 of Law no. 2802, and held that this was a case of discovery in flagrante delicto . 31.     On 26 September 2016 the Kocaeli 2nd Magistrate’s Court dismissed an objection by the applicant against the decision of 19   August 2016 to continue his detention, relying mainly on the same grounds as in its previous decisions. On that occasion the magistrate did not seek the opinion of the public prosecutor. 32.     On 27 September 2016 the Kocaeli public prosecutor’s office forwarded the file to the Ankara public prosecutor’s office. 33.     On 10 October 2016, following an automatic review of the detention of several suspects, including the applicant, the Ankara 2nd Magistrate’s Court ordered their continued pre-trial detention. The magistrate explained that the independence and impartiality of the judiciary sought to protect the fundamental values of a democratic society, that these were universal and modern values, and that the general principles of law included a prohibition on abuses of rights and abuses of power. He added that when the judiciary was used in such a way as to be diverted from its true function and purpose, the justice system risked losing its legitimacy. There had been an attempted uprising against the democratic regime, as attested by reports from various authorities and the decision by the HSK, and specific facts giving rise to strong suspicion had been established. Furthermore, the offences of which the suspects were accused were among the “catalogue offences” listed in Article   100 §   3 of the CCP. In addition, the evidence and suspicion needed for a detention order to be made at the investigation stage was not of the same nature or scale as was required to reach a finding of guilt beyond reasonable doubt at the trial stage, and it was therefore unnecessary, when ordering pre-trial detention, to have the proof that would be needed to establish guilt. There was a risk of absconding given the nature of the alleged offence and the potential sentence, and at the start of the investigation stage there was also a risk of tampering with evidence. The magistrate therefore concluded that judicial supervision would be insufficient and that detention was not a disproportionate measure. 34.     On 14 October 2016 the Ankara 8th Magistrate’s Court, in the course of its automatic review of detention, considered applications for release submitted by certain suspects. The magistrate observed that the public prosecutor had requested a review of the detention under Article   108 of the CCP and had sought its continuation for the thirty-three suspects concerned, among them the applicant. The magistrate upheld the public prosecutor’s request and ordered the continued pre-trial detention of the suspects. He stated that the file contained evidence that the suspects had committed the alleged offence and again referred to the risk of absconding, tampering with evidence and reoffending. He also mentioned the nature of the alleged offence and the fact that it was a “catalogue” offence, and held that detention was a proportionate measure. 35.     On 7 November and 5 December 2016 and 6   January 2017 the Ankara magistrates’ courts conducted automatic reviews of the detention of thirty suspects, including the applicant, and decided to extend the measure on the same grounds as referred to previously. The applicant’s application to the Constitutional Court 36.     On 26 December 2016 the applicant lodged an individual application with the Constitutional Court. In it he complained that he had been detained in breach of the procedural safeguards afforded to judges in domestic law, that he could not reasonably be suspected of having committed the offence in question and that the reasons given for his detention had been insufficient. He argued that neither the order for his detention nor the decisions extending it had referred to any evidence of a reasonable suspicion that he had committed the alleged acts and that the grounds for his detention were neither relevant nor sufficient. He also contended that there had been a breach of the principle of equality of arms because of the lack of a hearing during the review of his detention, the non-disclosure of the public prosecutor’s opinion and the restriction of access to the investigation file. Lastly, he complained that the magistrates deciding on his detention had been neither independent nor impartial and had lacked jurisdiction to rule on the matter. 37.     On 27 December 2017 the Constitutional Court declared the application inadmissible, finding that the applicant’s complaints were manifestly ill-founded. 38.     Examining the lawfulness of the applicant’s initial pre-trial detention, the Constitutional Court held that, according to the indictment, he was a user of the ByLock messaging application. Bearing in mind the features of that application, it was acceptable that its use or installation with a view to use should have been treated by the investigating authorities as evidence of a link to FETÖ/PDY. It referred in that connection to its Aydın Yavuz and Others judgment, delivered on 20 June 2017. For that reason, in view of the features of the messaging software in question, the Constitutional Court found that the investigating authorities or courts that had ordered the applicant’s detention could not be said to have pursued a groundless and arbitrary approach in accepting that his use of the application could, in the circumstances of the case, be regarded as “strong evidence” of the commission of the offence of membership of FETÖ/PDY. In addition, having regard to the reasons mentioned in the decisions ordering the detention and dismissing the applicant’s subsequent objection, the Constitutional Court held it could not be maintained that no reasons had been given for the detention or that it was a disproportionate measure. 39.     As regards the complaint that no hearing had been held during the review of the applicant’s detention, the Constitutional Court saw no reason to depart from its finding in the Aydın Yavuz and Others judgment that the lack of a hearing during the review of detention over a period of approximately nine months had not infringed the right to liberty and security, viewed in the light of Article 15 of the Constitution. 40.     As to the restriction of access to the investigation file, the Constitutional Court found, after examining the records of questioning, the detention orders, the objections by the applicant or his lawyer against his detention, and the documents and information in the investigation file, that the applicant had been informed of the material forming the main basis for his detention, that he had had sufficient knowledge of its contents and that he had been given an opportunity to challenge his detention. 41.     The Constitutional Court noted that the applicant had also argued that the magistrates were neither independent nor impartial and that their examination of his objections had deprived him of an effective remedy in respect of his detention. It observed that it had examined similar complaints in a number of other cases and, in view of the structural characteristics of the magistrates’ courts as an institution, had declared the complaints manifestly ill-founded. After citing its leading judgments in this area, the Constitutional Court found that there was no reason to reach a different conclusion in the applicant’s case. 42.     The Constitutional Court also declared inadmissible the complaint that certain procedural safeguards attached to the status of judges or prosecutors had not been observed, and the complaint that the magistrates’ courts lacked jurisdiction to order detention. It held that, having regard to the nature of the alleged offence and the manner in which it had been committed, it had been appropriate to accept the jurisdiction of the magistrates who had ordered the applicant’s detention, and that there had been no error of assessment or any arbitrariness. The Constitutional Court referred to the conclusions set out in its previous judgments ( Mustafa Başer and Metin Özçelik , application no. 2015/7908, 20 January 2016, and Süleyman Bağrıyanık and Others , application no. 2015/9756, 16   November 2016; see paragraphs 101-03 below). Decisions extending the applicant’s detention after his application to the Constitutional Court, and his indictment, trial and conviction 43.     On 6 January 2017 Legislative Decree no. 680 came into force, amending the rules on territorial jurisdiction laid down in section 93 of Law no.   2802. Following the amendment, the Ankara public prosecutor’s office transferred the case to the Istanbul public prosecutor’s office. 44.     On 7 February, 8 March, 4 April, 3 May and 31 May 2017, various Istanbul magistrates’ courts reviewed the applicant’s detention and ordered its extension. During the review of his detention on 4   April 2017, the Istanbul 10th Magistrate’s Court relied on a police report about the ByLock messaging application (entitled “ ByLock CBS Sorgu Raporu ”), drawn up by the Anti-Smuggling and Organised Crime Department (“the KOM”), which named the applicant as a ByLock user. 45.     On 9 June 2017 the applicant was charged with membership of a terrorist organisation under Article 314 § 2 of the Criminal Code and section   5 of the Prevention of Terrorism Act (Law no. 3713). 46.     On 19 June 2017 the Istanbul 29th Assize Court accepted the indictment, and the trial subsequently began in that court. The 29th Assize Court ordered the applicant’s continued pre-trial detention, and instructed the Directorate General of Security and the KOM to provide more detailed information about his use of ByLock. An objection lodged against that decision was dismissed. 47.     On 14 July, 11 August and 8 September 2017 the 29th Assize Court ordered the applicant’s continued pre-trial detention in the context of its automatic review of the detention. Objections were lodged against the three decisions adopted by the court, but were all dismissed. In examining the objections, the judges relied not only on the applicant’s use of the ByLock messaging application but also on statements by a witness, C.U., to the effect that the applicant was a member of FETÖ/PDY. 48.     On 19 September 2017 the 29th Assize Court held its first hearing on the merits of the case, following which it ordered the applicant’s continued pre-trial detention. During the hearing, in which he took part via the SEGBİS sound and image information system ( Ses ve Görüntü Bilişim Sistemi ), the applicant stated that the police report on ByLock had been included in the file some eight months after he had first been detained and that the prosecution had not produced any concrete evidence at the time of his initial detention. Following the second hearing, held on 25   October 2017 and attended by the applicant, the 29th Assize Court again ordered his continued pre-trial detention, relying mainly on his use of ByLock and the evidence given by C.U. At the hearing, the applicant submitted that the Istanbul Assize Court lacked jurisdiction ratione materiae and ratione loci to try his case. Arguing that the case concerned an offence committed in connection with or in the course of his official duties, he submitted that the subject matter fell within the jurisdiction of the Court of Cassation. In the event that his alleged offence had been treated as a personal offence within the meaning of section 93 of Law no. 2802, he contended the court with territorial jurisdiction would have been the Kocaeli Assize Court. The 29th   Assize Court dismissed the objection. 49.     During the trial, the 29th   Assize Court carried out regular reviews of the applicant’s detention and ordered its extension. 50.     At the end of the last hearing, held on 19   March 2018, the 29th   Assize Court found the applicant guilty of the offence with which he was charged (membership of an armed terrorist organisation), sentenced him to seven years and six months’ imprisonment and, taking into account the period already spent in detention, ordered his release. In reaching its decision, the Assize Court relied on the applicant’s use of the ByLock application. It observed that between 21   September 2014 and 17   October 2014 he had logged on to the ByLock server on fifty occasions, as had been confirmed by an inspection of base-station data, which had established that the communications had taken place. It also relied on the statement by C.U. about the applicant’s membership of the organisation in question: the witness had stated that he and the applicant had worked at the same court, that they had been divided into two groups formed by the organisation and that, during the election of members of the HSK, the applicant had campaigned to secure votes for the organisation’s candidate. 51.     The applicant’s conviction was upheld on appeal. The case is currently pending before the Court of Cassation. RELEVANT DOMESTIC LAW AND PRACTICE The Constitution 52.     The relevant parts of the provisions of the Constitution pertaining to the present case read as follows: Article 15 “In the event of war, general mobilisation, a state of siege or a state of emergency, the exercise of fundamental rights and freedoms may be partially or fully suspended, or measures derogating from the guarantees enshrined in the Constitution [in relation to those rights and freedoms] may be taken to the extent required by the situation, provided that obligations under international law are not violated. Even in the circumstances listed in the first paragraph, there shall be no violation of: the individual’s right to life, except where death occurs as a result of acts compatible with the law of war; the right to physical and spiritual integrity; freedom of religion, conscience and thought or the rule that no one may be compelled to reveal his or her beliefs or blamed or accused on account of them; the prohibition of retrospective punishment; or the presumption of the accused’s innocence until a final conviction.” Article 19 “Everyone has the right to personal liberty and security. ... Individuals against whom there are strong presumptions of guilt may be detained only by order of a judge and for the purposes of preventing their absconding or the destruction or alteration of evidence, or in any other circumstances provided for by law that also necessitate their detention. No one shall be arrested without an order by a judge except when caught in flagrante delicto or where a delay would have a harmful effect; the conditions for such action shall be determined by law. ... Everyone who is deprived of his or her liberty for any reason whatsoever shall be entitled to apply to a competent judicial authority for a speedy decision on his or her case and for his or her immediate release if the detention is not lawful. ...” Article 121 (repealed on 21 January 2017) “... During the state of emergency, the Council of Ministers, chaired by the President of the Republic, may issue legislative decrees on matters necessitated by the state of emergency. ...” Article 138 “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions. No questions may be asked, debates held, or statements made in the legislative assembly with respect to the exercise of judicial power in the context of an ongoing trial. The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.” Article 139 “Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights attaching to their status, even as a result of the abolition of a court or post. Exceptions shall be permitted in the case of judges or prosecutors who have been convicted of an offence requiring their dismissal, those whose unfitness to carry out their duties for medical reasons has been conclusively established or those whose continued service has been judged undesirable.” 53.     The same principles of the independence of the judiciary and the irremovability of judges are enshrined in Article 140 of the Constitution. 54.     The constitutional principles of independence are reproduced in legislation; for example, Law no. 2802 on judges and prosecutors specifies that judges and public prosecutors perform their functions in accordance with the principles of the independence of the courts and the irremovability of judges, and that no organ, authority or individual may give orders or instructions to the courts concerning the exercise of judicial power. The legislation states clearly that any act undermining the autonomy and independence of the courts and the judiciary is prohibited. Furthermore, Article   277 of the Criminal Code makes it a criminal offence to attempt to “influence persons vested with judicial powers”. Article 142 “The formation of the courts, their duties and powers, their functioning and proceedings before them shall be governed by law.” Article 159 (as in force at the material time) “The High Council of Judges and Prosecutors shall be established and shall exercise its functions in accordance with the principles of the independence of the courts and the security of tenure of the judiciary. The High Council of Judges and Prosecutors shall have a total of twenty-two members ...; it shall comprise three chambers. The Minister of Justice shall be the chairman of the Council. The Under-Secretary of the Ministry of Justice shall be an ex officio member of the Council. Four titular members of the Council, whose qualifications shall be specified by law, shall be appointed by the President of Turkey from among the teaching staff in the field of law at higher education institutions and/or from among practising lawyers; three members ... shall be appointed by the plenary Court of Cassation from among the members of that court; two members ... shall be appointed by the plenary Supreme Administrative Court from among its members; one member ... shall be appointed by the general assembly of the Justice Academy of Turkey from among its members; seven members ... shall be elected from among the judges and public prosecutors of the first rank ... at the ordinary courts; three members ... shall be elected from among the judges and public prosecutors of the first rank ... at the administrative courts, for a term of four years. Members may be re-elected on the expiry of their term of office. ...” 55.     Pursuant to a law of 21 January 2017, the “High Council of Judges and Prosecutors” became the “Council of Judges and Prosecutors”. Law no. 5237 of 26 September 2004 instituting the Criminal Code 56.     Article 309 § 1 of the Criminal Code is worded as follows: “Anyone who attempts to overthrow by force and violence the constitutional order provided for by the Constitution of the Republic of Turkey or to establish a different order in its place, or de facto to prevent its implementation, whether fully or in part, shall be sentenced to aggravated life imprisonment.” 57.     Article 312 § 1 of the Criminal Code, on crimes against the government, provides: “Anyone who attempts to overthrow the Government of the Republic of Turkey by force and violence or to prevent it, whether fully or in part, from discharging its duties shall be sentenced to life imprisonment.” 58.     Article 314 §§ 1 and 2 of the Criminal Code, which provides for the offence of membership of an illegal organisation, reads as follows: “1.     Anyone who forms or leads an organisation with the purpose of committing the offences listed in the fourth and fifth parts of this chapter shall be sentenced to ten to fifteen years’ imprisonment. 2.     Any member of an organisation referred to in the first paragraph above shall be sentenced to five to ten years’ imprisonment.” Law no. 5271 of 4 December 2004 instituting the Code of Criminal Procedure (CCP) 59.     The relevant parts of Article 2 of the CCP provide: “The following shall be classified as cases of discovery in flagrante delicto ( suçüstü ): 1.     an offence in the process of being committed; 2.     an offence that has just been committed, and an offence committed by an individual who has been pursued immediately after carrying out the act and has been apprehended by the police, the victim or other individuals; 3.     an offence committed by an individual who has been apprehended in possession of items or evidence indicating that the act was carried out very recently. ...” 60.     Article 20 of the CCP provides: “Acts carried out by a judge or court lacking territorial jurisdiction shall not be deemed null and void ( hükümsüz ) simply as a result of the lack of territorial jurisdiction.” 61.     The relevant parts of Article 100 of the CCP, on grounds for detention, provide: “1.     If there is concrete evidence giving rise to a strong suspicion that the [alleged] offence has been committed and to a ground for pre-trial detention, a detention order may be made in respect of a suspect or an accused. Pre-trial detention may only be ordered in proportion to the sentence or preventive measure that could potentially be imposed, bearing in mind the significance of the case. 2.     In the cases listed below, a ground for pre-trial detention shall be presumed to exist: (a)     ... if there are specific facts grounding a suspicion of a flight risk; (b)     if the conduct of the suspect or accused gives rise to a strong suspicion (1)     of a risk that evidence might be destroyed, concealed or tampered with; (2)     of an attempt to put pressure on witnesses or other individuals ...” For certain offences listed in Article 100 § 3 of the CCP (the so-called “catalogue offences”), there is a statutory presumption of the existence of grounds for detention. 62.     Article 108 of the CCP, concerning the review of detention, reads as follows: “1.     During the investigation phase [and] throughout the suspect’s detention, at intervals not exceeding thirty days, a magistrate shall, on an application by the public prosecutor [and] having regard to the provisions of Article 100, review whether continued detention is necessary, after hearing the suspect or the suspect’s lawyer. 2.     A review of detention may also be requested by the suspect within the time indicated in the previous paragraph. 3.     The judge or court shall automatically give a decision on whether the accused’s continued detention is necessary at each hearing or, if the circumstances so require, between hearings or within the time indicated in the first paragraph above.” 63.     The relevant parts of Article 141 § 1 of the CCP provide: “Compensation for damage ... may be claimed from the State by anyone ... (a)   &#