CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 novembre 2021

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color:#0069d6 }     SECOND SECTION CASE OF TURAN AND OTHERS v. TURKEY (Applications nos. 75805/16 and 426 others – see appended list)       JUDGMENT   Art 5 § 1 • Lawful detention • Pre-trial detention of judges suspected of membership of an illegal organisation following a coup attempt, on the basis of an unreasonable extension of the concept of   in flagrante delicto   STRASBOURG 23 November 2021   FINAL   04/04/2022     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Turan and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Carlo Ranzoni,   Egidijus Kūris,   Branko Lubarda,   Pauliine Koskelo,   Marko Bošnjak,   Saadet Yüksel, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to: the applications (nos.   75805/16 and 426 others– see appended list) 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 427 Turkish nationals (“the applicants”), on the various dates indicated in the appended table; the decision to give notice to the Turkish Government (“the Government”) of the complaints under Article 5 §§ 1, 3, 4 and 5 of the Convention and to declare inadmissible the remainder of the applications; the parties’ observations; Having deliberated in private on 19 October 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present applications mainly concern the arrest and pre-trial detention of the applicants – all of whom were sitting as judges or prosecutors at different types and/or levels of court at the material time – on suspicion of their membership of an organisation described by the Turkish authorities as the   “ Fetullahist Terrorist Organisation / Parallel State Structure ” (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması, hereinafter referred to as “FETÖ/PDY”), in the aftermath of the coup attempt of 15 July 2016. THE FACTS 2.     A list of the applicants is set out in the appendix. At the time of the events giving rise to the present applications, they were members of the Court of Cassation or the Supreme Administrative Court, or served as judges in lower courts (hereinafter referred to as “ordinary judges”) or as prosecutors. 3.     Some of the applicants were represented   by   lawyers, whose names are listed in the   appendix. The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. BACKGROUND TO THE CASE Attempted coup of 15 July 2016 and declaration of a state of emergency 5.     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. Further information regarding the events of that night may be found in the case of Baş v. Turkey (no. 66448/17, § 7, 3 March 2020 ). 6.     The day after the attempted military coup, the national authorities blamed the attempt on the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of FETÖ/PDY. 7 .     On 16 July 2016 the Bureau for Crimes against the Constitutional Order at the Ankara public prosecutor’s office initiated a criminal investigation ex proprio motu into, inter alios , the suspected members of FETÖ/PDY within the judiciary. According to the information provided by the Government, this investigation against judges and prosecutors, including members of high courts, was initiated in accordance with the provisions of the ordinary law, on the ground that there had been a case of discovery in flagrante delicto falling with the jurisdiction of the assize courts. 8 .     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 – including some of the applicants   –, and to ensure that they were brought before a public prosecutor to be placed in pre-trial detention under Article   309 of the Criminal Code. 9.     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. 10.     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 Alparslan Altan v.   Turkey , no.   12778/17, § 66, 16 April 2019, or Baş , cited above, § 109 ). 11 .     During the state of emergency, the Council of Ministers passed several legislative decrees under Article 121 of the Constitution (see Baş , cited above, § 52 ). One of them, Legislative Decree no.   667, published in the Official Gazette on 23   July 2016, provided in its Article 3 that the High Council of Judges and Prosecutors ( Hakimler ve Savcılar Yüksek Kurulu ‑ “the HSYK”) was authorised to dismiss any judges or prosecutors who were considered to belong or to 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. 12.     On 18 July 2018 the state of emergency was lifted. Suspensions and dismissals Suspensions of ordinary judges and prosecutors 13.     On 16 July 2016 the 3rd Chamber of the HSYK 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 (see paragraph 7   above). It decided to submit a proposal to the chairman of the HSYK to approve the opening of an investigation, in accordance with section 82 of Law no.   2802 on judges and prosecutors (“Law no.   2802”) (see Baş , cited above, §   67, for the relevant section of Law no. 2802). 14.     On the same day, the 2nd Chamber of the HSYK held an extraordinary meeting. It noted that the proposal by the 3rd Chamber for the opening of an investigation had been accepted by the chairman of the HSYK 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 HSYK suspended 2,735 judges and prosecutors – including some of the applicants – 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. Further details regarding the HSYK’s decision may be found in the Baş case (ibid., §§ 17-20). 15.     It appears from the information provided by the Government that by decisions taken on 19 and 22 July, 10 August and 13 October 2016, the   HSYK decided to suspend more judges and prosecutors from their duties –including some of the applicants – on grounds similar to those in its earlier decision of 16   July 2016. Suspensions of members of the Court of Cassation and the Supreme Administrative Court 16.     On 17 July 2016 the 1st Presidency Board of the Court of Cassation issued a decision (no. 244/a) revoking the existing authorities of the members of the Court of Cassation whose names had been indicated by the Chief Public Prosecutor’s Office, including some of the applicants. A   similar decision (no.   2016/27) was taken by the Presidency Board of the Supreme Administrative Court on the same date in respect of its members concerned, including, once again, some of the applicants. Dismissals 17.     On 24 August 2016, applying Article 3 of Legislative Decree no.   667 (noted in paragraph 11 above), the plenary HSYK dismissed 2,847 judges and prosecutors – including many of the applicants – considered to be members of or affiliated or linked to FETÖ/PDY (decision no. 2016/426). The HSYK 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 presented a genuine obstacle to the right of citizens to a fair trial. 18.     According to the information provided by the parties, a total of a further 1,393   judges and prosecutors were dismissed from the profession in the following months, including some of the applicants. APPLICANTS’ ARREST AND PRE-TRIAL DETENTION Decisions for the applicants’ arrest and pre-trial detention 19.     Acting on the instructions of the Ankara Chief Public Prosecutor’s Office (see paragraph 8 above), regional and provincial prosecutors’ offices initiated criminal investigations in respect of individuals suspected of being involved in the coup attempt and/or alleged to have links to the FETÖ/PDY organisation, including the applicants. 20.     Following their arrest and detention in police custody, the applicants were placed in pre-trial detention on various dates between 18   July 2016 and 19   October 2016, mainly on suspicion of membership of the FETÖ/PDY organisation, an offence punishable under Article 314 of the Criminal Code (see Baş , cited above, § 58). The pre-trial detention orders were issued by the magistrates’ courts located at the respective places of the applicants’ arrest. 21.     When ordering the applicants’ pre-trial detention, the magistrates’ courts relied mainly on the fact that the applicants had been suspended from their duties as judges or prosecutors on the grounds of their membership of the organisation that had instigated the attempted coup and that the Ankara Chief Public Prosecutor’s Office had requested the launching of a criminal investigation in their regard. The magistrates noted the existence of further incriminating evidence in respect of some of the applicants, such as witness statements or evidence suggesting their use of the ByLock messaging system. Regard being had to the state of the evidence, the nature of the alleged offence or offences – which were among the so-called ‘catalogue’   offences listed in Article   100 of the Code of Criminal Procedure (CCP) –, the potential sentences and the ongoing investigations into the coup attempt across the country, the magistrates’ courts held that pre-trial detention was a proportionate measure. In the majority of the decisions, it was noted specifically that the criminal investigation was governed by the ordinary rules, given that the offence of which the suspects were accused, namely membership of an armed terrorist organisation, was a   ’continuing offence’   ( temadi   olan   suç )   and that there was a case of discovery in flagrante delicto governed by the relevant provisions of domestic law (see Baş , cited above, §   67, as regards the relevant section 94 of Law   no.   2802, and paragraphs   30 and 31 below as regards Laws nos.   2797 or 2575, respectively). 22.     On different dates the magistrates’ courts dismissed the applicants’ objections against the initial orders for their detention, mainly on the same grounds as those indicated in the initial detention orders. 23.     The applicants’ continued pre-trial detention was reviewed automatically pursuant to Article 108 of the CCP, which provides for a review every thirty days (see Baş , cited above, § 62). Their requests for release were examined at the same time as the automatic periodic review of their detention, as provided under Article   3, paragraph   1   (ç), of Legislative Decree no.   668 (ibid., § 81). The reviews, which were carried out on the basis of the case files, were not conducted on an individual basis but concerned a large group of suspects. Both the decisions to prolong the pre ‑ trial detention and the dismissals of the applicants’ objections to their detention essentially involved a repetition of the reasons put forth at the time of the initial pre-trial detention. Decisions concerning the applicants’ continued pre-trial detention, and their indictment, trial and conviction 24.     According to the information provided by the parties, on various dates the applicants were charged with membership of a terrorist organisation under Article   314 § 2 of the Criminal Code. During the subsequent trial stage, the first-instance courts, ruling either at the scheduled hearings or at periodic reviews carried out between the hearings, ordered the applicants’ continued detention and dismissed their requests for release on grounds similar to those noted above. 25.     According to the latest information in the case file, the first-instance courts have concluded their examinations regarding all applicants, except for a few. Most of the applicants were convicted of membership of a terrorist organisation, and some sixteen applicants were acquitted. For the most part, the appeal proceedings are still pending before the regional courts of appeal or the Court of Cassation, as relevant, except in the case of a few applicants whose convictions or acquittals have become final. Individual applications to the Constitutional Court 26.     In the meantime, the applicants lodged one or more individual applications with the Constitutional Court in respect of, inter alia , the alleged violation of their right to liberty and security on various accounts, all of which were declared inadmissible. 27 .     Amongst the complaints lodged by the applicants was the one concerning their detention in alleged breach of the procedural safeguards afforded to judges and prosecutors in domestic law and the lack of jurisdiction of the magistrates’ courts that had ordered their detention, which the Constitutional Court found to be inadmissible. It held essentially that in view of 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 applicants’ detention. In many of the decisions, it further stated expressly that there had been no error of assessment or any arbitrariness as regards the application of the provisions relating to discovery in flagrante delicto . RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW AND PRACTICE 28.     The relevant domestic law and practice, including the pertinent case ‑ law of the Court of Cassation and the Constitutional Court, have for the most part been set out in the cases of Alparslan Altan v. Turkey (cited above, §§   46-48, 50-55 and 59-64 ) and Baş v. Turkey (cited above, §§   52 ‑ 67, 70, 81-90, 98-99, 101-103). Further elements of relevant domestic law and practice are summarised below. Code of Criminal Procedure (CCP) (Law no. 5271) 29 .     The relevant parts of Article 141 § 1 of the CCP provide: “Compensation for damage ... may be claimed from the State by anyone ... (a)     who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law; ... (d)     who, even if he or she was detained lawfully during the investigation or trial, has not been brought before a judicial authority within a reasonable time and has not obtained a judgment on the merits within a reasonable time; (e)     who, after being arrested or detained in accordance with the law, was not subsequently committed for trial or was acquitted; ...” Court of Cassation Act (Law no. 2797) 30 .     The relevant provision of the Court of Cassation Act (Law no.   2797) provides: Preliminary examination, investigation and prosecution of offences Personal and duty-related offences Section 46 “The opening of an investigation against the First President, the first deputy presidents, the chamber presidents and the members of the Court of Cassation, as well as the Chief Public Prosecutor and the Deputy Chief Public Prosecutor at the Court of Cassation, in respect of offences related to their official duties or personal offences shall be subject to the decision of the First Presidency Board. However, in cases of discovery   in flagrante delicto   falling within the jurisdiction of the assize courts, the preliminary and initial investigation shall be conducted in accordance with the rules of ordinary law.” Supreme Administrative Court Act (Law no. 2575) 31 .     The relevant parts of the Supreme Administrative Court Act (Law no.   2575) provide: Investigation Section 76 “1. The initial investigation in respect of offences committed by the President, the Chief Public Prosecutor, the deputy presidents, the chamber presidents and the members of the Supreme Administrative Court in connection with or in the course of their official duties shall be conducted by a committee composed of a chamber president and two members selected by the President of the Supreme Administrative Court. ...” The procedure for the prosecution of personal offences Section 82 “1. The proceedings regarding the personal offences committed by the President, the Chief Public Prosecutor, the deputy presidents, the chamber presidents and the members of the Supreme Administrative Court shall be conducted in accordance with the provisions concerning the personal offences committed by the President, the Chief Public Prosecutor and the members of the Court of Cassation. ...” Case-law of the Court of Cassation 32 .     On 2 July 2019 the plenary criminal divisions of the Court of Cassation delivered a judgment (E. 2019/9.MD-312, K.2019/514) regarding a former member of the HSYK suspected of membership of FETÖ/PDY, where it addressed, inter alia , the question of the compatibility with domestic law of the conduct of the preliminary investigation in accordance with the rules of ordinary law. After summarising its case law relating to the elements of the offence of membership of an armed organisation, which it noted was a personal offence, and to the notion of “continuing offence” (see, in this regard, Baş , cited above, §§ 83-86 and 90), the Court of Cassation proceeded with the examination of the concept of “ in flagrante delicto ” and its application in the context of continuing offences. Referring to the prevalent view in Turkish legal doctrine, the Court of Cassation held that continuing offences could be committed in flagrante delicto , and that the situation of discovery in flagrante delicto would persist in respect of continuing offences as long as the offence continued to be committed. The Court of Cassation pronounced as follows: “... As indicated as part of the general remarks regarding membership of an organisation, in order to establish the presence of membership, it is sufficient that the perpetrator continually submits (...) to the hierarchy of the organisation by his concrete actions ... Accordingly, membership (...) does not need to be demonstrated by other acts ... On the other hand, in the event that the competent authorities have obtained evidence that raises a suspicion that the perpetrator is a member of a criminal organisation, and that the continuity of the membership can be established on the basis of that evidence ..., it is not contrary to the law to ... accept that the perpetrator had been [caught] while committing the offence [in question], within the meaning of Article 2 (j), paragraph   1 of the CCP, and that, therefore, [he or she] may be subject to the terms of discovery in flagrante delicto . It is not necessary here that the perpetrator’s criminal act be observed by the general public; it is sufficient that the competent authorities know at the time of arrest that the acts demonstrating the continuity of the membership of the organisation persist and that the perpetrator had not left the organisation.” 33.     The Court of Cassation held that contrary to the Court’s findings in the case of Alparslan Altan , its interpretation of the concept of “discovery in flagrante delicto ” in the context of the arrest of judges and prosecutors for alleged membership of FETÖ/PDY was not based on an unreasonable and arbitrary judicial interpretation. Its approach, which had also found acceptance by the Constitutional Court, was rather grounded in doctrine, on the theory of organised crime and, above all, on domestic legal provisions that had been enacted by the legislature in a consistent and harmonious manner, which the Strasbourg Court had not taken into account. 34.     Referring to Article 161 § 8 of the CCP, the Court of Cassation further stated that in view of their nature and gravity, the investigation of certain offences, including that of membership of an armed organisation, would be conducted directly by the public prosecutors in accordance with the terms of the ordinary law, even if the offence was committed during, or in connection with, the performance of an official duty. Accordingly, where such grave offences were concerned, the requirements of Article 161 § 8 of the CCP would prevail and the special investigatory procedures envisaged in certain laws – such as Law no. 2797 in respect of the members of the Court of Cassation –, would not be applicable, regardless of whether there was a case of discovery in flagrante delicto or not. The Court of Cassation contended that in its Alparslan Altan judgment, the Court had failed to assess the issue of the lawfulness of the pre-trial detention from the standpoint of Article   161 §   8 of the CCP. 35 .     The Court of Cassation concluded, in the light of the foregoing, that the conduct of the investigation against the defendant under the terms of the ordinary law had been in accordance with the relevant legal framework, that it had not resulted from an extensive or arbitrary interpretation of the law, and that it had thus been compatible with the requirements of the “quality of law”. Case-law of the Constitutional Court Selim Öztürk decision (application no. 2017/4834, 8 May 2019) 36 .     In a decision delivered on 8 May 2019, the Constitutional Court examined a complaint relating to the alleged unlawfulness of the pre-trial detention on 21 July 2016 of Selim Öztürk, who served as an ordinary judge subject to Law   no. 2802 at the material time. According to the excerpt provided in the Constitutional Court’s decision, Mr Öztürk’s pre-trial detention was ordered by the Ankara Magistrates’ Court on the basis of Articles   100 and 101 of the CCP, without any specific reference to section   94 of Law no.   2802 or to the existence of a situation of a discovery in flagrante delicto . When upholding the lawfulness of that detention order, the Constitutional Court nevertheless found that it was factually and legally tenable to hold that the judge in question had been caught in flagrante delicto , having regard to the Court of Cassation’s consistent case-law on the matter, according to which the existence of a situation of discovery in flagrante delicto   was inferred at the moment of the arrest of judges and prosecutors suspected of the offence of membership of an armed terrorist organisation –, and to the fact that he had been detained amid efforts to quell the coup attempt for membership of the organisation behind that attempt. Yıldırım Turan decision (application no. 2017/10536, 4   June 2020) 37 .     On 4 June 2020 the Plenary of the Constitutional Court delivered a decision of inadmissibility in the case of Yıldırım Turan , which concerned the pre-trial detention of an ordinary judge – subject to Law no. 2802 – in the aftermath of the coup attempt on suspicion of membership of FETÖ/PDY. Like the present applicants, the applicant in that case complained, inter alia , that his pre-trial detention had been ordered without respect for the special procedural guarantees granted to the members of the judiciary in his position under Law no. 2802. 38.     The Constitutional Court stated at the outset that it had delivered many decisions where it had addressed this issue, both in respect of the members of the high courts (such as Alparslan Altan , no. 2016/15586, 11   January 2018, Salih Sönmez , no.   2016/25431, 28 November 2018, and Hannan Yılbaşı , no.   2016/37380, 17 July 2019 , concerning members of the Constitutional Court, the Court of Cassation and the Supreme Administrative Court, respectively) and ordinary judges (such as Adem Türkel , no.   2017/632, 23   January 2019). Relying on the relevant legal framework and the case-law of the Court of Cassation, it had found in all those decisions that the offence in question – that is, membership of an armed terrorist organisation – was a personal offence of a continuing nature. This effectively meant that the commission of the crime had been continuing at the time of arrest, and that, therefore, there had been a situation entailing discovery in flagrante delicto falling within the jurisdiction of the assize courts in all the cases concerned, which had rendered inapplicable the special procedural guarantees envisaged under different laws governing the members of the judiciary in question. 39 .     In two further judgments delivered on 31 October 2019 (namely, A.B. , no.   2016/22702, and Mustafa Özterzi , no. 2016/14597 , concerning a member of the Court of Cassation and an ordinary judge, respectively), it had consolidated this case-law and had underlined the fact that the assessment regarding the existence of a situation of discovery in flagrante delicto in the prevailing circumstances could not be deemed unfounded, given that the persons arrested were considered to have an organisational relation with FETÖ/PDY, which was behind the coup attempt, and that the arrests had taken place at a time when the efforts to avert that attempt were still ongoing and the threat against national security and public order persisted. The Constitutional Court therefore reiterated that in accepting the existence of a case of discovery in flagrante delicto with respect to the members of the judiciary arrested after the attempted coup, its main reference point had been the coup attempt itself. 40.     The Constitutional Court then went on to review the judgment in the Baş case (cited above), where the Court had found a violation of Article   5   §   1 on the basis of its earlier conclusions in Alparslan Altan (cited above) regarding the extensive interpretation of the concept of in flagrante delicto by the domestic courts. According to the Constitutional Court, the Court’s findings in that case involved an assessment not of the application of the Convention, but of the interpretation of the relevant Turkish law. While it acknowledged the binding nature of the Court’s judgments, the Constitutional Court stressed that it was up to the Turkish public authorities, and ultimately to the domestic courts, to interpret the provisions of domestic law relating to the pre-trial detention of members of the judiciary. It held that although the Court was entitled to consider whether the interpretation given by Turkish courts to domestic law violated the rights and freedoms guaranteed by the Convention, it should not replace the domestic courts and interpret domestic law first-hand. It therefore deemed it useful to recapitulate the relevant domestic legal framework and practice governing the investigation and pre-trial detention of the members of the judiciary. 41.     The Constitutional Court noted essentially that the existence of the element of discovery in flagrante delicto falling within the jurisdiction of the assize courts constituted an exception to the procedural safeguards afforded to all judges and prosecutors, regardless of the level or type of court in which they served. However, unlike the legal framework governing the members of high courts and the elected judicial members of the HSYK, where the distinction between personal and duty-related offences was immaterial for the application of the relevant procedural safeguards, the “personal offences” committed by ordinary judges and prosecutors within the meaning of section   93 of Law no.   2802 would fall outside the protection afforded to them under the same law by reason of their profession. Measures taken in respect of such offences would therefore be subject to the rules of ordinary law, whether there was a case of discovery in flagrante delicto or not. 42.     Accordingly, when assessing the lawfulness of the pre-trial detention of an ordinary judge or prosecutor in the present context, it was of decisive importance to determine whether the offence attributed to him or her was a personal offence or an offence committed during or in connection with the performance of duties. Relying on a number of judgments delivered by the Court of Cassation in the aftermath of the attempted coup, as well as its own relevant case-law from the same period, it reiterated that the offence of membership of a terrorist organisation could not be committed by public officials as part of their duties and, for that reason, the initiation of a criminal investigation against Mr Yıldırım Turan, and his pre-trial detention, were not subject to authorisation by an administrative authority. There was, therefore, no legal obstacle to his arrest pursuant to the terms of the ordinary law. 43 .     That being so, the Constitutional Court emphasised that the question as to whether there was a case of discovery in flagrante delicto within the meaning of section 94 of Law no. 2802 had no bearing on the lawfulness of Mr   Yıldırım Turan’s arrest, but was only relevant for the determination of the judicial authority with jurisdiction ratione loci to carry out the investigation and order the pre-trial detention. It accordingly dismissed Mr   Yıldırım Turan’s allegation that his deprivation of liberty had lacked a legal basis. INTERNATIONAL MATERIAL 44 .     The Government referred to Recommendation CM/Rec(2010)12 of the Committee of Ministers to member States, entitled “Judges: independence, efficiency and responsibilities” and adopted on 17   November 2010. The relevant parts of the Recommendation have been noted in the case of Alparslan Altan (cited above, § 65). 45 .     They further brought to the Court’s attention Opinion no.   3 of the Consultative Council of European Judges (CCJE) on the “Principles and Rules Governing Judges’ Professional Conduct, in Particular Ethics, Incompatible Behaviour and Impartiality”, dated 19   November 2002, which provided as follows in its relevant part: “Article 75: As regards criminal liability, the CCJE considers that: i) judges should be criminally liable in ordinary law for offences committed   outside their judicial office; ...” NOTICE OF DEROGATION BY TURKEY 46.     On 21 July 2016 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe a notice of derogation (see, for the text of the notice of derogation, Alparslan Altan , cited above, § 66, or Baş , cited above, § 109). 47.     The notice of derogation was withdrawn on 8 August 2018, following the end of the state of emergency. THE LAW JOINDER OF THE APPLICATIONS 48.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment, pursuant to Rule 42 § 1 of the Rules of Court. PRELIMINARY QUESTION CONCERNING THE DEROGATION BY TURKEY 49.     The Government emphasised at the outset that all of the applicants’ complaints should be examined with due regard to the derogation of which the Secretary General of the Council of Europe had been notified on 21   July   2016 under Article 15 of the Convention. Article 15 provides: “1.     In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2.     No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles   3, 4 (paragraph   1) and   7 shall be made under this provision. 3.     Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.” 50.     The parties made submissions regarding the derogation under Article   15 of the Convention along the same lines as those noted in the cases of Alparslan Altan v. Turkey (cited above, §§ 68-70) and Baş v.   Turkey ( Baş v.   Turkey , cited above, §§   112-114). 51.     The Court notes that in Mehmet Hasan Altan v.   Turkey (no.   13237/17, §   93, 20   March 2018) it held, in the light of the Constitutional Court’s findings on this point and all the other material in its possession, that the attempted military coup had disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention. With regard to the scope ratione temporis and ratione materiae of the derogation by Turkey – a question which the Court could raise of its own motion – the Court observes that the applicants were detained a short time after the coup attempt, the event that prompted the declaration of the state of emergency. It considers that this is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article   5 of the Convention in the present case (see, mutatis mutandis , Hassan v.   the United Kingdom [GC], no.   29750/09, § 103, ECHR 2014, and Alparslan Altan , cited above, §   75 ). 52.     As to whether the measures taken in the present case were strictly required by the exigencies of the situation and consistent with the other obligations under international law, the Court considers it necessary to examine the applicants’ complaints on the merits (see Baş , cited above, §   116). ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION as regards the lawfulness of the applicants’ pre-trial detention 53.     The applicants complained mainly that they had been placed in pre-trial detention in breach of the domestic law governing the arrest and pre-trial detention of the members of the judiciary, and disputed that there had been a case of discovery in flagrante delicto for the purposes of section   94 of Law no.   2802 and section 46 of Law no. 2797. They further argued that the magistrates’ courts had lacked competence and territorial jurisdiction to decide on their detention. 54.     The Court considers it appropriate to examine these complaints under Article   5 §   1 of the Convention, the relevant part of which provides as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...” Admissibility The parties’ submissions 55.     The Government urged the Court to declare this complaint inadmissible for non-exhaustion of domestic remedies in respect of the applicants who had not made use of the relevant compensatory remedy under Article   141 §   1   (a) of the CCP, which provided for an award of compensation to anyone who had been unlawfully deprived of his liberty, as well as the applicants whose claims under that provision were still pending before the domestic courts. The Government further claimed that one of the applicants (application no.   55057/17) had been granted compensation pursuant to Article   141 § 1 (e) of the CCP following his acquittal and had therefore lost his victim status. In the Government’s view, any other applicants whose claims for compensation were pending before the competent courts could similarly obtain redress and lose their victim status, which the Court had to take into account in examining the admissibility of their complaints. The Government lastly asked the Court to declare the applications inadmissible for abuse of the right of application to the extent that the applicants had not informed the Court of the developments in their cases following the lodging of their applications. 56.     The applicants contested the Government’s arguments. The Court’s assessment (a)    Non-exhaustion of domestic remedies 57.     Referring to the general principles developed in its case-law regarding the rule of exhaustion of domestic remedies under Article   35   §   1 of the Convention (see, for instance, Sargsyan   v.   Azerbaijan [GC], no.   40167/06, §§   115-116, ECHR 2015), the Court reiterates firstly that for a remedy in respect of the lawfulness of an ongoing deprivation of liberty to be effective, it must offer a prospect of release (see Mustafa Avcı v. Turkey , no.   39322/12, §   60, 23   May 2017). It notes in this respect that it has already found that the remedy provided for in Article   141 of the CCP is not capable of terminating the deprivation of liberty (see, for instance, Alparslan Altan , cited above, §   84 ). It therefore rejects the Government’s preliminary objection insofar as it concerns the applicants who are still deprived of their liberty for the purposes of Article   5   §   1 of the Convention. 58.     Secondly, with regard to the remaining applicants who are no longer in pre-trial detention, the Court recalls that where an applicant, who is no longer in detention, complains that he or she was detained in breach of domestic law, a compensation claim capable of leading to an acknowledgment of the alleged violation and an award of compensation is in principle an effective remedy which needs to be pursued if its effectiveness in practice has been convincingly established (see Selahattin Demirtaş v.   Turkey (no. 2) [GC], no. 14305/17, § 208, 22 December 2020 ). 59 .     The Government do not dispute the fact that the applicants have challenged the lawfulness of their pre-trial detention before various domestic instances, including the Constitutional Court, and that on none of those occasions was the unlawfulness of their pre-trial detention acknowledged (see paragraph 27 above). Moreover, the examples of case ‑ law provided by the Government regarding the domestic courts’ interpretation of the concept of “ in flagranto delicto ” in the present context demonstrate unequivocally that the applicants’ detention in accordance with the ordinary law provisions, as opposed to the special procedure pertaining to the detention of judges and prosecutors envisaged under the applicable laws, was considered to be compatible with the relevant domestic law by the highest courts of the land (see the case-law cited in paragraphs 32-43 below). 60.     The Court considers, in the light of the foregoing, that a compensation claim under Article   141 § 1 (a) of the CCP would have had no prospects of success in respect of the applicants’ complaint under Article   5 § 1 regarding the unlawfulness of their pre-trial detention. Accordingly, the Court considers that the applicants were not required to make use of that compensatory remedy for the purposes of Article 35 § 1 of the Convention (see, for a similar finding, Baş , cited above, § 121, and Sabuncu and Others v.   Turkey , no.   23199/17, §   126, 10 November 2020 ).   It therefore dismisses the Government’s objection in this regard. (b)    Victim status 61.     As for the question whether the applicant in application no.   55057/17 may be considered to have lost his victim status on account of the compensation awarded to him under Article 141 § 1 (e) of the CCP, the Court refers to its consistent and well-established case-law to the effect that a favourable decision or measure is not, in principle, sufficient to deprive applicants of their status as a “victim” for the purposes of Article   34 of the Convention, unless the national authorit