ECHR: The pre-trial detention of a judge breached the Convention


Ιn its judgment (3.3.2020) in the case of Baş v. Turkey (application no. 66448/17) the European Court of Human Rights held: by six votes to one, that there had been a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights as regards the alleged unlawfulness of the applicant’s initial pre-trial detention; unanimously, that there had been a violation of Article 5 § 1 of the Convention 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, and unanimously, that there had been a violation of Article 5 § 4 (right to speedy review of the lawfulness of detention) on account of the length of the period during which the applicant had not appeared in person before a judge.
The case concerned the pre-trial detention of Mr Baş, a judge at the time, following the attempted coup of 15 July 2016. The Court found that according to the case-law of the Court of Cassation, a suspicion of membership of a criminal organisation could be sufficient to characterise the element of in flagrante delicto without the need to establish any current factual element or any other indication of an ongoing criminal act.
Accordingly, the Court concluded that the national courts’ extension of the scope of the concept of in flagrante delicto and their application of domestic law, namely section 94 of Law no. 2802, were not only problematic in terms of legal certainty, but also appeared manifestly unreasonable.
The Court found that the mere reference by the Kocaeli magistrate’s court to the decision taken by the Council of Judges and Prosecutors on 16 July 2016 to suspend 2,735 judges and prosecutors was insufficient to support the conclusion that there had been a reasonable suspicion justifying the pretrial detention of this particular judge.
The evidence before the Court did not warrant the conclusion that there had been a reasonable suspicion against the applicant at the time of his initial detention. Thus, while accepting the Constitutional Court’s conclusion in a separate case that the measures implemented in the aftermath of the coup attempt could be said to have been strictly required for the protection of public safety, the Court observed that in the present case Mr Baş had not appeared before a court for approximately one year and two months, a much longer period than the one previously assessed by the Constitutional Court. (ECHR/photo: pixabay.com)
The full text of the judgement is available here

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George Kazoleas, Lawyer

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