The case highlighted 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.
Background to the case were as follows:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- On 18 July 2018 the state of emergency was lifted.
Actions against judges/prosecutors by the Turkish state:
Laws under which the Turkish state took action:
The following laws were used to take action against the prosecutors / judges by the Turkish state.
- 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
- 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.
Outcome of the Judicial action by the Turkish state against prosecutors/ judges:
The Turkish state has taken judicial action against prosecutors/judges concerning the arrest and pre-trial detention of the applicants.
In the case Turan vs The State of Turkey the court noted the following:
- Decides, unanimously, to join the applications;
- Declares, unanimously, the complaint under Article 5 § 1 of the Convention concerning the lawfulness of the applicants’ initial pre-trial detention admissible;
- Holds, unanimously, that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the initial pre-trial detention of the applicants who were ordinary judges and prosecutors at the time of their detention;
- Holds, unanimously, that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the initial pre-trial detention of the applicants who were members of the Court of Cassation or the Supreme Administrative Court at the time of their detention;
- Holds, by six votes to one, that there is no need to examine the admissibility and merits of the applicants’ remaining complaints under Article 5 of the Convention;
- Holds, unanimously,
(a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage and costs and TURAN AND OTHERS v. TURKEY JUDGMENT 29 expenses, plus any tax that may be chargeable on these amounts, which are to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
- Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 23 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
The state of judges/prosecutors in Turkey – a summary:
The actions by the Turkish state shows that its actions to initiate actions against Judges/prosecutors was arbitrary. This is why the court decided to impose fines on such actions. While, military coup is definitely hostile action against the executive, the arrest of judges and prosecutors were broad and arbitrary in its scope. Judges and Prosecutors are representatives of the critical third pillar of a country that is the Judiciary. Judiciary often acts as a check against overreach by the executive and legislature. In this way it ensures that people’s fundamental rights do not get trampled due to the actions of legislature/ executive whether knowingly/unknowingly.
The state of judges/ prosecutors in Turkey can be seen as vulnerable. The judges are vulnerable to actions by the Turkish state which believes in detention, arrest of judges without verifiable reason. This may be of significant concern because it leads to chilling stifling of judicial independence. The fundamental fact is that after the 2016 coup the arrest of prosecutors/ judges were based on suspicions of being a part of a movement that was allegedly responsible for a coup overthrowing the executive. While, overthrowing of a democratically elected government cannot be justified, the arrest of all judges who a part of a particular list shows a lack of respect for established forms. The Turkish government decided to ask 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. This is a complete violation of a proper process of prosecution in which there should have been investigation, enquiry, evidence gathering. After this there should have been arrest and then placing the evidence in court. None of this happened.
The Turkish authorities have shown complete lack of respect either for judges as individuals who have fundamental freedoms nor have they considered the impact it will have on the ability of judiciary to restrain harmful government action. In summary this is what the case and its verdict as well as Turkish govt’s actions highlight after a coup. While, coup against the state is unjustifiable detention of judges without proof of involvement in coup is also unjustifiable.