The European Convention on Human Rights is a comprehensive system that sets the European standards for the protection of fundamental human rights. However, under certain circumstances, the contracting states can validly deviate from their obligations under the Convention. In this regard, Turkey notified the Council of Europe for its intention to derogate from its obligations derived from the Convention pursuant to the July 15, 2016 coup attempt. Under the State of Emergency, Turkish authorities had extended the duration of detention in custody before first-appearance up to 30 days. This article focuses on whether the implementation of that measure complies with the conditions that have been set out by the ECHR derogation clause, specifically Article 15. To this end, the article first examines the legitimate foundations that are required in order to invoke a derogation claim by analyzing the legality of the declaration of the State of Emergency in Turkey. Then, it explores the scope and implementation of the measure in question and discusses whether Turkey has gone beyond from what is strictly required by the exigencies of the situation. Finally, it reviews whether the measures imposed by Turkish authorities are consistent with other international obligations of Turkey.
The European Convention on Human Rights (hereinafter ECHR) is an international treaty that aims to protect human rights and ensures the implementation of fundamental rights in Europe with 47 contracting states. Although the Convention secures the protected rights of individuals, governments may derogate from their obligations under the Convention, in a temporary, limited and supervised manner only in exceptional circumstances. By explicitly permitting the possibility of derogating pursuant to Article 15, the Convention grants contracting states the possibility to take measures that would be counted as infringement of their obligation that would otherwise not be permitted under normal circumstances. However, the Convention still maintains control by prescribing certain procedural criteria on states taking such measures.
On July 20th, 2016, Turkey declared a State of Emergency following the July 15, 2016 coup attempt. Subsequently, on July 21st, the Turkish authorities notified the Council of Europe about their intention to derogate from their obligations under the Convention in reference to Article 15 ECHR. The Turkish authorities did not specify which ECHR articles were derogated from. By following the de facto actions of the Turkish Government, it is clearly evident that Turkey has relied on the derogation clause prescribed by the ECHR without specifically mentioning which articles are being set aside. However, as the ECHR ensures, these actions have to meet the defined procedural criteria.
This article aims to examine one specific measure that had been taken by the Turkish Government for more than six months, namely the time spent in custody before first appearance. Accordingly, the authorities had extended the duration to be seen by a first-appearance judge up to 30 days under the State of Emergency, which is a maximum of four days under normal circumstances. This practice has attracted the world’s attention, since it poses a threat to a fundamental right of individuals, namely the right to liberty which is thereby protected under Article 5 ECHR. This attention triggers the research question of this article: “Does the detention in custody before first appearance under State of Emergency in Turkey is in compliance with the ECHR derogation criteria?”
The ECHR is chosen as a legal assessment criterion for several reasons. Firstly, as mentioned above, the Convention provides a healthy and solid foundation for the protection of human rights by applying European standards. Therefore, it can be considered as a comprehensive system for the protection of human rights. Additionally, the Constitution of Turkey prescribes that in case of conflict between international agreements and domestic laws regarding fundamental rights and freedoms, the former prevails. Therefore, even though a certain regulation may have been enacted by the Turkish legislative branch in a state of emergency, Turkish courts are obliged to apply the ECHR if it is inconsistent with ECHR. Thus, Turkey must comply with its obligations under the Convention perpetually. Furthermore, the judgements and decisions of the European Court of Human Rights (hereinafter ECtHR) have res interpretata effect, which means that contracting states that are not involved in the case before the ECtHR should still take into account the judgments as persuasive authority with respect to third party states. It means that states that were not party to proceedings in a case before ECtHR should consider the case law judgement issued with respect to another contracting state. Thus, both the laws and the practices of the Convention are considered as a significant reinforcement mechanism for individuals appearing before Turkish national courts.
In this article, it is first important to illustrate the normal period of time in custody prior to first appearance hearing in order to illustrate the significant difference between the normal procedure in the eyes of ECHR and Turkey’s imposition under the state of emergency regulations. Then, necessary elements for a legitimate derogation from ECHR will be examined by delving into the area of legitimate ground, particularly into the declaration of the state of emergency and its legality. Secondly, the scope and implementation of the time in custody before the first appearance procedure under the state of emergency rule will be analyzed and thereafter, whether Turkey has gone beyond from what is strictly required will be discussed by referencing several factors prescribed by the ECtHR previous rulings. Thirdly, whether this measure is consistent with Turkey’s other international obligations will be discussed by referring to the International Covenant on Civil and Political Rights (hereinafter ICCPR). Finally, the outcome of the discussion will be analyzed and evaluated in the conclusion.
2. LAWFUL DEPRIVATION OF LIBERTY UNDER THE ECHR
Article 5 ECHR not only aims to guarantee that everyone has the right to individual liberty and security but also aims to prevent unjustified and unlawful deprivations of liberty. The article defines exceptional situations that allows for individuals to be lawfully deprived of these fundamental rights under Article 5(1)(c), which prescribes requirements for preventive custody and detention on remand (aka. pre-trial detention).
- 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:
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (…)
As shown, the purpose of both measures is to bring a person -whose right to liberty have been affected- before the competent legal authority on suspicion of having committed an offense. The competent authority corresponds with the judge or other officer authorized by law to exercise judicial power pursuant to Art.5(3) ECHR. According to this article, arrested person must be brought before a judge promptly which is known in the literature as a ‘first appearance.’ It is a judicial control against any possibility of the executive arbitrariness that acts as an important assurance for individuals that the procedure in accordance with the ECHR is not negotiable and waivable. It is an automatic judicial control that without having asked, judge must check the lawfulness of the arrest and must see the physical conditions of the suspect.
According to the ECtHR, detention in duration of four days and six hours until the first appearance is considered to be a violation of Article 5(3). However, it was not clear from the language of the Court exactly what time limit is not acknowledged as a violation of Article 5(3). Subsequently, the Court held that any period in excess of four days is deemed a violation of the protected right of individual liberty. In other words, in the eyes of ECtHR, a suspect must be brought before the Court within four days in order to fulfill the requirement of the ECHR and for the arrest to be lawful deprivation of liberty.
3.DEROGATION FROM THE ECHR
Article 15(1) ECHR provides that in certain circumstances, a contracting state may decide to take measures derogating from its obligations to secure certain rights and freedoms under the Convention. The guideline on Article 15 of the European Convention on Human Rights prescribes three cumulative conditions for legally accepted derogation, which will be examined respectively;
- it must be in time of war or other public emergency threatening the life of the nation;
- the measures taken in response to that war or public emergency must not go beyond the extent strictly required by the exigencies of the situation; and
- the measures must not be inconsistent with the State’s other obligations under international law.
3.1. WAR OR STATE OF EMERGENCY
In regard to the first requirement, derogation is possible in case of two situations, namely war or other public emergencies threatening the life of the nation. The former refers to a state of armed conflict between different countries or different groups within a country. With regards to the latter, the Court has taken into account the customary meaning of public emergency threatening the life of the nation. In Lawless v. Ireland, the Court defined the state of emergency as an “exceptional situation of crisis or emergency that has an influence over the entire population and constitutes a severe danger of threat to the organized collective life of the community of which the State is composed.” Additionally, the emergency must be imminent and actual. It is also allowed that a contracting state can specify the decision of emergency in a particular region of the State where the imminent and actual danger occurred such as in Ireland v. the United Kingdom, which a crisis was confined to the border of a specific territory. In this case, terrorism was considered as grounds for a valid declaration of public emergency in a specific region since it posed an acute danger for that territorial integrity of the country.
3.1.1. LEGALITY OF THE STATE OF EMERGENCY
The relevant legal justification for a state of emergency can be found in Articles 119-121 of the Turkish Constitution, which refers to the extraordinary situations where a state of emergency can be declared during a natural disaster or serious economic crisis. Article 120 regulates the declaration of state of emergency in respect to widespread acts of violence and serious disturbance of public order. Accordingly, in case of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order, the Council of Ministers, meeting under the chairpersonship of the President, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months. Furthermore, Article 121 requires the decision of the state of emergency to be published in the Official Gazette and immediate submitted to the Grand National Assembly of Turkey for approval. The Assembly may alter the duration of a state of emergency by extending the period for a maximum of four months each time at the request of the Council of Ministers or completely lift the state of emergency.
On July 20, 2016, the Council of Ministers of Turkey declared a state of emergency pursuant to Article 120 of the Constitution for a duration of three months due to a large-scale coup attempt that occurred on July 15, 2016. It was believed that the coup attempt was led by the Peace at Home Council, an organization within the Turkish Armed Forces. The decision was published in the Official Gazette and approved by the Assembly on July 21, 2016, which was effective immediately for three months. The duration of state of emergency was extended respectively on October 19, 2016, January 19, 2017, April 19, 2017, July 21, 2017, and lastly on October 19, 2017.
3.1.2. THREATENING THE LIFE OF THE NATION AND NOTIFICATION TO THE COUNCIL OF EUROPE
In the aftermath of the failed July 15, coup, the severity of the attempt became apparent. The Peace at Home Council had targeted not only state institutions and high-official representatives but also aimed to seize control of several places across the country such as Ankara –including Turkish Parliament and the Presidential Palace-, Istanbul, and the Marmaris region, southern city of Turkey. It was a nation-wide crisis that posed a danger to the entire population by armed forces and as a consequence of the attempt, over 300 people were killed and more than 2100 were injured. Therefore, it was evident that there was an imminent and actual danger that put the future of the country at risk, as prescribed by ECHR. Given the situation, necessary precautions had to be taken, namely state of emergency.
On July 21, 2016, the day after the first state of emergency decision had been declared, the Turkish authorities notified the Secretary General of the Council of Europe about the derogation from the ECHR by relying on Article 15. Afterwards, Turkey sent five official communications to the Secretary-General by following each state of emergency extension decision. However, just like France, Turkey did not specify which ECHR provisions are derogated from nor the reason for these derogations. Therefore, there is an uncertainty concerning the possible actions of those countries which might lead to discretionary use of state power by setting aside the protected rights of individuals under the ECHR.
3.2. THE EXTENT STRICTLY REQUIRED BY THE EXIGENCIES
In respect to the second requirement, the ECtHR has limited its own power of review cases where Article 15 is concerned by leaving a contracting state a wide margin of discretion due to the fact that national authorities are in a better position to comprehend the presence of emergency and scope of the derogation than the international judges. However, the States do not have unlimited power. As Plato mentions in Book VIII of The Republic, the freedom of the action of that state must be based on the necessities. Otherwise, a democratic man –each governance regime is represented by a man in The Republic- corrupts its power and becomes a tyrant who would deny any restriction by law and acts discretionally. Related to that, the Court requires from contracting states to not go beyond the “extent strictly required by the exigencies.” The Court provides appropriate determining factors for assessing whether a State has abused its power from what is required in previous ECtHR rulings such as whether the measure prima facie is suitable to reduce the severity of threat or crisis, whether the measure is subject to safeguards, whether the need for the derogation was kept under review, the importance of the right at stake, and whether ordinary laws would have been sufficient to meet the danger caused by the public emergency.
3.2.1. TIME IN CUSTODY BEFORE FIRST APPEARANCE AFTER STATE OF EMERGENCY
The Constitution of the Republic of Turkey dictates the Council of Ministers, chaired by the President of the Republic, to issue a judicial decree having the force of law once it has been declared pursuant to the state of emergency. Regarding the time duration of custody, on July 22, 2016, the Council of Ministers has decided to use the power vested in them and decree on certain measures under state of emergency. Accordingly, Decree Law No: KHK/667 has been published and Art.6(a) of the relevant decree extended the period of custody to 30 days from the time of the arrest. Thus, a suspect can be held in custody without having charged by the authorities for up to 30 days. Even though, on January 23, 2017, the Council of Ministers, again by issuing a decree, decreased the time in custody to 7 days, the authorities had imposed previous decree for more than 6 months. Therefore, during six months, it was the possible scenario that a suspected person could be seen by the judge at the end of the 30 days. It may be argued that, while implementing this measure, Turkey had exceeded its margin of appreciation by going beyond the “extent strictly required by the exigencies”, especially in the light of the importance of ‘promptly’ requirement by the ECHR.
This is not the first time Turkey has faced long time in detention without judicial supervision in state of emergency. Due to the conflict that had raged in the South-East of Turkey between security forces and the members of PKK (Workers’ Party of Kurdistan) whose terrorist activity had posed a danger to many civilians, ten of the eleven provinces of south-eastern Turkey had been subjected to emergency rule from July 17, 1987 to November 30, 2002. On May 5, 1992, Turkey gave a notice of derogation from its obligations by using Article 15 of ECHR. According to the Code of Criminal Procedure during the state of emergency period at that time, a detained person had be brought before a judge within 24 hours or, in the case of collective offenses within four days. In the proceedings before the State Security Courts -which was how the Court deals with cases regarding state security and was abolished on February 2004- these periods are extended to 48 hours in case of individual offenses and to 15 days in case of collective offenses. Furthermore, in case of state of emergency, these periods are doubled (four days in the case of individual offences and 30 days in the case of collective offenses) if the proceedings before the State Security Courts.
It was not uncommon that a person involved in a collective offense to be detained up to 30 days until the first appearance under the state of emergency. For instance, Zeki Aksoy who was taken into custody in November 1992 with the suspicion of aiding and abetting PKK terrorists under the state of emergency. Mr. Aksoy was held in custody for 14 days in connection with a collective offense to be held for up to 30 days in the state of emergency region. Even though the ECtHR accepted that the Turkish authorities provided a notice of the derogation from ECHR which contained sufficient information regarding the time limitation for detention, the Court found a violation of Article 5(3) ECHR. This is due to the fact that the exigencies of the situation did not necessitate a person on suspicion of involvement in collective terrorist offense to be held in detention for 14 days without judicial control. Therefore, even in the case of state of emergency, 14 days is considered as an exceptionally long period of detention without judicial supervision and is considered as a breach of the ‘promptness’ requirement, which is significant safeguard for individual against the state arbitrariness. Therefore, the breach of promptness requirement with possibility of 30 days may trigger the fact that Turkey has gone beyond the “extent strictly required by the exigencies” of the state of emergency.
Another factor for assessing whether a State has abused its power from what is required in previous ECtHR rulings is regarding the judicial review. The state of emergency decrees cannot be subject to judicial control by the Turkish Constitutional Court with regards to the form or substance according to Article 148 of the Turkish Constitution. It was reiterated by the Constitutional Court during state of emergency by stating that such decrees fall outside of the jurisdiction of the Court. Therefore, considering the detention before the first appearance in the state of emergency, the lack of judicial supervision within 30 days and the absence of constitutionality check of a decree have posed a danger to an individual that they do not have sufficient safeguards against any possibility of state arbitrariness. Thus, in practice, it is infeasible to have judicial control possibly for 30 days until the first appearance.
Furthermore, on July 25, 2016, the Council of Ministers had issued a decree No. 668 and according to Article 3(m) of this decree, a detained person’s right to attorney can be restricted by public prosecutor for five days. Even if this provision was abolished on January 2, 2017 by another decree, namely No.684 from the Council of Ministers, it had been effective for more than five months. In the light of the Zaichenko judgement, ECHR specifically held that the right to attorney is triggered at the moment of being in detention. Taken into account the importance of Article 5 ECHR given by the Court, the blocking access to a lawyer by state authorities for five days had been essentially posed a danger to safeguards of individuals against the state arbitrariness.
Another factor to assess if Turkey went beyond the “extent strictly required by the exigencies” is with regards to individual safeguards provided to detainees. In the light of the Kilic v. Turkey judgement, non-derogable Article 2 ECHR not only obliges the contracting State with negative obligations such as refraining from taking life intentionally and unlawfully but also obliges States with positive obligations such as preventing danger that they have caused and to prevent real and immediate danger to person’s live by another person. Thus, even under the state of emergency, public bodies of Turkey -including prison authorities- are under obligation to actively provide detainees minimum health and safety standard of care. This is inseparably interlinked with Article 3 of ECHR which prohibits torture and inhumane mistreatment or punishment. Therefore, both articles oblige States to protect bodily integrity of the detainees and health against any possible harm. According to the Human Rights Watch (HRW) Report in October 2016, HRW has been informed about torture and ill-treatment in police detention in Turkey by several lawyers, former detainees and medical personnel.  These allegations include sleep deprivation, severely beating, sexual abuse, and threat of rape. The Report mentioned 13 different recounted incidents and seriousness of the allegations can be seen as follows;
There, police officers had accused them of being members of the Gülen movement. If they denied the accusations, the client had told his lawyer, the police had started to insult them, then they had started beating and kicking them. They had also threatened to rape them and their wives, the client told his lawyer.
These allegations are also gathered by Amnesty International. On July 24, 2016, Amnesty International has launched report on allegations of torture in Turkey. Accordingly, there is sufficient evidence that detainees are being subjected to beating and torture by either official or unofficial detention centers. They are being denied access to food, water, and medical treatment, threat, verbal abuse, and subject to sexually assault. Thus, not providing fundamental necessities and safeguards to detainees by the Turkish authorities leads to the argument that Turkey exceeds the extent strictly required by the exigencies.
Moreover, in the lights of State of Emergency Decree No.668, the public prosecutor is entitled to restrict the defense counsel to reach and examine the contents of the case-file or take copies of the documents which include the reports of the medical examinations. It causes the impossibility for individuals and their lawyers to assess whether the medical examinations were conducted properly and obstruct them to complain or argue about torture and ill-treatment due to the lack of access to medical reports. This lack of access to medical reports also contradicts with the United Nations’ internationally recognized standards and procedures for the assessment of persons who allege torture and ill-treatment which is also ironically known as the Istanbul Protocol.
All in all, considering the analysis of several factors to determine if Turkey went beyond the extent which is strictly required by the Convention, it can be concluded that Turkey did not satisfy the expectations because of restricting the liberty of a person for 30 days without complying the promptness requirement of ECHR and without providing sufficient safeguards to detainees -such as right to lawyer or minimum health and safety standard of care-, and hindering to challenge the constitutionality of the relevant decree.
3.3. CONSISTENCY WITH INTERNATIONAL OBLIGATIONS
Finally, the last requirement requires the measures used by the contracting states being consistent with other obligations under international law. Thus, when resorting to derogation, a state must ensure that the utilized measures cannot be incompatible with its other obligations under international law such as higher absolute human rights standards or humanitarian law standards. Regarding the time in custody before first appearance measure, it would be logical to evaluate its consistency with the International Covenant on Civil and Political Rights (ICCPR), a human rights treaty ratified by Turkey in 2003 because of the fact that ICCPR is the most overwhelmingly ratified UN treaty to grant civil and political rights to individuals.
Article 9 of the ICCPR protects the right to liberty and security of person and, just like ECHR, it requires that any person lawfully arrested be brought before a judge promptly. In regards to that, 48 hours is considered as sufficient for preparing for the first appearance and any delay longer than that must be absolutely exceptional. Even though Article 9 does not fall into the list of non-derogable rights pursuant to Article 4 (derogation clause), arbitrary deprivation of liberty is considered as non-derogable fundamental guarantee regardless of whether the situation allows contracting state to derogate from the ICCPR according to General Comment No. 29 of the UN Human Rights Committee. Although UN did not explicitly state there was a breach of the derogation on August 19, 2016, it has pressured the Turkish government to embrace the rule of law in the crisis and has given voice to its concerns about the usage of emergency measures.Additionally, the Report by the Office of the UN High Commissioner for Human Rights counts 30 days police custody without judicial supervision as one of its key concerns. Therefore, there is an inclination that the particular measure evokes the arbitrariness from authorities and correspondingly, it is not clearly and persuasively possible to say that Turkey complies with its other international obligations by imposing extended time in custody without charge.
“Each choice is a renunciation,” as said by Can Dundar, an exiled Turkish journalist who was nominated for the 2017 Nobel Peace Prize. To understand Turkey after the coup attempt in a comprehensive manner, it would be useful to analyze it in the light of this deep-philosophical statement. Following the first declaration of the state of emergency, the Turkish Government has imposed several necessary measures to effectively control and secure the country. For this purpose, the Government extended the time in custody before first appearance to 30 days. It was a political choice that had been implemented more than six months after notifying the Council of Europe concerning with the derogation from ECHR. However, if this choice cannot be checked and reviewed, it might lead to several renunciations inevitably. Hence, ECHR provides several considerations to keep a state under constraint while implementing measures by supplying certain procedural criteria under the derogation clause. By taking into account the importance of liberty as a fundamental human right, the question of whether the political choice of the Turkish authorities regarding the extension of the time in custody had gone beyond the permitted requirement or not is one that must be answered for the latter.
In conclusion, despite the initial threat in Turkey after the coup attempt, the measure which allowed the suspect to be detained for up to 30 days without being brought before a judge exceeded the margin of appreciation of the Turkish Government and could not fulfill the “exigencies of the situation” justification. Therefore, this measure cannot be considered as a fulfillment of the ECHR derogation criteria.
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 The Official Gazette of the Republic of Turkey on 27 July 2016, KHK No.668
 The Official Gazette of the Republic of Turkey on 23 January 2017, KHK No.684
 Zaichenko v. Russia  ECHR 185, para.47
 Aksoy v. Turkey  ECHR 68, para.76
 Kilic v. Turkey  ECHR 127 22492/93 para.65
 Cees van Dam, ‘European Tort Law’ (2013) Oxford University Press pp.569
 A Blank Check; Turkey’s Post-Coup Suspension of Safeguards Against Torture, available via https://www.hrw.org/report/2016/10/25/blank-check/turkeys-post-coup-suspension-safeguards-against-torture
 Ibid. Incident 1
 Turkey: Independent monitors must be allowed to access detainees amid torture allegations, available via https://www.amnesty.org/en/latest/news/2016/07/turkey-independent-monitors-must-be-allowed-to-access-detainees-amid-torture-allegations/
 Article 3/1 Emergency Decree No.668
 Para 126 the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment available via http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf
 United Nations Office of the High Commissioner for Human Rights, International Bar Association, Human Rights In The Administration Of Justice: A Manual On Human Rights For Judges, Prosecutors and Lawyers (New York and Geneva, 2003) Chapter 16, pp.879
 Kovsh v. Belarus 159 ILR 257, paras. 7.3–7.5.
 CCPR/C/GC/35, General Comment No.35- Article 9 Liberty and Security of Person
 CCPR/C/GC/35, General Comment No.35- Article 9 Liberty and Security of Person, para 66
 CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, paras. 4 and 11
 United Nations Human Rights Office of the Hish Commissioner; UN experts urge Turkey to adhere to its human rights obligations even in time of declared emergency (Geneva, 2016) <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20394> accessed 14 December 2017
 United Nations Human Rights Office of the Hish Commissioner; Report on the human rights situation in South-East Turkey; July 2015 to December 2016 (February 2017) para.56