Rıza Türmen, the former judge of the ECHR and deputy of CHP, main opposition party, wrote an article. Referring the case-laws of the ECHR concerning the unlawful arrests, he points out that unless the Constitutional Court concludes the individual applications in mostly 1 year, the persons concerned will be able to lodge their applications with the ECHR without trying the remedy of the individual application to the Constitutional Court.

(submitted to the blog by a source who is known to the editor, its name is kept confidential for security reasons)

Turkey has become a great prison. Nearly, eveybody has been held under arrest. Since 15 July, the number of the arrested persons has reached fourty thousand. Some of them have been involved in the coup attempt, the other part, on the other hand, hasn’t involved in it, but they don’t have good relations with the ruling party.

The aim of all the legal provisions concerning the arrest; notably as regards the Article 19 of Turkish Constitution, the Article 5 of the European Convention on Human Rights and Article 9 of the United Nations Convention on Civil and Political Rights, is to protect the individuals against the arbitrary arrests. All of these rules provide the liberty as an essential (fundamental principle) and the arrest as an exceptional case and also point out to the cases in which the liberty of the individuals might be restricted.

The Explanation On the Arrest

In its decision in the case of Buzadji/Moldova, rendered by the Grand Chamber of the Court on 5 July in 2016, the European Court of Human Rights (ECHR) has shed light on a matter of the arrest. In that case, Buzadji is the head of a public corporate. He was arrested on charge of a corruption and misconduct in office in May of 2017. Having regard the characteristic of the crime, the risk of escaping and darkening the evidence, his arrest was extended for four times. 2 months later, considering his health conditions, his arrest was turned into the house arrest. He had been held under house arrest till the March of 2008. Then, he was acquitted as a result of his trial.

Criterion of the ECHR

The Court pointed out two issues in its decision. Firstly, according to the case-law of the Court, “a reasonable suspicion” is sufficient for the measure of arrest. However, as the time passes, the Court searches more reasons that will make the arrest be in the right, notably as regards the risk of escaping and darkening the evidence, the probability of recommitting an offense etc. With this decision, the Court has made a crucial change in its case-law and has established that the reasons that should exist for the continuation of the arrest, shall also exist in the beginning of the arrest. In other words, in order to execute the arrest, not only an “a reasonable suspicion” but also the reasons as regards the risk of escaping or darkening the evidence will be required by the Court.

This change in the Court’s case-law is important for Turkey in this respect: In Article 100 of the Criminal Procedure Code, besides the strong suspicion of committing an offense, the supplement reasons such as fleeing, darkening the evidence, pressure on the witnesses should be required for the arrest. However, if the offenses listed in § 3 of the same Article, are under consideration (catalog crimes), the strong suspicion of committing an offense shall be sufficient for the arrest. The above-mentioned supplement reasons are assumed to exist. Among the offenses listed in this article are forming an organization in order to commit an offense and having a membership in these organized groups etc.

In the context of Buzadji/Moldova case, from now on, the Court will search reasons such as fleeing, darkening the evidence, pressure on the witnesses besides the strong suspicion of committing an offense also for the arrests due to the catalog crimes listed in § 3 of the Article 100.

Abstract Facts

Secondly, in its decision in Buzadji/Moldova case, the Court examined the claims, set forth as a reason for the arrest by the Moldovan Courts. The Court noted that those reasons were abstract and cliché. The Court found that the domestic court had not shown in its reasoned decision how the domestic law concerning the risk of escaping and darkening the evidences and interfering with the witnesses had been applied to the suspect and it had also not assesed the personality of Buzadji, his property, his relations with his country and his behaviours during the investigation in its decision; lastly, the Court established the violation of § 3 of Article 5 of the Convention on the grounds that the reasons submitted at the beginning of the trial had changed later in addition to above-mentioned grounds.

The Public Prosecutor Doesn’t Perform His Duty Properly

The fact that the courts in Turkey submit cliché and abstract reasons in order to arrest and also for the continuation of it is of a serious matter. For this reason, despite there are many decisions of the Court on this issue against Turkey (for example the case of Cahit Demirel), somehow this wrong implementation has not changed yet. Never mind about the implementation regarding the cliché and abstract facts, just like in decision of the arrest of the executives and the journalist of Cumhuriyet Daily, the fact that the continuation of the arrest had been decided because of the reason that the evidence had not been gathered and the indictment also had not been prepared yet, was not found even in Moldovan case. Gathering the evidence is the duty of the public prosecutor. As the public prosecutor does not perform his duty properly, the measure of the arrest has been continued and left to public prosecutor’s discretion, which displays just the arbitrariness.

Further, the implementations in respect to the lawyers can not access the files due to the privacy of them or expert reports which become a base to the arrests prevent the use of the right to an examination of the legality of the arrest, called ‘habeas corpus’. How can you lodge an objection to the arrest without knowing why you were arrested? At the same time, it creates a situation contrary to the principle of the equality of the arms between the claimant and the suspects. This examination should be done not over the file but holding a hearing. However, the recent emergency decree law provides an examination over the files, in line with the evidences submitted in the application.

All of the above-mentioned issues should be submitted to the Constitutional Court before lodging with the ECHR. In its decision in Zihni/Turkey case (8.12.2016) and Mercan/Turkey (8.11.2016) case, the Court declared the individual application to the Constitutional Court as an effective domestic remedy.

However, there is one more question. Does the fact that the Constitutional Court has not decided about the individual applications yet despite several months have passed over the applications cause the remedy of that to the Constitutional Court not to be effective anymore? In this case, does the chance of lodging with the ECHR directly without appealing individual applications to the Constitutional Court appear for the persons concerned?

Rendering a Decision Speedily

It is necessary to handle the matter in the context of § 4 of Article 5 of the Convention which provides ‘habeas corpus’ in which the legality of the arrest is examined. This article provides that the lawfulness of the arrest shall be decided “speedily” and his release should be ordered if the arrest is not lawful. The ECHR considers the following points in decision-making process whether the decision is made speedily or not:

a.The Court takes the “reasonable time” into consideretion in a fair trial. Namely, it investigates the complexity of the process and if the lateness is caused by the competent authorities or the applicant himself. However, in such cases where the right to liberty and security is under consideration, the competent authorities should be more careful and in a scrutiny manner.

b. The issue that the judicial body that reviews the case is whether a first instance court or a high (for appeal) court presents high-level importance. Because this rule is applied rigidly for the first-instance courts but more flexibly for the Supreme courts. However, these circumstances do not absolve the Constitutional Court from the obligation to decide speedily.

The Recourse For a Judicial Review to The ECHR is Available

Under such conditions, in its decision in Smatana/Chech Republic case, the ECHR found that the disposition time of the individual application which was 1 year and 10 months was too long and similarly in Zubor/Slovakia case, which was 8 months; and established a violation of the § 4 of Article 5 of the convention.

In individual applications to the Constitutional Court against the arrests, despite the principle of “urgent examination” depends on each case, in case of not being concluded of the applications by the Constitutional Court mostly in 1 year, the persons concerned might lodge their applications with the ECHR on the grounds that the decisions were not made speedily in accordance with the requirement of § 4 of Article 5 of the convention so that the individual application is not an effective remedy.

The executives and columnists of the Cumhuriyet Daily have been held under arrest for 100 days. According to the Article 19 of the Constitution and § 4 of Article 5 of the Convention, the individual applications have not been concluded yet. Unless the Court examines these applications in a shortly time and renders a decision, the recourse for a judicial review to the ECHR will become rendered available for the executives and the journalists of the Cumhuriyet Daily.

If the ECHR gives decisions that establish the Constitutional Court has violated § 4 of Article 5 of the Convention, the chance of the acceptance of the individual application to the Constitutional Court as an ineffective remedy appears and the recourse to the ECRH will become available to the arrested persons without trying the remedy of the individual application.

(The article is originally published on ts_justice.info )

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