The European Court of Human Rights has ruled that the arrest, pretrial detention and house search of the purged justice of the Turkish Constitutional Court (TCC) breached a number of human rights violations and ordered damages to be paid. The judgment is not a surprise as the ECtHR reached the same conclusion in the case of Alparslan Altan who was the other purged justice of the TCC.
In the aftermath of the attempted coup in Turkey in July 2016, Erdal Tercan along with his fellow justice Alparslan Altan was arrested and remanded to pretrial detention under Article 314 § 3 of the Turkish Penal Code which stipulates the membership of an armed terrorist organisation. He was detained on suspicion of being a member of the Gülen Movement which is according to Turkey’s AKP Government a terrorist organisation.
Tercan who is a professor of law was appointed as a judge of the Turkish Constitutional Court in January 2011 by then President Abdullah Gül to serve until the age of 65.
On the same day of his arrest, the police conducted a search of his home and seized computers and other IT equipment. Subsequently, a magistrate decided to restrict the access of Tercan and his lawyer to his investigation file.
In July 2016, Tercan was remanded in custody as the magistrate alleged that there was concrete evidence to justify strong suspicions that the offence of “belonging to a terrorist organisation had been committed and that there was a clear and imminent danger related to the attempted coup”.
Tercan was dismissed from office one month later by the Plenary of the TCC.
Between September 2016 and October 2017 Tercan lodged two individual applications with the Turkish Constitutional Court (TCC). However, in April 2018, the TCC rejected his complaints about his detention.
The 9th Criminal Division of the Court of Cassation sentenced Tercan to more than 10 years and seven months in prison in April 2019.
He has since appealed against this decision and the proceedings are still pending before the plenary Criminal Divisions of the Court of Cassation.
The ECtHR ruled that there had been several breaches of the Convention including violations of Tercan’s rights to liberty and security, and the right to respect his private and family life and for one’s home. The ECtHR found that remanding him in custody, in conditions which breached the procedural safeguards afforded to members of the Constitutional Court, had not been lawful. In relation to the lack of plausible reasons for Tercan’s remand in custody it found that the suspicions at the time of his arrest had not attained the requisite minimum level of plausibility.
Even though the detention measure had been imposed under the oversight of the judicial system, it had been based on a mere suspicion of membership of an armed organisation. Such a level of suspicion could not suffice to justify remanding a person in custody. The ECtHR took the view that there had been no relevant or sufficient grounds to justify keeping Tercan in pre-trial detention for over two years and eight months, and noted that no alternatives to detention had been envisaged.
In addition, as the search of his home had been carried out before the plenary assembly of the Constitutional Court had made its ruling, the respect for his home had not been “in accordance with the law”.
The ECtHR said: “The broad interpretation of the in flagrante delicto concept, which was not based on any legislative provision, did not only affect the judicial immunity granted to members of the apex courts and the elected members of the Council of Judges and Prosecutors or even to other judges and prosecutors: it could also concern any person enjoying judicial immunity, for example, members of parliament.”
“Therefore, with regard to the offence of membership of an armed organisation, investigating authorities could deprive such persons of their judicial immunity, on the assumption that an offence discovered in flagrante delicto was made out, when they had – or, as in this case, wrongly believed they had – evidence which justified the suspicion in question, without needing to identify any concomitant factual evidence or other indication revealing the existence of such evidence.”
The judgement said this finding was of crucial importance for the judicial system in general, since the guarantees of the right to liberty and security would be rendered meaningless if this principle was accepted .
ECHR ruled that Turkey should pay Tercan €20,000 in non-pecuniary damages.