Alparslan Altan v. Turkey (Application No. 12778/17)

A selection of key paragraph(s) can be found below the document.

109.  On this point, the Court notes that in a leading judgment adopted on 10 October 2017, the plenary criminal divisions of the Court of Cassation held that at the time of the arrest of judges suspected of the offence of membership of an armed organisation, there was a situation of discovery in flagrante delicto (see paragraph 63 above). The leading judgment indicates that in cases involving an alleged offence of membership of a criminal organisation, it is sufficient that the conditions laid down in Article 100 of the CCP are satisfied in order for a suspect who is a member of the judiciary to be placed in pre-trial detention on the grounds that there is a case of discovery in flagrante delicto. This new judicial interpretation of the concept of in flagrante delicto, adopted long after the applicant was taken into detention, was based on the settled case-law of the Court of Cassation concerning continuing offences.

111.  On this issue, the Court would emphasise that in general, the principle of legal certainty may be compromised if domestic courts introduce exceptions in their case-law which run counter to the wording of the applicable statutory provisions. In this connection, the Court observes that Article 2 of the CCP provides a conventional definition of the concept of in flagrante delicto, which is linked to the discovery of an offence while or immediately after it is committed. However, according to the case-law of the Court of Cassation as cited above, a suspicion – within the meaning of Article 100 of the CCP – of membership of a criminal organisation may be sufficient to characterise a case of discovery in flagrante delicto without the need to establish any current factual element or any other indication of an ongoing criminal act.

112.  In the Court’s view, this amounts to an extensive interpretation of the concept of discovery in flagrante delicto, expanding the scope of that concept so that judges suspected of belonging to a criminal association are deprived of the judicial protection afforded by Turkish law to members of the judiciary, including the applicant, a judge serving on the Constitutional Court and hence entitled to such protection under Law no. 6216. As a result, in circumstances such as those of the present case, this interpretation negates the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive.