The right of every defendant to be effectively defended by counsel is one of the fundamental elements of a fair trial: the right of a defendant to confer with his or her lawyer outside the hearing of a third party is one of the elementary requirements of a fair trial in a democratic society and derives from Article 6 § 3 (c) of the European Convention of Human rights.
The professional secrecy surrounding the lawyer-client relationship and the obligation of national authorities to ensure the confidentiality of communications between a detainee and his designated representative are among the recognized international standards: if a lawyer could not confer with and receive confidential instructions from his client without such supervision, his assistance would lose much of its usefulness, whereas the purpose of the Convention is to protect concrete and effective rights.
An individual is entitled to effective assistance from his lawyer, an essential aspect of which is the confidentiality of exchanges between the lawyer and his client. Breach of the confidentiality of attorney-client exchanges does not necessarily require that there actually be a wiretap. The fact of actually being convinced, on reasonable grounds, that a conversation is overheard may be sufficient to limit the effectiveness of the assistance, since it inevitably inhibits free discussion and hinders the detainee's right to actually challenge the legality of his detention.
Certain restrictions on attorney-client relations are tolerable in cases of terrorism and organized crime, subject to a finding that such restriction arises from exceptional circumstances, such as terrorism or organized crime, such as to derogate from the essential principle of confidentiality of attorney-client interviews. Such confidentiality constitutes a fundamental right and directly affects the rights of the defense. For this reason, the Court has held that a derogation from this essential principle can be allowed only in exceptional cases and provided that it is surrounded by adequate and sufficient safeguards against abuse.
The fundamental principle of the rule of law, which is inherent in all articles of the Convention must prevail even in the context of a state of emergency.
(unofficial machine translation, French original here https://hudoc.echr.coe.int/eng?i=001-225024)
European Court of Human Rights
SECOND SECTION
CASE DEMİRTAŞ AND YÜKSEKDAĞ ŞENOĞLU v. TÜRKİYE
(Appeal Nos. 10207/21 and 10209/21)
JUDGMENT
Article 5 § 4 - Lack of effective legal aid to challenge the applicants' pre-trial detention due to the prison authorities' supervision of interviews with their lawyers - Absence of adequate and sufficient safeguards against abuse in the absence of specific and detailed rules - Absence of exceptional circumstances that would derogate from the essential principle of confidentiality of interviews with lawyers - The domestic authorities failed to provide detailed evidence justifying the imposition of the measures in question under the decree law adopted in the context of the state of emergency
STRASBOURG
June 6, 2023
This judgment will become final under the conditions of Article 44 § 2 of the Convention. It may be subject to formal amendments.
In Demirtaş and Yüksekdağ Şenoğlu v. Türkiye,
The European Court of Human Rights (Second Chamber), sitting in a chamber composed of:
Arnfinn Bårdsen, President,
Jovan Ilievski,
Egidijus Kūris,
Pauliine Koskelo,
Saadet Yüksel,
Frédéric Krenc,
Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to the applications (Nos. 10207/21 and 10209/21) against the Republic of Türkiye lodged with the Court on February 13, 2021 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two citizens of that state, Mr. Selahattin Demirtaş and Ms. Figen Yüksekdağ Şenoğlu ("the applicants")
Having regard to the decision to bring the complaint regarding Article 5 § 4 of the Convention to the attention of the Turkish Government ("the Government") and to declare the rest of the appeals inadmissible,
Having regard to the parties' submissions,
After deliberating in chambers on May 2, 2023,
renders the following judgment, adopted on that date:
INTRODUCTION
1. The present appeals concern the alleged failure of the authorities to comply with the requirements of Article 5 § 4 of the Convention. The appellants complained that they did not receive effective legal assistance to challenge their detention because of the prison authorities' surveillance of their meetings with their lawyers and seizure of documents exchanged between them and their lawyers.
THE FACTS.
2. The plaintiffs were born in 1973 and 1971, respectively. They are currently detained in Edirne and Kocaeli, respectively. The first applicant was represented by Mr. Molu and R. Demir, lawyers in Istanbul, and M. Karaman, a lawyer in Diyarbakır. The second plaintiff was represented by B. Molu and R. Demir.
3. The government was represented by its agent, Hacı Ali Açıkgül, Head of the Human Rights Department at the Ministry of Justice.
THE POLITICAL CAREER OF THE PLAINTIFFS
4. At the time of the events, the plaintiffs were co-chairs of the Peoples' Democratic Party (HDP), a left-wing pro-Kurdish political party. Following the November 1, 2015 parliamentary elections, they were re-elected as deputies to the Grand National Assembly of Türkiye ("the National Assembly") from the ranks of the HDP.
CONSTITUTIONAL AMENDMENT ON PARLIAMENTARY IMMUNITY
5. On May 20, 2016, the National Assembly adopted a constitutional amendment consisting of the addition of an interim article to the 1982 Constitution. According to this amendment, parliamentary immunity, as provided for in the second paragraph of Article 83 of the Constitution, was waived in all cases of requests for waiver of immunity transmitted to the relevant authorities before the date of adoption of this amendment. For more detailed information on the May 20, 2016 constitutional revision, see Selahattin Demirtaş v. Turkey (No. 2) ([GC], No. 14305/17, §§ 55-61, Dec. 22, 2020) and Kerestecioğlu Demir v. Turkey (No. 68136/16, §§ 4-16, May 4, 2021).
THE JULY 15, 2016 COUP ATTEMPT AND THE DECLARATION OF A STATE OF EMERGENCY.
6. On the night of July 15-16, 2016, a group of people belonging to the Turkish Armed Forces, known as the "Council for Peace in the Country," staged a military coup attempt to overthrow the democratically elected Parliament, Government, and President of the Republic.
7. During the coup attempt, soldiers controlled by the coup plotters bombed several strategic state buildings, including Parliament and the presidential compound, attacked the hotel where the President of the Republic was staying, took the Chief of Staff hostage, stormed TV stations, and fired on protesters. During this night of violence, more than 300 people were killed and more than 2,500 injured.
8. In the aftermath of the attempted military coup, domestic authorities accused the network of Fetullah Gülen, a Turkish citizen residing in Pennsylvania (U.S.), of being the alleged leader of an organization dubbed FETÖ/PDY ("Fetullahist Terrorist Organization/Parallel State Structure") by Turkish authorities. Subsequently, the relevant prosecutors launched several criminal investigations against alleged members of this organization.
9. On July 20, 2016, the National Security Council, recalling the attempted military coup perpetrated, in its view, by the FETÖ/PDY, recommended, in light of Article 120 of the Constitution and with the aim of effectively implementing measures to protect democracy, the rule of law, and the rights and freedoms of citizens, to declare a state of emergency.
10. On the same day, the Council of Ministers, taking into account the recommendation of the National Security Council, declared a state of emergency for a period of ninety days from July 21, 2016, which was subsequently extended for ninety days at a time by the Council of Ministers meeting under the chairmanship of the President of the Republic.
11. On July 21, 2016, the Permanent Representative of Türkiye to the Council of Europe notified the Secretary General of the Council of Europe of a notice of exception under Article 15 of the Convention, the text of which was reproduced in Atilla Taş v. Turkey (No. 72/17, § 8, January 19, 2021).
12. The state of emergency ended on July 19, 2018. The waiver notification was withdrawn on August 8, 2018. The government stated that all claims raised by the claimants should be examined in light of this waiver.
THE PRETRIAL DETENTION OF THE CLAIMANTS AND THE CRIMINAL PROCEEDINGS INITIATED AGAINST THEM
13. On November 4, 2016, security forces conducted operations against twelve HDP parliamentarians, including the claimants, who were arrested and taken into police custody.
14. On the same day, the appellants were brought before the Diyarbakır Justice of the Peace, who ordered that they be remanded in custody on terrorism charges (for more detailed information on the appellants' remand and the criminal proceedings against them, see Selahattin Demirtaş (no. 2) cited above, §§ 62-95 and §§ 114-119, and Yüksekdağ Şenoğlu et al. v. Türkiye, nos. 14332/17 et al. 12, §§ 10-38, Nov. 8, 2022).
15. The Court issued its judgments regarding the applicants' deprivation of liberty on December 22, 2020 and November 8, 2022, respectively (both cited above). It concluded, inter alia, that the applicants' pretrial detention was contrary to Articles 5(1) and (3) and 10 of the Convention, as well as Article 3 of Protocol No. 1. It noted that not only were the charges contrary to the provisions of Protocol No. 1, but also to the provisions of Protocol No. 2. It noted that not only were the charges against the applicants based primarily on facts that could not reasonably be considered criminal conduct under domestic law, but also related primarily to their exercise of rights guaranteed by the Convention. It further noted that it had been established beyond reasonable doubt that the deprivation of the applicants' liberty had pursued an unstated political purpose, namely to stifle pluralism and restrict the free conduct of political debate, and was therefore contrary to Article 18 of the Convention in conjunction with Article 5.
16. The evidence in the record shows that the plaintiffs continue to be deprived of their liberty.
RESTRICTIONS ON THE RIGHT TO CONFIDENTIALITY OF LAWYER-CLIENT COMMUNICATIONS
17. On November 15, 2016, the Fourth Justice of the Peace of Diyarbakır, applying Article 6 §§ 5 and 11 of Decree Law No. 676 adopted in the context of the state of emergency (hereinafter "Emergency Decree Law No. 676") and at the request of the Diyarbakır Public Prosecutor's Office, ordered, for a period of three months, (i) the audio and visual recording of the applicants' interviews with their lawyers ; (iii) the seizure of all documents exchanged between the applicants and their lawyers.
18. The relevant parts of the order regarding the appellant, Selahattin Demirtaş, read as follows:
"Having regard to Investigation File No. 2016/24950 prepared by the Diyarbakır Prosecutor's Office on November 15, 2016;
With reference to the suspect Selahattin Demirtaş, detained at the Edirne F-type closed prison facility as part of a criminal investigation for membership in the PKK/KCK armed terrorist organization and for inciting the public to hatred and hostility ;
Paragraphs 5 and 11 of Emergency Decree Law No. 676, published in Official Gazette No. 29872, stipulate.
"(5) If information, findings or documents are obtained indicating that the security of society and the prison institution is endangered; that terrorist organizations or other criminal organizations are headed [by a person suspected of crimes related to terrorist acts]; that orders and instructions are given to such organizations ; or that secret, explicit or encrypted messages are transmitted, the interviews of persons convicted of crimes referred to in Article 220 of the Turkish Penal Code and Chapters 5, 6 and 7 of Part Four of Book Two of the Penal Code and crimes provided for in Law No. 3713 of April 12, 1991 on Combating Terrorism, may be audio or video recorded for a period of three months at the request of the prosecutor's office and upon the decision of the execution judge; an officer may be present during the convicted person's interview with his lawyer in order to monitor such interview; documents or copies of documents and files exchanged between the convicted person and his lawyer and the recordings they keep of their conversations may be seized; or the days and times of such interviews may be restricted.
(...)
11) The justice of the peace, at the investigation stage, and the court, at the prosecution stage, shall be authorized to make a decision in accordance with the provisions of this article."
It was considered that there was a possibility that the suspect, during the interviews with his lawyer, would endanger the security of society and the prison, direct the terrorist organization or other criminal organizations, transmit orders and instructions to them by means of secret, explicit or encrypted comments, [consequently] it was required that, for a period of three months,
1) interviews be recorded in audio and video format using a technical instrument,
2) that an officer be present during the detainee's interview with his lawyer in order to monitor that interview,
3) documents or copies of documents and files exchanged between the detainee and his lawyer, as well as recordings of their conversations are seized.
It was held that,
Pursuant to paragraphs 5 and 11 of Emergency Decree Law No. 676, published in Official Gazette No. 29872 [, which] provide that (...)
DECISION For these reasons.
[It is decided that] the request of the Diyarbakır Prosecutor General's Office be granted;
Since it has been deemed that there is a possibility that the suspect, during the interviews with his lawyer, endangers the security of the society and the prison, directs the terrorist organization or other criminal organizations, transmits orders and instructions to them through secret, explicit or encrypted comments; for a period of three months,
1) the interviews will be recorded in audio and video format using technical equipment,
2) an officer will be present during the detainee's interview with his lawyer to monitor that interview,
3) documents or copies of documents and files exchanged between the detainee and his lawyer, as well as recordings of their conversations, will be seized.
(...) "
19. The relevant parts of the order regarding the applicant, Ms. Figen Yüksekdağ Şenoğlu, read as follows:
"Having regard to Investigation File No. 2016/25124 prepared by the Diyarbakır Prosecutor's Office on November 15, 2016;
Regarding the suspect Figen Yüksekdağ Şenoğlu, detained in Kocaeli Type F No. 1 closed prison establishment in connection with a criminal investigation for membership in the PKK/KCK armed terrorist organization and inciting the public to hatred and hostility ;
Paragraphs 5 and 11 of Emergency Decree Law No. 676, published in Official Gazette No. 29872, stipulate.
"(5) If information, findings or documents are obtained that indicate that the security of society and the prison institution is in danger; that terrorist organizations or other criminal organizations are directed [by a person suspected of crimes related to terrorist acts]; that orders and instructions are given to such organizations ; or that secret, explicit or encrypted messages are transmitted, the interviews of persons convicted of crimes referred to in Article 220 of the Turkish Penal Code and Chapters 5, 6 and 7 of Part Four of Book Two of the Penal Code and crimes provided for in Law No. 3713 of April 12, 1991 on Combating Terrorism, may be audio or video recorded for a period of three months at the request of the prosecutor's office and upon the decision of the execution judge; an officer may be present during the convicted person's interview with his lawyer in order to supervise such interview; documents or copies of documents and files exchanged between the convicted person and his lawyer, as well as recordings kept by the latter of their conversations, may be seized; or the days and hours of such interviews may be restricted.
(...)
11) The justice of the peace, at the investigation stage, and the court, at the prosecution stage, shall be authorized to make a decision in accordance with the provisions of this article.
It was considered that there was a possibility that the suspect, during the interviews with his lawyer, endangered the security of society and the prison, directed the terrorist organization or other criminal organizations, transmitted orders and instructions to them by means of secret, explicit or encrypted comments, [accordingly], it was required that, for a period of three months,
1) the interviews be recorded in audio and video format using a technical instrument,
2) that an officer be present during the detainee's interview with his lawyer in order to monitor that interview,
3) documents or copies of documents and files exchanged between the detainee and her lawyer, as well as recordings of their conversations are seized.
It was held that,
Pursuant to paragraphs 5 and 11 of Emergency Decree Law No. 676, published in Official Gazette No. 29872 [, which] provide that (...)
DECISION For these reasons.
[It is decided that] the request of the Diyarbakır Prosecutor General's Office be granted;
Since it is considered that there is a possibility that the suspect, during interviews with his lawyers, endangers the security of society and the prison institution, directs the terrorist organization or other criminal organizations, transmits orders and instructions to them through secret, explicit or encrypted comments; for a period of three months,
1) interviews will be recorded with audio and video technology,
2) an officer will be present during the detainee's interview with his lawyer in order to monitor that interview,
3) documents or copies of documents and files exchanged between the detainee and his lawyer, as well as recordings of their conversations, will be seized.
(...) "
20. The November 15, 2016 order regarding the appellant, Ms. Figen Yüksekdağ Şenoğlu, was notified to her orally on November 16, 2016, while the order regarding the appellant, Mr. Selahattin Demirtaş, was notified to him on November 18, 2016.
21. On November 21, 2016 and November 23, 2016, respectively, the applicants appealed the November 15, 2016 orders. Specifically, they argued that under Emergency Ordinance No. 676, restrictions could be ordered only
"in the event of obtaining information, findings or documents indicating that the security of society and the prison institution [was] endangered; that terrorist organizations or other criminal organizations [were] headed [by a person suspected of crimes related to terrorist acts]; that orders and instructions [were] given to such organizations; or that secret, explicit or encrypted messages [were] transmitted."
The orders in question stated that it had been considered that "the possibility existed that the suspects [could], during conversations with their attorneys, endanger the security of society and the prison, address the terrorist organization or other criminal organizations, or transmit orders and instructions to them by means of secret, explicit or encrypted comments." According to the plaintiffs, the justice of the peace had thus ordered the enforcement of the restrictions imposed by the orders in question without complying with the terms of the law and in an arbitrary manner.
22. In a decision dated November 29, 2016, the Fifth Justice of the Peace of Diyarbakır dismissed the appeal filed by the appellant, Mr. Selahattin Demirtaş, on the grounds that the November 15, 2016 order was in accordance with procedure and the law.
23. On December 5, 2016, the 2nd Diyarbakır Justice of the Peace dismissed the appeal filed by the appellant, Ms. Figen Yüksekdağ Şenoğlu, on the same grounds.
24. It appears from the government's submissions that meetings of the individuals concerned with their lawyers were recorded until February 14, 2017, and that a prison officer was present to supervise these meetings. During this period, a document that the applicant, Mr. Selahattin Demirtaş, wanted to deliver to his lawyer was seized by prison officers. Similarly, two letters written by the person concerned were seized on December 2, 2016 by prison authorities. Notes kept by the attorneys of the applicant, Ms. Figen Yüksekdağ Şenoğlu, were confiscated on five occasions. Prison authorities also seized a letter written by the appellant.
25. Meanwhile, on December 5 and 14, 2016 and January 13, 2017, the appellant, Mr. Selahattin Demirtaş, had filed appeals for his release. On December 9, 2016 and January 17 and 31, 2017, the appellant, Ms. Figen Yüksekdağ Şenoğlu, had also filed similar appeals. On each occasion, these appeals were rejected by the relevant judicial authorities.
26. On January 11, 2017 and January 15, 2017, respectively, the prosecutor filed charges against the appellants before the Diyarbakır Assize Court.
27. On February 14, 2017, the restrictions imposed by the November 15, 2016 orders were lifted.
28. On February 17, 2017, the Diyarbakır Prosecutor's Office requested that an official be present during meetings between the applicant, Selahattin Demirtaş, and his lawyer and that these meetings be recorded for a period of three months.
29. In a decision dated February 21, 2017, the Diyarbakır Assize Court rejected this request.
30. On February 22, 2017, the Diyarbakır Prosecutor General's Office filed an appeal against this decision, which was rejected by the Diyarbakır Assize Court on February 24, 2017.
INDIVIDUAL APPEALS TO THE CONSTITUTIONAL COURT
31. On January 2, 2017 and January 3, 2017, respectively, the appellants filed individual appeals to the Constitutional Court. They alleged, among other things, a violation of their right to liberty and security and a violation of their right to a fair trial due to the restrictions imposed by the November 15, 2016 order. They argued that the recording of conversations with their lawyers, the presence of an official during meetings with them, and the prohibition on exchanging documents had prevented them from effectively challenging the decisions ordering their placement and continued remand.
32. In two judgments handed down on July 9, 2020 (served on the appellant's counsel on October 7, 2020) and September 30, 2020 (served on the appellant's counsel on November 20, 2020), the Constitutional Court held that there had been no violation of the appellants' right to liberty and security guaranteed by Article 19 § 8 of the Constitution (corresponding to Article 5 § 4 of the Convention) in conjunction with Article 15 thereof, which provides for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilization, a state of siege or a state of emergency. It also declared the complaint regarding the right to a fair trial inadmissible for failure to exhaust remedies and the complaint regarding the right to free elections inadmissible for manifest groundlessness.
33. With regard to the applicants' grievance concerning the right to effectively challenge the continuation of their pre-trial detention, which is guaranteed by Article 19 § 8 of the Constitution and Article 5 § 4 of the Convention, the Constitutional Court, referring to its own case law (see paragraphs 47-61 the Constitutional Court, referring to its own case law (see paragraphs 47-61), found that the restrictions applied in the present case were contrary to the constitutional guarantees relating to the right to challenge detention during ordinary periods. It then proceeded to evaluate these appeals in relation to the procedures relating to the state of emergency and stated that it would take into account the guarantees relating to fundamental rights and freedoms in Article 15 of the Constitution when examining them.
34. The Supreme Constitutional Court also recalled that it had examined the constitutionality of the provisions of State of Emergency Decree Law No. 676, which formed the basis for the interference in question, and had concluded that recording the suspect's or defendant's interview with his or her lawyer, surveillance of that interview, or seizure of documents exchanged during the interview disproportionately restricted the right to the assistance of counsel. Having found in its July 24, 2019 ruling that Law No. 7070, which had enacted State of Emergency Decree Law No. 676 by amending it, was contrary to Articles 13 and 36 of the Constitution, it therefore annulled it, but without making an assessment under Article 15 of the Constitution (see paragraph 59 below).
35. The Constitutional Court noted that following the July 15, 2016 coup attempt, a state of emergency had been declared throughout the country and had remained in effect between July 21, 2016 and July 19, 2018. It found that one of the reasons for the declaration and extension of the state of emergency was the increased danger of terrorism. It noted that the applicants had been convicted of a terrorism-related offense and were also in pretrial detention for a terrorism-related offense.
36. He said that under Article 15 of the Constitution, it was possible to suspend in whole or in part the enjoyment of fundamental rights and freedoms in the event of war, mobilization or a state of emergency, and to take measures contrary to the guarantees established in other articles of the Constitution. However, he noted that Article 15 of the Constitution did not grant unlimited power to public authorities in this regard; that measures contrary to the guarantees set forth in other articles of the Constitution could not violate the rights and freedoms listed in the second paragraph of Article 15 of the Constitution; that such measures could not be contrary to obligations under international law; and that they should be introduced only to the extent required by the situation.
37. In this context, the Constitutional Court ruled that the law did not automatically authorize the recording of conversations between detainees and their lawyers by audio or video means or the presence of an agent to monitor their conversations. It therefore held that although the law provides measures that significantly restrict the rights of the persons concerned, it does not completely eliminate them and offers some guarantees. In fact, the restrictions in question could be ordered only if information, findings or documents were obtained that indicated that the security of society and the prison institution was in danger; that terrorist or other criminal organizations were headed by a person suspected of crimes related to terrorist acts; that orders and instructions were given to these organizations; or that secret, explicit or encrypted messages were transmitted. At the request of the prosecutor, these restrictions were left to the discretion of the judge. The law also provided for the right of appeal. The Constitutional Court noted that the fourth justice of the peace in Diyarbakır had ordered the restrictive measures in question, at the request of the prosecutor, and that the plaintiffs had been given the opportunity to have them reviewed by another judicial authority. Moreover, prior to their meetings, the individuals and their representatives had been informed that the restrictions in question would be applied during their interviews.
38. The Constitutional Court then noted that the applicants had been convicted of terrorism-related offenses and had also been remanded in custody for such offenses. The restrictions imposed in this case on the right to confidentiality of lawyer-client communications were applied a few months after the attempted coup of July 15, 2016, at a time when the effects of that attempt had not yet completely disappeared and when there was, according to the Constitutional Court, a danger of a further coup attempt. In addition, one of the reasons why the state of emergency was declared and extended was the increase in terrorist attacks, including terrorist violence by the Kurdistan Workers' Party (PKK), which posed a serious threat to the constitutional order, national security, public order, and the security of the population. Considering the increase in terrorist attacks perpetrated by the PKK that had occurred before and after the coup attempt, particularly the events known as the "October 6-7 [2014]" and the "trench incidents," but also the attacks that had occurred after the coup attempt, including in the plaintiffs' electoral district, the Constitutional Court pointed out that investigating terrorism-related crimes posed serious difficulties for public authorities. It held that the right to freedom and security should not be interpreted in such a way as to make it difficult for judicial authorities and security forces to combat organized crime. He added that during a state of emergency this fight becomes more complicated.
39. Referring to its ruling in the Aydın Yavuz and Others case of June 20, 2017 ([GK], B.2016/22169), the Constitutional Court noted that it is also necessary to assess the time at which a measure was taken. In its view, a measure taken at a time when a concrete danger was emerging could not be considered in the same way as a measure taken at a time when the danger had largely been eliminated.
40. In these circumstances, it held that there could be no basis for assessing the situation that persons remanded in custody for terrorism-related offenses might have continued their organizational activities in the period immediately following the coup attempt with the risk that their activities might give rise to attacks on the democratic constitutional order. Therefore, it had to be admitted that it was legitimate to monitor and record the plaintiffs' conversations with their lawyers during the period covered by the state of emergency. Moreover, the Constitutional Court noted that the measures in question had been ordered only once and applied for only three months. Recalling the guarantees provided by the legislation, it said that these measures had to be considered proportionate during the state of emergency. In this regard, it also referred to its conclusions in its July 24, 2019 judgment (E. 2016/205, K. 2019/63, paragraphs 47-50 below).
41. He further noted that under Turkish criminal law, a detainee can freely appeal his pretrial detention without any restrictions. Moreover, the applicants did not complain that they were unable to appeal their pretrial detention. Recalling also his findings in Yasin Akdeniz (B. No. 2016/22178, Feb. 26, 2020, paras. 60-61), he concluded that there was no violation of the right to liberty and security, guaranteed by Article 19 § 8 of the Constitution in conjunction with Article 15 of the Constitution.
THE LEGAL FRAMEWORK OF REFERENCE
NATIONAL LAW AND PRACTICE
Domestic legislation
42. Article 154 § 1 of the Code of Criminal Procedure (CPP) provides:
"Any suspect or accused person shall have the right at any time to speak with a lawyer in a setting where other individuals cannot overhear their conversation, without the need for a proxy. Written correspondence from such persons to their lawyer shall not be subject to scrutiny."
43. Article 59 of Law No. 5275 on the Execution of Penalties and Preventive Measures (hereinafter "Law No. 5275"), in effect at the time of the facts, reads as follows:
"(4) It is prohibited to examine a lawyer's documents and files relating to the defense, as well as his notes relating to interviews with his client. However, if information or documents are obtained [indicating] that the visits of attorneys to a person convicted of the offenses referred to in Article 220 of the Criminal Code [or] Chapters 4 and 5 of Part Four of Book Two of the Criminal Code serve as a means of communication with a terrorist organization or for the commission of a crime, or otherwise compromise the security of the prison, the execution judge may, upon the request of the prosecutor, impose [the following measures]: the presence of an officer [during the attorney's visits]; the verification of documents exchanged between the prisoner and his attorneys during these visits; and, if necessary, the confiscation by the judge of all or part of these documents. Interested parties may appeal this decision under Law 4675.
44. Article 6 §§ 5 and 11 of the State of Emergency Law Decree No. 676 adopted on October 3, 2016 provides that:
"(5) In case of obtaining information, findings, or documents indicating that the security of society and the prison institution is in danger; that terrorist organizations or other criminal organizations are headed [by a person suspected of crimes related to terrorist acts]; that orders and instructions are given to such organizations ; or that secret messages, whether explicit or encrypted, are transmitted, the interviews of persons convicted of offenses under Article 220 of the Turkish Penal Code and Chapters 5, 6 and 7 of Part Four of Book Two of the Penal Code and offenses under Law No. 3713 of April 12, 1991 on Combating Terrorism, may be audio or video recorded for a period of three months at the request of the prosecutor's office and upon the decision of the execution judge; an officer may be present during the interview between the convicted person and his lawyer in order to monitor the interview; documents or copies of documents and files exchanged between the convicted person and his lawyer and recordings kept by the latter of their conversations may be seized; or the days and times of [these] interviews may be restricted.
(...)
11) The justice of the peace, at the investigation stage, and the court, at the prosecution stage, shall be authorized to make a decision in accordance with the provisions of this Article."
45. Acceptance Act No. 7070, amending State of Emergency Decree Law No. 676, was enacted on February 1, 2018. Article 59 §§ 4, 5 and 11 of Law No. 5275, as amended by Law No. 7070, read as follows:
"(4) It shall be prohibited to examine an attorney's papers and files relating to the defense and his notes relating to interviews with a convicted person.
(5) If information, findings or documents are obtained that indicate that the security of society and prison is endangered; that terrorist organizations or other criminal organizations are headed [by a person suspected of crimes related to terrorist acts]; that orders and instructions are given to such organizations ; or that secret, explicit or encrypted messages are transmitted, the interviews of persons convicted of crimes referred to in Article 220 of the Turkish Penal Code and Chapters 5, 6 and 7 of Part Four of Book Two of the Penal Code and crimes provided for in Law No. 3713 of April 12, 1991 on Combating Terrorism, may be audio or video recorded for a period of three months at the request of the prosecutor's office and upon the decision of the execution judge; an officer may be present during the interview between the convicted person and his lawyer in order to monitor such interview; documents or copies of documents and files exchanged between the convicted person and his lawyer and recordings kept by the latter of their conversations may be seized; or the days and times of [these] interviews may be restricted.
(...)
11) The justice of the peace, at the investigation stage, and the court, at the prosecution stage, shall be authorized to make a decision in accordance with the provisions of this Article."
46. In a judgment dated July 24, 2019 (E.2018/73, K.2019 /65), the Constitutional Court annulled the part of the law that provided that "an officer [may] be present during the interview between the convicted person and his lawyer for the purpose of supervising that interview; [that] documents or copies of documents and files exchanged between the convicted person and his lawyer and the records kept by them of their interviews [may] be seized" because the law in question was contrary to Articles 13 and 36 of the Constitution (see paragraph 59 below).
The jurisprudence of the Constitutional Court
Judgment of July 24, 2019 (E.2016/205, K.2019/63)
47. On an unknown date, one hundred twenty-two deputies filed an appeal to the Constitutional Court for the annulment of, inter alia, Article 6(d) of Law No. 6749 of October 18, 2016, on the acceptance, amendment of the
Decree-Law on State of Emergency No. 676, which provided that.
"upon order of the prosecutor, the interviews [between the convict and his lawyer] may be recorded in audio and video format using a technical instrument; an officer may be present to monitor [these interviews]; documents or copies of documents and files exchanged between the convict and his lawyer and the recordings they keep of their conversations may be seized; or the days and times of [these] interviews may be restricted."
48. The Constitutional Court held that the law in question imposed a restriction on a prisoner's right to counsel and his right to object to detention beyond the guarantees prescribed by the Constitution for ordinary periods. However, since the law had been adopted during a state of emergency, it decided to examine it under Article 15 of the Constitution, which provides for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilization, a state of siege or a state of emergency.
49. In assessing the proportionality of the restriction imposed on the rights in question, the Court took into consideration the scope and extent of that restriction, as well as the circumstances that had led to the declaration of the state of emergency and those that had occurred following the attempted coup. In this context, he noted that judicial decisions had shown that FETÖ/PDY had initiated the coup attempt, that the organization's leaders and members had conducted their activities in secret, and that they had used secret means of communication. In this regard, he noted that judicial investigations into the events that led to the declaration of the state of emergency, such as the coup attempt, could pose serious challenges to public authorities. For this reason, more powers could be granted to the authorities, who are required to take urgent measures and decisions. In addition, the adoption of strict regulations and measures, which could not be introduced during an ordinary period, could be considered necessary to eliminate the threats and dangers that had prompted the declaration of the state of emergency.
50. Considering the modus operandi of FETÖ/PDY and the threat that a coup posed to the democratic constitutional order and public safety, the Constitutional Court held that it could not be said that imposing restrictions on interviews between detainees and their lawyers during the state of emergency was not an appropriate and necessary measure. It held that the law did not impose such restrictions arbitrarily, since it imposed them only on persons detained for certain crimes punishable by law. In addition, the provision did not provide that such restrictions could be used for a purpose other than that provided by law, and provided that the restrictions should be notified to the detainee and his lawyer prior to the interviews. For these reasons, the Constitutional Court rejected the request for annulment.
The judgment of July 24, 2019 (E. 2018/73, K. 2019/65).
51. Law No. 7070 on Reception, amending State of Emergency Decree Law No. 676, was enacted on February 1, 2018, and Article 59 of Law No. 5275 was so amended (see paragraph 45 above).
52. On an unspecified date, one hundred and fourteen deputies filed an appeal to the Constitutional Court for the annulment of, among other things, Article 6 of Law No. 7070, which provided for, among other things, restrictions on the right to confidentiality of attorney-client interviews.
53. The Constitutional Court considered whether paragraph 5 of Article 6 of Law No. 7070 was contrary to the right to respect for private and family life and the right to a fair trial. It noted that the provision in question imposed certain restrictions on persons convicted of forming a criminal organization and of crimes against state security, constitutional order, national security, state secrecy and espionage. It then found that the law restricted the rights of convicted persons to respect for their private lives.
54. He found that regular, private meetings between convicted persons and their lawyers were essential for convicted persons to receive legal assistance and be able to make sound decisions about their private lives outside of prison. He noted that legislation had guaranteed the right to meet with an attorney while serving a sentence for this specific reason and that Section 59(2) of Law No. 5275 had guaranteed the confidentiality of attorney-client interviews.
55. The Constitutional Court noted that Law No. 7070, which was the focus of the case, had been adopted with the aim of ensuring prison security and preventing the commission of serious crimes against national security and public order. In that sense, it pursued a legitimate purpose.
56. The Court held that if the state had an obligation to respect the private lives of convicts, it also had an obligation to safeguard prison security and the security of society in general. In this regard, the Court found that the restriction under the law in question was appropriate and necessary to ensure prison security and prevent the commission of serious crimes against national security and public order. It also noted that the law in question did not impose categorical restrictions on all persons convicted of the above-mentioned crimes. Restrictions could only be imposed if information, findings or documents were obtained that indicated that the security of society and the prison were endangered; that terrorist or other criminal organizations were headed by a person suspected of crimes related to terrorist acts; that orders and instructions were given to such organizations; or that secret, explicit or encrypted messages were transmitted. In addition, the law in question established a certain time limit for imposing any restrictions, and the judicial body had the power to order such restrictions. The Constitutional Court added that Article 6(9) of the law in question provided a right of appeal against judicial decisions. Accordingly, it held that the law contained legal safeguards to prevent the arbitrary use of the authorities' power to impose such restrictive measures, and rejected the application to annul Article 6 of the challenged law. It also held that the restrictions in question were not relevant to the right to a fair trial.
57. The Constitutional Court subsequently examined paragraph 10 of Article 6 of the law, which read as follows:
"The provisions of this Article shall also apply to convicted persons held in high-security prisons pursuant to the third paragraph of Article 9 and to those convicted of the offenses referred to in the fifth paragraph who meet with their lawyers as suspects or defendants for another offense."
Regarding the second part of this provision, the Constitutional Court noted that the restrictions consisting of recording the conversation between a suspect or defendant and his lawyer prevented communication in complete confidentiality. In that case, it was not possible for the suspect or defendant to share confidential information and exchange views with his or her lawyer. Indeed, such a limitation could greatly reduce the possibility of an effective defense. Moreover, the Constitutional Court found that the law in question did not provide the necessary safeguards to ensure that the suspect or accused received effective legal assistance and fully exercised his or her right to defense. Given the importance of having a lawyer, and thus of the right to defense and a fair trial in a rule of law, the restrictions imposed by this law, namely the recording and monitoring of interviews between the suspect or accused and his or her lawyer, or the seizure of information and documents, were deemed excessive and disproportionate to the right to counsel. It therefore annulled this part of the law.
58. The Constitutional Court then examined the constitutionality of Article 6(11) of the law in question, which authorized the justice of the peace, at the investigation stage, and the competent court, at the prosecution stage, to order the same restrictions against detained persons. It stated that this provision did not constitute an interference with the right to meet with an attorney. It merely ensured that restrictions could be ordered by a court decision. Consequently, he concluded that there was nothing unconstitutional about this paragraph.
59. Next, the Constitutional Court examined paragraph 5 of Article 6 of the Act in light of Article 36 of the Constitution, which provides for the right to a fair trial. It found that the limitations in this paragraph on the confidentiality of meetings between suspects or defendants and their lawyers pursued a legitimate constitutional objective. It also noted that such limitations were necessary and relevant to achieve that objective. However, the Supreme Constitutional Court concluded that the measures, such as the recording of meetings between lawyers and clients, the presence of an official at these meetings, and the seizure of exchanged documents, could not be considered proportionate insofar as they risked eliminating the confidentiality of these meetings. In particular, he noted that this could reduce the lawyer's opportunities to conduct an effective defense. In addition, he noted that the law did not provide the necessary safeguards to ensure effective legal assistance to defend oneself. In view of the importance of legal aid and the right to a fair trial, it held that the part of the law that provided that "an agent [could] be present during the interview between the convicted person and his lawyer in order to supervise that interview; [that] documents or copies of documents and files exchanged between the convicted person and his lawyer and the recordings they kept of their conversations [could] be seized" was not proportionate and was contrary to Articles 13 and 36 of the Constitution.
The Yasin Akdeniz judgment (B. No. 2016/22178, Feb. 26, 2020)
60. In the Yasin Akdeniz judgment, the appellant complained about practices such as the recording of his meetings with his lawyer while in detention, the monitoring of their interviews by an official, and the monitoring of documents exchanged between him and his lawyer. Referring first to its judgment E. 2016/205, K. 2019/63 of July 24, 2019 (see paragraphs 47-50 supra), the Constitutional Court held that there was no reason to depart from the conclusion that the restrictions on the appellant's right to counsel were contrary to the guarantees in Article 19 § 8 of the Constitution in the context of the right to object to detention during ordinary periods.
61. The Constitutional Court then found it necessary to examine whether the restriction was justified under Article 15 of the Constitution. Considering that the appellant had been detained for an offense related to the attempted coup of July 15, 2016, that he had been informed before meeting with his lawyer that their interview would be recorded, that the measure in question had been taken immediately after the attempted coup, and that the appellant had always had the right to appeal to the execution judge against the measure, the Constitutional Court concluded that the measures taken were required by the exigencies of the situation within the meaning of Article 15 of the Constitution.
INTERNATIONAL TEXTS
62. The relevant parts of the Recommendation of the Committee of Ministers to the Member States of the Council of Europe on the European Prison Rules (Rec (2006)2, adopted by the Committee of Ministers on January 11, 2006 at the 952nd meeting of the Deputies of Ministers) read as follows:
"Legal Advice
23.1 Every detainee has the right to seek legal advice and prison authorities must provide reasonable assistance to enable the detainee to access such advice.
23.2 Every detainee shall have the right to consult at his or her own expense with a lawyer of his or her choice on any matter of law.
(...)
23.4 Consultations and other communications, including correspondence, on legal matters between the detainee and his lawyer shall be confidential.
23.5 The judicial authority may, in exceptional circumstances, authorize exceptions to this principle of confidentiality to prevent the commission of a serious crime or a serious threat to prison security.
23.6 Prisoners will have access to or be allowed to retain documents relating to court proceedings concerning them.
63. The relevant part of the document entitled "Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment," approved by the United Nations General Assembly on December 9, 1988 (A/RES/43/173), reads as follows:
Principle 18
" l. Every detained or imprisoned person shall be able to communicate with and consult his or her lawyer.
2. Every detained or imprisoned person shall have the necessary time and facilities to confer with his or her lawyer.
3. The right of a detained or imprisoned person to receive visits, consult and communicate with his or her lawyer without delay or censure and in full confidence shall not be subject to any suspension or restriction, except in exceptional circumstances, to be specified by law or by regulations issued in accordance with law, where a judicial or other authority deems it essential in the interest of security and the maintenance of order.
4. Interviews between a detained or imprisoned person and his lawyer may be conducted in the sight, but not in the hearing, of a law enforcement official.
5. Communications between a detained or imprisoned person and his or her attorney referred to in this principle shall not be admissible as evidence against the detained or imprisoned person unless they relate to a continuing or intended crime."
64. The Basic Principles on the Role of Lawyers (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from August 27 to September 7, 1990) state, in particular:
" 8. Every person arrested or detained or imprisoned shall have the right to be visited, to confer with counsel and to consult with counsel without delay, in full discretion and without any censorship or interception, and shall be provided with the necessary time and facilities for this purpose. Such consultations may take place in the sight, but not in the hearing, of law enforcement officials.
(...)
22. Public authorities shall ensure that all communications and consultations between lawyers and their clients in the course of their professional relationship remain confidential."
IN LAW
JOINDER OF APPEALS
65. In view of the similarity of the subject matter of the applications, the Court considers it appropriate to examine them together in a single judgment.
ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
66. The plaintiffs complained that they were denied effective legal assistance to challenge their detention because of the prison authorities' surveillance of their meetings with their lawyers and seizure of documents exchanged between them and their lawyers. They invoked Article 5 § 4 of the Convention, which reads as follows:
"Every person deprived of his liberty by arrest or detention shall have the right to apply to a court of law for a decision without delay as to the lawfulness of his detention and to order his release if the detention is not lawful."
67. The government disputed the plaintiffs' claim.
Admissibility
Comments of the parties
(a) The Government
68. Referring to Rule 47 of the Rules of Court and the decisions Baillard v. France ((dec.), No. 6032/04, Sept. 25, 2008) and Trofimchuk v. Ukraine ((dec.), No. 4241/03, Oct. 28, 2010), the Government considered that the applicants had failed to explain, in substance, why their right to liberty and security had been violated. It argued that the applicants had not provided any relevant and sufficient explanation as to why they could not effectively challenge their detention as a result of the measure imposed on them. He argued that the appeals should therefore be declared inadmissible as manifestly unfounded.
69. The Government also argued that the complaints raised by the applicants had been evaluated by the domestic courts, particularly the Diyarbakır Justices of the Peace and the Constitutional Court, which had issued decisions following a thorough examination and with relevant and sufficient grounds. In this regard, he recalled that, according to the principle of subsidiarity, it is primarily the responsibility of national authorities to ensure that the rights enshrined in the Convention are respected, and that the powers conferred on the Court are limited, as its sole task is to ensure compliance with the obligations incumbent on States Parties under the Convention. He argued that the Court, which is not a "court of fourth instance," lacks jurisdiction to deal with the plaintiff's complaints, which essentially concern questions of fact and application of domestic law. He argued that, in the present case, the authorities had carried out the necessary examinations and evaluations of the plaintiffs' complaints and that there was nothing in the plaintiffs' files to suggest that the domestic courts had acted arbitrarily in evaluating the evidence and establishing the facts. In light of these factors, he concluded that the appeals should be dismissed as manifestly unfounded.
(b) The appellants
70. The appellants argued that there were no grounds for inadmissibility in the present case. They argued that their respective appeals to the Court had been prepared on the basis of their individual appeals to the Constitutional Court, which had declared their complaints regarding Article 5 § 4 admissible, even though no violation of that provision had been found.
71. They considered that the exceptions of inadmissibility raised by the government required an examination of the merits of the appeals.
The Court's assessment
72. The Court first notes that it appears from the forms submitted by the applicants when they filed their respective appeals that they complained about the restrictions imposed by the November 15, 2016, orders issued by the Fourth Justice of the Peace in Diyarbakır. At the time the appeals were served, the appellants' complaints under Articles 6 and 8 of the Convention and Article 3 of Protocol No. 1 were declared inadmissible, while their complaint under Article 5 § 4 of the Convention was served on the government. Under these circumstances, the Court finds that the plaintiffs did indeed raise their complaint under Article 5 § 4 of the Convention in their appeals.
73. In any event, with regard to the plea of inadmissibility relating to non-compliance with Rule 47 of its Rules of Procedure, the Court reiterates that the application of this provision falls within its exclusive jurisdiction over the administration of proceedings before it, and Contracting States may not invoke it as a ground of inadmissibility to raise an exception under Article 35 of the Convention (see, for example, Gözüm v. Turkey, No. 4789/10, § 31, Jan. 20, 2015, and Aydoğdu v. Turkey, No. 40448/06, § 53, Aug. 30, 2016). This objection raised by the Government must therefore be rejected.
74. With regard to the second objection of inadmissibility, raised in conjunction with the principle of subsidiarity, the Court notes that the Government relied on the fact that the applicants' grievances had been raised before the domestic courts, which in their view had duly assessed them. In this regard, the Government pointed out that, in the absence of an arbitrary decision, the Court had no jurisdiction to rule on the grievances in question.
75. The Court first recalls that, under Article 32 of the Convention, its jurisdiction "shall extend to all questions concerning the interpretation and application of the Convention and its Protocols which are submitted to it under the conditions laid down in Articles 33, 34, 46 and 47." "In the event of a dispute as to the jurisdiction of the Court, the Court shall decide" (Scoppola v. Italy (No. 2) [GC], No. 10249/03, § 53, Sept. 17, 2009). The main role of the Court, as stated in Article 19, is to "ensure compliance with the commitments entered into by the High Contracting Parties under the (...) Convention and its Protocols." Moreover, the Court is master of its own procedure and rules (see Article 25(d) of the Convention, Ireland v. United Kingdom, Jan. 18, 1978, § 210 in fine, Series A No. 25, and, more recently, Merabishvili v. Georgia [GC], No. 72508/13, § 315, Nov. 28, 2017).
76. It is true that it is not the Court's task to replace national courts. Its jurisdiction is limited to monitoring the compliance of States Parties with the human rights commitments they made by acceding to the Convention. Moreover, since the Court does not have the power to intervene directly in the legal systems of the contracting states, it must respect the autonomy of those systems. This means that it has no jurisdiction to rule on errors of fact or law allegedly committed by a national court unless and to the extent that such errors may have affected the rights and freedoms protected by the Convention. It cannot assess the questions of fact or law that led a national court to adopt one decision rather than another (see García Ruiz v. Spain [GC], No. 30544/96, § 28, ECHR 1999-I, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], No. 30544/96, § 28, ECHR 1999-I). Italy [GC], No. 38433/09, § 197, ECHR 2012, Avotiņš v. Latvia [GC], No. 17502/07, § 99, May 23, 2016, Paroisse gréco-catholique Lupeni et autres v. Romania [GC], No. 76943/11, § 90, November 29, 2016, and De Tommaso v. Italy [GC], No. 43395/09, §§ 170-172, February 23, 2017).
77. In responding to the Government's second plea of inadmissibility, the Court noted that the principle of subsidiarity, now incorporated into the text of the preamble to the Convention, is primarily a mechanism for the proper allocation of jurisdiction between the Court and member states. This principle is intended, like the entire system of protection under the Convention, to guarantee to all those within a state's jurisdiction the rights and freedoms enshrined in the Convention (see, to this effect, Burmych and Others v. Ukraine (striking out) [GC], No. 46852/13 and others, § 185, Oct. 12, 2017). According to the Court's jurisprudence, the principle of subsidiarity and the effective protection of rights at the national level are two sides of the same coin. For subsidiarity to be fully operational, it is necessary for national authorities to effectively protect human rights at the national level. It is their primary responsibility to ensure full respect for the rights and freedoms enshrined in the Convention (Ťupa v. the Czech Republic, No. 39822/07, § 50, May 26, 2011). In this context, the responsibility for guaranteeing rights under the Convention rests with the member states, under the supervision of the Court. If national authorities fulfill the role conferred on them by the Convention by applying in good faith the general principles derived from the Court's case law, the principle of subsidiarity means that the Court can accept their conclusions.
78. That said, the Court's powers and jurisdiction are enshrined in Articles 19 and 32 of the Convention (see para. 75 supra), which recognize the Court's role as the ultimate arbiter of the scope and content of the Convention, and the Court's application of the principle of subsidiarity has nothing to do with the abolition of its powers. By virtue of the aforementioned articles, the Court has both the power and the duty to ultimately examine the substantive results achieved at the national level in the application of the principles derived from the Convention and its jurisprudence. In this regard, it believes that the principle of subsidiarity cannot be used to the detriment of the very spirit of the Convention. In light of the foregoing, the Court decides to reject the objection raised by the Government.
79. Finding that the appeals were not manifestly unfounded or inadmissible on any other ground referred to in Article 35 of the Convention, the Court declared them admissible.
The merits
The arguments of the parties
(a) The appellants
80. Referring to the principles set forth in Reinprecht v. Austria (No. 67175/01, § 31, ECHR 2005-XII), the applicants stressed the importance for a person facing a criminal charge to have the immediate, confidential, and unimpeded assistance of a lawyer of his or her choice. They believed that one of the basic conditions for a fair trial in a democratic society was the confidential assistance of a lawyer of one's choice at all stages of the trial. Recalling the restrictive measures applied against them between November 15, 2016, and February 14, 2017, they argued that their complaint under Article 5 § 4 should be examined in light of the guarantees provided by Article 6 of the Convention.
81. The plaintiffs pointed out that the amendments to Article 6 § 5 and 11 of Emergency Decree-Law No. 676 and the related provisions of Law No. 5275 on the Execution of Penalties and Preventive Measures had been referred to as the legal basis of the measures applied to them. In this context, they argued, first, that a state of emergency decree law cannot make permanent changes to legislation. Second, they argued that, in his decision of November 15, 2016, the fourth Justice of the Peace in Diyarbakır mentioned the possibility that the plaintiffs might perform certain acts that the decree law prohibited, without explaining in any way the evidence on which this possibility or suspicion was based. They believed that this decision was contrary to domestic law and claimed a violation of the foreseeability requirement of the State of Emergency Decree-Law with regard to its interpretation and application. Such a broad interpretation of the domestic rule did not, according to the plaintiffs, meet the requirement of legality under the Convention.
82. The appellants noted that the Constitutional Court, in its rulings on their respective individual appeals, had held that they had been convicted of a terrorism-related crime. At the time of the events, however, they had not been convicted of any crime. In this regard, they argued that a conviction imposed two years after the lifting of the restrictions imposed by the November 15, 2016 orders that are the subject of the present appeals could not justify the application of such unlawful restrictions in the present case.
83. The appellants argued that there was no concrete evidence to show that they could have endangered the security of society and the prison. They added that the fact that they were being tried for the crimes of belonging to a terrorist organization and inciting hatred and hostility did not automatically make them "dangerous." It was clear that the plaintiffs, who were co-chairs of Turkey's third largest political party, had not participated in any acts of violence and had not encouraged people to use violence. In their view, the Grand Chamber's judgment in Selahattin Demirtaş v. Turkey (No. 2) ([GC], No. 14305/17, Dec. 22, 2020) confirmed this once again.
84. The interested parties also complained about the lack of procedural safeguards regarding the confidentiality of correspondence between a detainee and his counsel. They argued that it is clear from the Court's established case law, particularly Erdem v. Germany (No. 38321/97, ECHR 2001-VII (excerpts)), that there must be safeguards against abuse. In this regard, they pointed out that, unlike the Erdem case (cited above), in which the supervisory power was exercised by an independent magistrate who had no connection with the investigation and who was required to keep secret the information he learned, the case at hand was characterized by the fact that the supervision was carried out by the prison authorities. Although the government stated that the recordings had not been shared with any other institution and that those relating to the applicant, Selahattin Demirtaş, had been destroyed, the interested parties argued that it was not possible to know whether the prison authorities had shared these recordings with other institutions until they had been destroyed, as the legislation did not provide any procedural guarantees in this regard.
85. The applicants noted that both the Constitutional Court and the government had emphasized that the restrictive measures in question had only been applied for three months, that there had been no prohibition on the persons concerned meeting with their lawyers, and that the restrictions imposed on them during the state of emergency had been proportionate. However, according to the people concerned, it is surprising that the measures in question were not extended while the state of emergency was still in effect. In this regard, they pointed out that although the Government argued that the court decisions contained a relevant and sufficient justification, it did not explain why these measures were no longer necessary, despite the fact that circumstances had not changed. Nor did the Government explain why the measures in question-which had not been extended despite the fact that the conditions had remained unchanged-should be taken for a period of three months. According to the applicants, the use of such harsh measures could not be considered necessary and proportionate in a democratic society, even though they had been applied only once and for a period of three months.
86. Regarding Türkiye's exemption, the plaintiffs argued that Article 15 of the Convention did not give authorities carte blanche to illegally suspend and restrict fundamental rights and freedoms; and contrary to the Constitutional Court's decision, this provision did not make the authorities' interference legitimate, lawful and proportionate. They stressed that there was no connection between their preventive detention and the coup attempt. They also noted that there was no causal link between the PKK's terrorist acts and their pre-trial detention and the restrictions imposed on the right to confidentiality of their meetings with lawyers.
(b) The government
87. The Government noted that the restrictive measures in question had been ordered on November 15, 2016, eleven days after the applicants' pre-trial detention. It stated that before then, that is, before November 15, 2016, the applicants had been informed by the investigating authorities of the charges that were the subject of their detention. He added that the applicants had been able to meet with their lawyers without any restrictions between November 4, 2016, the date of their detention, and November 15, 2016, and that they had communicated adequately about the incidents that led to their detention.
88. He argues that, in addition, the individuals concerned continued to communicate properly with their lawyers, even when the measures in question were in effect. During this period, the persons concerned met with their lawyers seventy-seven times and seventy-four times, respectively, without any time restrictions. During this period, there was no substantial change in the charges brought against the persons concerned or in the evidence supporting those charges. In this regard, the government stated that this situation was also evident from the appeals filed by the plaintiffs' lawyers against the remand of their clients, in which they had simply referred to the same issues and raised the same questions. Accordingly, he found that the measures in question had not had an adverse effect on the appellants' appeals against their pretrial detention. In this context, he noted that the three appeals filed by the applicants during the period of application of the measures in question had been carefully examined and dismissed by the judicial authorities on relevant and sufficient grounds.
89. He considered that the measures imposed on the applicants had a legal basis. In this regard, he pointed out that Article 6 § 5 of Decree-Law No. 676 on the state of emergency did not apply to anyone held in pre-trial detention. The legislature had provided for the restrictive measures in question in order to protect the democratic constitutional order and public safety, since in order to order such measures it was first necessary for the person concerned to be detained for crimes against state security, crimes against the constitutional order, crimes against national defense, crimes against state secrecy, or crimes committed under Law No. 3713 on Combating Terrorism.
90. The government also stressed that certain conditions had to be met in order to apply the measures provided for in Article 6 § 5 of Decree Law No. 676 on the state of emergency. Indeed, in the event that information, findings, or documents are obtained indicating that the security of society and the penitentiary institution is endangered; that terrorist or other criminal organizations are headed by a person suspected of crimes related to terrorist acts; that orders and instructions are given to such organizations; or that secret, explicit, or encrypted messages are transmitted, the competent judge may, at the request of the prosecutor, impose the measures provided for in Article 6 § 5 of Emergency Decree-Law No. 676 for a period of three months. According to the government, therefore, the legislation aimed to ensure prison security, prevent the commission of serious crimes against national security and public order, and pursued a legitimate purpose.
91. In this context, the Government argued that the above provision did not apply categorically to all convicted and detained persons. It covered only persons convicted or detained for the crimes listed in Article 6 § 5 of Emergency Law Decree No. 676. Furthermore, this provision stipulates that persons convicted or detained for the crimes listed in Article 6 § 5 of Emergency Law Decree No. 676. In addition, this provision stipulates that restrictive measures must be applied for a certain period and that the power to impose them is left to judicial bodies. In addition, detainees have the right to appeal any measure applied against them. In this regard, the government stated that the legislation provides legal guarantees to prevent the arbitrary use of this power.
92. The Government pointed out that, even during the state of emergency, the issue of the claimants' continued detention had been examined ex officio at regular intervals not exceeding thirty days. Moreover, the claimants had been able to apply for release at any time, and all decisions regarding their pretrial detention had been subject to opposition.
93. The government noted that in the present case the applicants had been remanded in custody for terrorism-related offenses. On November 15, 2016, the fourth Justice of the Peace in Diyarbakır found that there was a possibility that the applicants could, during their interviews with their lawyers, endanger the security of society and the prison, direct the terrorist organization or other criminal organizations, and transmit orders and instructions to them through secret, explicit or encrypted comments. Accordingly, he decided to order three restrictive measures for a period of three months. The plaintiffs appealed this decision and had the opportunity to argue that it was contrary to law. Emphasizing that the measures imposed on the plaintiffs had been ordered only once, the government found that they were compatible with the legitimate purpose pursued. In this regard, it pointed out that the restrictions imposed by the fourth justice of the peace had been lifted on February 14, 2017, and had not been renewed.
94. He also noted that none of the recordings obtained during the plaintiffs' meetings with their lawyers had been used to the detriment of those concerned. He stated that neither the justices of the peace nor the assize courts had used the evidence obtained as a result of the measures in question in their decisions. He added that recordings concerning appellant Demirtaş had been destroyed and those concerning appellant Yüksekdağ Şenoğlu had been kept in prison.
95. Referring to the Erdem judgment (cited above), the Government stated that the Court had in the past tolerated some restrictions on lawyer-client communications in cases under its jurisdiction.
communications in terrorism and organized crime cases. In the case cited above, an investigation had been opened against the appellant for membership in a terrorist organization and forgery of documents and he had been taken into custody. The appellant complained that during his deprivation of liberty his correspondence with his lawyer had been monitored. The Court first pointed out that this measure was based on Article 148 § 2 of the Code of Criminal Procedure and that this article could be applied in a very narrow context, such as the prevention of terrorism. It then pointed out that this exception to the general rule of confidentiality of correspondence between a prisoner and his defense counsel had been adopted in Germany in the 1970s, when society was traumatized by the wave of bloody attacks by the Red Army Faction. It also pointed out that the measure in question was subject to very limited control, since detainees were free to speak with their lawyers. Finally, the Court found that, given the threat of terrorist acts, the interference in question was not disproportionate to the legitimate objectives pursued and concluded that there had been no violation of Article 8 of the Convention. The Government considered that in the present case the facts giving rise to the applications bore similarities with the Erdem case, since the measures provided for in Article 6 § 5 of Emergency Decree-Law No. 676 could be ordered in connection with certain crimes as in the above-mentioned case. Moreover, this provision came into force after the July 15, 2016 coup attempt, when the traumatic effects of that attempt on the Turkish people were an undeniable fact. Moreover, the government pointed out that the restrictions imposed in the case at hand were not absolute and the applicants were still given the opportunity to interview their lawyers.
96. It stated that after the coup attempt on July 15, 2016, the danger from that attempt and the threat posed by the FETÖ/PDY and PKK/KCK organizations to national security and public order persisted for a long period. It believes that under these circumstances, it cannot be said that there is no basis for assessing the situation that persons detained for crimes related to the coup attempt or membership in the FETÖ/PDY and PKK/KCK organizations were at risk of continuing their organizational activities while in detention and, as a result, carrying out a new attack on the democratic constitutional order.
97. The government also noted that this case bore similarities to the Commission's decision in Kempers v. Austria (No. 21842/93, Feb. 27, 1997), rather than Castravet v. Moldova (No. 2339). Moldova (No. 23393/05, March 13, 2007) to which the Court referred when communicating the questions to the government. In the Kempers case, the applicant had been remanded in custody for drug trafficking. After detention, conversations with his lawyer had been monitored by an investigating judge. It pointed out that the appellant was accused of being a member of a criminal organization and that it was very important to monitor his conversations with his lawyer so that other accomplices could be arrested. It also pointed out that after the termination of the application of the measure in question, the appellant was able to prepare his defense by talking freely with his lawyer even before the trial began. Accordingly, the Court declared the appellant's complaint under Article 6 § 3 (b) and (c) inadmissible as manifestly unfounded. In the present case, the Government noted that, in any event, since February 14, 2017, the claimants had been able to confer with their lawyers without any restrictions during the proceedings before the competent courts.
98. It invited the Court to take into account its notice of exception under Article 15 of the Convention. The challenged measures imposed on the applicants, who were detained for terrorism-related offenses, were ordered a few months after the July 15, 2016 coup attempt, at a time when the effects of that attempt had not yet completely disappeared and the danger of another coup attempt was imminent. In this context, the government pointed out that terrorist attacks perpetrated by the PKK had increased significantly in the period before and after the coup attempt, such as the "events of October 6-7, 2014" and the "events in the trenches" of 2015.
99. Finally, it notes that the investigation of terrorist crimes poses serious difficulties for public authorities. For this reason, the right to liberty and security of the person should not be interpreted to cause undue difficulties for judicial authorities and security forces in effectively combating crime and criminals, particularly organized crime. It is certain that the difficulty of this fight increases even more in extraordinary times. The government considered that the single and limited application of the measures in question for a period of only three months was an important fact demonstrating the proportionality of the measure under the circumstances required by the state of emergency.
The Court's assessment
(a) General principles
100. The requirement of procedural fairness under Article 5 § 4 does not require the application of uniform and immutable criteria independent of the context, facts, and circumstances of the case. Although Article 5 § 4 proceedings need not always be accompanied by safeguards identical to those prescribed for civil or criminal proceedings under Article 6, they must be judicial in nature and provide the individual complained of with guarantees appropriate to the nature of the deprivation of liberty complained of (see, among other authorities, A. and Others v. United Kingdom [GC], No. 3455/05, § 203, ECHR 2009).
101. Detainees continue to enjoy all fundamental rights and freedoms guaranteed by the Convention, with the exception of the right to liberty, where lawful detention expressly falls within the scope of Article 5 of the Convention (Altay v. Turkey (No. 2), No. 11236/09, § 47, April 9, 2019). It would be inconceivable for a detainee to be deprived of his rights under the Convention by virtue of his detention following conviction or remand (Hirst v. United Kingdom (No. 2) [GC], No. 74025/01, §§ 69-70, ECHR 2005-IX). The circumstances of detention, including security considerations and the prevention of crime and maintenance of public order, may justify some restrictions on non-absolute rights; however, any restriction must be justified in each individual case (Biržietis v. Lithuania, No. 49304/09, § 45, June 14, 2016, referring to Dickson v. United Kingdom [GC], No. 44362/04, §§ 67-68, ECHR 2007-V).
102. The possibility for a detainee to be heard in person or with some form of representation is one of the fundamental procedural guarantees applied in matters of deprivation of liberty (Idalov v. Russia [GC], No. 5826/03, § 161, May 22, 2012). In this context, the right of "every defendant" to be effectively defended by counsel is one of the fundamental elements of a fair trial (Salduz v. Turkey [GC], No. 36391/02, § 51, ECHR 2008, Ibrahim and Others v. United Kingdom [GC], Nos. 50541/08 et al. 3, § 255, Sept. 13, 2016, and Beuze v. Belgium [GC], No. 71409/10, § 123, November 9, 2018).
103. There is no doubt about the starting point for the application of the right of access to a defense counsel in cases of deprivation of liberty. This right is applicable as soon as there is a "criminal charge," in the sense attributed to that concept by the Court's jurisprudence, and, in particular, as soon as a suspect is arrested, regardless of whether or not the person concerned was questioned or made the subject of another investigative act during the relevant period (see Simeonovi v. Bulgaria [GC], No. 21980/04, §§ 110-111, May 12, 2017, and Beuze, cited above, § 124).
104. The Court reiterates that the right of the accused to confer with his lawyer outside the hearing of third parties is one of the elementary requirements of a fair trial in a democratic society and derives from Article 6 § 3 (c) of the Convention (see Öcalan v. Turkey [GC], No. 46221/99, §§ 132 and 133, ECHR 2005-IV). Indeed, in the presence of an official, detainees may not feel free not only to discuss with their lawyer matters relating to the ongoing proceedings, but also, for fear of reprisals, to report to him any abuses of which they might be victims (see Altay (No. 2), cited above, § 50). The Court also notes that the attorney-client privilege surrounding the lawyer-client relationship and the obligation of national authorities to ensure the confidentiality of communications between a detainee and his designated representative are among the recognized international standards (see paragraphs 62-64 and also Brennan v. United Kingdom, No. 39846/98, §§ 38-40, ECHR 2001-X). If a lawyer could not confer with and receive confidential instructions from his client without such supervision, his assistance would lose much of its usefulness (Sakhnovski v. Russia [GC], No. 21272/03, § 97, Nov. 2, 2010), whereas the purpose of the Convention is to protect concrete and effective rights (S. v. Switzerland, Nov. 28, 1991, § 48, Series A No. 220).
105. An individual is entitled to effective assistance from his lawyer, an essential aspect of which is the confidentiality of exchanges between the lawyer and his client. Breach of the confidentiality of attorney-client exchanges does not necessarily require that there actually be a wiretap or interception. The fact of actually being convinced, on reasonable grounds, that a conversation is overheard may be sufficient to limit the effectiveness of the assistance, as it inevitably inhibits free discussion and hinders the detainee's right to actually challenge the legality of his detention (Castravet, cited above, § 51).
106. It appears from the Court's case law, particularly in relation to Articles 6 and 8 of the Convention, that it has tolerated some restrictions on attorney-client relations in terrorism and organized crime cases (see, in particular, Erdem, cited above, § 65 et seq. and Khodorkovskiy and Lebedev v. Russia, Nos. 11082/06 and 13772/05, § 627, July 25, 2013, in a case falling under Article 5 § 4 of the Convention, see also Castravet, cited above, § 51). It goes without saying that in such cases the Court must first ascertain whether such a restriction arises from exceptional circumstances, such as terrorism or organized crime, such as to derogate from the essential principle of the confidentiality of attorney-client interviews. Such confidentiality constitutes a fundamental right and directly affects the rights of the defense. For this reason, the Court has held that a derogation from this essential principle can be allowed only in exceptional cases and provided it is surrounded by adequate and sufficient safeguards against abuse (M v. Netherlands, No. 2156/10, § 88, July 25, 2017).
(b) Application of these principles to the present case.
107. The Court first notes that, although the plaintiffs argued that a decree-law on the state of emergency could not make permanent changes to the legislation, in the present case it is not called upon to rule on this legal question because the restrictions imposed on the rights of the persons concerned were in place for three months during which the state of emergency was in effect. In other words, the measures in question did not concern permanent changes in the law, and the relevant articles of the Decree-Law on the state of emergency formed the legal basis for the restrictions imposed on the plaintiffs' right to confidentiality of communications with their lawyers. In any case, the Court also notes that the Constitutional Court, considering the scope of the restrictions on the recording of the interview between a suspect or defendant and his or her lawyer, found that these restrictions could significantly reduce the possibility of an effective defense and that Law No. 7070 did not provide the necessary guarantees to ensure that the suspect or defendant received effective legal assistance and thus fully exercised his or her right to defense. Accordingly, it annulled the restriction imposed by that law, namely the recording and monitoring of interviews between the suspect and the accused and his lawyer or the seizure of information and documents (see paragraph 57 above).
108. In the present case, the Court's task is to ascertain whether the applicants were able to benefit from the effective assistance of their lawyers in order to meet the requirements of Article 5 § 4 of the Convention. It is primarily on the basis of the reasons given in the decisions of the domestic judicial authorities, in particular the Fourth Justice of the Peace in Diyarbakır, regarding the restrictions placed on the claimants' right to confidentiality of communications with their lawyers, that the Court must determine whether or not there has been a violation of Article 5 § 4. The Court notes that the plaintiffs were unable to benefit from the assistance of their lawyers. That said, it notes that the case concerns a measure adopted by the government in the context of the state of emergency, which derogated from the general rule on confidentiality of communications between detained or convicted persons and their lawyers, and is therefore of particular importance. Therefore, it must also assess whether the legislation applied in this case was surrounded by sufficient safeguards against abuse.
109. The Court notes that, pursuant to Article 6 § 5 of Emergency Decree-Law no. 676, measures, as applied in the present case, restricting the right to confidentiality of communications between a lawyer and his client could be ordered only "in the event of information, findings, or documents indicating that the security of society and the prison [were] in danger ; that terrorist organizations or other criminal organizations [were] directed [by a person suspected of crimes related to terrorist acts]; that orders and instructions [were] given to such organizations; or that secret, explicit or encrypted messages [were] transmitted" (see paragraph 44 above). However, it is clear from the reasons for the decisions issued by the fourth justice of the peace in Diyarbakır that the requirement to "obtain information, findings or documents" was not met. In fact, the fourth justice of the peace ordered the measures in question only because there was a possibility that the plaintiffs "might," during meetings with their lawyers, endanger the security of society and the prison, direct the terrorist organization in question or other criminal organizations, or transmit orders and instructions to them through secret, explicit or encrypted comments, without providing any reasons for reaching this conclusion and in the absence of specific evidence (see paragraphs 18 and 19 supra). According to the Court, the decisions of the fourth justice of the peace in Diyarbakır were formulated in stereotypical terms and did not comply with the requirements of domestic law. In this regard, the Court also notes that the Constitutional Court did not make a sufficient assessment of this point. In fact, in its judgments of July 9, 2020 and September 30, 2020, the Constitutional Court, while recalling its own case law on the subject, according to which the restrictions applied in this case were contrary to constitutional guarantees relating to the right to object to detention in ordinary times (see paragraph 33 above), merely assessed the plaintiffs' grievances in relation to the procedures relating to the state of emergency. The Court notes in this regard that the Constitutional Court did not conduct an individualized examination of the plaintiffs' situation in these judgments.
110. The Court also notes that, in the judgments issued on the appellants' respective individual appeals, the Constitutional Court noted that the appellants had been convicted of a terrorism-related crime. However, as the appellants point out, at the time of the events on November 15, 2016, they had not been convicted of any crime. Consequently, the Court finds that this argument is not relevant to justify the restrictive measures applied in this case. In this context, it also notes that in Selahattin Demirtaş (No. 2), cited above, and Yüksekdağ Şenoğlu and others v. Türkiye (No. 14332/17 and 12 others, Nov. 8, 2022), that there were no facts or information that would convince an objective observer that the applicants had committed the crimes charged, and that none of the decisions regarding the applicants' pre-trial detention contained evidence capable of establishing a clear link between the applicants' acts-primarily their political speeches and their participation in certain lawful meetings-and the terrorism-related crimes for which they had been detained (ibid., § 338 and § 554, respectively). The Court also found that the applicants' pre-trial detention had pursued an unstated purpose contrary to Article 18 of the Convention read in conjunction with Article 5, namely to stifle pluralism and restrict the free conduct of political debate (ibid., § 437 and § 639, respectively). Consequently, the Court cannot give any weight to the government's argument that the applicants had been remanded in custody for terrorism-related offenses.
111. The Court also notes that it cannot accept the Government's argument that the measures in question did not have an adverse effect on the applicants' appeals against their pre-trial detention, particularly because they continued to meet with their lawyers without any time restrictions and were able to pursue appeals to obtain their release. If a detainee cannot have confidential meetings with his or her lawyer, it is very likely that he or she will not feel free to speak with his or her lawyer. In such a case, the legal assistance provided by the lawyer is likely to lose its practical usefulness (see Sakhnovski, cited above, § 97, and Castravet, cited above, § 50).
112. The above considerations (see paragraphs 109-111 above) are sufficient to conclude that the applicants were prevented from receiving effective assistance from their lawyers within the meaning of Article 5 § 4 of the Convention. That said, the Court has already noted that it must also examine whether the legislation applied in the case was surrounded by sufficient safeguards against abuse (see paragraph 108 supra), even if the existence of procedural safeguards could not, in the particular circumstances of the case, help prevent a possible violation. In this context, the Court recalls its well-established jurisprudence that the confidentiality of conversations between a detainee and his counsel constitutes a fundamental right of the individual and directly affects the rights of the defense. Accordingly, any derogation from this principle may be authorized only in exceptional cases and must be surrounded by adequate and sufficient safeguards against abuse (see Erdem, cited above, § 65). However, the Court notes that the national legislation applied in this case was not surrounded by such safeguards. Once restrictive measures had been ordered by a judge, the authorities could and should have monitored and recorded the detainees' meetings with their lawyers and could and should have seized all documents exchanged between the persons concerned. Moreover, the legislation did not specify how the information obtained as a result of the surveillance was to be used. Nor did it indicate which authority would be responsible for such an examination or determine how the persons concerned could verify or have verified during such an examination any abuses in the exercise of their right. In fact, the scope of the discretion left to the authorities and how it should be exercised were not defined at all, nor were specific safeguards provided. As an example, the Court notes in particular that the government pointed out that recordings of the interviews of the applicant Selahattin Demirtaş were destroyed, while those of the applicant Yüksekdağ Şenoğlu were kept inside the prison (see paragraph 94). This clearly shows that a different practice was adopted with respect to the two persons concerned, who were nevertheless in the same situation. It follows that, in the absence of specific and detailed rules, the use of surveillance of conversations between detainees and their lawyers cannot be considered surrounded by adequate safeguards against possible abuse.
113. In light of the foregoing, the Court finds that the domestic courts have not demonstrated the existence of exceptional circumstances capable of derogating from the essential principle of the confidentiality of the applicants' conversations with their lawyers and that the violation of the confidentiality of these conversations prevented the applicants from receiving effective assistance from their lawyers in order to meet the requirements of Article 5 § 4 of the Convention. Moreover, considering its earlier findings in Selahattin Demirtaş (No. 2) and Yüksekdağ Şenoğlu et al. (both cited above), it considered that the existence of such circumstances could not be proved to the extent that the Court rejected the Government's claim that the applicants were being held in pre-trial detention for terrorism-related offenses (see para. 110). Moreover, it noted that the restrictions in question had not been surrounded by adequate and sufficient safeguards against abuse.
114. Regarding the government's request for consideration of the waiver that Türkiye had submitted to the Secretary General of the Council of Europe in the case, the Court notes that, on July 20, 2016, the National Security Council, taking into account the attempted military coup perpetrated, according to the national authorities, by FETÖ/PDY, recommended that a state of emergency be declared. Taking this recommendation into account, the Council of Ministers, meeting under the chairmanship of the President of the Republic, declared a state of emergency for a period of ninety days starting July 21, 2016, which was subsequently extended by ninety days until July 19, 2018. In this context, the Court first noted that in the previous cases concerning the legality of the pre-trial detention of the applicants, namely Selahattin Demirtaş (No. 2), cited above, and Yüksekdağ Şenoğlu and others, cited above, the government had not invoked the consideration of its waiver. It also noted that exceptional circumstances had not occurred in the present case to establish a link between Türkiye's waiver and the deprivation of the applicants' liberty (see paragraphs 110 and 113). Moreover, even assuming that there were such exceptional circumstances, the fundamental principle of the rule of law, which is inherent in all articles of the Convention (Grzęda v. Poland [GC], No. 43572/18, § 339, March 15, 2022, and references cited therein), must prevail even in the context of a state of emergency (Pişkin v. Turkey, No. 33399/18, § 153, December 15, 2020). It therefore finds that the domestic authorities have not provided any detailed evidence capable of justifying the imposition of the measures at issue against the claimants under Decree Law No. 676 adopted in the context of the state of emergency.
115. These elements are sufficient for the Court to conclude that there has been a violation of Article 5 § 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
116. Under Article 41 of the Convention,
"If the Court finds that there has been a violation of the Convention or its Protocols, and if the domestic law of the High Contracting Party permits only partial reparation of the consequences of such violation, the Court shall, if necessary, grant equitable satisfaction to the injured party."
Damages
117. The plaintiffs claimed 5,500 euros each for the non-pecuniary damage they believed they had suffered.
118. The Government considered these sums to be excessive and incompatible with the Court's case law.
119. Deciding on an equitable basis, the Court finds it reasonable to award the sums claimed in full to each of the claimants and awards 5,500 euros for non-pecuniary damage, in addition to any amount that may be due by way of tax on that sum.
Costs and expenses
120. The applicants claimed 8,280 euros for lawyers' fees incurred in the proceedings before the Court and 15,500 Turkish pounds ((TRY) approximately 815 euros) for lawyers' fees related to the proceedings before the Constitutional Court. In support of their claim, the plaintiffs provided a copy of the contract that the plaintiff, Selahattin Demirtaş, had signed with his lawyers and a statement showing the time spent by the lawyers on the case, namely 45 hours for lawyer Molu, 13 hours for lawyer Demir and 11 hours for lawyer Karaman. The representatives' hourly rate was 120 euros. The plaintiffs also claimed 2,723.92 TRY (about 145 euros) for translation expenses and produced an invoice for these expenses. They also requested 524.20 TRY (about 27.50 euros) for the costs of proceedings before the Constitutional Court and produced two documents to that effect. Finally, they claimed TRY 546.57 (about EUR 28.75) for photocopying and postage expenses and produced invoices for these.
121. The government disputed the necessity of these expenses and the reasonableness of their amount.
122. According to the case law of the Court, a claimant may obtain reimbursement of his or her expenses only to the extent that their reality, necessity, and reasonableness are established (see H.F. and Others v. France [GC], nos. 24384/19 and 44234/20, § 291, Sept. 14, 2022). In the present case, given the documents in its possession and the aforementioned criteria, the Court finds it reasonable to award the applicants jointly the sum of 2,500 euros for all costs, plus any amount due as tax on that sum.
FOR THESE REASONS, THE COURT
Decides unanimously to grant the applications;
Declares the applications unanimously admissible;
Declares, by six votes to one, that there has been a violation of Article 5 § 4 of the Convention;
Declares, by six votes to one
(a) that the respondent State shall pay to the claimants, within three months from the date on which the judgment becomes final pursuant to Article 44 § 2 of the Convention, the following sums, to be converted into the currency of the respondent State at the rate applicable on the date of payment:
EUR 5,500 (five thousand five hundred euros), to each of the claimants, plus the amount, if any, due by way of tax on that sum, for non-pecuniary damage;
EUR 2,500 (two thousand five hundred euros), jointly with the claimants, plus the amount, if any, due from the claimants by way of tax on that sum, for costs and expenses;
(b) from the expiration of that period until payment, simple interest shall be charged on those amounts at a rate equal to the marginal lending facility rate of the European Central Bank applicable during that period, plus three percentage points;
unanimously rejects the remainder of the request for equitable satisfaction.
Done in French and notified in writing on June 6, 2023, pursuant to Rule 77(2) and (3).
Hasan Bakırcı Arnfinn Bårdsen
Chancellor President
Pursuant to Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge S. Yüksel is attached to this judgment.
A.R.B.
H.B.
DISSENTING OPINION OF JUDGE YÜKSEL
(Translation)
With all due respect to the majority, I cannot agree with its finding of a violation of Article 5 § 4 of the Convention, mainly because I maintain the legal position I expressed in my dissenting opinions attached to the Selahattin Demirtaş (No. 2) and Yüksekdağ Şenoğlu et al. judgments.
I also see no reason to deviate from the ruling of the Constitutional Court regarding the existence of guarantees and the assessment of the state of emergency and derogation under Article 15 of the Convention. (i) It may be noted that the fact that the applicants were in custody for terrorism-related offenses was a significant factor in the Constitutional Court's assessment (see paragraph 35 of the judgment). The Court pointed out that the law in question did not impose categorical restrictions on all persons convicted of the crimes in question, that it set a certain time limit for the imposition of any restrictions, that it required the measures to be authorized by a judge, and that it provided a right of appeal (paragraphs 37, 40, and 56 of the judgment). (ii) The Constitutional Court's analysis took full account of the exceptional circumstances of the case, particularly the state of emergency and the increase in the number of terrorist acts following the coup (paragraphs 32, 33, 35 and 38 of the judgment). Therefore, I disagree with the conclusion reached by the majority in this case in relation to the state of emergency and the exception in Article 15 of the Convention.