Tercan v. Turkey, No. 6158/18, ECtHR (Second Section), 29 June 2021

Arrest and continued pre-trial detention of a former judge of the Constitutional Court following the attempted military coup of 15 July 2016 in Turkey, on suspicion of belonging to a terrorist organisation.

Art. 8 CEDU
Art. 8 ECHR

1. A broad interpretation of the “in flagrante delicto” concept, which is not based on any legislative provision, does not only affect the judicial immunity granted to members of the apex courts and the elected members of the Council of Judges and Prosecutors or even to other judges and prosecutors: it could also concern any person enjoying judicial immunity, for example members of Parliament.

2. The guarantees of the right to liberty and security would be rendered meaningless if it were accepted that members of the judiciary, and in particular of the Constitutional Court, could be remanded in custody without there being any concomitant criminal act or serious indication that they had committed or were in the process of committing the offence of membership of an armed organisation. It would be illusory to believe that the judiciary could uphold the rule of law and give effect to the principle of the rule of law if they were deprived of the protection of the Convention arising from their right to liberty and security.
(In the present case, concerning the remanding in custody of a former judge of the Turkish Constitutional Court and his continued pre-trial detention, together with a search of his home, the Court unanimously found that there has been a violation of articles 5§1, 5§3 and 8 of the Convention, thus reaffirming a systemic lack of legal clarity and foreseeability regarding the issues of arrest and detention of judges being members of apex courts in Turkey).