Akgün v. Turkey, No. 19699/18, ECtHR (Second Section), 20 July 2021

Pre-trial detention on suspicion of membership of a terrorist organisation.

Art. 5 ECHR

1. The mere fact of downloading or using a means of encrypted communication or indeed the use of any other method of safeguarding the private nature of exchanged messages could not in itself amount to evidence capable of satisfying an objective observer that an illegal or criminal activity was being engaged in. It was only when the use of an encrypted communication tool was supported by other evidence about that use, such as, for example, the content of the exchanged messages or the context of such exchanges, that one could speak of evidence that could satisfy an objective observer that there were reasonable grounds to suspect the individual using that communication tool of being a member of a criminal organisation.

2. The difficulties facing Turkey in the aftermath of the attempted military coup are undoubtedly a contextual factor that have fully to be taken into account in interpreting and applying article 5 of the Convention. This does not mean, however, that the authorities had carte blanche to order an individual’s detention during the state of emergency without any verifiable evidence or information or without a sufficient factual basis satisfying the minimum requirements of Article 5 §1 regarding the reasonableness of a suspicion.
(In the present case, concerning the pre-trial detention of a former police officer suspected of membership of a terrorist organisation on the sole basis of his alleged use of an encrypted messaging service, the Court concluded that there has been a violation of article 5 of the Convention).