Proportionality of measures derogating from the European Convention on Human Rights in time of emergency. Pre-trial detention of a judge on suspicion of being a member of a terroristic organization that is not effected in accordance with a procedure prescribed by law.
Art. 15 ECHR
Art. 5 ECHR
1. Measures depriving judges of the guarantees afforded to them in order to safeguard the independent exercise of their functions, which are not taken in accordance with a procedure prescribed by law, cannot be regarded as legitimate pursuant to Article 5, para. 1 ECHR, not even as a response to the special circumstances of a state of emergency. Indeed, derogating measures ex Article 15 ECHR have to be strictly required by the exigencies of the situation.
2. The pre-trial detention of the applicant breaches Article 5, para. 1 (c) ECHR on account of the lack of “reasonable suspicion” that he had committed an offence. Even during a state of emergency, authorities cannot order the detention of an individual on the basis of a mere suspicion, since it could not be said to have been strictly required by the exigencies of the situation.
(In the instant case, the applicant, a former member of the Turkish Constitutional Court, was arrested and detained on suspicion of being a member of the terroristic organization FETÖ/PDY, despite the judicial protection afforded to members of the judiciary by the Turkish law).