Proportionality of measures derogating from the European Convention on Human Rights in time of emergency. Pre-trial detention of a judge on “mere suspicion” of membership of an illegal organisation. Lack of a hearing during the review of detention
Art. 5 ECHR
Art. 15 ECHR
1. The pre-trial detention of a judge in breach of domestic law, which affects the independent exercise of the functions of the judiciary, 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, the unlawful and unreasonable limitation of personal liberty cannot be said to be strictly required by the exigencies of the situation under Article 15 ECHR.
2. The detention of an individual ordered without sufficient evidence satisfying the requirement of the reasonableness of a suspicion provided by Art. 5, para. 1 (c) ECHR breaches the Convention. Even in the event of a state of emergency, a “mere suspicion” cannot justify the deprivation of liberty, since it cannot be said to have been strictly required by the exigencies of the situation as required by Art. 15 ECHR.
3. Even in the event of a state of emergency, a period of one year and two months without a court hearing concerning the lawfulness of a detention order breaches the Convention. By affecting the very essence of the right guaranteed by Art. 5, para. 4 ECHR, such a measure cannot be considered as strictly required by the exigencies of the situation.
(Case concerning the pre-trial detention of a former Turkish judge suspected of belonging to the terrorist organisation FETÖ/PDY).