European human rights court says coup suspect Doğan's arrest legal
Retired Gen. Çetin Doğan, a suspect in the Sledgehammer coup plot probe, speaks to reporters in this February 2011 file photo. (Photo: Cihan)
Europe's top court has said in an interim ruling that the arrest of retired Gen. Çetin Doğan in the Sledgehammer coup plot probe is legal, stating that the Turkish court decision to arrest him is based on legitimate and concrete evidence.
The European Court of Human Rights (ECtHR) rejected Doğan's complaint that his arrest is illegal and said the suspect was deprived of his freedom as he is suspected of being the leader of a military junta believed to have been plotting to overthrow the government. It added that Doğan is alleged to have drawn up the Sledgehammer plot.
Doğan is a chief suspect in the ongoing trial concerning the Sledgehammer coup plot and is currently being held at Silivri Prison. Sledgehammer refers to a suspected coup plot believed to have been devised in 2003 with the aim of unseating the Justice and Development Party (AK Party) government through violent means. According to the Sledgehammer plan, the military would systematically foment chaos in society through a series of violent acts, among which were planned bombings of the Fatih and Beyazıt mosques in İstanbul.
The court rejected Doğan's complaints of torture, maltreatment, lengthy detention period and illegal arrest. Doğan's complaint about his being deprived of a fair trial was also rejected because the trial has not yet been concluded. Regarding Doğan's request to be tried while he is not being held in prison, the court asked for a statement from Turkey. In his application, Doğan claimed that evidence used in the case was manipulated and that his arrest runs contrary to the Turkish Penal Code (TCK), but the European court ruled that the Turkish court's decision to arrest Doğan is based on concrete evidence; therefore, the Turkish court did not act in violation of the European Convention on Human Rights.
There are 365 suspects who are being tried in the Sledgehammer trial, which began at the İstanbul 10th High Criminal Court in the Silivri prison complex on Dec. 16, 2010. The suspects include retired Gen. Doğan, former Air Forces Commander Gen. İbrahim Fırtına, former Naval Forces Commander Adm. Özden Örnek and retired Gen. Engin Alan, who was elected to Parliament as a Nationalist Movement Party (MHP) deputy in the 2011 elections.
The seminar where the alleged plot was discussed was held on March 5-7, 2003, at the Selimiye barracks of the 1st Army. The suspects are charged with attempting to destroy Parliament and to overthrow the government. If convicted, the charges carry a prison sentence of up to 20 years. Regarding Doğan’s complaint that he has been held in prison too long, the European court said when the seriousness of the charges directed at Doğan are taken into consideration, imprisonment of one to four years is not against the human rights convention. Doğan’s claims of maltreatment and deprivation of medical treatment were also rejected. The court said Doğan rejected medical treatment in the early days of his imprisonment, but after he had agreed to be treated, all medical means were mobilized and he was sent to state hospitals for treatment. When asked about the European court’s ruling during a visit to Yozgat on Friday, Deputy Prime Minister Bekir Bozdağ said he had not had the opportunity to learn the details of the ruling and that the government would make an extensive statement on the issue once it had all the details. In a landmark ruling in February, the Strasbourg-based court ruled that the arrest of chief Ergenekon defendant Tuncay Özkan was also legal, rejecting the plaintiff’s complaint that he had been deprived of his right to a fair trial.
The court accepted the case of Özkan v. Turkey despite the fact that Özkan had not exhausted all domestic judicial remedies, but rejected some of his core complaints, including his claim that he was denied the right to a fair trial and the legality of his arrest. Furthermore, the European court defined Ergenekon as a “terrorist organization attempting to topple the government by the use of force” and said it would wait until the judicial proceedings of Özkan’s case are finished. The court also rejected Özkan’s claim that his right to freedom was violated. His complaint regarding the time he has spent in jail will be assessed later in an interim decision. The court added that there is “strong evidence” regarding the existence of the Ergenekon clandestine terrorist organization and rejected Özkan’s demand to be tried without arrest. The court said Özkan’s trial without arrest would make it difficult for security forces to fight organized crime.
»» For the original decision in French: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=907383&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
For an unofficial translation of the decision on Çetin Doğan:
EUROPEAN COURT OF HUMAN RIGHTS
CETIN DOGAN CASE
The applicant, Mr Cetin Dogan, is a Turkish national born in 1940 who lives in Istanbul. He was represented before the Court by Ms Elif Yarsuvat, a lawyer based in Istanbul. Before his retirement, the plaintiff was an army general in the armed forces and served as commander of the First Army ( Ground Forces). He is currently detained in prison in Silivri.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarized as follows.
1. The case Balyoz
3. By an indictment dated 6 July 2010, the Istanbul prosecutor opened a criminal investigation against 196 suspected members of a criminal organization called Balyoz ("mass" in French, or “sledgehammer” in English), all members being generals or military officers. They were accused of having engaged during the course of 2002 and 2003 in planning a military coup designed to overthrow by force the elected government, act repressed by Article 147 of the old penal code, in vigour at the time of the facts.
4. In its indictment, the Istanbul prosecutor explained that, soon after the AKP Party came to power in 2002, the plaintiff , commander of the First Army in Istanbul, considering that the purpose and activities of the AKP Party posed a threat to the secular nature of the Turkish Republic, had designed and supervised the preparation of a plan of operations called Balyoz and aiming to overthrow the government and to replace it by a government of national consensus. This plan was first preparing the ground for a proclamation of martial law and, secondly, to overthrow the government and to establish a new political order free from fundamentalist activities.
5. The scanned or printed documents relating to the operations plan Balyoz had been deposited in a high security location, called "cosmic room" (kozmik oda) which belonged to the commandant of the First Army. They were gathered by an unknown source in a package containing 2,229 printed pages, 19 CDs and 10 audio tapes and sent to a reporter for the daily newspaper Taraf and by the latter onto the Public prosecutor’s department of Istanbul.
6. In its indictment, the Public prosecutor’s department in Istanbul exposed that, initially, some generals and senior officers of the First Army were involved in preparing the plan Balyoz . He indicated that in a second stage, the plaintiff and his initial team had contacted the commander of the military academies and the commander of the naval fleet, their schools and respective bases falling under the first army’s responsibility as well as the responsibility of the commanders of the gendarmerie ( armed police ) of Istanbul and Bursa, and that they all had agreed to contribute to the preparation of such an operation. Thus, some of the troops of the ground forces, the air forces, the naval forces and the gendarmerie would have secretly grouped under a fictitious command called Balyoz . The general commander of the ground forces and the Chief of Staff of the Armed Forces in Ankara would not have been aware of the existence of this group which did not appear in the hierarchical organization of regular armed forces.
7. According to the prosecution, those accused had planned in detail, under the orders of the plaintiff or at his request, a possible involvement in the political power. Their work would have involved the development of a " High probability Risk Scenario for the country", first within their respective troops and finally, during a seminar organized at the premises of the First Army ( ground forces) from 5 to 7 March 2003, an operations plan called Balyoz containing a large number of secondary action plans.
8. The prosecutors showed that the accused intended to overthrow the political power by implementing a five-stage strategy.
9. The first stage consisted in collecting all the information that would be useful to carry out the subsequent steps in the Balyoz operations plan and its side action plans. It was to gather and classify information on a large number of people (according to their political ideology, their orientation in private life, etc..) and on various groups, such as associations, unions, universities, etc.., indicating their likely support or opposition to armed intervention. It was also to gather information useful for the logistics of following operations, on the locations, distances, capabilities and functioning of public institutions and private companies.
10. The second stage of the Balyoz operation was the planning of provocation acts likely to generate within the public opinion a sense of insecurity and a sentiment hostile to the government so as to pave the way for a military coup.
11. Also according to the Public prosecutor’s department in Istanbul, the Balyoz organisers had prepared, in order to achieve the goal stated in the second stage, several side action plans. One of these action plans, Oraj ("Storm"), signed by I.F., General of the military Air Forces and Commander of the military academies, aimed at creating tensions between the Greek and the Turkish air forces by provoking clashes between warplanes over the Aegean Sea that would result in the fall of a Turkish military aircraft so as to tarnish the image of the government. On the other hand, Oraj was drawing up a scenario of attacks by Islamic fundamentalist groups against the Air force barracks and the museum of the Air Force, culminating in the takeover of the streets by military security forces on the pretext of fundamentalist threats. The plan also envisaged acts of intimidation against civil authorities, such as military planes flying over the Turkish parliament if the latter refused to declare martial law, or the help of bomber aircrafts to the Balyoz ground forces in case of resistance to the planned military intervention.
12. The Istanbul prosecutor also referred to documents relating to another plan, called Suga ("beautiful doll"), signed by the Admiral O.O., commander of the navy, intended to be run mainly by naval forces during the second stage of the Balyoz operation. The Suga plan proposed to use the naval forces in order to create tensions with Greece over the islands, islets and rocks of the Aegean sea , their ownership being a subject of contention between Greece and Turkey. Its ultimate goal was a partial mobilization in Turkey so as to encourage the establishment of martial law. It planned in detail the actions and operations to be performed which it attributed one by one to admirals and officers of the navy whose names appeared on a list dedicated to the Suga plan. These acts consisted, among others, in ¨provoking small clashes with the Greek naval forces in conflict zones of the Aegean Sea, in order to sensitize the Turkish public on these issues of ownership and prepare for an ultimatum to the Greek government on this matter.
13. In its indictment, the prosecutor of Istanbul also mentioned action plans already prepared in detail by the defendants - including members of the gendarmerie - and those to be performed during the second stage of the Balyoz operation . The action plan Çarşaf, ("Islamic veil"), in particular, prepared by H.T. the captain of the gendarmerie, drew up the bombing of the Fatih Mosque after prayers, as a provocative act to lead angry crowds to gather in street processions also inciting conservative merchants of the neighbourhood to join this event, (made to look spontaneous) and to tip the situation towards a fundamentalist uprising against secular forces. Nine members of the police were responsible for the implementation of this plan, they also had to film this last event and quickly distribute the recordings to the media. Moreover, the action plan Sakal ("beard"), prepared by the commander (Major) of the gendarmerie H.Ö., envisioned a scenario very similar to that provided by the plan Çarşaf,,, which was to take place at the exit of the Beyazit Mosque in Istanbul. In both plans (Çarşaf and Sakal) , all the agents involved with the ground preparation work, bombing, provocations and filming were named and the operations planned to the minute.
14. Istanbul prosecutors further outlined that again, as part of the second stage of the Balyoz operation , other action plans had been prepared by the defendants. Some were intended primarily to generate hostility between different religious communities: the plan Döküm ("casting of molten metal") targeted the leader of a Muslim religious group, the plan Sakal (“beard”) targeted the leader of a non Muslim community and its businessmen members , the plan Orak ("sickle") targeted some journalists from the Armenian community. Another part of these action plans were designed to neutralize potential opposition to the planned military intervention: the plan Tırpan ("rake") targeted certain scholars opposed to a coup, the plan Yumruk ("fist" ) targeted certain journalists with a conservative political opinion and opposed to a military coup, the plan Kurek ("shovel") targeted journalists with a left wing opinion, the plan Testere ("Saw") targeted certain personalities with a liberal political opinion . In addition, the plan Urgan ("hemp rope") targeted non-governmental organizations known to be opposed to any military intervention. In all the above-mentioned plans, except for the plan Tırpan, the targeted personalities and the Balyoz agents intended for the planned operations, all members of the gendarmerie, were designated by name.
15. Moreover, the prosecutor of Istanbul noted that, according to the documents seized, the third phase of the Balyoz operation related in particular to the execution modalities of the military coup .The training provided by the army which was organised under the command of Balyoz was first to set up a state of emergency then declare martial law and finally, bring down the elected government. During this stage, key positions in government and public institutions were to be attributed to members of the military whether still in service or retired, all previously named by the command of Balyoz and this in order to take control of all the logistics (supply, health, transport, etc..). The Balyoz plan also included the arrest of individuals – designed by name - allegedly involved in fundamentalist activities, gather them in locations such as stadiums or large arenas, interrogate them by specially trained teams and transfer them to detention centres in the barracks. Balyoz operationned the dissolution of associations, foundations and media structures also designated with precision and suspected of having started and passed on fundamentalist activities, it also planned the arrest of their leaders, the sacking of officials, the dismissal from their university of students considered to be opponents, the confiscation of assets from individuals suspected by the Balyoz network of financially supporting fundamentalist groups and control of public finances.
16. The fourth stage of the Balyoz operation related to, according to the documents filed by the prosecutors, the establishment of a national consensus government following a list that included the names of an eventual Prime minister and Ministers. It also planned the restructuring of the state institutions by replacing the officials named in the first stage, placing the police under the control of the gendarmerie, the national intelligence (MIT) under the control of military personnel and the reorganization of the armed forces following the dismissal of staff members from the military which had already been designated during the first stage of the operation. It was also intended that the government of national consensus would remain operational until the establishment of politicians and executives appointed by the military junta to end the fundamentalist threat in the entire country.
17. The final stage of the Balyoz operation consisted in organising free general elections under the aegis of new state institutions.
2. The applicant's detention and the criminal proceedings against him
18. February 22, 2010, by order of the prosecutor of Istanbul, the plaintiff was arrested and taken into custody by the Istanbul police as part of the Balyoz operation criminal investigation.
19. February 26, 2010, after being questioned by a prosecutor, the plaintiff was brought before a judge at the 11th Istanbul Court of Law, who, after hearing the plaintiff , ordered his detention.
20. On 23 March 2010 the plaintiff requested his release on the grounds that his health had deteriorated.
21. On 1 April 2010, the associate judge granted this request and ordered the release of the plaintiff.
22. April 2, 2010, the Istanbul prosecutors objected to the 12th Istanbul Court of Law to release the applicant.
23. April 4, 2010, the 12th Court of Law granted the request of the prosecution and issued a warrant of arrest against the plaintiff.
24. April 23, 2010, following a hospitalization in Gülhane Military Hospital from 2 to 22 April 2010, the plaintiff was presented to the judge of the Istanbul Court who ordered once more the plaintiff’s placement in custody.
25. Between April 30 and May 17, 2010 the plaintiff filed many appeals to the Istanbul Court. The Istanbul Court, following the opinion of the prosecutor, rejected the appeals based on the following grounds: the state of the evidence, the nature of the crimes brought against the plaintiff and the strong suspicion against him.
26. On 18 June 2010 the plaintiff was released.
27. By an indictment dated 6 July 2010, the Istanbul prosecutors brought charges against the plaintiff, before the 10th branch of the special criminal court, a prosecution under section 147 of the former Criminal Code, in conjunction with Article 61 of the Code (sanctioning the attempt to overthrow by force the Cabinet). It accused the plaintiff of having been the instigator and lead author of the preparation of the Balyoz operation aimed at overthrowing the government via a military coup. It accused the plaintiff of having designed and supervised the Balyoz operation, of having established the main lines of the script which the co-accused used to prepare side action plans for the scheduled coup , of having given orders to the soldiers who agreed to be part of the Balyoz organization (coming from the ground forces, the gendarmerie, the air force and the naval forces) and of having prepared in detail the military operations needed for the coup. Subsequently, according to prosecutors, the plaintiff had personally coordinated the preparations and had presided over the final phase of the planning, namely the seminar organized on the premises of the First Army of the Ground Army from March 5 to 7 2003 with the participation of 162 military officers. Still according to the prosecutors, the information concerning the applicant's involvement in preparing Balyoz had also been obtained during the investigation into Ergenekon, an organization suspected of attempting a military coup by soldiers and civilians. The prosecutor stated that, if the Balyoz operation had been successful, the plaintiff would have become the commander of the siege of the entire State territory. It stated, that thanks to a warning given by the command of the ground Army in 2003, the plaintiff and another army general had taken early retirement which most likely prevented the implementation of the Balyoz operation.
28. In support of its charges, the prosecutor presented to the court of Law the following evidence: documents scanned or printed related to the Balyoz operation and archived in the "cosmic room" at the command of the First Army, a total of 2,229 printed pages, 19 CDs and 10 audio cassettes, including several documents signed by the plaintiff and minutes of meetings relating his speeches. According to the prosecution, information confirming the applicant's participation in preparing the operational plan Balyoz were also obtained during the criminal investigation of the Ergenekon case.
29. July 23, 2010, the 10th Istanbul Court of Law issued a warrant of arrest against the plaintiff.
30. On July 25, 2010, the plaintiff was again remanded in custody.
31. July 26, 2010, he made a motion for recusal of the 10th Istanbul Assizes Court judges for lack of impartiality, accusing them of arbitrarily issuing the arrest warrant of 23 July 2010. On July 8, 2010, the 11th Istanbul Court rejected the objection.
32. On 6 August 2010, upon opposition by the plaintiff, the 11th Istanbul Assizes Court ordered his release.
33. On December 6, 2010, a search was carried out in the navy in Gölcük under another criminal proceeding. Many additional documents regarding Balyoz were seized.
34. The plaintiff, excused for health reasons and represented by his defence, failed to appear at the hearing on February 11, 2011. Based on documents seized during the search of 6 December 2010, the Assize Court issued a new arrest warrant against the plaintiff. The plaintiff’s defence did not get the opportunity to make a comment on the request for remand by the prosecution.
35. On 14 February 2011 the plaintiff went to the police and was transferred to the prison in Silivri.
36. As from 17 February 2011, the plaintiff lodged many appeals to the Assizes Court to benefit from enlargement. The latter, on the advice of prosecutors, dismissed the appeals on the basis of the following reasons: the state of the evidence, the nature of the crimes the plaintiff was accused of and the strong suspicion against him.
37. Criminal proceedings concerning the Balyoz plan is still pending to date before the 10th Assizes Court in Istanbul.
3. The health status of the applicant
38. In 2003, the plaintiff underwent a heart surgery (bypass) and followed a course of radiotherapy for prostate cancer. In 2007, he underwent further surgery for a hernia. In addition, he suffers permanent problems associated with hypertension.
39. February 22, 2010, he was arrested in connection with the criminal investigation concerning the Balyoz case .
40. At the beginning of his detention, he refused medical treatment despite him suffering from hypertension. On March 18, 2010, he agreed to be transferred to the Civil Hospital in Silivri due to his deteriorating health. At the end of examinations performed between 19 and 22 March 2010, doctors at the hospital established a medical report in which they recommended that the plaintiff be transferred to a more specialised hospital.
41. March 23, 2010, the plaintiff was examined at the Civil Hospital in Esenyurt and in May 11, 2010, at the civil hospital in Bakırköy. Other examinations were also carried out at unspecified dates in a hospital specializing in cardiology in Siyami Ersek, at the University Hospital of cardiac surgery in Ersoy and at the Bakırköy Psychiatric Hospital.
42. After his release on bail, ordered on April 1, 2010, the plaintiff continued from April 2 to 22, 2010 to receive medical treatment at the military hospital of Gülhane.
43. At various times, after leaving the hospital and after a new remand in April 23, 2010, he filed applications against the prison in Silivri and against the Public prosecutor’s department in Istanbul in order to be re-hospitalized.
44. May 10, 2010, the doctor of the prison, finding that the applicant's blood pressure was very high, ordered hospitalization. The next day, May 11, 2010, he was transferred to a hospital specializing in cardiology in Siyami Ersek where he underwent surgery on the same day.
45. On 24 May 2010, the plaintiff was once again transferred to the prison in Silivri. The physicians who saw the plaintiff recommended he be re-examined three weeks later.
46. On 18 June 2010 the plaintiff was released on bail and remanded in custody once again from July 25 to August 6, 2010.
47. Excused for health reasons and represented by his defence, he failed to appear at the hearing on February 11, 2011.
48. Remanded once more on February 14, 2011, he is currently detained in prison in Silivri.
4. Damage claims made by the plaintiff
49. Meanwhile, on 17 August 2010, the claimant filed formal complaints for damages against the judges of the 10th Istanbul Assize Court in which he accused them of arbitrarily issuing the arrest warrant dated 23 July in 2010.
50. The case is still pending before the Court of Cassation.
B. Relevant domestic law
1. The provisions of the Criminal Code
51. Section 147 of the old penal code, as it was in force at the material time, provided:
"Whoever prevents or reverses, by force, the Ministers’ Cabinet of the Turkish Republic in office or incites others to do so shall be sentenced to life imprisonment. "
52. According to Article 61 of the same Code, any attempted commission of an offense for which the law provided with life sentence ( when the offense was commited ) was punishable by fifteen to twenty years of imprisonment.
2. The provisions of the Code of Criminal Procedures
53. Article 91 § 2 of the Code of Criminal Procedure reads:
"Placement in custody depends on the necessity of this measure for the investigation and evidence to suggest that the person committed an offense. "
54. Provisional detention is governed by Articles 100 et those following the Code of Criminal Procedure. According to Article 100, a person may be remanded in custody when there are facts showing the existence of a strong suspicion that he/she committed an offense and that remand is justified by one of the reasons listed in this provision. Pre-trial detention may be considered justified in case of evasion or risk of evasio, or when the suspect may hide or alter evidence or influence witnesses. It can also be justified when there is a strong suspicion that the suspect has committed certain crimes, especially against state security and constitutional order.
55. Section 101 of the Code of Criminal Procedure states that provisional detention is ordered at the investigation stage by the judge himself at the request of the prosecutor and to judgment by the competent court, office or at the prosecutor's request. The placement and continued detention orders may be subject to opposition. Related decisions should be motivated by law and fact.
56. According to Article 104 of the Code, the accused or suspect may request at any time of the procedure to be released. The order for continued detention or release is made by a judge or a court. The decision to reject the request for release is also objectionable.
57. Article 105 of the Code provides that, upon application made under Articles 103 and 104 of the Code, the competent authority may order, after consulting the prosecutor, the suspect or the accused or his lawyer, the release of person on probation or may deny the application for release. This decision is subject to objection.
58. Finally, under Article 260 of the Code, the prosecutor, the defendant and the intervener may appeal against any decision made by the judge or the Court.
59. Relying on Article 3 of the Convention, the plaintiff alleges that his medical condition is incompatible with prison conditions since it would require regular medical monitoring and sometimes urgent medical intervention. He argues that only specialists of his choice could prevent deterioration of his health and general practitioners working in the prison are not in a position to provide appropriate care in an emergency. For example, he accuses the prison authorities of not having transferred him immediately to the hospital on May 10, 2010 and of waiting until the following day instead.
60. Then referring to Article 5 § 1 of the Convention, the plaintiff complained that he had been arrested and detained in violation of the domestic law and the Convention and in the absence, in his opinion, of plausible reasons to suspect him of having committed a criminal offense. On this score, he explains that the Balyoz operation, used by the prosecutor in Istanbul as the base for making his charges, is a fictional scenario developed as an exercise as part of a seminar work and he argues that the original script has been reworked with a manipulative intent. He adds that, on this point, national courts have interpreted section 100 of the Criminal Procedure Code in a way incompatible with Article 5 of the Convention. It also considers that the prosecution failed to comply with the provisions of law relating to detention.
61. Relying on Article 5 § 3 of the Convention, the plaintiff alleges that his detention is excessive seen his state of health. He also complains about the insufficient reasons given by the courts to keep him in custody.
62. Also referring on Article 5 § 4 of the Convention, the plaintiff blames the judicial authorities for having rejected his request for release in defiance to the principle of equality of arms. He also argues that, contrary to the prosecutor, he has not had access to all the documents thus denying him the possibility of making an effective appeal against his detention. Still with regards to controlling the legality of his detention, the plaintiff alleges that the judges of the 10th Istanbul Assizes Court cannot be considered impartial in so far as he would have brought an action for damages against them by accusing them of having improperly rejected his requests for release.
63. Finally, invoking Article 6 § 1 of the Convention, the plaintiff complained that he was denied a fair trial before an independent and impartial tribunal, arguing that the "special" Assizes Courts would have followed a process which did not rispect the defence’s rights.
A. Article 5 § 4 of the Convention
64. The plaintiff complains that he could not effectively challenge the lawfulness of his detention in so far as the judicial authorities have rejected his requests for release in defiance of the principle of equality of arms. He refers to the Article 5 § 4 of the Convention.
65. In the current case, the Court considers that it is unable to rule on the admissibility of these complaints and finds it necessary to communicate this part of the application to the respondent Government, pursuant to Article 54 § 2 b ) of its regulation.
B. Article 3 of the Convention
66. Relying on Article 3 of the Convention, the plaintiff maintains that his state of health is incompatible with prison conditions.
67. First of all, the Court reminds that, in order to fall within the scope of Article 3 of the Convention, a treatment must attain a minimum level of severity. The assessment of this minimum is relative: it depends on all the circumstances of the case and in particular,on the nature and context of the treatment, its execution procedures, its duration, its physical or mental effects and sometimes on the sex, age and state of health of the victim (see, amongst many others, Assenov et al. Bulgaria, October 28, 1998, § 94, Series Judgments and Decisions 1998 VIII, and Öcalan c. Turkey [GC], no 46221/99, § 180, ECHR 2005 IV).
68. However, the Court observes that, with regards to persons deprived of liberty, Article 3 of the Convention cannot be interpreted as establishing a general obligation to release a detainee on health grounds or to place him or her in a civilian hospital allowing him or her to obtain medical treatment of a particular type (c Kudła. Poland [GC], no 30210/96, § 93, ECHR 2000 XI, Kalashnikov and c. Russia, No. 47095/99, § 95, ECHR 2002 VI ). However, Article 3 requires the State to ensure that a person is detained in conditions that are compatible with respect for human dignity, that the conditions in which the measure is executed do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent to detention and that, given the practical demands of imprisonment, health, physical integrity and well-being are assured in an adequate manner, particularly with the administration of the medical care required (Kudła, § 94, Mouisel v. France, no. 67263/01, § 40, ECHR 2002 IX, Matencio v. France, no. 58749/00, § 78, January 15, 2004, and Kızıklar c. Turkey (dec.), no 21838/02, July 10, 2007).
69. The Court finally recalls that the continued detention for a prolonged period of a person of advanced age, moreover if that person is ill, can enter in the field of protection of Article 3 (c.Papon. France (No. 1) (December .), No. 64666/01, ECHR 2001 VI).
70. In this case, the Court notes from the start that none of the diseases affecting the plaintiff originate from the detention or the conditions of his detention but rather that they emerged as continuations of disorders diagnosed and treated prior to the opening of the criminal proceedings in question.
71. The Court further notes that the plaintiff refused all medical intervention in the early stage of his custody. The court also observed that once the plaintiff had agreed to receive medical care, medical and prison authorities reacted swiftly and transferred him firstly to the civil hospital in Silivri ( a medium-sized hospital) then to the civil hospitals of Esenyurt and Bakırköy (larger hospitals) for examinations and early treatment. Then, further tests and final medical treatments were performed in specialised hospitals in Siyami Ersek, Ersoy and Bakırköy.
72. The Court also notes that the plaintiff has not substantiated his claim that he would have received more adequate medical care had he been released. It notes in particular that the record contains no evidence to show that his transfer to hospital on May 11, 2010, the day after his heart problems were diagnosed, has affected his health. It also notes that the plaintiff makes no complaint regarding the quality of medical treatments administered during his detention and he did not specify the conditions of detention that may have affected his health.
73. Therefore, in light of the above findings, the Court considers as non established the plaintiff’s claims that the domestic authorities have breached their duty to protect his health and that he was deprived, during his detention, of adequate medical care thereby suffering such ill-treatment that would reach the level of severity sufficient to apply to the scope of Article 3 of the Convention (Gelfmann v. France, no. 25875/03, § 59 , December 14, 2004, Matencio, § 89, c Prencipe. Monaco, No. 43376/06, § 108, July 16, 2009, and Sigla c. France (dec.), No. 2122/06, May 27, 2008).
74. It follows that this complaint is manifestly ill-founded and must be declared inadmissible under Article 35 § § 3 a) and 4 of the Convention.
C. Article 5 § 1 of the Convention
75. Referring to Article 5 § 1 of the Convention, the plaintiff claims that he had been arrested and detained in violation of the domestic law and the Convention due to the absence, in his opinion, of plausible reasons to suspect him of having committed any criminal offense. He also claims that the prosecution failed to comply with the provisions of law relating to detention.
76. The Court notes from the start that the plaintiff claims that his arrest and detention are not only contrary to the provisions of Article 5 § 1 c) of the Convention, but that they have not been carried out according to " legal means " according to Article 5 § 1 of the Convention, the standards set by them in terms of deprivation of liberty is in the eyes of the applicant, similar to those of the Convention as to the probable cause to suspect a person of committing a criminal offense.
77. So, the Court will first consider the grievance from the concept of " existence of probable causes " within the scope of Article 5 § 1 c) of the Convention.
78. The Court first reminds that Article 5 § 1 c) authorizes placing a person in custody in the context of criminal proceedings, for bringing this person before the competent judicial authority only when there are plausible reasons to suspect this person of having committed an offense (c Jecius. Lithuania, No. 34578/97, § 50, ECHR 2000 IX, and Wloch v. Poland, no. 27785/95, § 108, ECHR 2000 XI). The "reasonableness" of the suspicion on which the arrest must be based is an essential element of the protection provided by Article 5 § 1 ). The existence of reasonable grounds for suspicion presupposes the existence of facts or information which would convince an objective observer that the person concerned may have committed the offense. What may be regarded as plausible, however, depends on all of the circumstances (Fox, Campbell and Hartley v.. UK, August 30, 1990, § 32, Series A No. 182, O'Hara c. United Kingdom, No. 37555 / 97, § 34, ECHR 2001 X, Korkmaz and Others v. Turkey, no. 35979/97, § 24, March 21, 2006, Süleyman Erdem v. Turkey, no. 49574/99, § 37, September 19, 2006, and Çelik and Yıldız v. Turkey, no. 51479/99, § 20, 10 November 2005).
79. The Court reiterates that paragraph c) of Article 5 § 1 does not presuppose that the investigating authorities have obtained sufficient evidence to lay charges at the time of the arrest. The purpose of questioning during a detention under paragraph c) of Article 5 § 1 is to further the criminal investigation by confirming or dispelling the concrete suspicions on which the arrest is based. Thus, the facts giving rise to suspicion need not be the same as those necessary to justify a conviction or even to lay a charge, this comes at the next stage of the proceedings of the criminal investigation (Murray v. . United Kingdom, October 28, 1994, § 55, Series A No. 300-A, and Korkmaz and Others, cited above, § 26).
80. Article 5 § 1 c) must not be applied in a manner that would hinder the police authorities of the Contracting States from fighting organized crime through adequate measures (see, mutatis mutandis, Klass et al. Germany, 6 September 1978, § § 58-68, Series A No. 28). The role of the Court is to determine whether the conditions specified in paragraph c) of Article 5 § 1, including the pursuit of the legitimate aim prescribed, have been satisfied in the case submitted for its examination . In this context, it is normally not its role to substitute its own assessment of the facts with that of domestic courts, better placed to assess the evidence before them (Murray, supra, § 66).
81. In this case, the Court finds that the plaintiff was deprived of his liberty because he was suspected of being the leader of a criminal organization called Balyoz , made up of generals and military officer, who allegedly planned, in the course of 2002 and 2003, a military coup designed to overthrow by force the elected government. He was accused, in particular, of having written up the Balyoz plan of operations, of having planned the various phases of the proposed military intervention, of having ordered the military who had agreed to be part of the Balyoz organization to elaborate in detail the operations for the preparation of the proposed military coup. The file put together by the prosecutor also suggested that the plaintiff had personally coordinated the preparations for the proposed military intervention and that he had presided over the final stages of planning, namely a seminar organised in his command.
82. The Court also notes that there exist elements of evidence such as the documents printed or digitized related to the planning of the Balyoz operations. The set of elements, consisting of a package of 2,229 printed pages, 19 CDs and 10 audio cassettes, including several documents signed by the plaintiff as well as minutes of meetings recording his speeches, had been collected by the prosecution before the plaintiff’s arrest which had been made on the suspicion that he had committed the offense, an offense severely punished by the Penal Code.
83. It is therefore appropriate to conclude that the plaintiff can be said to have been arrested and detained on the basis of "plausible reasons to suspect him " of having committed a criminal offense within the scope of paragraph c) of Article 5 § 1 of the Convention (Murray, supra, § 63, Korkmaz and Others, cited above, § 26, and Süleyman Erdem, § 37).
84. Secondly, with regard to the compliance of the applicant's arrest with the standards of the domestic law (Bozano c. France, December 18, 1986, § 54, Series A No. 111, Wassink c. Netherlands, September 27, 1990, § 24, Series A No. 185-A, Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000 III, Mooren c. Germany, No. 11364/03, § 72, December 13, 2007, and Öcalan, § 83), the Court refers to its findings set out above. It notes that the national judicial authorities have relied on concrete evidence to proceed with the applicant's arrest, citing the existence of reasonable and reliable evidence to suspect him of committing offenses punishable under the Penal Code - as per Article 91 § 2 and section 100 of the Code of Criminal Procedure -. The Court therefore finds that there is no evidence in this case that neither the interpretation nor the application of the legal provisions cited by the domestic authorities were arbitrary or unreasonable so as to make the applicant's arrest irregular.
85. Finally, the Court notes that the Code of Criminal Procedure clearly permits the prosecution to appeal against any decision of the judge or court, including decisions on the provisional release of an individual.
86. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 § § 3 a) and 4 of the Convention.
D. Article 5 § 3 of the Convention
87. Relying on Article 5 § 3 of the Convention, the plaintiff complained about the length of his provisional detention.
88. In this regard, the Court reiterates that the reasonableness of the duration of a provisional detention must be assessed according to the particular circumstances of the case. It then states that the primary responsibility of the national judicial authorities is to ensure that in any given case, pre-trial detention undergone by a suspect does not exceed a reasonable duration. To this effect, they must, with due regard to the principle of presumption of innocence, examine all the circumstances which demonstrate or rule out the existence of the said requirement of public interest, justifying a derogation from the rule set out in Section 5 and must give account of their decisions related to the request for release. It is essentially by looking at the motives behind these decisions and on the basis of the undisputed facts indicated by the plaintiff in his appeals that the Court must determine whether there has been a violation of Article 5 § 3 or not (see For example, McKay c. United Kingdom [GC], No. 543/03, § 43, ECHR 2006 X, and Bykov c. Russia [GC], No. 4378/02, § 63, March 10, 2009).
89. The Court further recalls that the persistence of reasonable suspicion that the person arrested has committed an offense is a sine qua non for the lawfulness of continued detention, but that after a certain length of time it is no longer sufficient. The Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty in question. Where these are "relevant" and "sufficient", it must also be ascertained whether the competent national authorities have made a "special diligence" in the conduct of the proceedings (see, among others, Letellier c. France, 26 June 1991, § 35, Series A No. 207, and Yağcı Sargın and c. Turkey, June 8, 1995, § 50, Series A No 319 A). In this regard, other factors to be considered are the complexities and peculiarities of the investigation (Van der Tang c. Spain, July 13, 1995, § 55, Series A No. 321).
90. In this case, the Court observes that the plaintiff’s total length of provisional detention comes to one year and four months.
91. The Court observes from the start, like the national courts asked to rule on the issue of the applicant’s detention, that there is a danger of leakage resulting from the gravity of the offense for which the plaintiff was prosecuted and from the complexity and scope of the criminal proceedings against a large number of co-defendants suspected of particularly serious organized crimes.
92. The court believes that in those circumstances, the duration of the detention in question in this case must be considered compatible with the requirement for cases to be dealt with promptly as per Article 5 § 3 of the Convention (Saçan c. Turkey (dec.), 65387/09, December 13, 2011, Şahin v. Bahattin. Turkey (dec.), no 29874/96, October 17, 2000, Türkdoğan c. Turkey (dec.), no 29742/03, February 20, 2007, and Köse and Others v. . Turkey (dec.), no 50177/99, May 2, 2006). No separate issue arose under Article 6 § 2 of the Convention.
93. It follows that this complaint should be dismissed as manifestly ill-founded, pursuant to Article 35 § § 3 a) and 4 of the Convention.
E. Article 6 § 1 of the Convention
94. Relying on Article 6 § 1 of the Convention the plaintiff claims that he was denied a fair trial before an independent and impartial tribunal.$
95. The Court notes that the criminal proceedings against him are still pending before the Assize Court of Istanbul, the first instance in the matter. It is therefore not able to conduct a comprehensive review of the trial opened against the applicant. The Court also believes it could not speculate on the future decision taken by the Assize Court on the charges against the plaintiff or on the outcome of any eventual appeal.
96. It follows that, at this stage of the proceedings taken before the domestic court, the plaintiff cannot complain of any violation of the provisions of Article 6 of the Convention. Nevertheless, the plaintiff is still free to approach the Court again, after the conclusion of the criminal proceedings against him, if he still finds himself a victim of the alleged violations. Therefore, this part of the application is premature (see, amongst others, Baltaci c. Turkey (dec.), No. 495/02, June 14, 2005).
97. It is therefore also legitimate to reject this part of the application under Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
defers examining the applicant's complaints drawn from Article 5 § 4 of the Convention (lack of effective material to challenge the legality of provisional detention);
furthermore, declares that the request is inadmissible.