ELCI AND OTHERS v. TURKEY JUDGMENT
105
rights abuses in Turkey. The authorities demonstrated flagrant bad-faith and
a desire to intimidate the applicants as a result.
652. The applicants' arrest and detention, having been decided on and
conducted by the security forces, without any evidence of authorisation
from the Prosecutors' Office, was unlawful as it should have been ordered
by a Prosecutor, in accordance with Articles 58 and 59 of the Law on
Advocates. The latter was mandatory throughout Turkey, including the state
of emergency areas, as was clearly confirmed by the ministerial circular of
14 February 1994 (paragraphs 584-586 above).
653. In all the circumstances of the case, the Court should draw adverse
inferences from the Government's failure to provide material information
and evidence as to a “procedure prescribed by law”, within the meaning of
the second sentence of Article 5 § 1 of the Convention. Moreover, no facts
or information were submitted by the Government which disclosed the
existence of any reasonable suspicion against the applicants which could
satisfy an objective observer (cf. the Fox, Campbell and Hartley v. the
United Kingdom, judgement of 30 August 1990, Series A no. 182, § 31).
Particular risks are involved in basing “reasonable suspicion” on the
statements of people who themselves are accused of terrorist crime, as in the
case of Mr Güven (cf. Contrada v. Italy, no. 27143/95, Decisions and
Reports [DR] 88-A, p. 94).
654. Especially strong evidence must be provided to justify detention of
up to 25 days, as distinguished from a few hours. It was conceded by the
Government that the sole evidence was the four statements of Mr Güven
(paragraphs 424-434 above). Against that must be weighed Mr Güven's bad
character, his inability to provide concrete details, the benefits he stood to
gain from the Remorse Law, his need to avoid repercussions from the PKK
by denouncing persons with, in fact, no connection with that organisation,
his limited ability to provide “new” evidence and his acquaintance with the
applicants. No attempt was made to corroborate Mr Güven's evidence,
whose credibility in the circumstances was open to the greatest doubt,
particularly when contrasted with the applicants' good character and
professional status.
655. Furthermore, only fleeting references to the applicants were made
in Mr Güven's statements, and no reference whatsoever was made to
MM. Acar and Altinkalem before they were arrested.
656. The applicants alleged that the authorities' bad faith was
corroborated by the facts of the case and the official Susurluk report on
unknown perpetrator killings, which allegedly recorded the illegal activities
carried out at the behest of, or in co-operation with, the Diyarbakır
gendarmerie command (pp. 24-29 of that report), and which referred to
specific orders to kill Hüsniye Ölmez in 1993 (p. 28 of that report)1. The
1
These parts of the Susurluk report were not submitted to the Court