CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 22 octobre 2019

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They are represented before the Court by Mr Ö. Kılıç, Ms A.D. Taşdemir, Mr V. Ok and Mr   O.   Yıldız, lawyers practising in Istanbul. A list of the applicants is set out in the appendix. 2.     The Turkish Government (“the Government”) were represented by their Agent. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 20 December 2011 a judge at the Ninth Division of the Istanbul Assize Court ordered that the applicants and the other suspects be prevented from having access to their legal representatives for twenty-four hours and that the latter be denied access to the investigation file to ensure proper conduct of the investigation. 5.     On 20 and 21 December 2011 the applicants, except Turabi   Kışın, were arrested on suspicion of membership of a terrorist organisation. 6.     On 22 December 2011 three lawyers lodged petitions with the Ninth   Division of the Istanbul Assize Court on behalf of four of the applicants, requesting, inter alia , access to the investigation file. On 23   December 2011 the Ninth Division of the Istanbul Assize Court dismissed those requests. 7.     On 23 December 2011 the applicants were brought before the Istanbul public prosecutor who asked them detailed questions about each items of evidence contained in the case file, including but not limited to the records pertaining to the interception of their telephone conversations and the statements of witnesses. In their statements to the public prosecutor, the applicants, assisted by their lawyers, denied the veracity of the charges against them. They contended that they had not carried out any illegal activity. 8.     On 24 December 2011 the applicants were questioned at the Istanbul Assize Court, who ordered that they be held on remand. They all denied the charges against them before the judges. 9.     On 28 and 29 December 2011 the applicants’ lawyers filed petitions with the Istanbul Assize Court on behalf of the applicants, except Turabi   Kışın, Ömer Çelik and Zeyneb Ceren Kuray. In their petitions, the lawyers objected to the decision of 24 December 2011 to hold the applicants pending trial. On 2 January 2012 the Istanbul Assize Court dismissed the applicants’ objections. 10.     On 30 December 2011 Turabi Kışın was also arrested on suspicion of membership of a terrorist organisation. On 2 January 2012, the Istanbul Assize Court ordered that he be held on remand. 11.     On 27 April 2012 the Istanbul public prosecutor filed a bill of indictment against forty-four persons, including the applicants for charges related to terrorism. 12.     On various dates between 16 November 2012 and 12 May 2014 the applicants were released pending trial. 13.     According to the information in the case file, the criminal proceedings against the applicants are currently pending before the domestic courts. COMPLAINTS 14.     The applicants complain under Article 5 § 1 of the Convention that they were deprived of their liberty in the absence of any tangible evidence and reasonable grounds for suspicion that they had been involved in illegal activities. 15.     The applicants complain under Article 5 §§ 2 and 4 and Article 13 of the Convention that the decision rendered upon their objections to detain them was rendered in the absence of adversarial proceedings and without a hearing. They submit that they were unable effectively to challenge the detention order as they were denied access to the investigation file. For the same reason, they claim also that they were not informed of the reasons for their arrest and detention. 16.     The applicants complain under Article 5 § 3 of the Convention that the length of their detention was excessive. 17.     The applicants complain under Article 10 of the Convention that they were deprived of their liberty and charged with membership of a terrorist organisation on the basis of their journalistic activities. Moreover, they complain under Article 13 of the Convention, in conjunction with Article   10 of the Convention, that the remedies provided for in domestic law were not effective. 18.     Lastly, the applicants complain under Article 1 of Protocol No. 1 to the Convention that they were deprived of their income and sustained pecuniary damage as a result of the events giving rise to the present application. THE LAW Joinder of the applications 19.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. As regards the complaints under Article 5 § 4 of the Convention 20.     Under Article 5 §§ 2 and 4 and Article 13 of the Convention, the applicants complained that on account of the restriction placed on their access to the investigation file, they had not been able to challenge the evidence which had been the grounds for the decision to detain them on remand. They also complain about not being able to appear before the court when their petitions were reviewed. 21.     The Government contested these arguments. 22.     The Court, being master of the characterisation to be given in law to the facts of the case, finds it appropriate to examine these complaints under Article   5 § 4 of the Convention which read as follows: “4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 23.     The Court observes that there is nothing in the case file to suggest that the applicants Turabi Kışın, Ömer Çelik and Zeyneb Ceren Kuray filed an objection against the decision to detain them pending trial. It follows that their complaint under Article 5 § 4 of the Convention is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§   3   (a) and   4 of the Convention. 24.     The Court further notes that the other applicants were placed in pre ‑ trial detention on 24 December 2011. They subsequently filed an objection against this decision, which was eventually dismissed on 2   January 2012 by the Istanbul Assize Court, without holding an oral hearing. Nevertheless, the applicants had appeared before the trial court nine days before their objection was examined. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4 of the Convention (see Altınok v.   Turkey, no.   31610/08, § 55, 29 November 2011, and Ceviz v. Turkey, no.   8140/08, §   49, 17 July 2012). As a result,   the Court concludes that this part of the applications is manifestly ill ‑ founded and must be rejected, pursuant to Article   35 §§ 3 (a) and 4 of the Convention. 25.     As regards the complaint concerning the restriction of access to the investigation file, the Court observes that people who have been arrested or detained are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see   Ceviz , cited above, §   41). 26.     In the instant case, the Court notes that the applicants were placed in pre-trial detention mainly on the basis of the records regarding their intercepted telephone conversations and the statements of witnesses. On 20   December 2011 the judge at the Ninth Division of the Istanbul Assize Court decided to restrict access to the investigation file to ensure proper conduct of the investigation. However, on 23 and 24   December 2011, the applicants were questioned, in the presence of their lawyers, by both the public prosecutor and the judges. In this connection, first the public prosecutor and then the judges put detailed questions about all the evidences, including the above-mentioned items, to the applicants and the contents of the questions were reproduced in the relevant records. They were also informed about the charges of which they were suspected. The applicants gave statements and denied their involvement in terrorism. 27.     In the light of the foregoing, the Court considers that although the applicants did not have an unlimited right of access to the evidence, they had sufficient knowledge of the substance of the evidence forming the basis for their pre-trial detention and thus had the opportunity to properly contest the reasons given to justify the pre-trial detention (see Ceviz , cited above, §§   41-44; Karaosmanoğlu and Özden , no. 4807/08, § 74, 17 June 2014; Ayboğa and Others v. Turkey , no. 35302/08, § 17, 21 June 2016; and Mehmet Hasan Altan v. Turkey , no. 13237/17, §§ 149-150, 20 March 2018). 28.     The Court concludes that this part of the applications is manifestly ill ‑ founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. As regards the remainder of the applications 29.     Under Article 5 §§ 1 and 3 and Articles 3, 10 and 13 of the Convention and Article 1 of Protocol No. 1, the applicants complain of their pre-trial detention. 30.     The Government maintained that the applicants had not exhausted domestic remedies, as they should have applied to the Constitutional Court. 31.     Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23   September 2012, and declared it as a remedy to be used (see Uzun v.   Turkey , (dec.), no. 10755/13, §§ 68-71, 30 April 2013). 32.     The Court further notes that the Constitutional Court’s jurisdiction ratione temporis had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had commenced before the introduction of the right of individual application and had carried on after that date. 33.     In the present case the applicants’ pre-trial detention commenced on 24   December 2011 and 2 January 2012 and ended on various dates between 16   November 2012 and 12 May 2014 when they were released. Accordingly, the applicants’ detention, including the period before 23   September 2012, fell within the Constitutional Court’s temporal jurisdiction (see Koçintar v. Turkey (dec.), no. 77429/12, §§ 15-26 and   39, 1   July 2014, and Levent Bektaş v. Turkey , no. 70026/10, §§ 40-42, 16   June 2015). 34.     As a result, taking into account the Government’s preliminary objection, the Court concludes that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 21 November 2019.   Hasan Bakırcı   Julia Laffranque   Deputy Registrar   President   Appendix No. Application no. Applicant Date of birth   Date of arrest Date of detention on remand Date of release pending trial   24011/12 Ziya ÇİÇEKÇİ 10/05/1974   20/12/2011 24/12/2011 08/02/2013   54594/12 Dilek DEMİRAL 01/01/1977   20/12/2011 24/12/2011 03/03/2014   55669/12 Sibel GÜLER 12/07/1977   20/12/2011 24/12/2011 03/03/2014   46515/13 Yüksel GENÇ 20/06/1973   20/12/2011 24/12/2011 12/05/2014   46516/13 Nurettin FIRAT 02/03/1982   20/12/2011 24/12/2011 12/05/2014   46517/13 Ramazan PEKGÖZ 30/05/1979   20/12/2011 24/12/2011 12/05/2014   46518/13 Turabi KİŞİN 12/09/1965   30/12/2011 02/01/2012 12/05/2014   46520/13 Nevin ERDEMİR 10/12/1976   20/12/2011 24/12/2011 26/03/2014   46521/13 Ayşe OYMAN 05/07/1978   20/12/2011 24/12/2011 03/03/2014   46523/13 Zuhal TEKİNER 09/09/1980   20/12/2011 24/12/2011 08/02/2013   46524/13 Fatma KOÇAK 01/01/1975   20/12/2011 24/12/2011 27/09/2013   46525/13 Kenan KIRKAYA 05/03/1979   20/12/2011 24/12/2011 26/03/2014   46526/13 Ertuş BOZKURT 04/03/1985   20/12/2011 24/12/2011 12/05/2014   46527/13 Mazlum ÖZDEMİR 10/03/1979   20/12/2011 24/12/2011 26/03/2014   46528/13 Semiha ALANKUŞ 01/01/1966   20/12/2011 24/12/2011 26/03/2014   46529/13 Nilgün YILDIZ 30/08/1986   21/12/2011 24/12/2011 06/12/2013   46530/13 Sadık TOPALOĞLU 09/04/1985   20/12/2011 24/12/2011 26/04/2013   46531/13 Ömer ÇELİK 25/10/1982   20/12/2011 24/12/2011 19/06/2013   46532/13 Cağdaş KAPLAN 28/06/1986   20/12/2011 24/12/2011 08/02/2013   46534/13 Oktay CANDEMİR 15/03/1976   20/12/2011 24/12/2011 16/11/2012   46535/13 Pervin YERLİKAYA BABİR 08/04/1982   20/12/2011 24/12/2011 08/02/2013   46536/13 Çiğdem ASLAN 20/03/1984   20/12/2011 24/12/2011 16/11/2012   46537/13 İrfan BİLGİÇ 16/03/1987   20/12/2011 24/12/2011 27/09/2013   46538/13 Haydar TEKİN 23/06/1969   20/12/2011 24/12/2011 26/03/2014   46539/13 Ömer ÇİFTÇİ 18/09/1986   20/12/2011 24/12/2011 08/02/2013   46540/13 Selahattin ASLAN 10/01/1980   21/12/2011 24/12/2011 19/06/2013   46541/13 Safet ORMAN 01/08/1991   20/12/2011 24/12/2011 11/02/2013   46542/13 Mehmet Emin YILDIRIM 25/08/1973   21/12/2011 24/12/2011 26/03/2014   46543/13 Zeyneb Ceren KURAY 10/02/1978   20/12/2011 24/12/2011 26/04/2013   46544/13 İsmail YILDIZ 01/04/1981   20/12/2011 24/12/2011 08/02/2013   46545/13 Davut UÇAR 01/08/1971   20/12/2011 24/12/2011 12/05/2014   46546/13 Hüseyin DENİZ 08/08/1966   20/12/2011 24/12/2011 26/03/2014   46547/13 Nahide ERMİŞ 12/04/1977   20/12/2011 24/12/2011 14/01/2014