CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 6 septembre 2022

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TÜRKİYE (Applications nos. 14676/17 and 30 others – see appended list)             JUDGMENT   STRASBOURG 6 September 2022   This judgment is final but it may be subject to editorial revision. In the case of Ataman and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Pauliine Koskelo , President,   Gilberto Felici ,   Saadet Yüksel , judges, and Hasan Bakırcı, Section Registrar, Having regard to: the applications against the Republic of Türkiye lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirty-one Turkish nationals, whose relevant details are listed in the appended table (“the applicants”), on the various dates indicated therein; the decision to give notice of the applications to the Turkish Government (“the Government”) represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye; the parties’ observations; the decision to reject the Government’s objection to the examination of the applications by a Committee; Having deliberated in private on 28 June 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The present applications mainly concern the arrest and pre-trial detention of the applicants in the aftermath of the coup attempt of 15   July 2016, on suspicion of their membership of an organisation described by the Turkish authorities as the   “ Fetullahist Terrorist Organisation / Parallel State Structure ” (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması, hereinafter referred to as “FETÖ/PDY”), which was considered by the authorities to be behind the coup attempt (further information regarding the events that unfolded after the coup attempt, including the details of the state of emergency declared by the respondent Government and the ensuing notice of derogation given to the Secretary General of the Council of Europe, as well as the legislative developments that followed the declaration of the state of emergency, may be found in the case of Baş v. Turkey , no.   66448/17, §§   7-14 and §§ 109-110, 3 March 2020). All of the applicants were serving as judges or prosecutors at different types and/or levels of court at the material time. 2.     On 16 July 2016 the Ankara chief public prosecutor’s office initiated a criminal investigation into, inter alios , the suspected members of FETÖ/PDY within the judiciary, including members of high courts , in accordance with the provisions of the ordinary law, on the ground that there had been a case of discovery in flagrante delicto falling within the jurisdiction of the assize courts (further information regarding the orders issued by the chief public prosecutor’s office within the context of that investigation, as well as the ensuing suspensions and dismissals of judges and prosecutors suspected of being members of FETÖ/PDY, may be found in Baş , cited above, §§   9-10 and 15-21). 3.     Following their arrest and detention in police custody on the orders of the regional and provincial prosecutors’ offices, the applicants were placed in pre-trial detention on various dates, mainly on suspicion of membership of the FETÖ/PDY organisation, an offence punishable under Article 314 of the Criminal Code ( see Baş , cited above, § 58 ). The pre-trial detention decisions were issued by the magistrates’ courts located at the respective places of the applicants’ arrest. In the majority of the decisions, it was noted specifically that the criminal investigation was governed by the ordinary rules, given that the offence of which the suspects were accused, namely membership of an armed terrorist organisation, was a “continuing offence” and that there was a case of discovery in flagrante delicto governed by the relevant provisions of domestic law (see Baş , cited above, § 67, and Turan and Others v.   Turkey , nos.   75805/16 and 426 others, §§ 30-31, 23 November 2021 ). 4.     According to the latest information provided by the parties, most of the applicants were convicted of membership of a terrorist organisation by the first instance courts, and a few were acquitted. It appears that, for the most part, the appeal proceedings are still pending. 5.     In the meantime, the applicants lodged individual applications with the Constitutional Court in respect of, inter alia , the alleged violation of their right to liberty and security on various accounts, including the alleged unlawfulness of their detention by reason of the disregard of the procedural safeguards afforded to members of the judiciary in domestic law, all of which were declared inadmissible (see Turan and Others , cited above, §§   26-27). THE COURT’S ASSESSMENT    JOINDER OF THE APPLICATIONS 6.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.    ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 7.     The applicants complained that they had been placed in pre-trial detention in breach of the domestic laws governing the arrest and pre-trial detention of the members of the judiciary and disputed that there had been a case of discovery in flagrante delicto for the purposes of section 94 of Law no.   2802 on judges and prosecutors and section 46 of the Court of Cassation Act (Law no. 2797). 8.     The Government invited the Court to declare this complaint inadmissible for the reasons that they had raised in the case of Turan and Others (cited above, § 55). The Court notes that the Government’s objections have already been dismissed in the case of Turan and Others (cited above, §§   57   -   64) and sees no reason to depart from those findings in the present case. The Court therefore considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 9.     The Court further considers, having regard to its findings in the cases of Baş and Turan and Others (both cited above, §§ 143-158 and §§   79-96, respectively), that the pre-trial detention of the applicants had not taken place in accordance with a procedure prescribed by law within the meaning of Article   5 § 1 of the Convention and that, therefore, there has been a violation of Article 5 § 1 on account of the unlawfulness of the applicants’ initial pre-trial detention. Moreover, while the applicants were detained a short time after the coup attempt – that is, the event that prompted the declaration of the state of emergency and the notice of derogation by Türkiye –, which is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article 5 of the Convention in the present case, the measure at issue cannot be said to have been strictly required by the exigencies of the situation (see Baş , cited above, §§ 115-116 and §§   159-162, and Turan and Others , cited above, §§ 91 and 95). OTHER COMPLAINTS 10.     As regards any remaining complaints under Article 5 §§ 1, 3, 4 and   5, the Court decides not to examine them, in view of its findings under Article   5 §   1 above and its considerations in the case of Turan and Others (cited above, §   98). APPLICATION OF ARTICLE 41 OF THE CONVENTION 11.     The applicants requested compensation in varying amounts in respect of non ‑ pecuniary damage. Most of the applicants also claimed pecuniary damage, corresponding mainly to their loss of earnings resulting from their dismissal, as well as the legal costs and expenses incurred before the domestic courts and the Court. 12.     The Government contested the applicants’ claims as being unsubstantiated and excessive. 13.     For the reasons put forth in Turan and Others (cited above, §§   102-107), the Court rejects any claims for pecuniary damage and awards each of the applicants a lump sum of 5,000 euros (EUR), covering non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaint under Article 5 § 1 of the Convention concerning the lawfulness of the applicants’ initial pre-trial detention admissible; Holds that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the initial pre-trial detention of the applicants; Holds that there is no need to examine the admissibility and merits of the applicants’ remaining complaints under Article 5 of the Convention; Holds (a)   that the respondent State is to pay each of the applicants, within three months, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on these amounts, which are to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 6 September 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Hasan Bakırcı   Pauliine Koskelo   Registrar   President     APPENDIX List of cases: No. Application no. Case name Lodged on Applicant Date of Birth   Represented by 1. 14676/17 Ataman v. Türkiye 11/01/2017 İbrahim Tufan ATAMAN 29/07/1968 Beyza Esma TUNA 2. 15648/17 Demir v. Türkiye 19/01/2017 Coşkun DEMİR 15/12/1958 İsmail Safa AKKUŞ 3. 60397/17 Arseven v. Türkiye 14/04/2017 Muammer ARSEVEN 22/09/1968 Hüseyin AYGÜN 4. 62630/17 Genç v. Türkiye 30/06/2017 Mustafa GENÇ 05/01/1967 Hüseyin AYGÜN 5. 62632/17 Çırak v. Türkiye 30/06/2017 Halil ÇIRAK 06/06/1966 Hüseyin AYGÜN 6. 62636/17 Ekinci v. Türkiye 30/06/2017 Mehmet Vehip EKİNCİ 18/07/1963 Hüseyin AYGÜN 7. 62640/17 İşlek v. Türkiye 30/06/2017 Kemalettin İŞLEK 01/01/1969 Hüseyin AYGÜN 8. 62914/17 Yılbaşı v. Türkiye 04/05/2017 Hannan YILBAŞI 17/10/1971 Ekrem Bahadır MERCANTAŞ 9. 72263/17 Acu v. Türkiye 24/08/2017 Oktay ACU 15/11/1968 Necip Fazıl YILDIZ 10. 76346/17 Saylak v. Türkiye 06/10/2017 Esabil SAYLAK 05/06/1967 İsmet ÇELİK 11. 81572/17 Seyhan v. Türkiye 06/11/2017 Edat Yücel SEYHAN 09/10/1969 Hüseyin AYGÜN 12. 6156/18 Bayrak v. Türkiye 22/01/2018 Ramazan BAYRAK 08/04/1965 Hüseyin AYGÜN 13. 7206/18 Emiroğlu v. Türkiye 29/01/2018 Turgut EMİROĞLU 02/10/1965 Seydi Ahmet ÖZDEMİR 14. 17506/18 Ural v. Türkiye 12/02/2018 Sami Sezai URAL 01/04/1968 Melike Büşra URAL 15. 2779/19 Güleç v. Türkiye 14/12/2018 Nuri GÜLEÇ 01/01/1969 Serra YAĞMUR ERGÜÇ 16. 11439/19 Kıldan v. Türkiye 15/02/2019 İsmail Turgut KILDAN 01/01/1983 Emre AKARYILDIZ 17. 11822/19 Kaya v. Türkiye 13/02/2019 Hacı Osman KAYA 10/08/1965 Kübra KAYA 18. 20004/19 Özer v. Türkiye 09/02/2019 Cumhur ÖZER 02/09/1969 Handan CAN 19. 25373/19 Sönmez v. Türkiye 03/05/2019 Mehmet SÖNMEZ 01/09/1970 Hüseyin AYGÜN 20. 25426/19 Sözen v. Türkiye 24/04/2019 Bekir SÖZEN 16/08/1964 Seda SÖZEN 21. 25878/19 Demirci v. Türkiye 15/04/2019 Ünal DEMİRCİ 03/03/1960   22. 27279/19 Güney v. Türkiye 07/05/2019 Muhammet GÜNEY 15/06/1968 Ayhan DOĞAN 23. 28562/19 Demir v. Türkiye 09/05/2019 Hasan DEMİR 01/09/1969 Hüseyin AYGÜN 24. 29063/19 Arı v. Türkiye 31/05/2019 Mehmet ARI 15/10/1965 Arzu Şeyma ARI 25. 29353/19 Yıldız v. Türkiye 11/05/2019 Ali YILDIZ 01/12/1965 Handan CAN 26. 33507/19 Çelik v. Türkiye 14/06/2019 Mehmet ÇELİK 23/01/1969 Tarık Said GÜLDİBİ 27. 37094/19 Taşkın v. Türkiye 27/06/2019 Ahmet TAŞKIN 26/01/1965 Hüseyin AYGÜN 28. 37126/19 Aydın v. Türkiye 05/07/2019 Oktay AYDIN 04/09/1971 Tarık Said GÜLDİBİ 29. 39236/19 Tosun v. Türkiye 24/06/2019 Yılmaz TOSUN 04/08/1963 Serra YAĞMUR ERGÜÇ 30. 43562/19 Toker v. Türkiye 03/08/2019 Ahmet TOKER 24/05/1969 Beyza Esma TUNA 31. 44461/19 Boyraz v. Türkiye 15/08/2019 Orhan BOYRAZ 15/08/1970