CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 13 décembre 2022

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TÜRKİYE (Applications nos. 59639/17 and 81 others - see list appended)         JUDGMENT   STRASBOURG 13 December 2022   This judgment is final but it may be subject to editorial revision. In the case of Güngör and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Jovan Ilievski , President ,   Lorraine Schembri Orland,   Diana Sârcu , judges , and Dorothee von Arnim, Deputy 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 eighty-two 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 complaints concerning the lawfulness and length of pre-trial detention, the lack of information on the reasons for arrest, and the alleged lack of reasonable suspicion regarding the commission of an offence, as well as the ineffectiveness of judicial review of the lawfulness of detention and the absence of a remedy to obtain compensation 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, and to declare inadmissible the remainder of the applications; 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 22 November 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 Terror Organisation / Parallel State Structure” (hereinafter referred to as the “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, §§   6-14 and §§   109-110, 3   March 2020). All of the applicants were sitting as judges or prosecutors at different types and/or levels of court, at the material time, with the exception of sixteen applicants (namely, the applicants in applications nos. 66697/17, 70801/17, 76280/17, 1562/18, 2391/19, 5147/19, 14698/19, 15725/19, 26873/19, 36808/19, 39250/19, 39722/19, 40264/19, 40515/19, 41848/19 and 47694/19), who were former judges or prosecutors. 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. On various dates, the applicants were arrested and placed in pre-trial detention, mainly on suspicion of membership of the FETÖ/PDY, an offence punishable under Article 314 of the Criminal Code (see Baş , cited above, §   58). The detention orders relied principally on the nature of the alleged offence, the state of the evidence and the potential sentence. It was also noted that investigations into the coup attempt were being conducted across the country, that statements had not yet been taken from all suspects and that the alleged offence was among the “catalogue” offences listed in Article   100 §   3 of the Code of Criminal Procedure (CCP) (for the text of Article 100 of the CCP, as relevant, see Baş , cited above, §   61). While there was no express mention in the detention orders, it appears from the information and documents in the files that some of the applicants had been suspended from their duties as judges or prosecutors, or their authorities revoked, prior to their detention on grounds of their membership of the organisation that was considered to have instigated the attempted coup (see Turan and Others v.   Turkey , nos. 75805/16 and 426 others, §§   13-16, 23   November 2021 for further details on the suspension procedure), or that some of them had been identified as users of the ByLock messaging system. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed an offence, were dismissed, including by the Constitutional Court. 3.     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. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 4.     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 ARTICL E   5 § 1 OF THE CONVENTION 5.     The applicants complained that there had been no specific evidence giving rise to a reasonable suspicion, within the meaning of Article   5   §   1   (c) of the Convention, that they had committed a criminal offence necessitating pre-trial detention. 6.     The Government urged the Court to declare this complaint inadmissible in respect of the applicants who had not made use of the compensatory remedy under Article   141 of the Code of Criminal Procedure, as well as the applicants who had received some compensation or whose compensation claims were still pending. They further asked the Court to declare the applications inadmissible for abuse of the right of application to the extent that the applicants had not informed the Court of the developments in their cases following the lodging of their applications. 7.     The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, Baş , cited above, §§   118-121, and 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. 8.     The Court notes that, when ordering the applicants’ initial pre-trial detention, the magistrate’s courts sought to justify their decisions solely by making a general reference to Article 100 of the CCP and the potential sentence, as well as to “the evidence in the file”. However, in doing so, they simply cited the wording of the provision in question, without actually specifying what the evidence in question entailed and why it constituted a reasonable suspicion that the applicant had committed the offence in question. The Court refers in this connection to its findings in the judgment of Baş (cited above, §§   190-195), according to which the vague and general references to the wording of Article 100 of the CCP and to the evidence in the file cannot be regarded as sufficient to justify the “reasonableness” of the suspicion on which the applicants’ detention was supposed to have been based, in the absence either of a specific assessment of the individual items of evidence in the file, or of any information available in the file at the material time that could have justified the suspicion against the applicants, or of any other kinds of verifiable material or facts. To the extent that the detention orders may have taken into account the applicants’ suspension from judicial office or their alleged use of the ByLock messaging system, the Court notes that it has already found that neither of those grounds was of a nature to constitute “reasonable suspicion” within the meaning of Article   5   §   1   (c) in respect of the offence attributed to the applicants (compare Baş , cited above, §§   170-195, and Akgün v. Turkey , no.   19699/18, §§   151-185, 20   July 2021). The Court also notes that as regards some of the applicants, the Government have referred to the existence of witness statements justifying the measures in question. It observes, however, that there are no statements in the case files referring to concrete and specific facts that may have given rise to a reasonable suspicion against the applicants concerned at the material time. 9.     Since the Government have not provided any other indications, “facts” or “information” capable of satisfying it that the applicants were “reasonably suspected”, at the time of their initial detention, of having committed the alleged offence, the Court finds that the requirements of Article   5   §   1   (c)   regarding the “reasonableness” of a suspicion justifying detention have not been satisfied (compare Baş , cited above, §   195). It moreover considers that 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 (compare Baş , cited above, §§   115-116 and §§   196-201). It therefore concludes that there has been a violation of Article   5   §   1 of the Convention. OTHER COMPLAINTS 10.     As regards any remaining complaints under Article   5 §§   1, 2, 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 alleged lack of reasonable suspicion at the time of the applicants’ initial pre-trial detention, that they had committed an offence, admissible; Holds that there has been a violation of Article 5 § 1 of the Convention on account of the lack of reasonable suspicion, at the time of the applicants’ initial pre-trial detention, that they had committed an offence; 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 this amount, which is 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’ claim for just satisfaction. Done in English, and notified in writing on 13 December 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President     APPENDIX List of cases: No. Application no. Case name Lodged on Applicant Date of Birth Represented by Applicant’s status at the time of pre-trial detention   59639/17 Güngör v. Türkiye 10/02/2017 Murat GÜNGÖR 16/04/1978 Yaşar GÜNGÖR Ordinary judge or public prosecutor   60999/17 Bostan v. Türkiye 01/08/2017 Özenç BOSTAN 18/10/1982 Utku Coşkuner SAKARYA Ordinary judge or public prosecutor   62224/17 Kanmaz v. Türkiye 18/04/2017 Ahmet KANMAZ 05/02/1980 Nilgün ARI Ordinary judge or public prosecutor   63794/17 Çalışır v. Türkiye 31/07/2017 Mehmet ÇALIŞIR 21/08/1974 Emre AKARYILDIZ Ordinary judge or public prosecutor   66697/17 Sarıoğlu v. Türkiye 18/05/2017 Refik SARIOĞLU 06/03/1967 Ebubekir RENK Former judge or public prosecutor   70801/17 Arslanoğlu v. Türkiye 18/08/2017 Ertuğrul ARSLANOĞLU 17/11/1966 Uğur ALTUN Former judge or public prosecutor   71298/17 Gündoğdu v. Türkiye 15/09/2017 Fatih GÜNDOĞDU 01/08/1975 İbrahim KARANFİL Ordinary judge or public prosecutor   71506/17 B.O. v. Türkiye 17/07/2017 Bülent OLCAY 07/02/1960 Tarık OLCAY High Court judge   74818/17 Bağcı v. Türkiye 11/10/2017 Mehmet BAĞCI 13/08/1987 Hamza AKKAYA Ordinary judge or public prosecutor   76280/17 Erkan v. Türkiye 29/09/2017 Fikret ERKAN 10/09/1971 Metin BOZKURT Former judge or public prosecutor   79060/17 Oktar v. Türkiye 14/04/2017 Serdar OKTAR 01/07/1970 Zülküf ARSLAN Ordinary judge or public prosecutor   79074/17 Durmaz v. Türkiye 11/04/2017 Murat DURMAZ 25/03/1979 Nilgün ARI Ordinary judge or public prosecutor   79801/17 Büyükgümüş v. Türkiye 01/11/2017 İsmail BÜYÜKGÜMÜŞ 07/07/1973 Hüseyin AYGÜN Ordinary judge or public prosecutor   79845/17 Köseoğlu v. Türkiye 24/10/2017 Muhammet Sacit KÖSEOĞLU 01/08/1989 Nevzat AKBİLEK Ordinary judge or public prosecutor   81822/17 Karayol v. Türkiye 06/11/2017 Muharrem KARAYOL 05/09/1968 Hüseyin AYGÜN High Court judge     81859/17 Eray v. Türkiye 24/10/2017 Gürtekin ERAY 06/05/1968 Hüseyin AYGÜN High Court judge   84141/17 Akkaya v. Türkiye 16/11/2017 Hamza AKKAYA 02/10/1988 Hüseyin AYGÜN Ordinary judge or public prosecutor   84149/17 Torlak v. Türkiye 16/11/2017 Ergün TORLAK 22/09/1969 Hüseyin AYGÜN Ordinary judge or public prosecutor   84615/17 Kurt v. Türkiye 13/11/2017 İbrahim KURT 12/10/1966 Yücel ALKAN High Court judge     84630/17 Çolak v. Türkiye 22/11/2017 Mehmet ÇOLAK 22/12/1979 Adem KAPLAN Ordinary judge or public prosecutor   123/18 Beyhan v. Türkiye 06/12/2017 Metin BEYHAN 16/07/1975 Hüseyin AYGÜN Ordinary judge or public prosecutor   126/18 Tanin v. Türkiye 06/12/2017 Necdet TANIN 10/10/1985 Hüseyin AYGÜN Ordinary judge or public prosecutor   1210/18 Sarıçam v. Türkiye 07/12/2017 Mustafa SARIÇAM 06/03/1965 Hüseyin AYGÜN High Court judge     1556/18 Demir v. Türkiye 06/12/2017 Serkan DEMİR 27/01/1986 Hüseyin AYGÜN Ordinary judge or public prosecutor   1562/18 Şahin v. Türkiye 06/11/2017 Ali ŞAHİN 11/05/1963 Hüseyin AYGÜN Former judge or public prosecutor   4018/18 Kulaç v. Türkiye 06/12/2017 Hüseyin KULAÇ 29/08/1966 Hüseyin AYGÜN High Court judge     6246/18 Kılıç v. Türkiye 22/01/2018 Lokman KILIÇ 11/05/1963 Hüseyin AYGÜN Ordinary judge or public prosecutor   7225/18 Karahan v. Türkiye 26/01/2018 Nadir KARAHAN 19/07/1978 Utku Coşkuner SAKARYA Ordinary judge or public prosecutor   9899/18 Okumuş v. Türkiye 30/01/2018 İsmail OKUMUŞ 22/01/1976 İrem TATLIDEDE Ordinary judge or public prosecutor   17915/18 Gözlüpınar v. Türkiye 07/04/2018 Mustafa GÖZLÜPINAR 07/02/1989   Ordinary judge or public prosecutor   22248/18 İskenderoğlu v. Türkiye 30/04/2018 Halil İbrahim İSKENDEROĞLU 23/08/1981 Mehmet Fatih İÇER Ordinary judge or public prosecutor   23041/18 Nacak v. Türkiye 02/05/2018 İsmail NACAK 13/10/1982 Zülal ÜNSAL Ordinary judge or public prosecutor   37684/18 Eker v. Türkiye 30/07/2018 Muhammet Ali Osman EKER 05/04/1983 Mustafa Lutfi EKER Ordinary judge or public prosecutor   39688/18 Parlak v. Türkiye 16/08/2018 Asye PARLAK 01/03/1983 Mehtap KAMALAK GÖKKAYA Ordinary judge or public prosecutor   40142/18 Şahin v. Türkiye 08/08/2018 Hüseyin ŞAHİN 20/04/1969 Emre AKARYILDIZ Ordinary judge or public prosecutor   40478/18 Bayraktar v. Türkiye 01/08/2018 Yusuf BAYRAKTAR 03/03/1980 Yaşar GÜNGÖR Ordinary judge or public prosecutor   43089/18 Sönmez v. Türkiye 07/08/2018 Salih SÖNMEZ 20/10/1964 Hüseyin AYGÜN High Court judge     47383/18 Doğru v. Türkiye 26/09/2018 Nurettin DOĞRU 05/10/1979 Mehmet Fatih İÇER Ordinary judge or public prosecutor   50440/18 Birsen v. Türkiye 03/10/2018 Derya BİRSEN 06/10/1986 İshak IŞIK Ordinary judge or public prosecutor   749/19 Teke v. Türkiye 06/12/2018 Huriye TEKE 15/06/1988 Sultan TEKE SOYDİNÇ Ordinary judge or public prosecutor   897/19 Telli v. Türkiye 29/11/2018 Kutlay TELLİ 31/10/1979 İhsan MAKAS Ordinary judge or public prosecutor   1206/19 Yıldırım v. Türkiye 04/12/2018 Asım YILDIRIM 02/04/1987 Okan GÜNEL Ordinary judge or public prosecutor   2391/19 Doğan v. Türkiye 29/11/2018 Zihni DOĞAN 04/02/1967 Adem KAPLAN Former judge or public prosecutor   4305/19 Şanlı v. Türkiye 25/12/2018 Uğur ŞANLI 08/04/1989 Zülküf ARSLAN Ordinary judge or public prosecutor   4349/19 Hızarcıoğlu v. Türkiye 07/01/2019 Burak HIZARCIOĞLU 15/05/1982 Sinan Kamil KÜÇÜKOĞLU Ordinary judge or public prosecutor   5147/19 Beleç v. Türkiye 07/01/2019 Mehmet BELEÇ 01/02/1972 Zafer İRAZ Former judge or public prosecutor   5975/19 Asiltürk v. Türkiye 09/01/2019 Murat ASİLTÜRK 01/10/1980 Cahit ÇİFTÇİ Ordinary judge or public prosecutor   7354/19 Turanlı v. Türkiye 24/01/2019 Zafer TURANLI 01/10/1968 Şentürk DURSUN High Court judge   8060/19 Kara v. Türkiye 23/01/2019 Fuat KARA 10/05/1977 Burhan Temel ÇINAR Ordinary judge or public prosecutor   9308/19 Türk v. Türkiye 05/02/2019 Murat TÜRK 01/02/1972 Hüseyin AYGÜN Ordinary judge or public prosecutor   9689/19 Günenç v. Türkiye 05/02/2019 İbrahim GÜNENÇ 01/09/1969 Hüseyin AYGÜN Ordinary judge or public prosecutor   11902/19 Kılıç v. Türkiye 26/02/2019 Mustafa KILIÇ 20/09/1960 Hüseyin AYGÜN High Court judge   14698/19 Noyan v. Türkiye 08/03/2019 Erdal NOYAN 06/06/1961 Muhammet GÜNEY Former judge or public prosecutor   15725/19 Sarı v. Türkiye 08/03/2019 Eyüp SARI 25/10/1989 Nilgün ARI Former judge or public prosecutor   18886/19 Bedirhan v. Türkiye 22/03/2019 Kamuran BEDİRHAN 01/09/1988 Hamza AKKAYA Ordinary judge or public prosecutor   19590/19 Çelik v. Türkiye 27/03/2019 Arif ÇELİK 27/08/1990   Ordinary judge or public prosecutor   21593/19 Karaşlar v. Türkiye 10/04/2019 Ahmet Bahaddin KARAŞLAR 04/11/1977 İrem TATLIDEDE Ordinary judge or public prosecutor   23701/19 Çeken v. Türkiye 10/04/2019 Mesut ÇEKEN 24/10/1975 Elif Nurbanu OR Ordinary judge or public prosecutor   26422/19 Çamlıbel v. Türkiye 29/04/2019 Hasan ÇAMLIBEL 06/02/1979   Ordinary judge or public prosecutor   26873/19 Gençler v. Türkiye 30/04/2019 Bayram GENÇLER 10/05/1976 Tufan YILMAZ Former judge or public prosecutor   28238/19 Keskin v. Türkiye 06/05/2019 İbrahim KESKİN 20/01/1978 Zeynep ŞEN KARAKUŞ Ordinary judge or public prosecutor   28246/19 Özyiğit v. Türkiye 07/05/2019 Mehmet ÖZYİĞİT 22/12/1979 Helin MENTEŞE Ordinary judge or public prosecutor   29327/19 Sakmak v. Türkiye 10/05/2019 Hakan SAKMAK 26/05/1970 Hülya SARSICIOĞLU Ordinary judge or public prosecutor   30415/19 Bayazan v. Türkiye 20/05/2019 Erdal BAYAZAN 01/01/1988 Dudu ERTUNÇ Ordinary judge or public prosecutor   30521/19 Akkuş v. Türkiye 18/05/2019 Mustafa AKKUŞ 13/06/1964 İsmail Safa AKKUŞ Ordinary judge or public prosecutor   34672/19 Çabas v. Türkiye 31/05/2019 Mustafa ÇABAS 04/03/1973 Halil İbrahim KEBEŞOĞLU Ordinary judge or public prosecutor   34904/19 Çelik v. Türkiye 21/06/2019 Akif ÇELİK 19/05/1978   Ordinary judge or public prosecutor   34922/19 Hadimli v. Türkiye 21/06/2019 Uğur HADİMLİ 25/06/1967 Serkan CENGİZ Ordinary judge or public prosecutor   36808/19 Akdoğan v. Türkiye 02/07/2019 Sinan AKDOĞAN 10/03/1973   Former judge or public prosecutor   36987/19 Ergün v. Türkiye 31/05/2019 İsmail ERGÜN 01/01/1966 Ömer Faruk ERGÜN High Court judge   37348/19 Bulut v. Türkiye 04/07/2019 Atilla BULUT 07/04/1983   Ordinary judge or public prosecutor   38924/19 Karadeniz v. Türkiye 11/07/2019 Mustafa KARADENİZ 01/01/1986 Sefanur BOZGÖZ Ordinary judge or public prosecutor   39250/19 Özaykut v. Türkiye 19/06/2019 Salih ÖZAYKUT 01/01/1969 Hüseyin AYGÜN Former judge or public prosecutor   39722/19 Halitoğlu v. Türkiye 31/05/2019 Coşkun HALİTOĞLU 23/09/1973 Cesim PARLAK Former judge or public prosecutor   40264/19 Yılmaz v. Türkiye 25/07/2019 Halil YILMAZ 11/09/1965 İhsan MAKAS Former judge or public prosecutor   40515/19 Sarıgedik v. Türkiye 19/07/2019 Mustafa SARIGEDİK 01/10/1973 Mehmet MİRZA Former judge or public prosecutor   41848/19 Tabakcı v. Türkiye 29/07/2019 Ayşegül TABAKCI 30/12/1986   Former judge or public prosecutor   41850/19 Canbaz v. Türkiye 23/07/2019 Hüseyin CANBAZ 12/11/1981   Ordinary judge or public prosecutor   44467/19 Oğuz v. Türkiye 04/07/2019 Hüseyin OĞUZ 30/06/1971 Hilal YILMAZ PUSAT High Court judge   47694/19 Aydoğan v. Türkiye 15/08/2019 Abdulkadir AYDOĞAN 09/01/1989 Ayşe Sümeyye BEKLEYEN Former judge or public prosecutor   3517/20 Kılınç v. Türkiye 10/01/2020 Bülent KILINÇ 01/11/1965 Hüseyin AYGÜN High Court judge   5565/20 Yılmaz v. Türkiye 09/01/2020 Şükrü Emrah YILMAZ 04/05/1985   Ordinary judge or public prosecutor