CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 juillet 2023

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TÜRKİYE (Applications nos. 27336/17 and 12 others – see appended list)             JUDGMENT   STRASBOURG 11 July 2023   This judgment is final but it may be subject to editorial revision. In the case of Kılınçlı and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Pauliine Koskelo , President ,   Lorraine Schembri Orland,   Davor Derenčinović , 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 thirteen 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 under Article 5 of the Convention concerning the lawfulness and length of pre-trial detention and the alleged lack of reasonable suspicion regarding the commission of an offence, the alleged lack of relevant and sufficient reasons when ordering and extending the pre-trial detention, the ineffectiveness of judicial review of the lawfulness of detention, the absence of a remedy to obtain compensation and under Article 8 of the Convention concerning the lawfulness of the searches conducted by the authorities 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; Having deliberated in private on 20 June 2023, 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” ( 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, §§   6 ‑ 14 and §§ 109-10, 3 March 2020). At the material time, the applicants were serving as judges or prosecutors at different types and/or levels of court or 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. Subsequently, on various dates, the High Council of Judges and Prosecutors ( Hakimler ve Savcılar Yüksek Kurulu – “the HSYK”) decided to suspend thousands of judges and prosecutors – including some of the applicants – from their duties, on the grounds that there was strong suspicion that they were members of the terrorist organisation that was considered to have instigated the attempted coup (further details regarding the relevant HSYK decision may be found in Baş , ibid., §§ 15-21, and Turan and Others v.   Turkey , nos. 75805/16 and 426 others, §§ 13-15, 23 November 2021). 3.     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 fact that the applicants had been suspended from their duties as judges or prosecutors on grounds of their membership of the organisation that was considered to have instigated the attempted coup. Furthermore, in the case of the applicants in application nos. 53830/19, 11789/20 and 35603/20, the use of the ByLock messaging system was relied on as evidence. 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. 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. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. THE GOVERNMENT’S PRELIMINARY OBJECTION IN RESPECT OF APPLICATION NO. 63841/17 6.     The Government argued that the applicant in application no. 63841/17 had submitted his complaints to another procedure of international investigation or settlement within the meaning of Article 35 § 2 (b) of the Convention, namely the complaint procedure of the United Nations Human Rights Council (the “HRC complaint procedure”), and invited the Court to dismiss the application as inadmissible. 7.     The applicant contested the Government’s view. He argued that the subject matter of the present application was different from that lodged with the HRC, since before the latter, he had only raised complaints as regards the alleged infringement of his presumption of innocence and right to a fair trial; whereas his complaints in the present application pertained to his allegedly unlawful and arbitrary detention. 8.     At the outset, the Court would reiterate that Article 35 § 2 (b) of the Convention is intended to avoid the situation where several international bodies would be simultaneously dealing with applications which are substantially the same. A situation of this type would be incompatible with the spirit and the letter of the Convention, which seeks to avoid a plurality of international proceedings relating to the same cases (see, among others, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 119, 20 March 2018). In determining whether its jurisdiction is excluded by virtue of this Convention provision, the Court would have to decide whether the case before it is substantially the same as a matter that has already been submitted to a parallel set of proceedings and, if that is so, whether the simultaneous proceedings may be seen as “another procedure of international investigation or settlement” within the meaning of Article 35 § 2 (b) of the Convention (see Hilal Mammadov v. Azerbaijan , no. 81553/12, § 103, 4   February 2016). The Court reiterates in this regard that an application is considered to be “substantially the same” when the facts, the parties and the complaints are identical (see Gürdeniz v. Turkey (dec.), no. 59715/10, § 41, 18   March 2014). 9.     The Court observes that the complaint procedure form submitted by the applicant to the HRC did not involve any complaints as to the alleged unlawfulness or arbitrariness of his detention. It further observes that the Government’s observations in response to the communication made by the secretariat of the HRC complaint procedure regarding the applicant’s complaints were limited to the alleged breaches of the latter’s right to be presumed innocent until proved guilty and the right to a fair trial, and did not involve any submissions on his detention. 10.     In these circumstances, and irrespective of whether the proceedings before the HRC may be considered as “another procedure of international investigation or settlement”, the Court finds that the complaints raised by the applicant in the HRC complaint procedure are different from those raised before it, and that therefore the two matters are not “substantially the same” within the meaning of Article 35 § 2 (b) of the Convention. Consequently, the Court is not prevented from examining the present complaint on this ground. 11.     Having regard to the foregoing considerations, the Government’s objection under Article 35 § 2 (b) of the Convention must be dismissed. ALLEGED VIOLATION OF ARTICLE 5   §   1   OF THE CONVENTION 12.     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. 13.     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 and 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. 14.     The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, Baş v. Turkey , no. 66448/17, §§   118 ‑ 121, and Turan and Others v.   Turkey , nos. 75805/16 and 426 others, §§ 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. 15.     The Court notes that the applicants’ initial pre-trial detention was based on the decisions taken by the HSYK for their suspension from office, and/or on information indicating their use of the ByLock messaging system. The Court has already found that neither of these grounds relied on by the domestic courts in ordering the applicants’ pre-trial detention was of a nature to constitute “reasonable suspicion” within the meaning of Article 5   §   1   (c) in respect of the offence attributed to them (see Baş , cited above, §§   170 ‑ 95, and Akgün v. Turkey , no. 19699/18, §§ 151-85, 20   July 2021, respectively). The Court moreover notes that, when ordering some of the applicants’ initial pre-trial detention, the magistrate’s courts sought to justify their decisions 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, §§   190-95), 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 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. 16.     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, §§ 115-16 and §§   196 ‑ 201). It therefore concludes that there has been a violation of Article   5   § 1 of the Convention. OTHER COMPLAINTS 17.     As regards any remaining complaints under Article 5 §§ 1, 3, 4 and 5 and Article 8 of the Convention, 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 18.     The applicants, except for those in applications nos. 27336/17 and 42704/19, requested compensation in varying amounts in respect of non‑pecuniary damage within the time-limit allotted. Most of the applicants in question 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. 19.     The Government contested the applicants’ claims as being unsubstantiated and excessive. 20.     For the reasons put forth in Turan and Others (cited above, §§   102 ‑ 07), the Court rejects any claims for pecuniary damage and awards each of the applicants, save for those in applications nos. 27336/17 and 42704/19, 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 Articles 5 and 8 of the Convention; Holds (a)   that the respondent State is to pay each of the applicants, save for those in applications nos. 27336/17 and 42704/19, 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’ claims for just satisfaction. Done in English, and notified in writing on 11 July 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Dorothee von Arnim   Pauliine Koskelo   Deputy Registrar   President     APPENDIX List of cases:   No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 27336/17 Kılınçlı v. Türkiye 24/02/2017 Oğuzhan KILINÇLI 1979 Konya Turkish İbrahim ATAŞ 2. 49752/17 Özgür v. Türkiye 06/06/2017 Mehmet ÖZGÜR 1970 ANKARA Turkish Hilal YILMAZ PUSAT 3. 61592/17 Akarsu v. Türkiye 15/06/2017 Serkan AKARSU 1983 İSTANBUL Turkish Derya ÇELİK 4. 63841/17 Dağlı v. Türkiye 31/07/2017 Hakkı DAĞLI 1980 Kastamonu Turkish Kerimhan DAĞLI 5. 66693/17 Özdemir v. Türkiye 05/06/2017 Selçuk ÖZDEMİR 1984 Bursa Turkish Rukiye COŞGUN 6. 23650/18 Çelik v. Türkiye 30/04/2018 Fırat ÇELİK 1986 Kahramanmaras Turkish Adem KAPLAN 7. 28078/18 Bozoğlu v. Türkiye 09/05/2018 Erdal BOZOĞLU 1978 Istanbul Turkish Fatma BABAYİĞİT 8. 42704/19 Akyüz v. Türkiye 01/08/2019 Nadir AKYÜZ 1973 Gaziantep Turkish Melek KOÇYİĞİT 9. 53830/19 Nacak v. Türkiye 23/08/2019 Hidayet NACAK 1983 Ankara Turkish Elif Nurbanu OR 10. 8335/20 Kondur v. Türkiye 04/02/2020 Tarık KONDUR 1982 Antalya Turkish Eda KONDUR 11. 11789/20 Kurt v. Türkiye 06/12/2019 İsmail KURT 1969 Istanbul Turkish Neslihan ÇAKıR KAŞIKÇI 12. 19088/20 Önkal v. Türkiye 22/04/2020 İlhan ÖNKAL 1970 Ankara Turkish Enes Malik KILIÇ 13. 35603/20 Kuru v. Türkiye 27/07/2020 Özgür KURU 1977 Edirne Turkish Cebrail Eren KAYNAR