CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 octobre 2023

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TÜRKİYE (Applications nos. 58665/17 and 44 others)           JUDGMENT   STRASBOURG 24 October 2023       This judgment is final but it may be subject to editorial revision.   In the case of Eriş 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 forty-five 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 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 length of pre-trial detention and the ineffectiveness of the judicial review of the lawfulness of detention 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 3 October 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). 2 .     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 the 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). It appears from the initial detention orders and the documents available in the case files that all of the applicants were identified as users of the ByLock messaging system. Moreover, the applicants in application nos. 69774/17, 11420/18, 12700/18, 14670/18, 16396/18, 17825/18, 18580/18 and 21/19 were also suspected of financing the FETÖ/PDY in view of their use of accounts in Bank Asya – a bank allegedly linked to FETÖ/PDY – and/or possession of pro-FETÖ/PDY publications. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed the offence imputed to them, 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. It appears that, for the most part, the criminal proceedings are still pending before appeal courts or the Constitutional Court. 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 ARTICLE 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, 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, §§   118-21, and Turan and Others v. Turkey , nos. 75805/16 and 426 others, §§   57-64, 23   November 2021), 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 the applicants’ initial pre-trial detention was based on information indicating their use of the ByLock messaging system and, in respect of some of them, banking activities considered as financing the FETÖ/PDY and subscriptions to certain pro-FETÖ/PDY publications. To the extent that the detention orders have taken into account the applicants’ alleged use of the ByLock messaging system, the Court notes that it has already found that the use of ByLock was not of a nature to constitute “reasonable suspicion” within the meaning of Article   5   §   1   (c) in respect of the offence attributed to the applicants (see Akgün v. Turkey , no.   19699/18, §§   151-85, 20   July 2021, and Taner Kılıç v. Turkey (no. 2) , no. 208/18, §§   102-03 and 106-09, 31 May 2022 ). The Court further considers, as relevant, that the other acts imputed to the applicants (see paragraph 2 above) were merely circumstantial elements which, in the absence of any other information capable of justifying the suspicions in question, benefited from the presumption of legality and cannot reasonably be regarded as constituting a body of evidence demonstrating the applicants’ membership of a terrorist organisation (compare Taner Kılıç , cited above, §§ 104-05 and the cases cited therein). 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 (see Baş , cited above, §   195, and Taner Kılıç , cited above, §§   114-16). At this juncture, it cannot be maintained, as the Government did, that the mere fact that the applicants were not members of the judiciary had any bearing on the conclusion reached. 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 10.     As regards any remaining complaints under Article 5 §§ 1, 3 and 4 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 11.     The applicants, except for the applicant in application no. 70782/17, 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, 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 ‑ 07), the Court rejects any claims for pecuniary damage and awards each of the applicants, save for the applicant in application no. 70782/17, 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, save for the applicant in application no. 70782/17, 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 24 October 2023, 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 Year of Birth Place of Residence Represented by 1. 58665/17 Eriş v. Türkiye 28/07/2017 Ahmet ERİŞ 1987 Ankara Gülhis YÖRÜK 2. 59699/17 Kurt v. Türkiye 08/11/2016 İbrahim KURT 1986 Sivas Gülbahar KOÇAK 3. 69774/17 Taze v. Türkiye 29/08/2017 Ali TAZE 1974 Kahramanmaraş Emre KOZANDAĞI 4. 70782/17 Gürbüz v. Türkiye 24/08/2017 Yusuf Ersin GÜRBÜZ 1989 Kutahya Deniz ÖZERDEM 5. 3462/18 Köksal v. Türkiye 04/01/2018 Mehmet Fatih KÖKSAL 1985 Ankara Gülhis YÖRÜK 6. 9582/18 Ilık v. Türkiye 13/02/2018 Hasan Hüseyin ILIK 1989 Kütahya Fatma ALBAYRAK 7. 9881/18 Polat v. Türkiye 29/01/2018 Davut POLAT 1987 Tekirdag   8. 11420/18 Sis v. Türkiye 27/02/2018 Ahmet SİS 1974 Düzce Necip Fazıl YILDIZ 9. 12700/18 Aydemir v. Türkiye 06/03/2018 Muhammet Hamza AYDEMİR 1987 İzmir Seçkin KESKİN 10. 14670/18 Arslan v. Türkiye 13/03/2018 Yaşar ARSLAN 1977 İstanbul Necip Fazıl YILDIZ 11. 14845/18 Zenginerler v. Türkiye 02/02/2018 İbrahim ZENGİNERLER 1969 Kocaeli Hakan Ruşen ARDA 12. 16396/18 Şenel v. Türkiye 27/03/2018 Ünal ŞENEL 1981 Trabzon Kadir ÖZTÜRK 13. 17575/18 Kılıçarslan v. Türkiye 21/03/2018 Mesut KILIÇARSLAN 1981 Yozgat Betül Feyza UĞUR AYDIN 14. 17825/18 Ünal v. Türkiye 05/04/2018 Mehmet Murat ÜNAL 1981 Kırıkkale Vedat ÇAPRAZ 15. 18539/18 Kartal v. Türkiye 02/03/2018 Hamdi KARTAL 1983 Istanbul Mehmet ÖNCÜ 16. 18580/18 Arslan v. Türkiye 19/03/2018 Mustafa Kemal ARSLAN 1970 Konya Mustafa DEMİR 17. 20404/18 Ata v. Türkiye 17/04/2018 İsmail ATA 1984 Konya Hüseyin DÖNMEZ 18. 45540/18 Çıtaker v. Türkiye 07/09/2018 Sema ÇITAKER 1986 Ankara Adem KAPLAN 19. 45556/18 Celik v. Türkiye 07/09/2018 Ahmet ÇELİK 1985 Osmaniye Adem KAPLAN 20. 46212/18 Elgün v. Türkiye 18/09/2018 Nagihan ELGÜN 1989 Balikesir Mehmet Ertürk ERDEVİR 21. 46256/18 Budaklı v. Türkiye 17/09/2018 Engin BUDAKLI 1974 Aksaray Nurgül YAYMAN YILMAZ 22. 46824/18 Uzun v. Türkiye 20/09/2018 Erdem UZUN 1977 Ankara Rukiye TURAN KARACA 23. 47027/18 Argündoğan v. Türkiye 28/09/2018 Tahir ARGÜNDOĞAN 1993 İzmir Metin BOZKURT 24. 47046/18 Eldemir v. Türkiye 17/09/2018 Uğur ELDEMİR 1974 Istanbul İlyas TEKİN 25. 54826/18 Horuz v. Türkiye 19/11/2018 Yusuf HORUZ 1989 Kahramanmaraş Yasin TORUNOĞLU 26. 54866/18 Kunt v. Türkiye 07/11/2018 Mehmet Akif KUNT 1984 Balıkesir Enes Malik KILIÇ 27. 56582/18 Özçelebi v. Türkiye 13/11/2018 Fahrettin ÖZÇELEBİ 1984 Ankara Ahmet Serdar GÜNEŞ 28. 57182/18 Gören v. Türkiye 16/11/2018 Seyyit GÖREN 1981 Niğde   29. 57545/18 Bakır v. Türkiye 15/11/2018 Levent BAKIR 1973 Ankara Hasan Hüseyin ERDOĞAN 30. 58802/18 Pınarakar v. Türkiye 21/11/2018 Hidayet PINARAKAR 1980 Muğla Adem KAPLAN 31. 58891/18 Görür v. Türkiye 28/11/2018 İhsan GÖRÜR 1984 Trabzon Metin KESKİN 32. 21/19 Urgancı v. Türkiye 07/12/2018 Nihat URGANCI 1973 Amasya Sevda URGANCI 33. 841/19 Karakuş v. Türkiye 12/12/2018 Fesih KARAKUŞ 1990 Istanbul Ayşe BAĞCI KARAKUŞ 34. 1470/19 Sönmez v. Türkiye 13/12/2018 Dinar SÖNMEZ 1988 Istanbul Muhammed Nuh POLAT 35. 2274/19 Arpacı v. Türkiye 13/12/2018 İsmail ARPACI 1982 Elazığ Mehmet Sıddık KARAGÖZ 36. 2843/19 Işık v. Türkiye 03/01/2019 Ayhan IŞIK 1972 Isparta Kadir ÖZTÜRK 37. 3430/19 Özgul v. Türkiye 02/01/2019 Muharrem ÖZGÜL 1974 Ankara Tarık Said GÜLDİBİ 38. 4061/19 Metin v. Türkiye 28/12/2018 Yakup METİN 1977 Ankara Adem KAPLAN 39. 4558/19 Öztel v. Türkiye 31/12/2018 Fatih ÖZTEL 1981 Istanbul Neslihan BİLİCİ 40. 4585/19 Çulha v. Türkiye 28/12/2018 Kemal ÇULHA 1971 Adana   41. 5304/19 Onursal v. Türkiye 03/01/2019 Soner ONURSAL 1987 Hatay Dudu ERTUNÇ 42. 5531/19 Hamarat v. Türkiye 15/01/2019 Murat HAMARAT 1977 Izmir   43. 5933/19 Gören v. Türkiye 11/01/2019 Yavuz GÖREN 1983 Zonguldak Erdi KOSTİK 44. 6201/19 Say v. Türkiye 17/12/2018 Buket SAY 1988 Ankara Adem KAPLAN 45. 6254/19 Yılmaz v. Türkiye 10/01/2019 Hakan YILMAZ 1971 Ankara Burak ÇOLAK