CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 25 juin 2024

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TÜRKİYE (Applications nos. 56483/16 and 25 others)         JUDGMENT   STRASBOURG 25 June 2024             This judgment is final but it may be subject to editorial revision. In the case of Kuriş and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Pauliine Koskelo , President ,   Lorraine Schembri Orland,   Frédéric Krenc , 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 the applicants 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 prompt information of the reasons for the applicants’ arrest and of any charge against them, the alleged lack of relevant and sufficient reasons when ordering and extending the pre-trial detention, the alleged ineffectiveness of judicial review of the lawfulness of detention and the absence of a remedy to obtain compensation for the alleged breaches of their rights under Article 5 and of the complaint 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; the decision to reject the Government’s objection to the examination of the applications by a Committee; Having deliberated in private on 4   June 2024, 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 §§   109-110, 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, except those in applications nos. 19829/19 and 2897/20, who were elected members of the High Council of Judges and Prosecutors ( Hakimler ve Savcılar Yüksek Kurulu – “the HSYK” or “the Council”) at that 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, 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 (compare also 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 under Article 5 § 1 of the Convention 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, section   46 of the Court of Cassation Act (Law no. 2797) (see Baş , cited above, §   67, and Turan and Others , cited above, §§ 30-31) and section 38 of the Law on the Council of Judges and Prosecutors (Law no.   6087). 8 .     The Government invited the Court to declare the applications nos.   68692/17, 10095/20, 20844/20 and 1953/21 inadmissible, arguing that the applicants had been granted compensation pursuant to Article 141 § 1 of the Code of Criminal Procedure (“CCP”) following their acquittal and had therefore lost their victim status. They also claimed that application no.   34595/19 should be declared inadmissible for non-exhaustion of domestic remedies as the applicant had not lodged an appeal against the competent assize court’s decision rejecting his compensation claims. 9 .     The Government further argued that the applicants in applications nos.   56483/16, 73704/16, 1179/17, 54520/17, 63805/17 and 43997/20 had failed to duly raise their complaints under Article 5 § 1 of the Convention before the Turkish Constitutional Court. 10.     Firstly, with regard to the applications mentioned under paragraph 8 above, the Court notes that similar objections raised by the Government 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. 11.     Secondly, an examination of the case files reveals that contrary to the Government’s claims, the applicants mentioned in paragraph 9 above have all expressly raised their complaints under Article 5 § 1 of the Convention in their application forms submitted to the Constitutional Court. The Court observes that three of these applicants (applications nos. 56483/16, 73704/16, and 54520/17) seized the Constitutional Court after having lodged their applications with the Court. It reiterates in this regard that compliance with the requirement to exhaust domestic remedies is normally assessed with reference to the date on which the application was lodged with the Court (see   Baumann v. France , no. 33592/96, § 47, ECHR 2001-V (extracts)). It also considers, however, that in so far as the applicants in question had lodged their applications with the Constitutional Court before the case was notified to the Government, and given that the proceedings before the Constitutional Court were concluded before the Court examined the admissibility of the applications, the Government’s objection of non-exhaustion of domestic remedies must be rejected (see, mutatis mutandis , Sidiropoulos and Papakostas v. Greece , no. 33349/10, § 66, 25 January 2018). 12.     In the light of the above findings, the Court considers that these complaints are not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 13.     As regards the merits, the Court, having regard to the information and documents before it and its previous findings in the cases of Baş and Turan   and   Others (both cited above, §§ 143-58 and §§ 79-96, respectively), finds 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. 14.     It notes in this connection that, as also underlined by the Government, the applicants in application nos.   19829/19 and 2897/20 were elected members of the HSYK at the material time, who were not subject to the provisions of Law no. 2802 applicable to ordinary judges or prosecutors, but to Law no. 6087 on the Council of Judges and Prosecutors. According to section   38 of the Law no. 6087, the initiation of an investigation against the elected members in respect of offences related to their official duties or personal offences is subject to the decision of the Plenary Session of the Council, unless in the case of discovery in flagrante delicto falling within the jurisdiction of the assize courts, which triggers the application of the rules of ordinary law. The Court observes that this legal framework is similar to that applicable to members of the Court of Cassation and the Supreme Administrative Court subject to Law no. 2797 and Law no.   2575, respectively, as laid out in the case of Turan and Others (cited above, §§   30 ‑ 31 and §§ 93-96). It therefore considers, particularly in the absence of pertinent arguments from the Government to the contrary, that there is no reason to depart from the Court’s findings in that case in respect of the applicants in applications nos. 19829/19 and 2897/20, who were similarly detained in accordance with the provisions of ordinary law following an extensive application of the notion of “discovery in flagrante delicto ”. 15.     The Court accordingly finds that 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, §§ 115-16 and §§ 159-62, and Turan and Others , cited above, §§ 91 and 95). OTHER COMPLAINTS 16.     As regards any remaining complaints under Article 5 §§ 1, 2, 3, 4 and   5 of the Convention 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 17.     The applicants, except for the one in application no.   48669/20, 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. 18.     The Government contested the applicants’ claims as being unsubstantiated and excessive. 19.     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 one in application no. 48669/20, 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 remaining complaints; Holds (a)   that the respondent State is to pay each applicant, save for the one in application no. 48669/20, 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, 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 25 June 2024, 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 Place of Residence Nationality Represented by 1. 56483/16 Kuriş v.   Türkiye 30/09/2016 İbrahim Ethem KURİŞ Istanbul Turkish Walter VAN STEENBRUGGE 2. 73704/16 Yılma v.   Türkiye 09/11/2016 Şeyhmus YILMA Muş Turkish Büteyra DEMİR 3. 1179/17 Arslan v.   Türkiye 01/12/2016 Gürhan ARSLAN Eskişehir Turkish Ömer HAVLACI 4. 54520/17 Kaya v.   Türkiye 17/07/2017 Fahrettin KAYA Diyarbakır Turkish Emre AKARYILDIZ 5. 61213/17 Yılmazoğlu v.   Türkiye 15/06/2017 Esat Caner YILMAZOĞLU Eskişehir Turkish Fatma HACIPAŞALIOĞLU 6. 62652/17 Barut v.   Türkiye 03/02/2017 Muharrem BARUT İzmir Turkish   7. 63805/17 Karaali v.   Türkiye 06/06/2017 Hakan KARAALİ Istanbul Turkish Yılmaz ABOŞOĞLU 8. 68692/17 Arslan v. Türkiye 05/01/2017 Avni ARSLAN Istanbul Turkish   9. 42196/18 Uğur v.   Türkiye 13/08/2018 Mustafa UĞUR Bursa Turkish İrem TATLIDEDE 10. 13646/19 Yelesdağ v.   Türkiye 27/02/2019 Hayati YELESDAĞ Istanbul Turkish Cengiz ALGÜL 11. 19829/19 Berberoğlu v.   Türkiye 22/03/2019 Ahmet BERBEROĞLU Ankara Turkish Aytekin ERÇOBAN 12. 25595/19 Yavuz v.   Türkiye 29/04/2019 Abdurrahim YAVUZ Yozgat Turkish Tarık Said GÜLDİBİ 13. 27132/19 Taşkın v.   Türkiye 25/04/2019 Sönmez TAŞKIN Erzurum Turkish İbrahim YILDIZ 14. 34118/19 Karadağ Gülmedi v.   Türkiye 13/06/2019 Filiz KARADAĞ GÜLMEDİ Yalova Turkish Yeliz ARI BOZKURT 15. 34595/19 Koçal v.   Türkiye 12/06/2019 Hüseyin KOÇAL Istanbul Turkish Murat DİKMEN 16. 39229/19 Önkal v.   Türkiye 18/06/2019 Menderes ÖNKAL Adana Turkish Meryem KÜLTÜROĞLU 17. 42921/19 Keleş v.   Türkiye 29/07/2019 Kerim KELEŞ Adana Turkish   18. 47288/19 Kurçenli v.   Türkiye 23/08/2019 Selim KURÇENLİ Istanbul Turkish   19. 2897/20 Şen v.   Türkiye 03/01/2020 Mahmut ŞEN Ankara Turkish Serap ŞEN 20. 10095/20 Denizhan v.   Türkiye 17/02/2020 Hüseyin DENİZHAN Ankara Turkish Müslüm KANDEMİR 21. 16039/20 Çete v.   Türkiye 27/03/2020 Sevgül ÇETE Ağrı Turkish Bilge Nur ÇAĞLAYAN 22. 20844/20 Akçakoca v.   Türkiye 04/05/2020 Mehmet AKÇAKOCA Çankırı Turkish Emin AYDIN 23. 43997/20 Gürbüz v.   Türkiye 16/09/2020 Mustafa GÜRBÜZ Istanbul Turkish Gamze AKSOY 24. 48669/20 Boz v.   Türkiye 22/10/2020 Abdulkadir BOZ Evros, Greece Turkish Semra KISA 25. 51383/20 Çolak v.   Türkiye 14/10/2020 Hüseyin ÇOLAK Ankara Turkish Hanife ÇOLAK 26. 1953/21 Saydan v.   Türkiye 22/12/2020 Aydemir SAYDAN Osmaniye Turkish Mehmet ALKAN