CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 septembre 2024

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TÜRKİYE (Applications nos. 60065/16 and 22 others – see appended list)         JUDGMENT   STRASBOURG 24 September 2024         This judgment is final but it may be subject to editorial revision.   In the case of Altun and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Lorraine Schembri Orland , President ,   Frédéric Krenc,   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 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 relevant and sufficient reasons when ordering and extending the pre-trial detention, the alleged lack of independence and impartiality and the alleged ineffectiveness of the 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 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 September 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 §§ 109-10, 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, with the exception of eleven applicants (namely, the applicants in applications nos.   27285/18, 37061/18, 41565/18, 46888/18, 33111/19, 39084/19, 51678/19, 53521/19, 64476/19 and 19301/20) who were former judges or prosecutors and the applicant in application no. 60332/17 who was a trainee judge). 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 for the text of this provision 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. Moreover, some of the applicants 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 their membership to YARSAV, an association of judges and prosecutors allegedly affiliated with the FETÖ/PDY. 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, and a few were acquitted. It appears that, in some of the applications, the proceedings are still pending before the 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 CCP, as well as the applicants who had received some compensation due to lack of victim status and also those whose compensation claims were still pending. 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 , cited above, §§ 57-64), and sees no reason to depart from those findings in the present case. 8.     The Government further invited the Court to declare the complaints lodged by the applicants in applications nos. 60065/16 and 13853/17 inadmissible, alleging that the former had lodged his application with the Court without exhausting the remedy before the Constitutional Court, and that the latter had not duly raised his complaint regarding the alleged lack of reasonable suspicion in his individual application before the Constitutional Court. 9.     Firstly, regarding application no. 60065/16, the Court reiterates that an applicant’s 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 given that the proceedings before the Constitutional Court were concluded before the Court examined the admissibility of the application, 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). 10.     Secondly, an examination of the case file in application no. 13853/17 reveals that contrary to the Government’s claim, the applicant has expressly raised his complaints under Article 5 § 1 (c) of the Convention in the application form submitted to the Constitutional Court before lodging his application with the Court. 11.     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. 12 .     As regards the merits, the Court notes that, when ordering some of 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 applicants 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. To the extent that the detention orders took into account the applicants’ suspension from judicial office, their alleged use of the ByLock messaging system, banking activities considered as financing the FETÖ/PDY and/or memberships in FETÖ/PDY ‑ affiliated institutions and organisations, 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, §§   170-95; Akgün v.   Turkey , no. 19699/18, §§ 151-85, 20   July 2021; and Taner Kılıç v.   Turkey (no. 2) , no. 208/18, §§ 104-05, 31 May 2022 and the cases cited therein). 13.     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). 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 14.     As regards any remaining complaints under Article   5 §§   1, 3, 4 and   5 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 15.     The applicants, with the exception of the applicant in application no.   2541/20, submitted requests for compensation in varying amounts for non ‑ pecuniary damage within the prescribed time limit. Most of the applicants also claimed pecuniary damages, 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. 16.     The Government contested the applicants’ claims as being unsubstantiated and excessive. 17.     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, save for the one in application no. 2541/20, 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 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; Holds (a)   that the respondent State is pay to each of the applicants, save for the one in application no. 2541/20, 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, 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 September 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Dorothee von Arnim   Lorraine Schembri Orland   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. 60065/16 Altun v. Türkiye 17/10/2016 Selçuk ALTUN 1974 Adana Turkish Emre AKARYILDIZ 2. 73507/16 Peksak v. Türkiye 11/11/2016 Ali Efendi PEKSAK 1969 Istanbul Turkish Tarkan ÖNAY 3. 13853/17 Güney v. Türkiye 03/01/2017 Halil GÜNEY 1978 İzmir Turkish   4. 60332/17 Kara v. Türkiye 04/07/2017 Niyazi KARA 1974 Ankara Turkish Utku Coşkuner SAKARYA 5. 81722/17 Baklacı v. Türkiye 19/09/2017 Mustafa BAKLACI 1972 Bursa Turkish   6. 24221/18 Şahbaz v. Türkiye 30/04/2018 İsmail ŞAHBAZ 1981 Istanbul Turkish Enes Malik KILIÇ 7. 27285/18 Kolotooğlu v. Türkiye 29/05/2018 Metin KOLOTOOĞLU 1984 Kocaeli Turkish Elvan BAĞ CANBAZ 8. 37061/18 Başbilen v. Türkiye 17/07/2018 Yeliz BAŞBİLEN 1977 Istanbul Turkish Elkan ALBAYRAK 9. 41565/18 Babayiğit v. Türkiye 02/08/2018 Songül BABAYİĞİT 1978 Kocaeli Turkish Cahit ÇİFTÇİ 10. 46888/18 Tunay v. Türkiye 28/09/2018 Mehmet Tolga TUNAY 1989 İzmir Turkish Şenol DİŞ 11. 21873/19 Gümüşsoy v. Türkiye 05/04/2019 Arif GÜMÜŞSOY 1977 Istanbul Turkish Aziz GENÇ 12. 25578/19 Candemir v. Türkiye 22/04/2019 Selami CANDEMİR 1970 Kırşehir Turkish Melek KOÇYİĞİT 13. 33111/19 Köse v. Türkiye 25/05/2019 Yusuf KÖSE 1987 Sivas Turkish Şeyma MISIRLIOĞLU 14. 39084/19 Paker v. Türkiye 16/07/2019 İdris PAKER 1954 Bursa Turkish Hakan Gökay SARIOĞLU 15. 48069/19 Şenlikçi v. Türkiye 06/09/2019 Mehmet ŞENLİKÇİ 1981 Ankara Turkish   16. 51678/19 Uslu v. Türkiye 04/09/2019 Fatih Mehmet USLU 1972 Kütahya Turkish   17. 53521/19 Tüfekçi v. Türkiye 02/10/2019 Zafer TÜFEKÇİ 1977 Sakarya Turkish   18. 64476/19 Şimşek v. Türkiye 02/12/2019 Murat ŞİMŞEK 1974 Çanakkale Turkish   19. 2541/20 Yiğit v. Türkiye 26/11/2019 Kenan YİĞİT 1979 Mersin Turkish Kerem SEZGİN 20. 13701/20 Kaplan v. Türkiye 04/03/2020 Tahir KAPLAN 1978 Samsun Turkish Osman GÖL 21. 19301/20 Yaldır v. Türkiye 04/05/2020 Ersan YALDIR 1978 Aksaray Turkish Kadir ÖZTÜRK 22. 50847/20 Acar v. Türkiye 23/10/2020 Numan ACAR 1973 Ankara Turkish Tarık Said GÜLDİBİ 23. 52013/20 Yağcı v. Türkiye 05/10/2020 Ali YAĞCI 1967 Kırıkkale Turkish Handan CAN