CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 mai 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .sE3D66594 { border:0.75pt solid #000000; border-collapse:collapse } .sD9DA4DFD { height:45pt } .sCA8CFD73 { border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top; background-color:#b4c6e7 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s28F474C9 { border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top; background-color:#b4c6e7 } .sA8BE43EC { border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top; background-color:#b4c6e7 } .s7BD002E5 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top } .s5ED6B251 { border-style:solid; border-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4B8EF37A { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top } .sFFAC2F38 { height:30pt } .s16FF86CB { height:105pt } .s2BBD305F { height:60pt } .s42928CAE { height:90pt } .s5EB4F24 { height:75pt } .sDA3DF2D2 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top } .sC61DB6F0 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top } .s5CCE9C3F { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:top } Published on 14 June 2021   SECOND SECTION Application no. 3038/18 Cevdet BALIKÇI against Turkey and 103 other applications (see list appended) communicated on 25 May 2021 SUBJECT MATTER OF THE CASE The applications mainly concern the applicants’ arrest and pre-trial detention, on suspicion of membership of FETÖ/PDY (Fetullahist Terrorist Organisation / Parallel State Structure), in the aftermath of the attempted coup d’état which took place on 15 July 2016. The applicants complain of a violation of Article   5 of the Convention on the basis of the following allegations (see the appended table for detailed information as to the specific complaints raised by each applicant): - They were detained in the absence of any suspicion that they committed an offence; - There were no relevant and sufficient reasons to justify their initial and/or continued pre-trial detention; - The length of their pre-trial detention was excessive; - The reviews of detention took place without a hearing and they were not notified of the opinion of the public prosecutor on those reviews; - Their access to the investigation files was restricted; - The objections to their detention or their requests for release were not examined or examined belatedly; - The decisions extending their pre-trial detention were not notified to them, or were notified with a delay, which prevented them from appealing against those decisions; - They did not benefit from effective legal assistance and facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers was monitored by the prison authorities; - The time taken by the Constitutional Court to conduct its examination on their individual applications was excessive. QUESTIONS TO THE PARTIES On the basis of the complaints communicated in accordance with the list in the Appendix   1.     Can the applicants be considered to have been detained on the basis of “a reasonable suspicion” that they had committed an offence (see, in particular, Fox, Campbell and Hartley v. the United Kingdom , 30   August 1990, § 32, Series A No. 182), taking into account, in particular, Article   100 of the Code of Criminal Procedure, which requires “concrete evidence demonstrating the existence of strong suspicions” as to the commission of the offence? Moreover, has the Constitutional Court based the existence of reasonable suspicion on evidence discovered after the decisions had been taken to detain the applicants?   2.     (a)     Did the applicants exhaust the remedies available in domestic law in relation to their complaints under Article 5 § 3 of the Convention? To the extent that the applicants’ complaints did not relate solely to the length of their pre-trial detention but also concerned the alleged failure of the domestic courts to provide relevant and   sufficient   reasons to justify their initial and continued pre-trial detention, can a compensation claim under Article   141 §   1(d) of the Code of Criminal Procedure be regarded as an effective remedy in respect of those complaints (see Selahattin Demirtaş v.   Turkey (no.   2) [GC], no. 14305/17, § 213, 22 December 2020)? The Government are invited to provide sample decisions to demonstrate whether the remedy under Article 141 § 1(d) of the Code of Criminal Procedure has been interpreted and applied by the national courts in a manner that extends to complaints concerning the lack of relevant and sufficient reasons to justify pre-trial detention.   (b)     Was the applicants’ pre-trial detention compatible with the requirements of Article   5   §   3 of the Convention? In particular: (i)     Did the judges, who ordered the applicants’ initial pre-trial detention and the prolongation of their detention, and who examined the objections lodged against those decisions, fulfil their obligation to provide relevant and sufficient grounds for the deprivation of liberty in question (see, in particular, Buzadji v. the Republic of Moldova [GC], no.   23755/07, §   102, ECHR 2016 (extracts))? (ii)     Was the length of the applicants’ pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?   3.     Did the applicants have at their disposal an effective remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article   5 §   4 of the Convention? In particular, the Government are invited to respond to the following complaints made by the applicants:   (i)     the principle of equality of arms had not been respected, as the decisions to extend their detention and their objections to those decisions had been examined without a hearing and the prosecutors’ opinions had not been communicated to them; (ii)     they had been unable to challenge their detention in an effective manner because of the restriction imposed on their access to the investigation file; (iii)     their objections to their detention had not been examined or had been examined belatedly; (iv)     the decisions to extend their detention had not been notified to them or had been notified with a delay, which had prevented them from lodging objections against those decisions; (v)     they had had no effective legal assistance or facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers had been monitored; (vi)     the time taken by the Constitutional Court to examine their individual applications had been protracted.   4.     Did the compensation remedy provided under Article   141 of the Code of Criminal Procedure constitute an effective remedy, within the meaning of Article   5 §   4 of the Convention, in respect of complaints concerning (i) the lack of an oral hearing during the review of detention; (ii)   the non ‑ notification or belated notification of the detention decision; and (iii)   the lack of or delay in the examination of the objection against detention by the magistrates’ courts? The Government are invited to provide sample domestic court decisions in support of their reply. APPENDIX   No. Application No. Case Title Date of Intro Complaints 1 3038/18 Balıkçı v. Turkey 04/01/2018 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 2 41340/18 Kılıçalp v. Turkey 10/08/2018 Lack of reasonable suspicion 3 41513/18 Yontar v. Turkey 17/08/2018 Lack of reasonable suspicion 4 41571/18 Küçük v. Turkey 02/08/2018 Length of pre-trial detention Lack of reasonable suspicion 5 48214/18 Üzümcü v. Turkey 02/10/2018 Length of pre-trial detention Delay in examination by the Constitutional Court Failure/Delay in examining requests for enlargement/objection Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 6 49835/18 Akbulut v. Turkey 11/10/2018 Lack of relevant and sufficient reasons for detention Failure/Delay to communicate decisions relating to detention Lack of reasonable suspicion 7 49861/18 Alkan v. Turkey 12/10/2018 Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 8 52160/18 Şimşek v. Turkey 22/10/2018 Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 9 53261/18 Kemer v. Turkey 09/11/2018 Lack of reasonable suspicion 10 53385/18 Körsulu v. Turkey 08/11/2018 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 11 53933/18 Kalpaklı v. Turkey 22/10/2018 Lack of reasonable suspicion 12 56280/18 Temiz v. Turkey 21/11/2018 Lack of hearing during the detention review Lack of reasonable suspicion 13 5498/19 Ekinci v. Turkey 09/01/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 14 6468/19 Özduran v. Turkey 16/01/2019 Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 15 6588/19 Kılıç v. Turkey 23/01/2019 Lack of reasonable suspicion 16 6597/19 Tiryaki v. Turkey 17/01/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of reasonable suspicion 17 6676/19 Memiş v. Turkey 15/01/2019 Lack of reasonable suspicion 18 6755/19 Yılmaz v. Turkey 18/01/2019 Lack of reasonable suspicion 19 6903/19 Önel v. Turkey 16/01/2019 Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 20 6932/19 Gülgen v. Turkey 18/01/2019 Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion 21 6940/19 Saygılı v. Turkey 24/01/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 22 6979/19 Akgül v. Turkey 17/01/2019 Failure/Delay in examining requests for enlargement/objection Lack of reasonable suspicion 23 7100/19 Yıldız v. Turkey 24/01/2019 Lack of reasonable suspicion 24 7107/19 Güçlü v. Turkey 30/01/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 25 7134/19 Asri v. Turkey 23/01/2019 Lack of reasonable suspicion 26 7246/19 Arslan v. Turkey 29/01/2019 Lack of reasonable suspicion 27 7251/19 Öz v. Turkey 29/01/2019 Lack of hearing during the detention review Restriction of access to the investigation file 28 7254/19 Özcel v. Turkey 29/01/2019 Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 29 7269/19 Ejder v. Turkey 24/01/2019 Delay in examination by the Constitutional Court Lack of reasonable suspicion Lack of reasonable suspicion 30 7279/19 Koyuncuoğlu v. Turkey 24/01/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 31 7281/19 Uysal v. Turkey 23/01/2019 Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 32 7289/19 Beşik v. Turkey 22/01/2019 Delay in examination by the Constitutional Court Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 33 7294/19 Işık v. Turkey 26/01/2018 Lack of reasonable suspicion 34 7302/19 Türkmen v. Turkey 23/01/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 35 7352/19 Büyükkalaycı v. Turkey 21/01/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 36 7404/19 Doğan v. Turkey 25/01/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 37 7410/19 Tekerek v. Turkey 25/01/2019 Lack of reasonable suspicion 38 7442/19 Kuş v. Turkey 22/01/2019 Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Failure to communicate the prosecutor’s opinion Failure/Delay to communicate decisions relating to detention Lack of reasonable suspicion 39 7480/19 Toprak v. Turkey 15/01/2019 Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 40 7511/19 Şimşek v. Turkey 23/01/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 41 7531/19 Arduç v. Turkey 30/01/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 42 7570/19 Eser v. Turkey 09/01/2019 Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 43 7824/19 Düzgün v. Turkey 28/01/2019 Lack of reasonable suspicion 44 7996/19 Kaya v. Turkey 24/01/2019 Lack of reasonable suspicion 45 8354/19 Şimşek v. Turkey 23/01/2019 Length of pre-trial detention Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 46 8413/19 Atalay v. Turkey 30/01/2019 Lack of reasonable suspicion 47 8720/19 Sekmen v. Turkey 22/01/2019 Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Failure to communicate the prosecutor’s opinion Lack of reasonable suspicion 48 8990/19 Bali v. Turkey 30/01/2019 Lack of reasonable suspicion 49 9121/19 Asri v. Turkey 11/02/2019 Lack of reasonable suspicion 50 9127/19 Karabacak v. Turkey 07/02/2019 Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 51 9195/19 Kököz v. Turkey 22/01/2019 Lack of reasonable suspicion 52 9222/19 Cankurtaran v. Turkey 06/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 53 9226/19 Şen v. Turkey 08/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 54 9232/19 Demir v. Turkey 01/02/2019 Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 55 9243/19 Sertçelik v. Turkey 16/01/2019 Lack of reasonable suspicion 56 9324/19 Bartan v. Turkey 29/01/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 57 9332/19 Şenyayla v. Turkey 06/02/2019 Lack of reasonable suspicion 58 9355/19 Barin v. Turkey 07/02/2019 Length of pre-trial detention Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion 59 9360/19 Çetin v. Turkey 07/02/2019 Lack of reasonable suspicion 60 9380/19 Irk v. Turkey 25/01/2019 Delay in examination by the Constitutional Court Lack of reasonable suspicion 61 9394/19 Duman v. Turkey 05/02/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 62 9397/19 Köse v. Turkey 04/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 63 9426/19 Büberci v. Turkey 15/01/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 64 9433/19 Uzun v. Turkey 31/01/2019 Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 65 9442/19 Erdal v. Turkey 31/01/2019 Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 66 9443/19 Müdürhanoğlu v. Turkey 08/02/2019 Lack of reasonable suspicion 67 9444/19 Şahin v. Turkey 31/01/2019 Delay in examination by the Constitutional Court Lack of reasonable suspicion 68 9445/19 Zengin v. Turkey 08/02/2019 Length of pre-trial detention Lack of reasonable suspicion 69 9446/19 Guneş v. Turkey 09/02/2019 Lack of reasonable suspicion 70 9452/19 Uzay v. Turkey 31/01/2019 Lack of reasonable suspicion 71 9462/19 Öz v. Turkey 15/01/2019 Lack of reasonable suspicion 72 9463/19 Barutcu v. Turkey 08/02/2019 Restriction of access to the investigation file Lack of reasonable suspicion 73 9466/19 Usta v. Turkey 04/01/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 74 9471/19 Örs v. Turkey 07/02/2019 Delay in examination by the Constitutional Court Restriction of access to the investigation file Lack of reasonable suspicion 75 9493/19 Tekin v. Turkey 06/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 76 9539/19 Çoban v. Turkey 31/01/2019 Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 77 9682/19 Tokuş v. Turkey 08/02/2019 Lack of reasonable suspicion Length of pre-trial detention Lack of relevant and sufficient reasons for detention 78 9704/19 Gerez v. Turkey 06/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 79 9751/19 Kandaz v. Turkey 05/02/2019 Lack of reasonable suspicion 80 9810/19 Küçük v. Turkey 28/01/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 81 9815/19 Güneş v. Turkey 05/02/2019 Lack of reasonable suspicion 82 9818/19 Sağdıç v. Turkey 04/02/2019 Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 83 9981/19 Yıldırım v. Turkey 05/02/2019 Restriction of access to the investigation file Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion 84 10066/19 Yiğit v. Turkey 30/01/2019 Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 85 10173/19 Taşkın v. Turkey 07/02/2019 Lack of reasonable suspicion 86 10535/19 Yaslan v. Turkey 22/01/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 87 10593/19 Topal v. Turkey 19/02/2019 Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 88 10599/19 Özer v. Turkey 11/02/2019 Lack of reasonable suspicion 89 10619/19 Asan v. Turkey 11/02/2019 Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 90 10911/19 Yücel v. Turkey 13/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 91 10914/19 Pazar v. Turkey 13/02/2019 Lack of reasonable suspicion 92 10917/19 Şahin v. Turkey 14/02/2019 Lack of reasonable suspicion 93 10937/19 Varolu v. Turkey 19/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 94 10954/19 Erdin v. Turkey 07/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 95 10977/19 Öztaş v. Turkey 13/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 96 10981/19 Aygün v. Turkey 14/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 97 10985/19 Yarıkan v. Turkey 19/02/2019 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 98 11075/19 Varsın v. Turkey 19/02/2019 Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 99 11082/19 Bağcı v. Turkey 18/02/2019 Lack of reasonable suspicion 100 11281/19 Akman v. Turkey 12/02/2019 Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 101 11313/19 Gürbüz v. Turkey 20/02/2019 Lack of reasonable suspicion 102 11333/19 Hazin v. Turkey 11/02/2019 Lack of reasonable suspicion 103 22762/19 Kaya v. Turkey 10/04/2019 Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion 104 36350/19 Altıparmak v. Turkey 01/07/2019 Lack of reasonable suspicion