CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 mars 2024

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sADADF4A7 { font-family:Arial; text-decoration:underline } Published on 15 April 2024   SECOND SECTION Application no. 43726/22 Yücel DEMİRER against Türkiye lodged on 26 August 2022 communicated on 25 March 2024 SUBJECT MATTER OF THE CASE The applicant, an academic at Kocaeli University, was among the signatories of a petition, entitled Academics for Peace , which was published in January 2016 and in which the Turkish government’s actions in south ‑ eastern Turkey were criticised. In the course of a criminal investigation initiated regarding the said petition, the applicant was arrested and taken into police custody on 15   January 2016 at 07.15 a.m. He indicates that he was released on the same day after being questioned by the prosecutor. At the end of the criminal proceedings conducted against the applicant on charges of disseminating propaganda in favour of a terrorist organisation, he was acquitted on 16   September 2019. The Istanbul 34 th Assize Court concluded that the applicant’s acts fell within the scope of freedom of expression by referring to the judgment of the Constitutional Court in Füsun Üstel and others (no.   2018/17635). Following his acquittal, the applicant filed an action before the Istanbul 10 th   Anadolu Assize Court and claimed compensation under Article   141 of the Code of Criminal Procedure (“CCP”) for his unlawful arrest and police custody. On 17 June 2020 the Istanbul 10 th Anadolu Assize Court partly accepted his claims and granted him 50   Turkish liras (TRY) (approximately 6,5   euros) for non-pecuniary damage under Article 141 § 1 (e) of the   CCP. Upon his appeal, the İstanbul Regional Appeal Court increased the amount of compensation to TRY   100 (approximately 11,5 euros). On 15 April 2021, the applicant lodged an individual application with the Constitutional Court alleging a violation of his right to liberty and security and his right to freedom of expression. On 25 April 2022 the Constitutional Court, sitting as a panel of two judges, examined the applicant’s complaints under the right to liberty and security. In its decision, the Constitutional Court found the application inadmissible for non-exhaustion of domestic remedies by referring to its judgment in A.A. [GK] (no. 2017/34502). The Constitutional Court considered that the applicant had failed to exhaust the domestic remedy available under Article 141 § 1 (a) of the CCP. The Constitutional Court did not examine the applicant’s complaints concerning a violation of his right to freedom of expression. The applicant complains under Article 5 § 1 of the Convention that his placement in custody was unlawful. Relying on Articles 5 § 5 and 13 of the Convention, the applicant complains that the negligible amount of the compensation awarded in the domestic proceedings constituted a breach of his right to enforceable compensation for unlawful arrest and police custody. Invoking Article 6 § 1 of the Convention, he further complains that the Constitutional Court was not impartial because one of the judges sitting in the panel which decided on his individual application was serving as Istanbul Chief Public Prosecutor at the time when the indictment in the criminal proceedings against him was issued. He also complains under Article 10 of the Convention that his placement in police custody amounted to an unlawful interference with his right to freedom of expression. QUESTIONS TO THE PARTIES 1.     Was the applicant deprived of his liberty in breach of Article   5 §   1 of the Convention? In particular, at the time of his arrest and remand in police custody was there a reasonable suspicion of him having committed an offence, as required by sub-paragraph (c) of that Article ( Mergen and Others v. Turkey , nos. 44062/09 and 4 others, §§ 46-55, 31 May 2016, and Yüksel and Others v. Turkey , nos. 55835/09 and 2 others, §§   51-60, 31   May 2016)?   2.     Did the applicant have an enforceable right to compensation for his unlawful arrest and police custody, as required by Article 5 § 5 of the Convention? In particular, was the amount of the compensation awarded by the domestic courts sufficient to consider that the right in question was practical and effective ( Abdullah Kılıç v. Türkiye , no.   43979/17, §§   120-123, 31 January 2023)?   3.     Having regard to the participation of a judge who was Istanbul Chief Public Prosecutor at the time of the events, in the proceedings before the Constitutional Court, was the panel which examined the applicant’s individual application an “impartial tribunal” within the meaning of Article   6 §   1 of the Convention (see, inter alia , Morice v.   France [GC], no.   29369/10, §§   73-78, ECHR 2015)?   4.     Was there an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention, due to his placement in police custody and the criminal proceedings against him ( Dilipak v.   Turkey , no. 29680/05, §§ 44-47; 15 September 2015; Döner and others v.   Turkey , 29994/02, §§ 85-88, 7 March 2017; Ali Gürbüz v.   Turkey, no.   52497/08 and 6 others, §§ 59-69, 12 March 2019; Kaboğlu and Oran v.   Turkey (no. 2) , no. 36944/07, §§ 105-116, 20 October 2020)   ?   If so, was this interference provided for by law and necessary, within the meaning of Article 10 § 2 (see Faruk Temel v. Turkey , no.   16853/05, §§   53-57, 1 February 2011 and Belge v. Turkey, no. 50171/09, §§   28, 31, 34 and 35, 6 December 2016)?   In particular, having regard to the content of the petition co-signed by the applicant, the context in which this petition was published, its capacity to cause harm, and the circumstances of the case, have the national courts carried out in their decisions a sufficient examination and adequate balancing between the interests at stake with regard to the criteria set out and implemented by it in cases relating to freedom of expression ( Gözel and Özer v.   Turkey , nos. 43453/04 and 31098/05, § 51, 6 July 2010, and Mart and   Others v.   Turkey , no. 57031/10, §§ 27 and 32, 19 March 2019)?   The Government are requested to submit all documents relating to the applicant’s arrest, detention in police custody and release.