ÇİÇEKÇİ AND OTHERS v. TURKEY
Doc ref: 24011/12, 54594/12, 55669/12, 46515/13, 46516/13, 46517/13, 46518/13, 46520/13, 46521/13, 46523/13, ... • ECHR ID: 001-198754
Document date: October 22, 2019
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SECOND SECTION
DECISION
Application no. 24011/12 Ziya ÇİÇEKÇİ against Turkey and 32 other applications (see list appended)
The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Committee composed of:
Julia Laffranque, President, Ivana Jelić, Arnfinn Bårdsen, judges, and Hasan Bakırcı, Deputy Section Registrar ,
Having regard to the above applications lodged on 29 March 2012 ,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1 . The applicants are Turkish nationals. They are represented before the Court by Mr Ö. Kılıç, Ms A.D. Ta ş demir, Mr V. Ok and Mr O. Y ı ld ı z, lawyers practising in Istanbul. A list of the applicants is set out in the appendix.
2 . The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3 . The facts of the case, as submitted by the parties, may be summarised as follows.
4 . On 20 December 2011 a judge at the Ninth Division of the Istanbul Assize Court ordered that the applicants and the other suspects be prevented from having access to their legal representatives for twenty-four hours and that the latter be denied access to the investigation file to ensure proper conduct of the investigation.
5 . On 20 and 21 December 2011 the applicants, except Turabi Kışın, were arrested on suspicion of membership of a terrorist organisation.
6 . On 22 December 2011 three lawyers lodged petitions with the Ninth Division of the Istanbul Assize Court on behalf of four of the applicants, requesting, inter alia , access to the investigation file. On 23 December 2011 the Ninth Division of the Istanbul Assize Court dismissed those requests.
7 . On 23 December 2011 the applicants were brought before the Istanbul public prosecutor who asked them detailed questions about each items of evidence contained in the case file, including but not limited to the records pertaining to the interception of their telephone conversations and the statements of witnesses. In their statements to the public prosecutor, the applicants, assisted by their lawyers, denied the veracity of the charges against them. They contended that they had not carried out any illegal activity.
8 . On 24 December 2011 the applicants were questioned at the Istanbul Assize Court, who ordered that they be held on remand. They all denied the charges against them before the judges.
9 . On 28 and 29 December 2011 the applicants ’ lawyers filed petitions with the Istanbul Assize Court on behalf of the applicants, except Turabi Kışın, Ömer Çelik and Zeyneb Ceren Kuray. In their petitions, the lawyers objected to the decision of 24 December 2011 to hold the applicants pending trial. On 2 January 2012 the Istanbul Assize Court dismissed the applicants ’ objections.
10 . On 30 December 2011 Turabi Kışın was also arrested on suspicion of membership of a terrorist organisation. On 2 January 2012, the Istanbul Assize Court ordered that he be held on remand.
11 . On 27 April 2012 the Istanbul public prosecutor filed a bill of indictment against forty-four persons, including the applicants for charges related to terrorism.
12 . On various dates between 16 November 2012 and 12 May 2014 the applicants were released pending trial.
13 . According to the information in the case file, the criminal proceedings against the applicants are currently pending before the domestic courts.
COMPLAINTS
14 . The applicants complain under Article 5 § 1 of the Convention that they were deprived of their liberty in the absence of any tangible evidence and reasonable grounds for suspicion that they had been involved in illegal activities.
15 . The applicants complain under Article 5 §§ 2 and 4 and Article 13 of the Convention that the decision rendered upon their objections to detain them was rendered in the absence of adversarial proceedings and without a hearing. They submit that they were unable effectively to challenge the detention order as they were denied access to the investigation file. For the same reason, they claim also that they were not informed of the reasons for their arrest and detention.
16 . The applicants complain under Article 5 § 3 of the Convention that the length of their detention was excessive.
17 . The applicants complain under Article 10 of the Convention that they were deprived of their liberty and charged with membership of a terrorist organisation on the basis of their journalistic activities. Moreover, they complain under Article 13 of the Convention, in conjunction with Article 10 of the Convention, that the remedies provided for in domestic law were not effective.
18 . Lastly, the applicants complain under Article 1 of Protocol No. 1 to the Convention that they were deprived of their income and sustained pecuniary damage as a result of the events giving rise to the present application.
THE LAW
19 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
20 . Under Article 5 §§ 2 and 4 and Article 13 of the Convention, the applicants complained that on account of the restriction placed on their access to the investigation file, they had not been able to challenge the evidence which had been the grounds for the decision to detain them on remand. They also complain about not being able to appear before the court when their petitions were reviewed.
21 . The Government contested these arguments.
22 . The Court, being master of the characterisation to be given in law to the facts of the case, finds it appropriate to examine these complaints under Article 5 § 4 of the Convention which read as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
23 . The Court observes that there is nothing in the case file to suggest that the applicants Turabi Kışın, Ömer Çelik and Zeyneb Ceren Kuray filed an objection against the decision to detain them pending trial. It follows that their complaint under Article 5 § 4 of the Convention is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
24 . The Court further notes that the other applicants were placed in pre ‑ trial detention on 24 December 2011. They subsequently filed an objection against this decision, which was eventually dismissed on 2 January 2012 by the Istanbul Assize Court, without holding an oral hearing. Nevertheless, the applicants had appeared before the trial court nine days before their objection was examined. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4 of the Convention (see Altınok v. Turkey, no. 31610/08, § 55, 29 November 2011, and Ceviz v. Turkey, no. 8140/08, § 49, 17 July 2012). As a result, the Court concludes that this part of the applications is manifestly ill ‑ founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
25 . As regards the complaint concerning the restriction of access to the investigation file, the Court observes that people who have been arrested or detained are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecut or and the detained person (see Ceviz , cited above, § 41).
26 . In the instant case, the Court notes that the applicants were placed in pre-trial detention mainly on the basis of the records regarding their intercepted telephone conversations and the statements of witnesses. On 20 December 2011 the judge at the Ninth Division of the Istanbul Assize Court decided to restrict access to the investigation file to ensure proper conduct of the investigation. However, on 23 and 24 December 2011, the applicants were questioned, in the presence of their lawyers, by both the public prosecutor and the judges. In this connection, first the public prosecutor and then the judges put detailed questions about all the evidences, including the above-mentioned items, to the applicants and the contents of the questions were reproduced in the relevant records. They were also informed about the charges of which they were suspected. The applicants gave statements and denied their involvement in terrorism.
27 . In the light of the foregoing, the Court considers that although the applicants did not have an unlimited right of access to the evidence, they had sufficient knowledge of the substance of the evidence forming the basis for their pre-trial detention and thus had the opportunity to properly contest the reasons given to justify the pre-trial detention (see Ceviz , cited above, §§ 41-44; Karaosmanoğlu and Özden , no. 4807/08, § 74, 17 June 2014; Ayboğa and Others v. Turkey , no. 35302/08, § 17, 21 June 2016; and Mehmet Hasan Altan v. Turkey , no. 13237/17 , §§ 149-150, 20 March 2018).
28 . The Court concludes that this part of the applications is manifestly ill ‑ founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
29 . Under Article 5 §§ 1 and 3 and Articles 3, 10 and 13 of the Convention and Article 1 of Protocol No. 1, t he applicants complain of their pre-trial detention.
30 . The Government maintained that the applicants had not exhausted domestic remedies, as they should have applied to the Constitutional Court.
31 . Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Uzun v. Turkey , (dec.), no. 10755/13, §§ 68-71, 30 April 2013).
32 . The Court further notes that the Constitutional Court ’ s jurisdiction ratione temporis had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had commenced before the introduction of the right of individual application and had carried on after that date.
33 . In the present case the applicants ’ pre-trial detention commenced on 24 December 2011 and 2 January 2012 and ended on various dates between 16 November 2012 and 12 May 2014 when they were released. Accordingly, the applicants ’ detention, including the period before 23 September 2012, fell within the Constitutional Court ’ s temporal jurisdiction (see Koçintar v. Turkey (dec.), no. 77429/12, §§ 15-26 and 39, 1 July 2014, and Levent Bektaş v. Turkey , no. 70026/10, §§ 40-42, 16 June 2015).
34 . As a result, taking into account the Government ’ s preliminary objection, the Court concludes that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 21 November 2019 .
Hasan Bakırcı Julia Laffranque Deputy Registrar President
Appendix
No.
Application no.
Applicant
Date of birth
Date of arrest
Date of detention on remand
Date of release pending trial
24011/12
Ziya ÇİÇEKÇİ
10/05/1974
20/12/2011
24/12/2011
08/02/2013
54594/12
Dilek DEMÄ°RAL
01/01/1977
20/12/2011
24/12/2011
03/03/2014
55669/12
Sibel GÃœLER
12/07/1977
20/12/2011
24/12/2011
03/03/2014
46515/13
Yüksel GENÇ
20/06/1973
20/12/2011
24/12/2011
12/05/2014
46516/13
Nurettin FIRAT
02/03/1982
20/12/2011
24/12/2011
12/05/2014
46517/13
Ramazan PEKGÖZ
30/05/1979
20/12/2011
24/12/2011
12/05/2014
46518/13
Turabi KİŞİN
12/09/1965
30/12/2011
02/01/2012
12/05/2014
46520/13
Nevin ERDEMÄ°R
10/12/1976
20/12/2011
24/12/2011
26/03/2014
46521/13
AyÅŸe OYMAN
05/07/1978
20/12/2011
24/12/2011
03/03/2014
46523/13
Zuhal TEKÄ°NER
09/09/1980
20/12/2011
24/12/2011
08/02/2013
46524/13
Fatma KOÇAK
01/01/1975
20/12/2011
24/12/2011
27/09/2013
46525/13
Kenan KIRKAYA
05/03/1979
20/12/2011
24/12/2011
26/03/2014
46526/13
ErtuÅŸ BOZKURT
04/03/1985
20/12/2011
24/12/2011
12/05/2014
46527/13
Mazlum ÖZDEMİR
10/03/1979
20/12/2011
24/12/2011
26/03/2014
46528/13
Semiha ALANKUÅž
01/01/1966
20/12/2011
24/12/2011
26/03/2014
46529/13
Nilgün YILDIZ
30/08/1986
21/12/2011
24/12/2011
06/12/2013
46530/13
Sad ı k TOPALOĞLU
09/04/1985
20/12/2011
24/12/2011
26/04/2013
46531/13
Ömer ÇELİK
25/10/1982
20/12/2011
24/12/2011
19/06/2013
46532/13
CaÄŸdaÅŸ KAPLAN
28/06/1986
20/12/2011
24/12/2011
08/02/2013
46534/13
Oktay CANDEMÄ°R
15/03/1976
20/12/2011
24/12/2011
16/11/2012
46535/13
Pervin YERLÄ°KAYA BABÄ°R
08/04/1982
20/12/2011
24/12/2011
08/02/2013
46536/13
Çiğdem ASLAN
20/03/1984
20/12/2011
24/12/2011
16/11/2012
46537/13
İrfan BİLGİÇ
16/03/1987
20/12/2011
24/12/2011
27/09/2013
46538/13
Haydar TEKÄ°N
23/06/1969
20/12/2011
24/12/2011
26/03/2014
46539/13
Ömer ÇİFTÇİ
18/09/1986
20/12/2011
24/12/2011
08/02/2013
46540/13
Selahattin ASLAN
10/01/1980
21/12/2011
24/12/2011
19/06/2013
46541/13
Safet ORMAN
01/08/1991
20/12/2011
24/12/2011
11/02/2013
46542/13
Mehmet Emin YILDIRIM
25/08/1973
21/12/2011
24/12/2011
26/03/2014
46543/13
Zeyneb Ceren KURAY
10/02/1978
20/12/2011
24/12/2011
26/04/2013
46544/13
Ä°smail YILDIZ
01/04/1981
20/12/2011
24/12/2011
08/02/2013
46545/13
Davut UÇAR
01/08/1971
20/12/2011
24/12/2011
12/05/2014
46546/13
Hüseyin DENİZ
08/08/1966
20/12/2011
24/12/2011
26/03/2014
46547/13
Nahide ERMÄ°Åž
12/04/1977
20/12/2011
24/12/2011
14/01/2014