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SECOND SECTION

CASE OF MORAL AND OTHERS v. TÃœRKÄ°YE

(Applications nos. 49867/17 and 31 others)

JUDGMENT

STRASBOURG

18 October 2022

This judgment is final but it may be subject to editorial revision.

In the case of Moral and Others v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Branko Lubarda , President,

Jovan Ilievski ,

Diana Sârcu , 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 thirty-two Turkish nationals, whose relevant details are listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints 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, as well as the ineffectiveness of judicial review of the lawfulness of detention and the absence of a remedy to obtain compensation 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 27 September 2022,

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 July2016, 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, except for the applicants in applications nos. 17209/19 and 28696/19, were serving as ordinary judges or prosecutors at different types and/or levels of court at the material time. The remaining two applicants in question had already been dismissed from judicial office at the time of their arrest and pre-trial detention.

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. Subsequently, on various dates, the High Council of Judges and Prosecutors ( Hakimler ve Savcılar Yüksek Kurulu – “the HSYK”) decided to suspend thousands of judges and prosecutors – including some of the applicants – from their duties, on the grounds that there was strong suspicion that they were members of the terrorist organisation that had instigated the attempted coup (further details regarding the relevant HSYK decision may be found in Baş , ibid., §§ 15-21, and Turan and Others v. Turkey , nos. 75805/16 and 426 others, §§ 13-15, 23 November 2021). In the HSYK’s suspension decision dated 16 July 2016, reference was made to disciplinary proceedings initiated, amongst other persons, against one of the applicants (namely, the applicant in application no. 61373/17) in 2015 on account of his failure to take up duties allegedly for health reasons following an order for his reassignment, which the HSYK considered to be an organisational activity in protest of the reassignments.

3. 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 Baş , cited above, § 58). The detention orders relied principally on the fact that the applicants had been suspended from their duties as judges or prosecutors, or their authorities revoked, on grounds of their membership of the organisation that had instigated the attempted coup . In respect of some applicants, the use of the ByLock messaging system was relied on as evidence. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed an offence, were dismissed, including by the Constitutional Court (compare, mutatis mutandis , Turan and Others , cited above, §§ 22-27).

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.

THE COURT’S ASSESSMENT

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

6. 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.

7. 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 Code of Criminal Procedure, as well as the applicants who had received some compensation and whose compensation claims were still pending. They further asked the Court to declare the applications inadmissible for abuse of the right of application to the extent that the applicants had not informed the Court of the developments in their cases following the lodging of their applications.

8. The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, Baş , cited above, §§ 118-121, and Turan and Others , cited above, §§ 57-64), and sees no reason to depart from those findings in the present case. The Court therefore considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9. The Court notes that the applicants’ initial pre-trial detention was based solely on the decisions taken by the HSYK for their suspension from office, and/or on information indicating their use of the ByLock messaging system. The Court has already found that neither of these grounds relied on by the domestic courts in ordering the applicants’ pre-trial detention was of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to them (compare Baş , cited above, §§ 170-195, and Akgün v. Turkey , no. 19699/18, §§ 151-185, 20 July 2021, respectively). Moreover, as regards the disciplinary investigation in respect of the applicant mentioned in the HSYK decision (see paragraph 2 above), the Government have not provided arguments to support the conclusion that the act underlying the investigation in question could as such suggest membership of FETÖ/PDY and that it could have thereby formed the basis for the suspicion giving rise to the order for the relevant applicant’s detention (compare, mutatis mutandis , Baş , cited above, § 188).

10. In the absence of any other information or evidence available at the time of the applicants’ initial pre-trial detention that would satisfy an objective observer that they may have committed the offence attributed to them, the Court sees no reason to depart from its findings in the aforementioned cases and finds that there has been a violation of Article 5 § 1. The Court 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, §§ 115-116 and §§ 196-201).

11. As regards any remaining complaints under Article 5 §§ 1, 2, 3, 4 and 5, 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

12. The applicants requested compensation in varying amounts in respect of non ‑ pecuniary damage. Most of the applicants 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.

13. The Government contested the applicants’ claims as being unsubstantiated and excessive.

14. 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 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,

(a) that the respondent State is to pay each of the applicants, 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;

Done in English, and notified in writing on 18 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Dorothee von Arnim Branko Lubarda Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Date of Birth

Represented by

Applicant’s status at the time of pre-trial detention

Evidence relied on at the time of initial pre-trial detention

1.

49867/17

Moral v. Türkiye

28/04/2017

Nurullah MORAL 09/03/1990

Ordinary judge or public prosecutor

ByLock messaging system

HSYK decision

2.

61373/17

Duran v. Türkiye

19/04/2017

Bekir DURAN 23/02/1972

Ä°hsan MAKAS

Ordinary judge or public prosecutor

HSYK decision

3.

21859/18

Şahin v. Türkiye

17/04/2018

Mesut ÅžAHÄ°N 06/10/1972

Hakan ÇELİKKESER

Ordinary judge or public prosecutor

HSYK decision

4.

3933/19

Önay v. Türkiye

04/12/2018

Adem ÖNAY 20/02/1973

Muhammet GÃœNEY

Ordinary judge or public prosecutor

HSYK decision

5.

9498/19

Fırat v. Türkiye

07/02/2019

Ercan FIRAT 04/01/1973

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

HSYK decision

6.

11767/19

Z.E. v. Türkiye

21/02/2019

Z.E. 21/05/1974

Ebubekir RENK

Ordinary judge or public prosecutor

HSYK decision

7.

15183/19

Çifçi v. Türkiye

28/02/2019

Alim ÇİFÇİ 17/02/1990

Hilal YILDIZ ÇİFÇİ

Ordinary judge or public prosecutor

HSYK decision

8.

15900/19

Kara v. Türkiye

11/03/2019

Hatice KARA 05/01/1968

Ahmet KARA

Ordinary judge or public prosecutor

HSYK decision

9.

16418/19

Acar v. Türkiye

01/03/2019

NeÅŸe ACAR 04/01/1983

Karar Koray ATAK

Ordinary judge or public prosecutor

HSYK decision

10.

17209/19

Balkan v. Türkiye

05/03/2019

Servet BALKAN

15/11/1990

Mehmet Fatih İÇER

Former judge

HSYK decision

11.

17330/19

Turan v. Türkiye

25/03/2019

Nusret TURAN 18/03/1985

Hanifi BAYRI

Ordinary judge or public prosecutor

ByLock messaging system

HSYK decision

12.

17479/19

Üre v. Türkiye

26/03/2019

Mehmet ÃœRE 15/12/1987

Hanifi BAYRI

Ordinary judge or public prosecutor

HSYK decision

13.

18428/19

Yakar v. Türkiye

14/03/2019

Ahmet Gazi YAKAR 18/12/1980

Arif Nazif AYDIN

Ordinary judge or public prosecutor

HSYK decision

14.

18777/19

Doğanay v. Türkiye

20/03/2019

Aykut DOÄžANAY 20/07/1987

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

HSYK decision

15.

19105/19

Çelebi v. Türkiye

21/03/2019

Mehmet ÇELEBİ 01/03/1972

Tarık Said GÜLDİBİ

Ordinary judge or public prosecutor

HSYK decision

16.

20084/19

İkibaş v. Türkiye

25/03/2019

Türker İKİBAŞ 01/12/1974

Ayça Beyza İKİBAŞ

Ordinary judge or public prosecutor

HSYK decision

17.

20713/19

Çınar v. Türkiye

02/04/2019

İbrahim ÇINAR 05/03/1970

Mehmet ÖNCÜ

Ordinary judge or public prosecutor

HSYK decision

18.

21193/19

Şahin v. Türkiye

12/04/2019

Hasan ÅžAHÄ°N 01/06/1973

Hilal YILMAZ PUSAT

Ordinary judge or public prosecutor

HSYK decision

19.

21948/19

Bayar v. Türkiye

03/04/2019

Bayram BAYAR 20/11/1975

Özcan AKINCI

Ordinary judge or public prosecutor

HSYK decision

20.

22682/19

Çakmak v. Türkiye

11/04/2019

Mehmet ÇAKMAK 18/03/1978

Ömer Faruk ERGÜN

Ordinary judge or public prosecutor

HSYK decision

21.

22727/19

Kalkan v. Türkiye

19/04/2019

Nurullah KALKAN 10/06/1982

Ayşe Sümeyye BEKLEYEN

Ordinary judge or public prosecutor

HSYK decision

22.

24620/19

Öcal v. Türkiye

24/04/2019

Ceyhun ÖCAL 25/05/1984

Oktay AYDOÄžDU

Ordinary judge or public prosecutor

HSYK decision

23.

24753/19

Güngör v. Türkiye

29/04/2019

Orhan GÜNGÖR 03/06/1971

Muhammet GÃœNEY

Ordinary judge or public prosecutor

HSYK decision

24.

25250/19

Say v. Türkiye

06/05/2019

Kadir SAY 07/08/1980

Muhammet GÃœNEY

Ordinary judge or public prosecutor

HSYK decision

25.

28696/19

Kiziroğlu v. Türkiye

03/05/2019

Akif KÄ°ZÄ°ROÄžLU

15/08/1980

Former judge

ByLock messaging system

26.

29315/19

Yoncalık v. Türkiye

10/05/2019

Feyyaz YONCALIK 05/04/1975

Tarık Said GÜLDİBİ

Ordinary judge or public prosecutor

HSYK decision

27.

32274/19

Türkel v. Türkiye

28/05/2019

Adem TÃœRKEL 10/02/1976

Tarık Said GÜLDİBİ

Ordinary judge or public prosecutor

HSYK decision

28.

35475/19

Çolak v. Türkiye

17/06/2019

Mustafa Kamil ÇOLAK 06/04/1980

Ordinary judge or public prosecutor

HSYK decision

29.

36545/19

Güney v. Türkiye

17/06/2019

Kenan GÃœNEY 01/01/1973

Muhammet GÃœNEY

Ordinary judge or public prosecutor

HSYK decision

30.

40854/19

Duran v. Türkiye

22/07/2019

Mustafa DURAN 10/04/1970

Hakan Gökay SARIOĞLU

Ordinary judge or public prosecutor

HSYK decision

31.

41022/19

Varol v. Türkiye

29/07/2019

Levent VAROL 24/06/1981

Clemens LAHNER

Ordinary judge or public prosecutor

HSYK decision

32.

41361/19

Güzeltaş v. Türkiye

26/07/2019

Gülşah GÜZELTAŞ 16/04/1982

Ordinary judge or public prosecutor

HSYK decision

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CASE OF MORAL AND OTHERS v. TÜRKİYE

CASE OF MORAL AND OTHERS v. TÜRKİYE

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