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SECOND SECTION

CASE OF GELEÅž AND OTHERS v. TÃœRKÄ°YE

(Application no. 75881/16 and 69 others – see appended list)

JUDGMENT

STRASBOURG

6 September 2022

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

In the case of Geleş and Others v. Türkiye,

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

Pauliine Koskelo, President, Gilberto Felici, Saadet Yüksel, judges, and Hasan Bakırcı, 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 seventy 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 applications 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;

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 28 June 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 July 2016, on suspicion of their membership of an organisation described by the Turkish authorities as the “ Fetullahist Terrorist 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 BaÅŸ v. Turkey , no. 66448/17, §§ 7 ‑ 14 and §§ 109-110, 3 March 2020). All of the applicants were serving as ordinary judges or prosecutors at different types and/or levels of court, subject to Law no. 2802 on judges and prosecutors (“Law no. 2802”) (see BaÅŸ , cited above, §§ 66-67), at the material time.

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, in accordance with the provisions of the ordinary law, on the ground that there had been a case of discovery in flagrante delicto falling within the jurisdiction of the assize courts (further information regarding the orders issued by the chief public prosecutor’s office within the context of that investigation, as well as the ensuing suspensions and dismissals of judges and prosecutors suspected of being members of FETÖ/PDY, may be found in Baş , cited above, §§ 9-10 and 15-21).

3. Following their arrest and detention in police custody on the orders of the regional and provincial prosecutors’ offices, the applicants were placed in pre-trial detention on various dates, mainly on suspicion of membership of the FETÖ/PDY organisation, an offence punishable under Article 314 of the Criminal Code ( see Baş , cited above, § 58 ). The pre-trial detention decisions were issued by the magistrates’ courts located at the respective places of the applicants’ arrest. In the majority of the decisions, it was noted specifically that the criminal investigation was governed by the ordinary rules, given that the offence of which the suspects were accused, namely membership of an armed terrorist organisation, was a “continuing offence” and that there was a case of discovery in flagrante delicto governed by the relevant provisions of domestic law (see Baş , cited above, § 67).

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.

5. In the meantime, the applicants lodged individual applications with the Constitutional Court in respect of, inter alia , the alleged violation of their right to liberty and security on various accounts, including the alleged unlawfulness of their detention by reason of the disregard of the procedural safeguards afforded to members of the judiciary in domestic law, all of which were declared inadmissible (see Turan and Others v. Turkey , nos. 75805/16 and 426 others, §§ 26-27, 23 November 2021).

THE COURT’S ASSESSMENT

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

7. The applicants complained that they had been placed in pre-trial detention in breach of the domestic laws governing the arrest and pre-trial detention of the members of the judiciary and disputed that there had been a case of discovery in flagrante delicto for the purposes of section 94 of Law no. 2802.

8. The Government invited the Court to declare this complaint inadmissible for the reasons that they had raised in the case of Turan and Others (cited above, § 55). The Court notes that the Government’s objections have already been dismissed in the case of 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, insofar as it concerns all applications except for applications nos. 51506/19 and 51588/19, 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 further considers, having regard to its findings in the cases of Baş and Turan and Others (both cited above, §§ 143-158 and §§ 79-92, respectively), that the pre-trial detention of the applicants had not taken place in accordance with a procedure prescribed by law within the meaning of Article 5 § 1 of the Convention and that, therefore, there has been a violation of Article 5 § 1 on account of the unlawfulness of the initial pre-trial detention of the applicants in question. Moreover, 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 (see Baş , cited above, §§ 115-116 and §§ 159-162, and Turan and Others , cited above, § 91).

10. The Court notes that the applicants who have lodged applications nos. 51506/19 and 51588/19, namely Mr ÅžimÅŸek and Mr Yorulmaz, respectively (noted as the 69th and the 70th applicants in the appended list), are the same individuals who have lodged applications nos. 51526/17 and 20018/18, respectively (noted as the 24th and the 64th applicants in the appended list).

11. Having regard to the finding of a violation of Article 5 § 1 above in respect of the complaint brought by Mr Şimsek and Mr Yorulmaz regarding the unlawfulness of their pre-trial detention within the scope of applications nos. 51526/17 and 20018/18 (see paragraph 9 above), the Court considers the same complaint introduced by those two applicants under applications nos. 51506/19 and 51588/19 to be inadmissible in terms of Article 35 § 2 (b) of the Convention for being substantially the same as that examined in applications nos. 51526/17 and 20018/18. This part of the applications nos. 51506/19 and 51588/19 must therefore be rejected pursuant to Article 35 § 4.

12. As regards the applicants’ remaining complaints under Article 5 §§ 1, 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

13. 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.

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

15. 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. Insofar as the applicants Mr ÅžimÅŸek and Mr Yorulmaz are concerned, the lump sum award is made only in respect of applications nos. 51526/17 and 20018/18, in the light of the Court’s findings in paragraphs 10 and 11 above.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay each of the applicants, except in relation to applications nos. 51506/19 and 51588/19, 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 these amounts, which are 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 6 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Pauliine Koskelo Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Date of Birth

Represented by

1.

75881/16

Geleş v. Türkiye

22/11/2016

Hasan GELEÅž 13/10/1975

Tufan YILMAZ

2.

1101/17

Bozoğlu v. Türkiye

01/12/2016

Süleyman BOZOĞLU 04/06/1977

İsa ÖZBİLEN

3.

12467/17

Aşılar v. Türkiye

20/01/2017

Behçet AŞILAR 03/04/1974

Cihat ÇITIR

4.

14638/17

Korkmaz v. Türkiye

02/02/2017

Gökhan KORKMAZ 07/02/1982

CoÅŸkun TAÅžKIN

5.

14652/17

Taşkın v. Türkiye

02/02/2017

Sinan TAÅžKIN 10/04/1968

CoÅŸkun TAÅžKIN

6.

14669/17

Bozkurt v. Türkiye

23/01/2017

Özcan BOZKURT 11/11/1983

Tarık Said GÜLDİBİ

7.

14967/17

Kalkan v. Türkiye

26/01/2017

Erkan KALKAN 01/05/1977

Sefanur BOZGÖZ

8.

15051/17

Şenli v. Türkiye

26/01/2017

Eren ÅžENLÄ° 10/03/1978

Mehmet ÖNCÜ

9.

20092/17

Erdoğan v. Türkiye

23/02/2017

Ä°lyas ERDOÄžAN 01/01/1983

10.

30652/17

Akbilek v. Türkiye

17/02/2017

Nevzat AKBÄ°LEK 10/05/1973

Ä°rem TATLIDEDE

11.

39578/17

Kaya v. Türkiye

17/03/2017

Vedat KAYA 03/02/1977

Ömer Faruk ERGÜN

12.

40067/17

Rusum v. Türkiye

05/05/2017

Emin RUSUM 01/01/1962

Merve Elif GÃœRACAR

13.

40704/17

Bayraktar v. Türkiye

28/03/2017

Aytekin BAYRAKTAR 23/03/1984

Hatice AVCI BAYRAKTAR

14.

41477/17

Apaçık v. Türkiye

24/04/2017

Ramazan APAÇIK 18/05/1968

Rukiye COÅžGUN

15.

41479/17

Ünal v. Türkiye

18/05/2017

Emrah ÃœNAL 20/03/1983

16.

41516/17

Zengin v. Türkiye

11/04/2017

Sinan ZENGÄ°N 03/11/1977

Gülşen ZENGİN

17.

41619/17

Gültekin v. Türkiye

05/05/2017

Mehmet Ä°kbal GÃœLTEKÄ°N 27/01/1980

18.

41823/17

Güleç v. Türkiye

28/03/2017

Ramazan GÜLEÇ 05/10/1974

19.

42190/17

Kılıç v. Türkiye

28/04/2017

Özkan KILIÇ 22/01/1978

Adem AKYÃœREK

20.

42848/17

Şevik v. Türkiye

04/04/2017

Özcan ŞEVİK 21/12/1980

Zehra KILIÇ

21.

43763/17

Kul v. Türkiye

04/05/2017

Hamza KUL 17/09/1977

Murat YILMAZ

22.

44803/17

Gökkaya v. Türkiye

03/05/2017

Ömer GÖKKAYA 15/10/1979

Recep ÇINAR

23.

48765/17

Parıltı v. Türkiye

05/05/2017

Yılmaz PARILTI 10/09/1969

Mustafa AÇICI

24.

51526/17

Şimşek v. Türkiye

22/03/2017

Engin ŞİMŞEK 14/11/1978

Selma AKKOYUNLU KILINÇ

25.

58445/17

Tekintaş v. Türkiye

30/06/2017

Mücahit TEKİNTAŞ 25/08/1972

Ä°brahim TOKTAMIÅž

26.

58512/17

Togay v. Türkiye

07/02/2017

Mehmet TOGAY 11/03/1966

Kadir Soner KILINÇ

27.

58551/17

Yüzlü v. Türkiye

07/07/2017

Yavuz YÜZLÜ 29/11/1977

28.

59691/17

Bakırcı v. Türkiye

13/02/2017

Kadir BAKIRCI 01/11/1967

CoÅŸkun TAÅžKIN

29.

60284/17

Öztürk v. Türkiye

23/06/2017

Bilgin ÖZTÜRK 17/11/1978

30.

60335/17

Şahin v. Türkiye

05/07/2017

Mehmet ÅžAHÄ°N 13/09/1975

Furkan YILDIRIM

31.

60374/17

Akın v. Türkiye

10/07/2017

Mehmet AKIN 05/01/1985

Janset ATÄ°LA

32.

60382/17

Dere v. Türkiye

04/07/2017

Ahmet DERE 27/04/1980

Vedat ÇAPRAZ

33.

62020/17

Kardeşler v. Türkiye

02/05/2017

ErdoÄŸan KARDEÅžLER 01/08/1982

34.

62610/17

Akpınar v. Türkiye

25/01/2017

Ali AKPINAR 10/04/1977

Mehmet ÖNCÜ

35.

62737/17

Uz v. Türkiye

01/02/2017

Alpaslan UZ 09/12/1975

Ä°rem TATLIDEDE

36.

62750/17

Gürgen v. Türkiye

14/06/2017

Fatih GÃœRGEN 26/08/1978

Rukiye COÅžGUN

37.

62770/17

Doğan v. Türkiye

02/05/2017

Salih DOÄžAN 01/01/1988

38.

62917/17

Duran v. Türkiye

03/05/2017

Bekir DURAN 10/06/1979

Recep ÇINAR

39.

63724/17

Karadeniz v. Türkiye

14/04/2017

Ender KARADENÄ°Z 15/09/1972

40.

63769/17

Öztürk v. Türkiye

13/06/2017

Selim ÖZTÜRK 21/08/1977

Åžefik KARAKIÅž

41.

63771/17

Ekinci v. Türkiye

18/01/2017

Neslihan EKÄ°NCÄ° 30/08/1971

Semra Ä°ÅžLER ALBAYRAK

42.

63778/17

Duman v. Türkiye

29/05/2017

Mehmet DUMAN 01/01/1974

Fatih DÖNMEZ

43.

63802/17

Atıcı v. Türkiye

29/05/2017

Seyfettin ATICI 02/05/1972

Fatih DÖNMEZ

44.

63973/17

Demir v. Türkiye

25/04/2017

Ahmet Nebi DEMÄ°R 19/08/1988

Hülya POLAT

45.

66686/17

Kıran v. Türkiye

23/01/2017

Mehmet KIRAN 06/02/1973

Ä°rem TATLIDEDE

46.

66689/17

M.T. v. Türkiye

23/05/2017

M.T. 01/01/1980

Abdullah BÄ°RDÄ°R

47.

69580/17

Uyar v. Türkiye

21/07/2017

Celal UYAR 23/01/1980

Türker İKİBAŞ

48.

70538/17

Ünüvar v. Türkiye

08/08/2017

Tamer ÃœNÃœVAR 01/01/1974

Fatih DÖNMEZ

49.

71995/17

Yurtdakal v. Türkiye

19/04/2017

Turgay YURTDAKAL 30/09/1974

Emre AKARYILDIZ

50.

72339/17

Yılmaz v. Türkiye

25/07/2017

Ahmet Serdar YILMAZ 11/12/1985

Mehmet ÖNCÜ

51.

74763/17

Albayrak v. Türkiye

03/10/2017

Süleyman ALBAYRAK 20/06/1980

Sibel Ä°SA

52.

79632/17

Tekkoyun v. Türkiye

19/10/2017

Muhammet TEKKOYUN 27/10/1974

Ä°brahim KOCAOÄžUL

53.

82521/17

Pazar v. Türkiye

13/06/2017

Beytullah PAZAR 18/02/1975

Yusuf RENKLÄ°

54.

6504/18

Avcı v. Türkiye

16/01/2018

Ahmet AVCI 05/02/1977

Mehmet ÖNCÜ

55.

8021/18

Can v. Türkiye

02/02/2018

Hasan CAN 20/10/1970

Mehmet Fatih İÇER

56.

9589/18

Akın v. Türkiye

13/02/2018

Serhat AKIN 01/11/1984

Fatma ALBAYRAK

57.

12596/18

Genç v. Türkiye

09/02/2018

Hayrettin GENÇ 01/09/1979

Orhan ÅžAHNA

58.

12850/18

Belge v. Türkiye

05/03/2018

Fatih BELGE 10/09/1980

Ä°hsan MAKAS

59.

15312/18

Uzun v. Türkiye

16/03/2018

Nuh UZUN 22/09/1988

Ramazan DANIÅžMAN

60.

15892/18

Ercan v. Türkiye

09/03/2018

Ä°hsan ERCAN 06/03/1985

Nilgün GÜRCAN

61.

16812/18

Özdemir v. Türkiye

27/03/2018

Şaban ÖZDEMİR 17/08/1976

62.

17552/18

Kaya v. Türkiye

19/02/2018

Mehmet KAYA 03/09/1986

Ahmet Can DEMÄ°RCÄ°

63.

18059/18

Durak v. Türkiye

06/04/2018

Selami DURAK 10/09/1971

Basri GÃœNDÃœZ

64.

20018/18

Yorulmaz v. Türkiye

02/03/2018

Özgür YORULMAZ 10/07/1971

65.

22181/18

Ketenoğlu v. Türkiye

04/05/2018

Feyyaz KETENOÄžLU 15/04/1987

MenekÅŸe Merve TEKTEN

66.

25239/18

İlci v. Türkiye

18/05/2018

Şükrü İLCİ 19/06/1976

Ahmet Can DEMÄ°RCÄ°

67.

31224/18

Gül v. Türkiye

22/06/2018

Cevat GÃœL 01/09/1970

Tarık Said GÜLDİBİ

68.

47422/18

Sezgin v. Türkiye

21/09/2018

Ä°smail SEZGÄ°N 14/04/1974

69.

51506/19

Şimşek v. Türkiye

10/05/2019

Engin ŞİMŞEK 14/11/1978

Selma AKKOYUNLU KILINÇ

70.

51588/19

Yorulmaz v. Türkiye

16/04/2019

Özgür YORULMAZ 10/07/1971

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CASE OF GELEŞ AND OTHERS v. TÜRKIYE - [Turkish Translation] by Kadir Öztürk

CASE OF GELEŞ AND OTHERS v. TÜRKIYE - [Turkish Translation] by Kadir Öztürk

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