Lexploria

SECOND SECTION

CASE OF ACAR AND OTHERS v. TURKEY

(Applications nos. 64251/16 and 49 others)

JUDGMENT

STRASBOURG

28 June 2022

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

In the case of Acar and Others v. Turkey,

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

Branko Lubarda, President, Jovan Ilievski, Diana Sârcu, judges, and, Hasan Bakırcı, Section Registrar,

Having regard to:

the applications against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifty 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 Turkey;

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 7 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 Baş v. Turkey , no. 66448/17, §§ 7-14 and §§ 109-110, 3 March 2020). All of the applicants were sitting as judges or prosecutors at different types and/or levels of court, or appointed as trainee judges, 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 . 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 four of the applicants (namely, applications nos. 31681/17, 47014/17, 47407/18 and 59568/18) in 2015 on account of their failure to take up their duties allegedly for health reasons following an order for their reassignment, which the HSYK considered to be an organisational activity in protest of the reassignments.

3 . On 17 July 2016 the 1 st Presidency Board of the Court of Cassation similarly issued a decision revoking the existing authorities of the members of the Court of Cassation against whom action had been taken by the Ankara chief public prosecutor’s office, including some of the applicants (see Turan and Others , cited above, § 16).

4. 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 . It further appears that 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 detentions, including by reason of the alleged lack of reasonable suspicion of having committed an offence, were dismissed, including by the Constitutional Court (see, mutatis mutandis , Turan and Others , cited above, §§ 22-27).

5. 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

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 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.

8. 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, or 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.

9. The Court notes that similar objections have already been dismissed in other cases against Turkey (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.

10. The Court notes from the information in the case files that the applicants’ initial pre-trial detention was based solely on the decisions taken by the HSYK or the 1 st Presidency Board of the Court of Cassation for their suspension from office or the revocation of their authorities, 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. The Court refers in this connection to its findings in the judgment of Baş (cited above, §§ 170-195) in respect of the HSYK decision , which can be applied mutatis mutandis to the decision of the 1 st Presidency Board of the Court of Cassation noted in paragraph 3 above by reason of its essentially similar object and content, as well as to the findings in Akgün v. Turkey (no. 19699/18, §§ 151-185, 20 July 2021) regarding the use of the ByLock messaging system. Moreover, as regards the disciplinary investigation in respect of the four applicants 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 applicants’ detention (see, mutatis mutandis , Baş , cited above, § 188).

11. 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 Turkey – , 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 §§ 196-201).

12. As regards any 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.

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 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 28 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Branko Lubarda Registrar President

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year 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.

64251/16

Acar v. Turkey

03/11/2016

Fatih ACAR 1979

Abdulselam DURAN

Ordinary judge or public prosecutor

HSYK decision

2.

25324/17

Çökelez v. Turkey

24/03/2017

Ali ÇÖKELEZ 1986

Regaip DEMÄ°R

Ordinary judge or public prosecutor

HSYK decision

3.

27060/17

Åžendil v. Turkey

17/03/2017

Ãœzeyir ÅžENDÄ°L 1976

Mehmet ARI

Ordinary judge or public prosecutor

HSYK decision

4.

27430/17

Demir v. Turkey

08/03/2017

Erkan DEMÄ°R 1979

Engin ERDAL

Ordinary judge or public prosecutor

HSYK decision

5.

31681/17

Karasu v. Turkey

28/02/2017

Akar KARASU 1962

Ordinary judge or public prosecutor

HSYK decision

6.

34038/17

Özlük v. Turkey

13/03/2017

Mutahhar ÖZLÜK 1981

Hüseyin AKYOL

Ordinary judge or public prosecutor

HSYK decision

7.

40091/17

Yamalı v. Turkey

04/05/2017

Nurullah YAMALI 1975

Burçak ATAMAN KUŞ

Ordinary judge or public prosecutor

HSYK decision

8.

43958/17

Gür v. Turkey

20/02/2017

Tarık GÜR 1969

Merve Elif GÃœRACAR

Ordinary judge or public prosecutor

HSYK decision

9.

47014/17

Rahman v. Turkey

15/03/2017

Atilla RAHMAN 1969

UÄŸur KARADAÄž

Ordinary judge or public prosecutor

HSYK decision

10.

53749/17

KaradaÄŸ v. Turkey

03/06/2017

Ersin KARADAÄž 1978

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

HSYK decision

11.

61259/17

Ä°ÄŸneci v. Turkey

24/05/2017

Yasin Ä°ÄžNECÄ° 1985

Cahit ÇİFTÇİ

Ordinary judge or public prosecutor

ByLock messaging system

HSYK decision

12.

61438/17

UÄŸur v. Turkey

30/06/2017

Hüsamettin UĞUR 1965

Gökhan GÜNAYDIN

Member of Court of Cassation

Decision of the 1 st Presidency Board of the Court of Cassation

13.

61446/17

Cevher v. Turkey

30/06/2017

Dursun Murat CEVHER 1963

Gökhan GÜNAYDIN

Member of Court of Cassation

Decision of the 1 st Presidency Board of the Court of Cassation

14.

63732/17

OÄŸuz v. Turkey

13/06/2017

Abdulhadi OÄžUZ 1988

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

HSYK decision

15.

63888/17

Zorlu v. Turkey

29/05/2017

Emre ZORLU 1988

Mustafa ÇOLAK

Ordinary judge or public prosecutor

HSYK decision

16.

66358/17

DoÄŸan v. Turkey

27/01/2017

Murat DOÄžAN 1980

Nilgün ARI

Ordinary judge or public prosecutor

HSYK decision

17.

66698/17

Çakır v. Turkey

18/05/2017

Yüksel ÇAKIR 1974

Fatma HACIPAÅžALIOÄžLU

Ordinary judge or public prosecutor

HSYK decision

18.

70888/17

Ceylan v. Turkey

03/08/2017

Mevlüt CEYLAN 1983

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

HSYK decision

19.

79065/17

Yıldırım v. Turkey

11/04/2017

Fatih YILDIRIM 1979

Nilgün ARI

Ordinary judge or public prosecutor

HSYK decision

20.

81501/17

Dursun v. Turkey

06/11/2017

Altınöz DURSUN 1969

Hüseyin AYGÜN

Member of Court of Cassation

Decision of the 1 st Presidency Board of the Court of Cassation

21.

81841/17

Sarıömeroğlu v. Turkey

06/11/2017

Hüseyin SARIÖMEROĞLU 1967

Hüseyin AYGÜN

Member of Court of Cassation

Decision of the 1 st Presidency Board of the Court of Cassation

22.

81858/17

Canpolat v. Turkey

07/11/2017

Muhammed CANPOLAT 1985

Hüseyin AYGÜN

Ordinary judge or public prosecutor

HSYK decision

23.

84621/17

Kıvrıl v. Turkey

13/11/2017

Halit KIVRIL 1968

Sümeyra Betül BABACAN ALKAN

Member of Court of Cassation

Decision of the 1 st Presidency Board of the Court of Cassation

24.

3449/18

Güler v. Turkey

12/12/2017

Zeki GÃœLER 1978

Sinan BALOTA

Ordinary judge or public prosecutor

HSYK decision

25.

6984/18

EmirhasanoÄŸlu v. Turkey

25/01/2018

Nazmi EMÄ°RHASANOÄžLU 1977

Ayşe Sümeyye BEKLEYEN

Ordinary judge or public prosecutor

HSYK decision

26.

11488/18

Ata v. Turkey

16/02/2018

Åžeref ATA 1983

Cahit ÇİFTÇİ

Ordinary judge or public prosecutor

HSYK decision

27.

17249/18

Candar v. Turkey

23/03/2018

Mehmet CANDAR 1968

Muhterem SAYAN

Ordinary judge or public prosecutor

HSYK decision

28.

17591/18

Kılıçelli v. Turkey

03/04/2018

Ahmet KILIÇELLİ 1980

Ordinary judge or public prosecutor

ByLock messaging system

HSYK decision

29.

19457/18

Helvacı v. Turkey

12/04/2018

Rahmi HELVACI 1974

Hüseyin AZAKOĞLU

Ordinary judge or public prosecutor

ByLock messaging system

30.

19758/18

Karahan v. Turkey

12/04/2018

Cemalettin KARAHAN 1977

Sinan BALOTA

Ordinary judge or public prosecutor

HSYK decision

31.

22051/18

Ayluçtarhan v. Turkey

30/04/2018

Salih AYLUÇTARHAN 1983

Hasan Celil GÜNENÇ

Ordinary judge or public prosecutor

HSYK decision

32.

28555/18

Güneş v. Turkey

12/06/2018

Ahmet GÃœNEÅž 1990

Asım Burak GÜNEŞ

Trainee judge/prosecutor

ByLock messaging system

33.

29588/18

Usta v. Turkey

11/06/2018

Ä°brahim USTA 1971

Mehmet Fatih İÇER

Ordinary judge or public prosecutor

HSYK decision

34.

29699/18

CoÅŸkun v. Turkey

13/06/2018

Osman COÅžKUN 1971

Hüseyin UÇAN

Ordinary judge or public prosecutor

HSYK decision

35.

30252/18

Åžahin v. Turkey

13/06/2018

Levent ÅžAHÄ°N 1973

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

HSYK decision

36.

30483/18

Rafet v. Turkey

18/06/2018

Emre RAFET 1966

Muhammet GÃœNEY

Ordinary judge or public prosecutor

HSYK decision

37.

36168/18

Tozar v. Turkey

25/07/2018

Seyfi TOZAR 1978

Mehmet Fatih İÇER

Ordinary judge or public prosecutor

ByLock messaging system

38.

38541/18

Akar v. Turkey

02/08/2018

Fatih AKAR 1987

Mehmet ARI

Ordinary judge or public prosecutor

HSYK decision

39.

42362/18

Yardımcı v. Turkey

07/08/2018

Erhan YARDIMCI 1985

Mehmet Fatih İÇER

Ordinary judge or public prosecutor

HSYK decision

40.

46821/18

TaÅŸdemir v. Turkey

20/09/2018

Orhan TAÅžDEMÄ°R 1974

Cengiz BALCI

Ordinary judge or public prosecutor

HSYK decision

41.

47407/18

Kaya v. Turkey

24/09/2018

Åžeref KAYA 1968

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

HSYK decision

42.

48080/18

Arıç v. Turkey

27/09/2018

Mehmet ARIÇ 1980

Numan ARIÇ

Ordinary judge or public prosecutor

HSYK decision

43.

49289/18

Kılavuz v. Turkey

16/10/2018

Ä°shak KILAVUZ 1975

Hanifi BAYRI

Ordinary judge or public prosecutor

HSYK decision

44.

54347/18

Özelce v. Turkey

02/11/2018

Cuma ÖZELCE 1983

Salih KOÇAK

Ordinary judge or public prosecutor

HSYK decision

45.

56607/18

Saykı v. Turkey

15/11/2018

Ergün SAYKI 1983

Sabahattin KARAGÖZ

Ordinary judge or public prosecutor

HSYK decision

46.

59568/18

Uslu v. Turkey

21/11/2018

Ramazan USLU 1971

Ahmet Levent Ä°LGÄ°N

Ordinary judge or public prosecutor

HSYK decision

47.

59690/18

BaÅŸ v. Turkey

06/12/2018

Kaan BAÅž 1990

Sultan TEKE SOYDİNÇ

Ordinary judge or public prosecutor

HSYK decision

48.

1653/19

Köşten v. Turkey

25/12/2018

Uğur KÖŞTEN 1977

Elif Nurbanu OR

Ordinary judge or public prosecutor

HSYK decision

49.

3574/19

Sevgiliocak v. Turkey

31/12/2018

Ömer SEVGİLİOCAK 1974

Zehra ARSLAN

Ordinary judge or public prosecutor

HSYK decision

50.

6355/19

Balcı v. Turkey

14/01/2019

Ebuzer BALCI 1984

Sertan DAVDAV

Ordinary judge or public prosecutor

HSYK decision

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CASE OF ACAR AND OTHERS v. TURKEY - [Turkish Translation] by the Turkish Ministry of Justice

CASE OF ACAR AND OTHERS v. TURKEY - [Turkish Translation] by the Turkish Ministry of Justice

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