Lexploria

SECOND SECTION

CASE OF GÜNGÖR AND OTHERS v. TÜRKİYE

(Applications nos. 59639/17 and 81 others - see list appended)

JUDGMENT

STRASBOURG

13 December 2022

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

In the case of Güngör and Others v. Türkiye,

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

Jovan Ilievski , President , Lorraine Schembri Orland, 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 eighty-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, the lack of information on the reasons for arrest, and the alleged lack of reasonable suspicion regarding the commission of an offence, 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 22 November 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 Terror Organisation / Parallel State Structure” (hereinafter referred to as the “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 were sitting as judges or prosecutors at different types and/or levels of court, at the material time, with the exception of sixteen applicants (namely, the applicants in applications nos. 66697/17, 70801/17, 76280/17, 1562/18, 2391/19, 5147/19, 14698/19, 15725/19, 26873/19, 36808/19, 39250/19, 39722/19, 40264/19, 40515/19, 41848/19 and 47694/19), who were former judges or prosecutors.

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. 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 nature of the alleged offence, the state of the evidence and the potential sentence. It was also noted that investigations into the coup attempt were being conducted across the country, that statements had not yet been taken from all suspects and that the alleged offence was among the “catalogue” offences listed in Article 100 § 3 of the Code of Criminal Procedure (CCP) (for the text of Article 100 of the CCP, as relevant, see Baş , cited above, § 61). While there was no express mention in the detention orders, it appears from the information and documents in the files that some of the applicants had been suspended from their duties as judges or prosecutors, or their authorities revoked, prior to their detention on grounds of their membership of the organisation that was considered to have instigated the attempted coup (see Turan and Others v. Turkey , nos. 75805/16 and 426 others, §§ 13-16, 23 November 2021 for further details on the suspension procedure), or that some of them had been identified as users of the ByLock messaging system. 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.

3. 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

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

5. 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.

6. 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 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.

7. 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.

8. The Court notes that, when ordering the applicants’ initial pre-trial detention, the magistrate’s courts sought to justify their decisions solely by making a general reference to Article 100 of the CCP and the potential sentence, as well as to “the evidence in the file”. However, in doing so, they simply cited the wording of the provision in question, without actually specifying what the evidence in question entailed and why it constituted a reasonable suspicion that the applicant had committed the offence in question. The Court refers in this connection to its findings in the judgment of Baş (cited above, §§ 190-195), according to which the vague and general references to the wording of Article 100 of the CCP and to the evidence in the file cannot be regarded as sufficient to justify the “reasonableness” of the suspicion on which the applicants’ detention was supposed to have been based, in the absence either of a specific assessment of the individual items of evidence in the file, or of any information available in the file at the material time that could have justified the suspicion against the applicants, or of any other kinds of verifiable material or facts. To the extent that the detention orders may have taken into account the applicants’ suspension from judicial office or their alleged use of the ByLock messaging system, the Court notes that it has already found that neither of those grounds was of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to the applicants (compare Baş , cited above, §§ 170-195, and Akgün v. Turkey , no. 19699/18, §§ 151-185, 20 July 2021). The Court also notes that as regards some of the applicants, the Government have referred to the existence of witness statements justifying the measures in question. It observes, however, that there are no statements in the case files referring to concrete and specific facts that may have given rise to a reasonable suspicion against the applicants concerned at the material time.

9. Since the Government have not provided any other indications, “facts” or “information” capable of satisfying it that the applicants were “reasonably suspected”, at the time of their initial detention, of having committed the alleged offence, the Court finds that the requirements of Article 5 § 1 (c) regarding the “reasonableness” of a suspicion justifying detention have not been satisfied (compare Baş , cited above, § 195). It 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). It therefore concludes that there has been a violation of Article 5 § 1 of the Convention.

10. 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

11. 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.

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

13. 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 13 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Dorothee von Arnim Jovan Ilievski 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

59639/17

Güngör v. Türkiye

10/02/2017

Murat GÜNGÖR 16/04/1978

Yaşar GÜNGÖR

Ordinary judge or public prosecutor

60999/17

Bostan v. Türkiye

01/08/2017

Özenç BOSTAN 18/10/1982

Utku CoÅŸkuner SAKARYA

Ordinary judge or public prosecutor

62224/17

Kanmaz v. Türkiye

18/04/2017

Ahmet KANMAZ 05/02/1980

Nilgün ARI

Ordinary judge or public prosecutor

63794/17

Çalışır v. Türkiye

31/07/2017

Mehmet ÇALIŞIR 21/08/1974

Emre AKARYILDIZ

Ordinary judge or public prosecutor

66697/17

Sarıoğlu v. Türkiye

18/05/2017

Refik SARIOÄžLU 06/03/1967

Ebubekir RENK

Former judge or public prosecutor

70801/17

Arslanoğlu v. Türkiye

18/08/2017

ErtuÄŸrul ARSLANOÄžLU 17/11/1966

UÄŸur ALTUN

Former judge or public prosecutor

71298/17

Gündoğdu v. Türkiye

15/09/2017

Fatih GÃœNDOÄžDU 01/08/1975

Ä°brahim KARANFÄ°L

Ordinary judge or public prosecutor

71506/17

B.O. v. Türkiye

17/07/2017

Bülent OLCAY 07/02/1960

Tarık OLCAY

High Court judge

74818/17

Bağcı v. Türkiye

11/10/2017

Mehmet BAÄžCI 13/08/1987

Hamza AKKAYA

Ordinary judge or public prosecutor

76280/17

Erkan v. Türkiye

29/09/2017

Fikret ERKAN

10/09/1971

Metin BOZKURT

Former judge or public prosecutor

79060/17

Oktar v. Türkiye

14/04/2017

Serdar OKTAR 01/07/1970

Zülküf ARSLAN

Ordinary judge or public prosecutor

79074/17

Durmaz v. Türkiye

11/04/2017

Murat DURMAZ 25/03/1979

Nilgün ARI

Ordinary judge or public prosecutor

79801/17

Büyükgümüş v. Türkiye

01/11/2017

İsmail BÜYÜKGÜMÜŞ 07/07/1973

Hüseyin AYGÜN

Ordinary judge or public prosecutor

79845/17

Köseoğlu v. Türkiye

24/10/2017

Muhammet Sacit KÖSEOĞLU

01/08/1989

Nevzat AKBÄ°LEK

Ordinary judge or public prosecutor

81822/17

Karayol v. Türkiye

06/11/2017

Muharrem KARAYOL 05/09/1968

Hüseyin AYGÜN

High Court judge

81859/17

Eray v. Türkiye

24/10/2017

Gürtekin ERAY 06/05/1968

Hüseyin AYGÜN

High Court judge

84141/17

Akkaya v. Türkiye

16/11/2017

Hamza AKKAYA 02/10/1988

Hüseyin AYGÜN

Ordinary judge or public prosecutor

84149/17

Torlak v. Türkiye

16/11/2017

Ergün TORLAK 22/09/1969

Hüseyin AYGÜN

Ordinary judge or public prosecutor

84615/17

Kurt v. Türkiye

13/11/2017

Ä°brahim KURT 12/10/1966

Yücel ALKAN

High Court judge

84630/17

Çolak v. Türkiye

22/11/2017

Mehmet ÇOLAK 22/12/1979

Adem KAPLAN

Ordinary judge or public prosecutor

123/18

Beyhan v. Türkiye

06/12/2017

Metin BEYHAN 16/07/1975

Hüseyin AYGÜN

Ordinary judge or public prosecutor

126/18

Tanin v. Türkiye

06/12/2017

Necdet TANIN 10/10/1985

Hüseyin AYGÜN

Ordinary judge or public prosecutor

1210/18

Sarıçam v. Türkiye

07/12/2017

Mustafa SARIÇAM 06/03/1965

Hüseyin AYGÜN

High Court judge

1556/18

Demir v. Türkiye

06/12/2017

Serkan DEMÄ°R 27/01/1986

Hüseyin AYGÜN

Ordinary judge or public prosecutor

1562/18

Şahin v. Türkiye

06/11/2017

Ali ÅžAHÄ°N 11/05/1963

Hüseyin AYGÜN

Former judge or public prosecutor

4018/18

Kulaç v. Türkiye

06/12/2017

Hüseyin KULAÇ 29/08/1966

Hüseyin AYGÜN

High Court judge

6246/18

Kılıç v. Türkiye

22/01/2018

Lokman KILIÇ 11/05/1963

Hüseyin AYGÜN

Ordinary judge or public prosecutor

7225/18

Karahan v. Türkiye

26/01/2018

Nadir KARAHAN 19/07/1978

Utku CoÅŸkuner SAKARYA

Ordinary judge or public prosecutor

9899/18

Okumuş v. Türkiye

30/01/2018

Ä°smail OKUMUÅž 22/01/1976

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

17915/18

Gözlüpınar v. Türkiye

07/04/2018

Mustafa GÖZLÜPINAR

07/02/1989

Ordinary judge or public prosecutor

22248/18

İskenderoğlu v. Türkiye

30/04/2018

Halil Ä°brahim Ä°SKENDEROÄžLU 23/08/1981

Mehmet Fatih İÇER

Ordinary judge or public prosecutor

23041/18

Nacak v. Türkiye

02/05/2018

Ä°smail NACAK 13/10/1982

Zülal ÜNSAL

Ordinary judge or public prosecutor

37684/18

Eker v. Türkiye

30/07/2018

Muhammet Ali Osman EKER 05/04/1983

Mustafa Lutfi EKER

Ordinary judge or public prosecutor

39688/18

Parlak v. Türkiye

16/08/2018

Asye PARLAK 01/03/1983

Mehtap KAMALAK GÖKKAYA

Ordinary judge or public prosecutor

40142/18

Şahin v. Türkiye

08/08/2018

Hüseyin ŞAHİN 20/04/1969

Emre AKARYILDIZ

Ordinary judge or public prosecutor

40478/18

Bayraktar v. Türkiye

01/08/2018

Yusuf BAYRAKTAR 03/03/1980

Yaşar GÜNGÖR

Ordinary judge or public prosecutor

43089/18

Sönmez v. Türkiye

07/08/2018

Salih SÖNMEZ 20/10/1964

Hüseyin AYGÜN

High Court judge

47383/18

Doğru v. Türkiye

26/09/2018

Nurettin DOÄžRU 05/10/1979

Mehmet Fatih İÇER

Ordinary judge or public prosecutor

50440/18

Birsen v. Türkiye

03/10/2018

Derya BÄ°RSEN 06/10/1986

Ä°shak IÅžIK

Ordinary judge or public prosecutor

749/19

Teke v. Türkiye

06/12/2018

Huriye TEKE 15/06/1988

Sultan TEKE SOYDİNÇ

Ordinary judge or public prosecutor

897/19

Telli v. Türkiye

29/11/2018

Kutlay TELLÄ° 31/10/1979

Ä°hsan MAKAS

Ordinary judge or public prosecutor

1206/19

Yıldırım v. Türkiye

04/12/2018

Asım YILDIRIM 02/04/1987

Okan GÃœNEL

Ordinary judge or public prosecutor

2391/19

Doğan v. Türkiye

29/11/2018

Zihni DOÄžAN 04/02/1967

Adem KAPLAN

Former judge or public prosecutor

4305/19

Şanlı v. Türkiye

25/12/2018

UÄŸur ÅžANLI 08/04/1989

Zülküf ARSLAN

Ordinary judge or public prosecutor

4349/19

Hızarcıoğlu v. Türkiye

07/01/2019

Burak HIZARCIOÄžLU 15/05/1982

Sinan Kamil KÜÇÜKOĞLU

Ordinary judge or public prosecutor

5147/19

Beleç v. Türkiye

07/01/2019

Mehmet BELEÇ 01/02/1972

Zafer Ä°RAZ

Former judge or public prosecutor

5975/19

Asiltürk v. Türkiye

09/01/2019

Murat ASÄ°LTÃœRK 01/10/1980

Cahit ÇİFTÇİ

Ordinary judge or public prosecutor

7354/19

Turanlı v. Türkiye

24/01/2019

Zafer TURANLI 01/10/1968

Şentürk DURSUN

High Court judge

8060/19

Kara v. Türkiye

23/01/2019

Fuat KARA 10/05/1977

Burhan Temel ÇINAR

Ordinary judge or public prosecutor

9308/19

Türk v. Türkiye

05/02/2019

Murat TÃœRK 01/02/1972

Hüseyin AYGÜN

Ordinary judge or public prosecutor

9689/19

Günenç v. Türkiye

05/02/2019

İbrahim GÜNENÇ 01/09/1969

Hüseyin AYGÜN

Ordinary judge or public prosecutor

11902/19

Kılıç v. Türkiye

26/02/2019

Mustafa KILIÇ 20/09/1960

Hüseyin AYGÜN

High Court judge

14698/19

Noyan v. Türkiye

08/03/2019

Erdal NOYAN 06/06/1961

Muhammet GÃœNEY

Former judge or public prosecutor

15725/19

Sarı v. Türkiye

08/03/2019

Eyüp SARI

25/10/1989

Nilgün ARI

Former judge or public prosecutor

18886/19

Bedirhan v. Türkiye

22/03/2019

Kamuran BEDÄ°RHAN

01/09/1988

Hamza AKKAYA

Ordinary judge or public prosecutor

19590/19

Çelik v. Türkiye

27/03/2019

Arif ÇELİK

27/08/1990

Ordinary judge or public prosecutor

21593/19

Karaşlar v. Türkiye

10/04/2019

Ahmet Bahaddin KARAÅžLAR

04/11/1977

Ä°rem TATLIDEDE

Ordinary judge or public prosecutor

23701/19

Çeken v. Türkiye

10/04/2019

Mesut ÇEKEN

24/10/1975

Elif Nurbanu OR

Ordinary judge or public prosecutor

26422/19

Çamlıbel v. Türkiye

29/04/2019

Hasan ÇAMLIBEL

06/02/1979

Ordinary judge or public prosecutor

26873/19

Gençler v. Türkiye

30/04/2019

Bayram GENÇLER

10/05/1976

Tufan YILMAZ

Former judge or public prosecutor

28238/19

Keskin v. Türkiye

06/05/2019

Ä°brahim KESKÄ°N

20/01/1978

Zeynep ÅžEN KARAKUÅž

Ordinary judge or public prosecutor

28246/19

Özyiğit v. Türkiye

07/05/2019

Mehmet ÖZYİĞİT

22/12/1979

Helin MENTEÅžE

Ordinary judge or public prosecutor

29327/19

Sakmak v. Türkiye

10/05/2019

Hakan SAKMAK

26/05/1970

Hülya SARSICIOĞLU

Ordinary judge or public prosecutor

30415/19

Bayazan v. Türkiye

20/05/2019

Erdal BAYAZAN

01/01/1988

Dudu ERTUNÇ

Ordinary judge or public prosecutor

30521/19

Akkuş v. Türkiye

18/05/2019

Mustafa AKKUÅž 13/06/1964

Ä°smail Safa AKKUÅž

Ordinary judge or public prosecutor

34672/19

Çabas v. Türkiye

31/05/2019

Mustafa ÇABAS 04/03/1973

Halil Ä°brahim KEBEÅžOÄžLU

Ordinary judge or public prosecutor

34904/19

Çelik v. Türkiye

21/06/2019

Akif ÇELİK

19/05/1978

Ordinary judge or public prosecutor

34922/19

Hadimli v. Türkiye

21/06/2019

UÄŸur HADÄ°MLÄ°

25/06/1967

Serkan CENGÄ°Z

Ordinary judge or public prosecutor

36808/19

Akdoğan v. Türkiye

02/07/2019

Sinan AKDOÄžAN

10/03/1973

Former judge or public prosecutor

36987/19

Ergün v. Türkiye

31/05/2019

Ä°smail ERGÃœN 01/01/1966

Ömer Faruk ERGÜN

High Court judge

37348/19

Bulut v. Türkiye

04/07/2019

Atilla BULUT 07/04/1983

Ordinary judge or public prosecutor

38924/19

Karadeniz v. Türkiye

11/07/2019

Mustafa KARADENÄ°Z

01/01/1986

Sefanur BOZGÖZ

Ordinary judge or public prosecutor

39250/19

Özaykut v. Türkiye

19/06/2019

Salih ÖZAYKUT 01/01/1969

Hüseyin AYGÜN

Former judge or public prosecutor

39722/19

Halitoğlu v. Türkiye

31/05/2019

CoÅŸkun HALÄ°TOÄžLU

23/09/1973

Cesim PARLAK

Former judge or public prosecutor

40264/19

Yılmaz v. Türkiye

25/07/2019

Halil YILMAZ 11/09/1965

Ä°hsan MAKAS

Former judge or public prosecutor

40515/19

Sarıgedik v. Türkiye

19/07/2019

Mustafa SARIGEDÄ°K

01/10/1973

Mehmet MÄ°RZA

Former judge or public prosecutor

41848/19

Tabakcı v. Türkiye

29/07/2019

Ayşegül TABAKCI

30/12/1986

Former judge or public prosecutor

41850/19

Canbaz v. Türkiye

23/07/2019

Hüseyin CANBAZ 12/11/1981

Ordinary judge or public prosecutor

44467/19

Oğuz v. Türkiye

04/07/2019

Hüseyin OĞUZ 30/06/1971

Hilal YILMAZ PUSAT

High Court judge

47694/19

Aydoğan v. Türkiye

15/08/2019

Abdulkadir AYDOÄžAN 09/01/1989

Ayşe Sümeyye BEKLEYEN

Former judge or public prosecutor

3517/20

Kılınç v. Türkiye

10/01/2020

Bülent KILINÇ 01/11/1965

Hüseyin AYGÜN

High Court judge

5565/20

Yılmaz v. Türkiye

09/01/2020

Şükrü Emrah YILMAZ 04/05/1985

Ordinary judge or public prosecutor

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CASE OF GÜNGÖR AND OTHERS v. TÜRKİYE

CASE OF GÜNGÖR AND OTHERS v. TÜRKİYE

LEXI