Lexploria

Published on 7 June 2021

SECOND SECTION

Application no. 68983/17 Kadir Koray GÖKAY against Turkey and 93 other applications (see list appended) communicated on 17 May 2021

SUBJECT MATTER OF THE CASE

The applications mainly concern the applicants ’ arrest and pre-trial detention, on suspicion of membership of FETÖ/PDY ( Fetullahist Terrorist Organisation / Parallel State Structure), in the aftermath of the attempted coup d ’ état which took place on 15 July 2016.

The applicants complain of a violation of Article 5 of the Convention on the basis of the following allegations (see the appended table for detailed information as to the specific complaints raised by each applicant):

- They were detained in the absence of any suspicion that they committed an offence;

- There were no relevant and sufficient reasons to justify their initial and/or continued pre-trial detention;

- The length of their pre-trial detention was excessive;

- The reviews of detention took place without a hearing and they were not notified of the opinion of the public prosecutor on those reviews;

- Their access to the investigation files was restricted;

- The objections to their detention or their requests for release were not examined or examined belatedly;

- The decisions extending their pre-trial detention were not notified to them, or were notified with a delay, which prevented them from appealing against those decisions;

- They did not benefit from effective legal assistance and facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers was monitored by the prison authorities;

- The time taken by the Constitutional Court to conduct its examination on their individual applications was excessive.

QUESTIONS TO THE PARTIES

On the basis of the complaints communicated in accordance with the list in the Appendix

1. Can the applicants be considered to have been detained on the basis of “a reasonable suspicion” that they had committed an offence (see, in particular, Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A No. 182), taking into account, in particular, Article 100 of the Code of Criminal Procedure, which requires “concrete evidence demonstrating the existence of strong suspicions” as to the commission of the offence?

Moreover, has the Constitutional Court based the existence of reasonable suspicion on evidence discovered after the decisions had been taken to detain the applicants ?

2. ( a ) Did the applicants exhaust the remedies available in domestic law in relation to their complaints under Article 5 § 3 of the Convention? To the extent that the applicants ’ complaints did not relate solely to the length of their pre-trial detention but also concerned the alleged failure of the domestic courts to provide relevant and sufficient reasons to justify their initial and continued pre-trial detention, can a compensation claim under Article 141 § 1(d) of the Code of Criminal Procedure be regarded as an effective remedy in respect of those complaints (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 213, 22 December 2020)?

The Government are invited to provide sample decisions to demonstrate whether the remedy under Article 141 § 1(d) of the Code of Criminal Procedure has been interpreted and applied by the national courts in a manner that extends to complaints concerning the lack of relevant and sufficient reasons to justify pre-trial detention.

( b ) Was the applicants ’ pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular:

( i ) Did the judges, who ordered the applicants ’ initial pre-trial detention and the prolongation of their detention, and who examined the objections lodged against those decisions, fulfil their obligation to provide relevant and sufficient grounds for the deprivation of liberty in question (see, in particular, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 102, ECHR 2016 (extracts))?

( ii ) Was the length of the applicants ’ pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?

3. Did the applicants have at their disposal an effective remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular, the Government are invited to respond to the following complaints made by the applicants:

( i ) the principle of equality of arms had not been respected, as the decisions to extend their detention and their objections to those decisions had been examined without a hearing and the prosecutors ’ opinions had not been communicated to them;

( ii ) they had been unable to challenge their detention in an effective manner because of the restriction imposed on their access to the investigation file;

( iii ) their objections to their detention had not been examined or had been examined belatedly;

( iv ) the decisions to extend their detention had not been notified to them or had been notified with a delay, which had prevented them from lodging objections against those decisions;

( v ) they had had no effective legal assistance or facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers had been monitored;

( vi ) the time taken by the Constitutional Court to examine their individual applications had been protracted.

4. Did the compensation remedy provided under Article 141 of the Code of Criminal Procedure constitute an effective remedy, within the meaning of Article 5 § 4 of the Convention, in respect of complaints concerning ( i ) the lack of an oral hearing during the review of detention; (ii) the non ‑ notification or belated notification of the detention decision; and (iii) the lack of or delay in the examination of the objection against detention by the magistrates ’ courts?

The Government are invited to provide sample domestic court decisions in support of their reply.

APPENDIX

No.

Application No. Case Title

Date of Intro

Complaints

1

68983/17 Gökay v. Turkey

14/09/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

2

76406/17 Günay v. Turkey

06/10/2017

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

3

36939/18 Kunt v. Turkey

26/07/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention

4

37745/18 BalkaÅŸ v. Turkey

03/08/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

5

40409/18 Öztürk v. Turkey

06/08/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

6

40525/18 Koçyiğit v. Turkey

03/08/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

7

40601/18 Åžahpaz v. Turkey

10/08/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

8

41593/18 Gültekin v. Turkey

17/08/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

9

42866/18 Atılgan v. Turkey

29/08/2018

Lack of reasonable suspicion

10

44202/18 Aydın v. Turkey

08/09/2018

Lack of reasonable suspicion

11

44761/18 Olcabay v. Turkey

11/09/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

12

45291/18 Åžafak v. Turkey

13/09/2018

Lack of reasonable suspicion

13

47328/18 Yıldız v. Turkey

26/09/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

14

47781/18 Tekdemir v. Turkey

09/10/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Restriction of access to the investigation file Lack of reasonable suspicion

15

49903/18 Örsel v. Turkey

03/10/2018

Lack of reasonable suspicion

16

50062/18 Akkaya v. Turkey

12/10/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

17

50753/18 YaÄŸmurlu v. Turkey

23/10/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

18

50974/18 Tekten v. Turkey

19/10/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

19

52946/18 Tekkoyun v. Turkey

30/10/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Failure/Delay in examining requests for enlargement/objection Lack of hearing during the detention review Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

20

53071/18 Kara v. Turkey

22/10/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

21

54459/18 Zorlu v. Turkey

05/11/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

22

58891/18 Görür v. Turkey

28/11/2018

Length of pre-trial detention Lack of reasonable suspicion

23

59144/18 Tosun v. Turkey

28/11/2018

Lack of reasonable suspicion

24

3146/19 Önerbay v. Turkey

14/12/2018

Lack of reasonable suspicion

25

3252/19 Yaprak v. Turkey

25/12/2018

Lack of reasonable suspicion

26

3357/19 Topuz v. Turkey

17/12/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

27

3430/19 Özgul v. Turkey

02/01/2019

Restriction of access to the investigation file Lack of reasonable suspicion

28

3432/19 Türkmen v. Turkey

28/12/2018

Lack of reasonable suspicion

29

3441/19 Pala v. Turkey

09/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

30

3452/19 Yücel v. Turkey

08/01/2019

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

31

3459/19 Ãœlkemen v. Turkey

21/12/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

32

3461/19 Leylek v. Turkey

10/12/2018

Lack of reasonable suspicion

33

3514/19 Lalek v. Turkey

27/12/2018

Lack of relevant and sufficient reasons for detention

34

3568/19 Sancak v. Turkey

17/12/2018

Lack of reasonable suspicion

35

3652/19 Dinlemez v. Turkey

18/12/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

36

3709/19 KuÅŸ v. Turkey

21/12/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

37

3770/19 Kayacan v. Turkey

19/12/2018

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Failure to communicate the prosecutor ’ s opinion Lack of reasonable suspicion

38

3774/19 Turhan v. Turkey

26/12/2018

Lack of reasonable suspicion

39

3984/19 DakeÅŸoÄŸlu v. Turkey

09/01/2019

Lack of reasonable suspicion

40

4053/19 Seçkin v. Turkey

28/12/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

41

4061/19 Metin v. Turkey

28/12/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

42

4071/19 NakaÅŸ v. Turkey

28/12/2018

Delay in examination by the Constitutional Court Lack of hearing during the detention review Failure to communicate the prosecutor ’ s opinion Lack of reasonable suspicion

43

4074/19 Deniz v. Turkey

28/12/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

44

4079/19 Ä°nan v. Turkey

28/12/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

45

4105/19 DoÄŸan v. Turkey

30/11/2018

Lack of hearing during the detention review Failure/Delay to communicate decisions relating to detention Lack of reasonable suspicion

46

4118/19 Ünaldı v. Turkey

27/11/2018

Lack of hearing during the detention review Restriction of access to the investigation file Lack of reasonable suspicion

47

4156/19 Aksoy v. Turkey

04/01/2019

Length of pre-trial detention Delay in examination by the Constitutional Court Restriction of access to the investigation file Lack of reasonable suspicion

48

4176/19 Bozkurt v. Turkey

11/01/2019

Lack of reasonable suspicion

49

4181/19 Hatip v. Turkey

11/01/2019

Lack of reasonable suspicion

50

4198/19 Hanedar v. Turkey

11/01/2019

Lack of reasonable suspicion

51

4240/19 Yelkesen v. Turkey

07/01/2019

Lack of reasonable suspicion

52

4299/19 Bülbül v. Turkey

21/12/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

53

4300/19 Dilgin v. Turkey

03/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

54

4301/19 Akkaya v. Turkey

07/01/2019

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

55

4357/19 Çelebi v. Turkey

04/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

56

4405/19 Koçak v. Turkey

04/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

57

4558/19 Öztel v. Turkey

31/12/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention

58

4571/19 Kocaer v. Turkey

28/12/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

59

4585/19 Çulha v. Turkey

28/12/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

60

4658/19 Bekdemir v. Turkey

31/12/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of reasonable suspicion

61

4918/19 ÅžimÅŸek v. Turkey

21/12/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

62

4991/19 Ä°stek v. Turkey

10/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

63

5135/19 Topuz v. Turkey

21/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

64

5196/19 Gönülaçar v. Turkey

27/12/2018

Lack of reasonable suspicion

65

5257/19 Bayraktar v. Turkey

14/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention

66

5304/19 Anursal v. Turkey

03/01/2019

Lack of reasonable suspicion

67

5408/19 Aslan v. Turkey

10/01/2019

Lack of reasonable suspicion

68

5413/19 Uyar v. Turkey

03/01/2019

Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

69

5418/19 Körpe v. Turkey

08/01/2019

Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

70

5476/19 Ä°nam v. Turkey

30/11/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

71

5494/19 Bulut v. Turkey

04/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

72

5531/19 Hamarat v. Turkey

15/01/2019

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

73

5539/19 Çoşkun v. Turkey

07/01/2019

Lack of reasonable suspicion

74

5558/19 Kılıç v. Turkey

25/12/2018

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

75

5561/19 Gürşen v. Turkey

31/12/2018

Lack of reasonable suspicion

76

5613/19 Kızıltan v. Turkey

08/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

77

5713/19 Açıkgöz v. Turkey

17/01/2019

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention

78

5900/19 Özdemir v. Turkey

17/01/2019

Lack of reasonable suspicion

79

5916/19 Ekemen v. Turkey

26/12/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

80

5933/19 Gören v. Turkey

11/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

81

5938/19 Kart v. Turkey

17/12/2018

Delay in examination by the Constitutional Court Restriction of access to the investigation file Failure to communicate the prosecutor ’ s opinion Lack of reasonable suspicion

82

6059/19 Çakır v. Turkey

14/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

83

6078/19 Keskin v. Turkey

09/01/2019

Lack of reasonable suspicion

84

6189/19 Aygen v. Turkey

17/12/2018

Delay in examination by the Constitutional Court Restriction of access to the investigation file Failure to communicate the prosecutor ’ s opinion Lack of reasonable suspicion

85

6193/19 Vurucu v. Turkey

17/12/2018

Delay in examination by the Constitutional Court Restriction of access to the investigation file Lack of reasonable suspicion

86

6196/19 Güven v. Turkey

17/12/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

87

6201/19 Say v. Turkey

17/12/2018

Delay in examination by the Constitutional Court Restriction of access to the investigation file Lack of reasonable suspicion

88

6249/19 Yılmazsoylu v. Turkey

11/01/2019

Length of pre-trial detention Lack of relevant and sufficient reasons for detention

89

6254/19 Yilmaz v. Turkey

10/01/2019

Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

90

6315/19 Civan v. Turkey

07/01/2019

Delay in examination by the Constitutional Court Restriction of access to the investigation file Lack of reasonable suspicion

91

6316/19 Reçber v. Turkey

10/01/2019

Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

92

6321/19 Özata v. Turkey

26/12/2018

Length of pre-trial detention Lack of reasonable suspicion

93

6329/19 Ayaz v. Turkey

21/12/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

94

14991/20 Arslan v. Turkey

09/03/2020

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

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GÖKAY v. TURKEY and 93 other applications

GÖKAY v. TURKEY and 93 other applications

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