Lexploria

Published on 10 May 2021

SECOND SECTION

Application no. 29960/18 Selim GÃœVEN against Turkey and 95 other applications (see list appended) communicated on 20 April 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 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:

(iii) 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;

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

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

(vi) 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;

(vii) 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;

(viii) 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 ID No.

Date of Intro

Complaints

1

29960/18 Güven v. Turkey

06/06/2018

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

2

44192/18 Yapalak v. Turkey

11/09/2018

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

3

47444/18 Özbayram v. Turkey

24/09/2018

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

4

53925/18 Kisin v. Turkey

02/10/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

5

54441/18 Öztürk v. Turkey

01/11/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

6

54455/18 Saka v. Turkey

01/11/2018

Lack of reasonable suspicion

7

54826/18 Horuz v. Turkey

19/11/2018

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

8

54866/18 Kunt v. Turkey

07/11/2018

Length of pre-trial detention Failure/Delay in examining requests for enlargement/objection Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Failure to communicate the prosecutor ’ s opinion Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

9

54929/18 Yalçınkaya v. Turkey

01/11/2018

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

10

54954/18 Karaduman v. Turkey

15/11/2018

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

11

54989/18 Yağız v. Turkey

05/11/2018

Length of pre-trial detention Lack of hearing during the detention review Lack of reasonable suspicion

12

55894/18 Taşğın v. Turkey

05/10/2018

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

13

56023/18 AlakuÅŸ v. Turkey

31/10/2018

Lack of reasonable suspicion

14

56270/18 Åžahin v. Turkey

16/11/2018

Restriction of access to the investigation file Lack of reasonable suspicion

15

56482/18 Asiltürk v. Turkey

26/11/2018

Lack of hearing during the detention review Restriction of access to the investigation file Failure to communicate the prosecutor ’ s opinion Lack of reasonable suspicion

16

56577/18 Bilgin v. Turkey

22/11/2018

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

17

56582/18 Özçelebi v. Turkey

13/11/2018

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

18

57173/18 Çolak v. Turkey

29/11/2018

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

19

57182/18 Gören v. Turkey

16/11/2018

Lack of reasonable suspicion

20

57185/18 Karhan v. Turkey

20/11/2018

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

21

57196/18 YaÅŸa v. Turkey

12/11/2018

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Failure/Delay to communicate decisions relating to detention Lack of reasonable suspicion

22

57207/18 Ekinci v. Turkey

13/11/2018

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

23

57214/18 Kaya v. Turkey

21/11/2018

Lack of reasonable suspicion

24

57288/18 Üçkuyu v. Turkey

14/11/2018

Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

25

57545/18 Bakır v. Turkey

15/11/2018

Lack of hearing during the detention review Lack of reasonable suspicion

26

57561/18 Demir v. Turkey

02/11/2018

Lack of hearing during the detention review Lack of reasonable suspicion

27

57760/18 Keskin v. Turkey

21/11/2018

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

28

57907/18 Kara v. Turkey

05/12/2018

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

29

57929/18 EroÄŸlu v. Turkey

05/12/2018

Lack of hearing during the detention review

30

58133/18 Bağcı v. Turkey

23/11/2018

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

31

58217/18 Kara v. Turkey

16/11/2018

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

32

58224/18 Çabuk v. Turkey

23/11/2018

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

33

58232/18 Gedemenli v. Turkey

30/11/2018

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

34

58254/18 YaÅŸa v. Turkey

21/11/2018

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

35

58256/18 Kaleli v. Turkey

21/11/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

36

58393/18 Bekdil v. Turkey

29/11/2018

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

37

58411/18 EriktaÅŸ v. Turkey

03/12/2018

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

38

58496/18 Artan v. Turkey

29/11/2018

Lack of reasonable suspicion

39

58549/18 Güler v. Turkey

19/11/2018

Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Failure to communicate the prosecutor ’ s opinion Lack of reasonable suspicion

40

58577/18 Aydın v. Turkey

20/02/2019

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

41

58728/18 Boyukata v. Turkey

23/11/2018

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

42

58796/18 Zengin v. Turkey

21/11/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

43

58801/18 KarakaÅŸ v. Turkey

21/11/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

44

58802/18 Pınarakar v. Turkey

21/11/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

45

58911/18 Åžahin v. Turkey

28/11/2018

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

46

59028/18 Özturk v. Turkey

21/11/2018

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

47

59202/18 Öztaş v. Turkey

22/11/2018

Length of pre-trial detention Failure/Delay in examining requests for enlargement/objection Lack of hearing during the detention review Restriction of access to the investigation file Failure/Delay to communicate decisions relating to detention Lack of reasonable suspicion

48

59384/18 Çakar v. Turkey

29/11/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

49

59969/18 Çalışkan v. Turkey

07/12/2018

Lack of reasonable suspicion

50

59974/18 Karagöz v. Turkey

29/11/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

51

59988/18 Acar v. Turkey

07/12/2018

Lack of reasonable suspicion

52

59992/18 Çınar v. Turkey

21/11/2018

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

53

21/19 Urgancı v. Turkey

07/12/2018

Lack of reasonable suspicion

54

28/19 Barlas v. Turkey

10/12/2018

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

55

113/19 Çalak v. Turkey

11/12/2018

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

56

373/19 Çoban v. Turkey

07/12/2018

Lack of reasonable suspicion

57

525/19 Zor v. Turkey

25/12/2018

Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

58

841/19 KarakuÅŸ v. Turkey

12/12/2018

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

59

1148/19 Tütüneken v. Turkey

06/12/2018

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

60

1200/19 Silahşör v. Turkey

13/12/2018

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

61

1470/19 Sönmez v. Turkey

13/12/2018

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

62

1661/19 Kazan v. Turkey

17/12/2018

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

63

1672/19 Yıldız v. Turkey

17/12/2018

Lack of reasonable suspicion

64

1675/19 Kurt v. Turkey

26/12/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

65

1684/19 Hallaç v. Turkey

20/12/2018

Length of pre-trial detention Lack of reasonable suspicion

66

1686/19 Åžahin v. Turkey

28/11/2018

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

67

1765/19 Özsoylar v. Turkey

19/12/2018

Length of pre-trial detention Failure/Delay in examining requests for enlargement/objection Lack of relevant and sufficient reasons for detention Failure/Delay to communicate decisions relating to detention Lack of reasonable suspicion

68

1933/19 Yılmaz v. Turkey

03/01/2019

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

69

2014/19 Gülbey v. Turkey

27/12/2018

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

70

2018/19 Eren v. Turkey

17/12/2018

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

71

2127/19 Ä°nan v. Turkey

28/11/2018

Lack of reasonable suspicion

72

2196/19 SaÄŸlam v. Turkey

30/11/2018

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

73

2204/19 AtaÅŸ v. Turkey

29/11/2018

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

74

2220/19 Aktümen v. Turkey

29/11/2018

Delay in examination by the Constitutional Court Lack of hearing during the detention review Lack of reasonable suspicion

75

2232/19 Özer v. Turkey

26/11/2018

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

76

2255/19 Aksoy v. Turkey

28/11/2018

Lack of reasonable suspicion

77

2257/19 Koç v. Turkey

06/12/2018

Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Failure/Delay to communicate decisions relating to detention Lack of reasonable suspicion

78

2262/19 Imamoglu v. Turkey

05/12/2018

Lack of reasonable suspicion

79

2274/19 Arpacı v. Turkey

13/12/2018

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

80

2366/19 Cildan v. Turkey

03/12/2018

Lack of reasonable suspicion

81

2541/19 Çakar v. Turkey

18/12/2018

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

82

2615/19 KuÅŸcu v. Turkey

28/12/2018

Lack of reasonable suspicion

83

2717/19 Yüce v. Turkey

21/12/2018

Lack of reasonable suspicion

84

2735/19 Sezer v. Turkey

11/12/2018

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

85

2746/19 Zeytin v. Turkey

02/01/2019

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

86

2762/19 Torunler v. Turkey

20/12/2018

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

87

2788/19 Dutlar v. Turkey

17/12/2018

Length of pre-trial detention Lack of reasonable suspicion

88

2843/19 Işık v. Turkey

03/01/2019

Length of pre-trial detention Lack of reasonable suspicion

89

2854/19 Çolak v. Turkey

04/01/2019

Lack of reasonable suspicion

90

2857/19 Öbekci v. Turkey

03/01/2019

Lack of reasonable suspicion

91

2863/19 Apaydın v. Turkey

03/01/2019

Length of pre-trial detention Lack of reasonable suspicion

92

3026/19 Kulaksız v. Turkey

21/12/2018

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

93

3054/19 Taşkın v. Turkey

05/12/2018

Length of pre-trial detention Lack of hearing during the detention review Restriction of access to the investigation file Lack of reasonable suspicion

94

3136/19 Pekdemir v. Turkey

15/11/2018

Lack of hearing during the detention review

95

4611/19 KeleÅŸoglu v. Turkey

28/09/2018

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

96

21352/19 BaÅŸyiÄŸit v. Turkey

16/04/2019

Length of pre-trial detention Lack of reasonable suspicion

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GÜVEN v. TURKEY and 95 other applications

GÜVEN v. TURKEY and 95 other applications

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