Lexploria

Published on 3 May 2021

SECOND SECTION

Application no. 59568/17 Hakan KARALOÄžLU against Turkey and 90 other applications (see list appended) communicated on 15 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))?

(i) 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 ID No.

Date of Intro

Complaints for each application

1

59568/17 KaraloÄŸlu v. Turkey

10/05/2017

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 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

2

63612/17 Aynı v. Turkey

06/06/2017

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

3

69774/17 Taze v. Turkey

29/08/2017

Lack of reasonable suspicion

4

69851/17 Laçiner v. Turkey

18/08/2017

Delay in examination by the Constitutional Court 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

69884/17 Mecit v. Turkey

04/09/2017

Lack of reasonable suspicion

6

76301/17 Yazıcı v. Turkey

13/10/2017

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

7

6701/18 Odabaşı v. Turkey

04/01/2018

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/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

8

10640/18 Demir v. Turkey

14/02/2018

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

9

12490/18 Mila v. Turkey

02/03/2018

Restriction of access to the investigation file Lack of reasonable suspicion

10

13397/18 Abanoz v. Turkey

27/02/2018

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

11

26360/18 Karakaya v. Turkey

08/05/2018

Restriction of access to the investigation file Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

12

26880/18 OkuÅŸluk v. Turkey

30/05/2018

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

13

27004/18 Boran v. Turkey

18/05/2018

Lack of hearing during the detention review Lack of reasonable suspicion

14

27016/18 Ayan v. Turkey

30/05/2018

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

15

27075/18 Dursun v. Turkey

18/05/2018

Delay in examination by the Constitutional Court Restriction of access to the investigation file Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

16

27086/18 Duran v. Turkey

18/05/2018

Lack of reasonable suspicion

17

27766/18 Aydın v. Turkey

31/05/2018

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

18

29602/18 Öz v. Turkey

11/06/2018

Lack of reasonable suspicion

19

29766/18 AkdoÄŸan v. Turkey

05/06/2018

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

20

30140/18 Bereket v. Turkey

13/06/2018

Length of pre-trial detention Lack of reasonable suspicion

21

32403/18 Åžen v. Turkey

20/06/2018

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

22

33368/18 Dinç v. Turkey

03/07/2018

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 Failure to communicate the prosecutor’s opinion Failure/Delay to communicate decisions relating to detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

23

39113/18 Öztürk v. Turkey

28/04/2018

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/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

24

39152/18 Güç v. Turkey

31/07/2018

Lack of relevant and sufficient reasons for detention Failure to communicate the prosecutor’s opinion Lack of reasonable suspicion

25

39536/18 Kaya v. Turkey

02/08/2018

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

26

39678/18 Duysak v. Turkey

03/08/2018

Lack of relevant and sufficient reasons for Lack of reasonable suspicion

27

39835/18 Tekin v. Turkey

06/08/2018

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

28

40472/18 Abalı v. Turkey

10/08/2018

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

29

44651/18 Atılgan v. Turkey

06/09/2018

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

30

44657/18 Tokyay v. Turkey

10/09/2018

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

31

44762/18 Yarbı v. Turkey

17/09/2018

Restriction of access to the investigation file Lack of reasonable suspicion

32

44766/18 Yalçın v. Turkey

14/09/2018

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

33

44807/18 Demir v. Turkey

14/09/2018

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

34

44960/18 KeleÅŸ v. Turkey

11/09/2018

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

35

45087/18 Taşkın v. Turkey

17/09/2018

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

36

45297/18 Ergin v. Turkey

21/09/2018

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

45325/18 Sert v. Turkey

17/09/2018

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

38

45330/18 Hazman v. Turkey

14/09/2018

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

39

45334/18 Kaçar v. Turkey

11/09/2018

Delay in examination by the Constitutional Court Lack of reasonable suspicion

40

45472/18 AydoÄŸan v. Turkey

07/09/2018

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

41

45473/18 Akmirza v. Turkey

07/09/2018

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

42

45482/18 Gündüz v. Turkey

07/09/2018

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

43

46225/18 Aydın v. Turkey

20/09/2018

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

44

47400/18 ArmaÄŸan v. Turkey

28/09/2018

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

45

47561/18 İçer v. Turkey

06/07/2018

Lack of reasonable suspicion

46

47703/18 Kaplan v. Turkey

25/09/2018

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

47

48051/18 Yıldız v. Turkey

25/09/2018

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 Restriction of access to the investigation file

48

48106/18 Çelik v. Turkey

05/10/2018

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

49

48203/18 Çimen v. Turkey

02/10/2018

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

50

48351/18 Kırdağ v. Turkey

09/10/2018

Delay in examination by the Constitutional Court Restriction of access to the investigation file Failure/Delay to communicate decisions relating to detention Lack of reasonable suspicion

51

48726/18 TuÄŸberk v. Turkey

05/10/2018

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

52

48731/18 Kervancıoğlu v. Turkey

08/10/2018

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

53

48911/18 Kobalay v. Turkey

28/09/2018

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

54

48917/18 Ãœrnez v. Turkey

06/10/2018

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

55

49223/18 Dokur v. Turkey

15/10/2018

Length of pre-trial detention Failure/Delay in examining requests for enlargement/objection Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention

56

49298/18 Kocaer v. Turkey

08/10/2018

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

57

49301/18 Talu v. Turkey

09/10/2018

Lack of reasonable suspicion

58

49309/18 Kubur v. Turkey

10/10/2018

Length of pre-trial detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

59

49399/18 Kansız v. Turkey

08/10/2018

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

60

49405/18 Öztürk v. Turkey

12/10/2018

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

61

49836/18 YaÅŸa v. Turkey

15/10/2018

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

62

49840/18 AteÅŸ v. Turkey

12/10/2018

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

63

49848/18 Şanlı v. Turkey

11/10/2018

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

64

49849/18 Kandemir v. Turkey

10/10/2018

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

65

50055/18 Yılmaz v. Turkey

06/10/2018

Lack of reasonable suspicion

66

50258/18 Ä°lhan v. Turkey

26/09/2018

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

67

50346/18 SaÄŸlam v. Turkey

08/10/2018

Lack of reasonable suspicion

68

50391/18 Genç v. Turkey

03/05/2018

Length of pre-trial detention Lack of reasonable suspicion

69

50627/18 Sayın v. Turkey

22/10/2018

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

70

50798/18 Demir v. Turkey

11/10/2018

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

71

50799/18 Kara v. Turkey

11/10/2018

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

72

50802/18 Ertekin v. Turkey

11/10/2018

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

73

50884/18 Şahin Balcık v. Turkey

19/10/2018

Lack of reasonable suspicion

74

51101/18 Yanmaz v. Turkey

25/10/2018

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

75

51313/18 Olgaç v. Turkey

19/10/2018

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

76

51577/18 Özdemir v. Turkey

15/10/2018

Lack of reasonable suspicion

77

51602/18 Ahmedali v. Turkey

18/10/2018

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

78

51690/18 Geleken v. Turkey

26/10/2018

Restriction of access to the investigation file Lack of reasonable suspicion

79

52009/18 AkdoÄŸan v. Turkey

25/10/2018

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

80

52386/18 Kafes v. Turkey

25/10/2018

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

81

52456/18 Acar v. Turkey

02/11/2018

Length of pre-trial detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

82

52502/18 Fidan v. Turkey

26/10/2018

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

83

52523/18 Günal v. Turkey

24/10/2018

Length of pre-trial detention Lack of reasonable suspicion

84

52539/18 Arlı v. Turkey

22/10/2018

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 Failure/Delay to communicate decisions relating to detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

85

52623/18 Bayram v. Turkey

26/10/2018

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

86

52966/18 Çabuk v. Turkey

07/11/2018

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

87

53443/18 Çelik v. Turkey

30/10/2018

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

88

53542/18 BaloÄŸlu v. Turkey

24/10/2018

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

89

53546/18 Suyabatmaz v. Turkey

08/11/2018

Lack of reasonable suspicion

90

53608/18 Kaya v. Turkey

08/11/2018

Lack of reasonable suspicion

91

53772/18 Tetik v. Turkey

31/10/2018

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

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KARALOĞLU v. TURKEY and 90 other applications

KARALOĞLU v. TURKEY and 90 other applications

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