Published on 6 April 2021

SECOND SECTION

Application no. 27822/17 Süleyman BAĞRIYANIK against Turkey and 3 other applications (see list appended) communicated on 19 March 2021

SUBJECT MATTER OF THE CASE

The applications concern detention on remand of the applicants and proceedings for judicial review of their detention.

All the applicants were exercising as public prosecutors at the material time. Disciplinary and criminal investigations had been initiated against them on the ground that they had ordered stopping and searching of trucks belonging to the National Intelligence Organization ( Milli İ stihbarat Te ş kilat ı , “M İ T”).

Within the context of the disciplinary investigations, the applicants were dismissed from their duties by a decision of the Council of Judges and Prosecutors (“HSK”) of 14 January 2016.

On 8 May 2015, acting on the request of the inspector of the HSK, the Tarsus 2nd Assize Court ordered the applicants ’ detention. With separate decisions, access to the investigation files had been restricted to the applicants. The applicants ’ appeals against the decision of 8 May 2015 were rejected by the Mersin 2nd Assize Court.

On 11 June 2015 and 16 June 2015, the applicants introduced individual applications with the Turkish Constitutional Court (TCC) complaining in particular about a violation of their rights under Article 5 of the Convention. On 16 November 2016 the Turkish Constitutional Court rejected the applicant ’ s individual applications as being manifestly ill-founded.

Before the Court, the applicants complain that they were detained on remand in breach of the procedural guarantees provided for in domestic law for prosecutors and judges. They also allege that they were held in detention in the absence of any suspicion that they had committed an offence and without relevant and sufficient grounds. In this regard, they argue that they were remanded in custody because of their professional activities as prosecutors. Two of the applicants (application nos. 27822/17 and 40531/17) complain that the time taken by the Constitutional Court to conduct its examination of the individual applications had been excessive.

QUESTIONS TO THE PARTIES

1. ( a) Did the applicants ’ pre-trial detention take place “in accordance with the procedure prescribed by law”, in view of the procedural guarantees provided to the prosecutors by the domestic law?

(b) 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)?

2. Did the judges who ordered the applicants ’ pre-trial detention and examined the objections lodged against the measure fulfil their obligations to provide relevant and sufficient grounds in support of the deprivation of liberty in question (see, in particular, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 102, 5 July 2016)?

3. Did the applicants have at their disposal a 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 the following complaints made by the applicants:

- because of the restriction imposed on their access to the case file, they had been unable to challenge effectively their detention;

- that the time taken by the Constitutional Court to examine their individual applications had been protracted (as regard the application nos. 27822/17 and 40531/17).

No.

Application no.

Case name

1.

27822/17

Bağrıyanık v. Turkey

2.

31035/17

ÅžiÅŸman v. Turkey

3.

40531/17

Karaca v. Turkey

4.

40909/17

Takcı v. Turkey

APPENDIX

List of a pplications