Published on 19 September 2022

SECOND SECTION

Application no. 53206/15 Bekir KARATAŞ and Others against Türkiye lodged on 13 October 2015 communicated on 29 August 2022

SUBJECT MATTER OF THE CASE

The case concerns the applicants’ complaint that they were detained on remand in the absence of any suspicion that they had committed an offence and without relevant and sufficient grounds. They also argue that the restriction on access to the investigation file deprived them of the opportunity to effectively challenge the basis of the allegations against them.

At the material time, the applicants were gendarmerie personnel at the Adana Provincial Gendarmerie Command ( Adana İl Jandarma Komutanlığı ). Upon the instructions of the Adana public prosecutor they were deployed to intercept and seize the contents of trucks which were suspected of carrying munitions and explosive ordnances to be delivered to terrorist organisations in Syria, but turned out to belong to the National Intelligence Agency ( Milli İstihbarat Teşkilatı ). They were subsequently taken in pre-trial detention in relation to this event. Their appeals against the detention orders were to no avail. On 9 January 2019 the Turkish Constitutional Court dismissed their individual applications in which they had complained, in particular, about a violation of their rights under Article 5 of the Convention on account of the alleged unlawfulness of their pre-trial detention, the lack of adequate reasoning in the domestic court decisions when ordering their pre-trial detention as well as the restriction imposed on the access to the investigation files.

QUESTIONS TO THE PARTIES

1. Was the applicants’ pre-trial detention compatible with the requirements of Article 5 § 1 of the Convention? In particular, can the applicants be considered to have been detained on the basis of “a reasonable suspicion” that they had committed an offence, within the meaning of Article 5 § 1 (c) of the Convention (see, in particular, Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A No. 182)? Was the evidence that was available in the file at the time of the applicants’ pre-trial detention sufficient to satisfy an objective observer that they may have committed the offences attributed to them (see, mutatis mutandis , Mergen and Others v. Turkey , nos. 44062/09 and 4 others, §§ 46-55, 31 May 2016, and Ayşe Yüksel and Others v. Turkey , nos. 55835/09 and 2 others, §§ 51-60, 31 May 2016)?

2. Did the judges who ordered the applicants’ initial pre-trial detention fulfil their obligation under Article 5 § 3 of the Convention 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?

(a) In particular, had the applicants been unable to challenge effectively their detention because of the restriction imposed on their access to the case file (see Ceviz v. Turkey , no. 8140/08, § 41, 17 July 2012, and Nedim Şener v. Turkey , no. 38270/11, § 82, 8 July 2014)?

(b) Subsequent to the applicants’ pre-trial detention, were new items of evidence included in the case file that were not brought to the attention of the applicants, prior to the filing of the indictment?

The parties are requested to submit a copy of all documents relevant to the domestic proceedings, including the investigation file of the Istanbul public prosecutor’s office, the public prosecutor’s decision restricting access thereto, as well as the indictment filed by the public prosecutor.

The applicants are also requested to provide the Court with copies of the individual application forms submitted before the Turkish Constitutional Court in respect of the complaints lodged before the Court.

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.Bekir KARATAÅž

1974Turkish

Adana

2.İsmail Önder ATA

1986Turkish

Batman

3.Hakan KAPLAN

1984Turkish

Adana

4.Önder KIR

1983Turkish

Ankara

5.Hüseyin ÖZMEN

1984Turkish

Adana