Published on 19 September 2022

SECOND SECTION

Application no. 71299/16 Cafer Tekin İPEK against Türkiye lodged on 10 November 2016 communicated on 29 August 2022

SUBJECT MATTER OF THE CASE

The application concerns the pre-trial detention of Mr Cafer Tekin Ä°pek, the former majority shareholder of eighteen companies brought together under the holding company named Ä°pek Koza A.Åž.

On 24 April 2016, following a police search conducted at his residence, the applicant was placed in police custody. On 25 April 2016 he was interrogated by the Ankara public prosecutor and then by the Ankara 2nd Magistrate’s Court, which, on the same day, ordered the applicant’s pre-trial detention, based on suspicion of abuse of trust in a service relationship ( hizmet nedeniyle güveni kötüye kullanma ) and of membership in an armed terrorist organisation, namely the organisation described by the Turkish authorities as the “Fetullahist Terrorist Organisation / Parallel State Structure” (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması, hereinafter referred to as “FETÖ/PDY”). The applicant’s detention on remand was reviewed numerous times by the magistrates’ courts, either following an objection lodged by the applicant or at the request of the public prosecutor. In June 2017 the public prosecutor lodged an indictment before the Ankara 24th Assize Court, charging the applicant with the above-mentioned crimes.

On 30 May 2016 the applicant lodged an individual application before the Constitutional Court, principally complaining of the alleged breach of his rights under Article 5 of the Convention. On 1 July 2016 the applicant lodged a new application with the Constitutional Court, once again challenging his pre-trial detention. The two applications were joined under the former one. On 20 September 2018 the Constitutional Court declared the application inadmissible. When dismissing the applicant’s complaint about the lack of a reasonable suspicion on which to base his pre-trial detention, the Constitutional Court relied on the evidence of his use of ByLock, which had been obtained at a later stage of the criminal proceedings.

The criminal proceedings against the applicant regarding his alleged membership of the FETÖ/PDY appear to be still pending before the Court of Cassation. The applicant’s conviction in relation to the offence of abuse of trust in a service relationship has become final on 27 April 2021.

The applicant relies on Article 5 of the Convention and complains that he was detained in the absence of a reasonable suspicion of having committed an offence, that there were no relevant and sufficient reasons justifying his initial and continued pre-trial detention, that the length of his pre-trial detention was excessive and that the judicial review of the lawfulness of his detention was ineffective.

QUESTIONS TO THE PARTIES

1. Was the applicant’s pre-trial detention compatible with the requirements of Article 5 § 1 of the Convention? In particular, can the applicant be considered to have been detained on the basis of “a reasonable suspicion” that he had committed an offence for the purposes of Article 5 § 1 (c) (see, in particular, Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A No. 182, and Akgün v. Turkey , no. 19699/18, §§ 151-185, 20 July 2021), 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?

(a) On the basis of what factual grounds and material evidence was the applicant taken into detention in respect of the offences with which he was charged (namely, abuse of trust in a service relationship and of membership in an armed terrorist organisation)? Was the evidence that was available in the file at the time of the applicant’s pre-trial detention sufficient to satisfy an objective observer that he may have committed the offences attributed to him?

(b) Has the Constitutional Court based the existence of reasonable suspicion on evidence discovered after the decisions had been taken to detain the applicant?

2. Was the applicant’s pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular:

(i) Did the judges, who ordered the applicant’s initial pre-trial detention and the prolongation of his 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 applicant’s pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?

3. Did the applicant have at his disposal an effective remedy by which he could challenge the lawfulness of his deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular, did the judges who reviewed the applicant’s pre-trial detention undertake an individual assessment of the applicant’s situation, taking due account of his arguments and giving adequate reasoning in its decisions (compare Svipsta v. Latvia , no. 66820/01, §§ 130-134, ECHR 2006-III (extracts))?

The parties are requested to submit the relevant court decisions and other documents in support of their responses.