Published on 13 February 2023

SECOND SECTION

Application no. 40848/19 Osman ÜNLÜ against Türkiye and 10 others – see appended list communicated on 27 January 2023

STATEMENT OF FACTS

The applications mainly concern the arrest and pre-trial detention of the applicants, who were all soldiers at the material time, on suspicion of having been involved in the attempted coup d’état which took place on 15 July 2016 and membership of an organisation described by the Turkish authorities as FETÖ/PDY (“Fetullahist Terror Organisation / Parallel State Structure”). The applicants were amongst those persons whose names were indicated on the lists of military personnel to be appointed by the instigators of the attempted coup to serve in the aftermath of the coup ( Sıkıyönetim Komutanlıkları Atama Listesi ).

Relying on Article 5 of the Convention, the applicants raise the following complaints (see the appended table for detailed information as to the specific complaints raised by each applicant):

- 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 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 restricted and monitored by the prison authorities;

- The time taken by the Constitutional Court to conduct its examination of their individual applications was excessive;

- There was no remedy available to them to obtain compensation for the alleged breach of their rights under Article 5.

QUESTIONS TO THE PARTIES

On the basis of the complaints communicated in accordance with the list in the Appendix

Complaints under Article 5 of the Convention

1. (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)?

(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?

2. 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 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 (see, in particular, Baş v. Turkey, no. 66448/17, §§ 212-214, 3 March 2020, and Kocamış and Kurt v. Turkey, no. 227/13, §§ 34- 35, 25 January 2022);

(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 (see, inter alia, Ceviz v. Turkey, no. 8140/08, § 41, 17 July 2012);

iii) 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 (compare, for example, Voskuil v. the Netherlands, no. 64752/01, § 83, 22 November 2007);

(iv) 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 restricted and monitored (see, mutatis mutandis, Černák v. Slovakia, no. 36997/08, § 78, 17 December 2013);

(v) the time taken by the Constitutional Court to examine their individual applications had been protracted (compare for the principles Kavala v. Turkey, no. 28749/18, §§ 181-184, 10 December 2019).

3. 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 unlawfulness of the arrest and pre-trial detention; (ii) the lack of an oral hearing during the review of detention; (iii) the non ‑ notification or belated notification of the detention decision; (iv) the lack of or delay in the examination of the objection against detention by the magistrates’ courts (compare, for example, Hebat Aslan and Firas Aslan v. Turkey, no. 15048/09, §§ 92-93, 28 October 2014)?

4. Did the applicants have, as required by Article 5 § 5 of the Convention, an effective and enforceable right in court to obtain compensation for their detention, which they consider to have been contrary to Article 5 §§ 1, 3 and 4 (Kocamış and Kurt, cited above, §§ 36-40)?

APPENDIX

No.

Application no.

Case title

Date of introduction

Complaints

1.

40848/19

Ünlü v. Türkiye

23/07/2019

Lack of relevant and sufficient reasons for detention

Delay in examination by the Constitutional Court

2.

49433/19

Demir v. Türkiye

18/09/2019

Restriction of access to the investigation file

Delay in examination by the Constitutional Court

3.

1195/20

Bayır v. Türkiye

28/11/2019

Lack of relevant and sufficient reasons for detention

4.

5564/20

Erdemir v. Türkiye

06/01/2020

Lack of relevant and sufficient reasons for detention

Length of pre-trial detention

5.

7427/20

Yalçın v. Türkiye

31/01/2020

Length of pre-trial detention

Lack of relevant and sufficient reasons for detention

Restriction of access to the investigation file

Lack of hearing during the detention review

No effective remedy for compensation

6.

23046/20

Barut v. Türkiye

21/05/2020

Length of pre-trial detention

Lack of relevant and sufficient reasons for detention

7.

29061/20

Hakbilen v. Türkiye

21/02/2020

Length of pre-trial detention

Lack of relevant and sufficient reasons for detention

8.

49166/20

Öztürk v. Türkiye

21/09/2020

Lack of relevant and sufficient reasons for detention

Restriction of access to the investigation file

Failure/delay in communicating decisions relating to detention

No effective remedy for compensation

9.

3577/21

Ölmez v. Türkiye

04/12/2020

Length of pre-trial detention

Lack of relevant and sufficient reasons for detention

Restriction of access to the investigation file

Lack/difficulties of legal assistance/other facilities

10.

28282/21

Semiz v. Türkiye

26/05/2021

Length of pre-trial detention

Lack of relevant and sufficient reasons for detention

Lack of hearing during the detention review

11.

36939/21

Taş v. Türkiye

36939/21

Length of pre-trial detention

Lack of relevant and sufficient reasons for detention