Published on 3 July 2023

SECOND SECTION

Application no. 69554/17 Yasin AKDENİZ against Türkiye and 13 other applications (see list appended) communicated on 12 June 2023

SUBJECT MATTER OF THE CASE

The applications mainly concern the arrest and pre-trial detention of the applicants, who were all military judges/prosecutors or military trainee judges at the material time, on suspicion of being involved in the attempted coup d’état that 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 whose names were indicated on the list of judges to be appointed by the instigators of the attempted coup to sit on the courts martial that were envisaged to be set up following the coup ( Sıkıyönetim Mahkemeleri Atama Listesi ; for further information on this list, see Çinici and Others v. Turkey (dec.), no. 32264/19, §§ 12 and 27-29, 16 March 2021).

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):

- They were detained on remand in breach of the procedural guarantees provided in domestic law for judges and prosecutors;

- 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 restricted and monitored by the prison authorities;

- The time taken by the Constitutional Court to conduct its examination on 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.

Relying on Article 8 of the Convention, some of the applicants also complain that the searches conducted by the authorities in their homes and offices were unlawful.

QUESTIONS TO THE PARTIES

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

1. Did the applicants’ pre-trial detention take place “in accordance with the procedure prescribed by law”, for the purposes of Article 5 § 1 of the Convention, in view of the procedural guarantees provided to judges and prosecutors by the domestic law (compare Baş v. Turkey , no. 66448/17, §§ 130-162, 3 March 2020)?

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)?

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?

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 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 , cited above, §§ 212-214, 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. their objections to their detention had not been examined or had been examined belatedly (see, for example, Shannon v. Latvia , no. 32214/03, §§ 67-74, 24 November 2009);

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

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

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

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 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)?

5. 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 (see, for example, Kocamış and Kurt , cited above, §§ 36-40)?

6. Taking into consideration the searches carried out by the authorities in the applicants’ homes and offices (applications nos. 8033/18, 16961/20 and 1108/21):

a. Was there an interference with the applicants’ right to respect for their private life and home and was that interference in accordance with the law and necessary in terms of Article 8 of the Convention (compare, for example, Tercan v. Turkey , no. 6158/18, §§ 189-202, 29 June 2021)?

b. Was the compensation remedy provided under Article 141 of the Code of Criminal Procedure an effective one in respect of the applicants’ complaints under Article 8 of the Convention?

APPENDIX

No.

Application no.

Case title

Date of introduction

Complaints

1.

69554/17

Akdeniz v. Türkiye

08/08/2017

Failure to comply with procedural guarantees provided for in domestic law

Lack of relevant and sufficient reasons for detention

Restriction of access to the investigation file

Lack of hearing during the detention review

Failure/delay in communicating decisions relating to detention

Failure to communicate the prosecutor’s opinion

Lack/difficulties of legal assistance/other facilities

2.

81411/17

Özkan v. Türkiye

17/10/2017

Failure to comply with procedural guarantees provided for in domestic law

Lack of relevant and sufficient reasons for detention

Restriction of access to the investigation file

Lack of hearing during the detention review

Lack/difficulties of legal assistance/other facilities

Delay in examination by the Constitutional Court

3.

360/18

Aydın v. Türkiye

28/11/2017

Lack of relevant and sufficient reasons for detention

Restriction of access to the investigation file

Lack of hearing during the detention review

Failure/delay in communicating decisions relating to detention

4.

3474/18

Kocaoğlu v. Türkiye

29/12/2017

Delay in examination by the Constitutional Court

5.

8033/18

Siyahgül v. Türkiye

23/01/2018

Failure to comply with procedural guarantees provided for in domestic law

Lack of relevant and sufficient reasons for detention

Restriction of access to the investigation file

Failure/Delay in examining requests for release/objection

Lack/difficulties of legal assistance/other facilities

Unlawful search of home and/or office

6.

11881/19

Topal v. Türkiye

26/02/2019

Failure to comply with procedural guarantees provided for in domestic law

Lack of relevant and sufficient reasons for detention

Restriction of access to the investigation file

Lack of hearing during the detention review

7.

38914/19

Özsu v. Türkiye

11/07/2019

Lack of relevant and sufficient reasons for detention

8.

10908/20

Eren v. Türkiye

15/11/2019

Failure to comply with procedural guarantees provided for in domestic law

Lack of relevant and sufficient reasons for detention

9.

16961/20

Kayran v. Türkiye

18/03/2020

Failure to comply with procedural guarantees provided for in domestic law

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

Failure/delay in communicating decisions relating to detention

Unlawful search of home and/or office

10.

20413/20

Yurtseven v. Türkiye

12/05/2020

Failure to comply with procedural guarantees provided for in domestic law

Lack of relevant and sufficient reasons for detention

Lack of hearing during the detention review

Failure/delay in communicating decisions relating to detention

Failure to communicate the prosecutor’s opinion

11.

21266/20

Bulduk v. Türkiye

15/05/2020

Lack of relevant and sufficient reasons for detention

Failure to communicate the prosecutor’s opinion

12.

38816/20

Hoş v. Türkiye

03/07/2020

Lack of relevant and sufficient reasons for detention

Lack of hearing during the detention review

No effective remedy for compensation

13.

1108/21

Kaldırımcı v. Türkiye

16/12/2020

Failure to comply with procedural guarantees provided for in domestic law

Lack of relevant and sufficient reasons for detention

Lack of hearing during the detention review

Failure/delay in communicating decisions relating to detention

Failure to communicate the prosecutor’s opinion

No effective remedy for compensation

Unlawful search of home and/or office

14.

17516/22

Şengül v. Türkiye

31/03/2022

Failure to comply with procedural guarantees provided for in domestic law