Published on 17 July 2023

SECOND SECTION

Application no. 44240/18 Metin TOPUZ against Türkiye lodged on 10 September 2018 communicated on 28 June 2023

SUBJECT MATTER OF THE CASE

The application concerns the detention of the applicant for attempting to overthrow the Government through force and violence (Article 312 of the Criminal Code), attempting to overthrow the constitutional order (Article 309 of the Criminal Code), and military or political espionage (Article 328 of the Criminal Code).

At the material time, the applicant was working at the Consulate General of the United States of America in Istanbul. On 25 September 2017 he was arrested and taken into police custody on suspicion of political espionage and having links to FETÖ/PDY.

On 4 October 2017 the Istanbul 11 th Magistrate’s Court ordered that the applicant be placed in pre-trial detention. The magistrate had regard firstly to the existence of concrete evidence giving rise to a strong suspicion that the applicant had committed the alleged offences, and to the upper and lower limits of the sentences prescribed for those offences. The magistrate also took the following factors into consideration: the nature and seriousness of the offences with which the applicant was accused, the fact that they were among the offences listed in Article 100 § 3 of the Code of Criminal Procedure – the so‑called “catalogue offences” –, and the risk that alternative measures to detention might be insufficient to ensure the applicant’s participation in the criminal proceedings. The objection lodged by the applicant against the order for his pre-trial detention was rejected on similar grounds. According to the elements in the case file, the applicant’s requests for release were repeatedly rejected by the competent judicial authorities.

On 11 April 2018 the applicant lodged an individual application with the Constitutional Court complaining, inter alia , that there was no reasonable suspicion that he had committed a criminal offence, that the reasons given by the domestic courts to justify his detention had been insufficient and that the length of his pre-trial detention was excessive. On 7 February 2019, the Constitutional Court declared the applicant’s individual application inadmissible.

At the time of the application the applicant was still in pre-trial detention.

Relying on Article 5 §§ 1 and 3 of the Convention, the applicant reiterated before the Court the complaints he had made before the Constitutional Court.

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, 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), 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?

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, 5 July 2016) ?

(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 ?