Published on 4 December 2023

SECOND SECTION

Application no. 44457/16 Hediye ÖNDEROĞLU against Türkiye and 7 other applications (see list appended) communicated on 15 November 2023

SUBJECT MATTER OF THE CASE

The cases concern the applicants’ complaints 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 challenge the basis of the allegations against them effectively.

At the material time, the applicants were living in Manisa (Türkiye). On different dates in November 2015 and February 2016, they were taken in pre ‑ trial detention on suspicion of financing a terrorist organisation, which the Turkish authorities refer to as FETÖ/PDY (“Fethullahist Terror Organisation/Parallel State Structure”). The judicial authorities based their suspicions against the applicants on the fact that they had deposited money in their accounts at the Manisa branch of Bank Asya following the orders of the leader of FETÖ/PDY. The applicants’ appeals against the detention orders were to no avail.

The Turkish Constitutional Court dismissed the applicants’ 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) During 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.

APPENDIX

List of cases:

No.

Application no.

Case name

Applicant

1.

44457/16

Önderoğlu v. Türkiye

Hediye ÖNDEROĞLU

2.

44702/16

Kaplan v. Türkiye

Hamdiye KAPLAN

3.

45243/16

Yerkazanoğlu v. Türkiye

Özer YERKAZANOĞLU

4.

45244/16

Yerkazanoğlu v. Türkiye

Ömer YERKAZANOĞLU

5.

45246/16

Demir v. Türkiye

Ä°rfan DEMÄ°R

6.

45247/16

Bayraktar v. Türkiye

Fatih Süha BAYRAKTAR

7.

46260/16

Arslan v. Türkiye

Yüksel ARSLAN

8.

46668/16

Beşkirli v. Türkiye

Kerim BEÅžKÄ°RLÄ°