Lexploria

SECOND SECTION

CASE OF ERÄ°Åž AND OTHERS v. TÃœRKÄ°YE

(Applications nos. 58665/17 and 44 others)

JUDGMENT

STRASBOURG

24 October 2023

This judgment is final but it may be subject to editorial revision.

In the case of EriÅŸ and Others v. TÃ¼rkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Jovan Ilievski , President , Lorraine Schembri Orland, Diana SÃ¢rcu , judges ,

and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications against the Republic of TÃ¼rkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (â€œthe Conventionâ€) by forty-five Turkish nationals, whose relevant details are listed in the appended table (â€œthe applicantsâ€), on the various dates indicated therein;

the decision to give notice of the complaints under Article 5 of the Convention concerning the alleged lack of reasonable suspicion regarding the commission of an offence, the alleged lack of relevant and sufficient reasons when ordering and extending the pre-trial detention, the length of pre-trial detention and the ineffectiveness of the judicial review of the lawfulness of detention to the Turkish Government (â€œthe Governmentâ€) represented by their Agent, Mr HacÄ± Ali AÃ§Ä±kgÃ¼l, Head of the Department of Human Rights of the Ministry of Justice of the Republic of TÃ¼rkiye, and to declare inadmissible the remainder of the applications;

the partiesâ€™ observations;

the decision to reject the Governmentâ€™s objection to the examination of the applications by a Committee;

Having deliberated in private on 3 October 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The present applications mainly concern the arrest and pre-trial detention of the applicants in the aftermath of the coup attempt of 15 July 2016, on suspicion of their membership of an organisation described by the Turkish authorities as the â€œFetullahist Terror Organisation / Parallel State Structureâ€ (FetullahÃ§Ä± TerÃ¶r Ã–rgÃ¼tÃ¼ / Paralel Devlet YapÄ±lanmasÄ±, hereinafter referred to as â€œFETÃ–/PDYâ€), which was considered by the authorities to be behind the coup attempt (further information regarding the events that unfolded after the coup attempt, including the details of the state of emergency declared by the respondent Government and the ensuing notice of derogation given to the Secretary General of the Council of Europe, as well as the legislative developments that followed the declaration of the state of emergency, may be found in the case of BaÅŸ v. Turkey , no. 66448/17, Â§Â§ 6 â€‘ 14 and Â§Â§ 109-10, 3 March 2020).

2 . On various dates, the applicants were arrested and placed in pre-trial detention, mainly on suspicion of membership of the FETÃ–/PDY, an offence punishable under Article 314 of the Criminal Code (see BaÅŸ , cited above, Â§ 58). The detention orders relied principally on the nature of the alleged offence, the state of the evidence and the potential sentence. It was also noted that investigations into the coup attempt were being conducted across the country, that statements had not yet been taken from all the suspects and that the alleged offence was among the â€œcatalogueâ€ offences listed in Article 100 Â§ 3 of the Code of Criminal Procedure (CCP) (for the text of Article 100 of the CCP, as relevant, see BaÅŸ , cited above, Â§ 61). It appears from the initial detention orders and the documents available in the case files that all of the applicants were identified as users of the ByLock messaging system. Moreover, the applicants in application nos. 69774/17, 11420/18, 12700/18, 14670/18, 16396/18, 17825/18, 18580/18 and 21/19 were also suspected of financing the FETÃ–/PDY in view of their use of accounts in Bank Asya â€“ a bank allegedly linked to FETÃ–/PDY â€“ and/or possession of pro-FETÃ–/PDY publications. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed the offence imputed to them, were dismissed, including by the Constitutional Court.

3. According to the latest information provided by the parties, most of the applicants were convicted of membership of a terrorist organisation by the first instance courts. It appears that, for the most part, the criminal proceedings are still pending before appeal courts or the Constitutional Court.

THE COURTâ€™S ASSESSMENT

4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

5. The applicants complained that there had been no specific evidence giving rise to a reasonable suspicion, within the meaning of Article 5 Â§ 1 (c) of the Convention, that they had committed a criminal offence necessitating pre-trial detention.

6. The Government urged the Court to declare this complaint inadmissible in respect of the applicants who had not made use of the compensatory remedy under Article 141 of the Code of Criminal Procedure, or whose compensation claims were still pending. They further asked the Court to declare the applications inadmissible for abuse of the right of application to the extent that the applicants had not informed the Court of the developments in their cases following the lodging of their applications.

7. The Court notes that similar objections have already been dismissed in other cases against TÃ¼rkiye (see, for instance, BaÅŸ , cited above, Â§Â§ 118-21, and Turan and Others v. Turkey , nos. 75805/16 and 426 others, Â§Â§ 57-64, 23 November 2021), and sees no reason to depart from those findings in the present case. The Court therefore considers that this complaint is not manifestly ill-founded within the meaning of Article 35 Â§ 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

8. The Court notes that the applicantsâ€™ initial pre-trial detention was based on information indicating their use of the ByLock messaging system and, in respect of some of them, banking activities considered as financing the FETÃ–/PDY and subscriptions to certain pro-FETÃ–/PDY publications. To the extent that the detention orders have taken into account the applicantsâ€™ alleged use of the ByLock messaging system, the Court notes that it has already found that the use of ByLock was not of a nature to constitute â€œreasonable suspicionâ€ within the meaning of Article 5 Â§ 1 (c) in respect of the offence attributed to the applicants (see AkgÃ¼n v. Turkey , no. 19699/18, Â§Â§ 151-85, 20 July 2021, and Taner KÄ±lÄ±Ã§ v. Turkey (no. 2) , no. 208/18, Â§Â§ 102-03 and 106-09, 31 May 2022 ). The Court further considers, as relevant, that the other acts imputed to the applicants (see paragraph 2 above) were merely circumstantial elements which, in the absence of any other information capable of justifying the suspicions in question, benefited from the presumption of legality and cannot reasonably be regarded as constituting a body of evidence demonstrating the applicantsâ€™ membership of a terrorist organisation (compare Taner KÄ±lÄ±Ã§ , cited above, Â§Â§ 104-05 and the cases cited therein).

9. Since the Government have not provided any other indications, â€œfactsâ€ or â€œinformationâ€ capable of satisfying it that the applicants were â€œreasonably suspectedâ€, at the time of their initial detention, of having committed the alleged offence, the Court finds that the requirements of Article 5 Â§ 1 (c) regarding the â€œreasonablenessâ€ of a suspicion justifying detention have not been satisfied (see BaÅŸ , cited above, Â§ 195, and Taner KÄ±lÄ±Ã§ , cited above, Â§Â§ 114-16). At this juncture, it cannot be maintained, as the Government did, that the mere fact that the applicants were not members of the judiciary had any bearing on the conclusion reached. It moreover considers that while the applicants were detained a short time after the coup attempt â€“ that is, the event that prompted the declaration of the state of emergency and the notice of derogation by TÃ¼rkiye â€“, which is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article 5 of the Convention in the present case, the measure at issue cannot be said to have been strictly required by the exigencies of the situation (compare BaÅŸ , cited above, Â§Â§ 115-16 and Â§Â§ 196 â€‘ 201). It therefore concludes that there has been a violation of Article 5 Â§ 1 of the Convention.

10. As regards any remaining complaints under Article 5 Â§Â§ 1, 3 and 4 of the Convention, the Court decides not to examine them, in view of its findings under Article 5 Â§ 1 above and its considerations in the case of Turan and Others (cited above, Â§ 98).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

11. The applicants, except for the applicant in application no. 70782/17, requested compensation in varying amounts in respect of nonâ€‘pecuniary damage within the time-limit allotted. Most of the applicants in question also claimed pecuniary damage, as well as the legal costs and expenses incurred before the domestic courts and the Court.

12. The Government contested the applicantsâ€™ claims as being unsubstantiated and excessive.

13. For the reasons put forth in Turan and Others (cited above, Â§Â§ 102 â€‘ 07), the Court rejects any claims for pecuniary damage and awards each of the applicants, save for the applicant in application no. 70782/17, a lump sum of 5,000 euros (EUR), covering non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay each of the applicants, save for the applicant in application no. 70782/17, within three months, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 24 October 2023, pursuant to Rule 77 Â§Â§ 2 and 3 of the Rules of Court.

Dorothee von Arnim Jovan Ilievski Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence

Represented by

1.

58665/17

EriÅŸ v. TÃ¼rkiye

28/07/2017

Ahmet ERÄ°Åž 1987 Ankara

GÃ¼lhis YÃ–RÃœK

2.

59699/17

Kurt v. TÃ¼rkiye

08/11/2016

Ä°brahim KURT 1986 Sivas

GÃ¼lbahar KOÃ‡AK

3.

69774/17

Taze v. TÃ¼rkiye

29/08/2017

Ali TAZE 1974 KahramanmaraÅŸ

Emre KOZANDAÄžI

4.

70782/17

GÃ¼rbÃ¼z v. TÃ¼rkiye

24/08/2017

Yusuf Ersin GÃœRBÃœZ 1989 Kutahya

Deniz Ã–ZERDEM

5.

3462/18

KÃ¶ksal v. TÃ¼rkiye

04/01/2018

Mehmet Fatih KÃ–KSAL 1985 Ankara

GÃ¼lhis YÃ–RÃœK

6.

9582/18

IlÄ±k v. TÃ¼rkiye

13/02/2018

Hasan HÃ¼seyin ILIK 1989 KÃ¼tahya

Fatma ALBAYRAK

7.

9881/18

Polat v. TÃ¼rkiye

29/01/2018

Davut POLAT 1987 Tekirdag

8.

11420/18

Sis v. TÃ¼rkiye

27/02/2018

Ahmet SÄ°S 1974 DÃ¼zce

Necip FazÄ±l YILDIZ

9.

12700/18

Aydemir v. TÃ¼rkiye

06/03/2018

Muhammet Hamza AYDEMÄ°R 1987 Ä°zmir

SeÃ§kin KESKÄ°N

10.

14670/18

Arslan v. TÃ¼rkiye

13/03/2018

YaÅŸar ARSLAN 1977 Ä°stanbul

Necip FazÄ±l YILDIZ

11.

14845/18

Zenginerler v. TÃ¼rkiye

02/02/2018

Ä°brahim ZENGÄ°NERLER 1969 Kocaeli

Hakan RuÅŸen ARDA

12.

16396/18

Åženel v. TÃ¼rkiye

27/03/2018

Ãœnal ÅžENEL 1981 Trabzon

Kadir Ã–ZTÃœRK

13.

17575/18

KÄ±lÄ±Ã§arslan v. TÃ¼rkiye

21/03/2018

Mesut KILIÃ‡ARSLAN 1981 Yozgat

BetÃ¼l Feyza UÄžUR AYDIN

14.

17825/18

Ãœnal v. TÃ¼rkiye

05/04/2018

Mehmet Murat ÃœNAL 1981 KÄ±rÄ±kkale

Vedat Ã‡APRAZ

15.

18539/18

Kartal v. TÃ¼rkiye

02/03/2018

Hamdi KARTAL 1983 Istanbul

Mehmet Ã–NCÃœ

16.

18580/18

Arslan v. TÃ¼rkiye

19/03/2018

Mustafa Kemal ARSLAN 1970 Konya

Mustafa DEMÄ°R

17.

20404/18

Ata v. TÃ¼rkiye

17/04/2018

Ä°smail ATA 1984 Konya

HÃ¼seyin DÃ–NMEZ

18.

45540/18

Ã‡Ä±taker v. TÃ¼rkiye

07/09/2018

Sema Ã‡ITAKER 1986 Ankara

Adem KAPLAN

19.

45556/18

Celik v. TÃ¼rkiye

07/09/2018

Ahmet Ã‡ELÄ°K 1985 Osmaniye

Adem KAPLAN

20.

46212/18

ElgÃ¼n v. TÃ¼rkiye

18/09/2018

Nagihan ELGÃœN 1989 Balikesir

Mehmet ErtÃ¼rk ERDEVÄ°R

21.

46256/18

BudaklÄ± v. TÃ¼rkiye

17/09/2018

Engin BUDAKLI 1974 Aksaray

NurgÃ¼l YAYMAN YILMAZ

22.

46824/18

Uzun v. TÃ¼rkiye

20/09/2018

Erdem UZUN 1977 Ankara

Rukiye TURAN KARACA

23.

47027/18

ArgÃ¼ndoÄŸan v. TÃ¼rkiye

28/09/2018

Tahir ARGÃœNDOÄžAN 1993 Ä°zmir

Metin BOZKURT

24.

47046/18

Eldemir v. TÃ¼rkiye

17/09/2018

UÄŸur ELDEMÄ°R 1974 Istanbul

Ä°lyas TEKÄ°N

25.

54826/18

Horuz v. TÃ¼rkiye

19/11/2018

Yusuf HORUZ 1989 KahramanmaraÅŸ

Yasin TORUNOÄžLU

26.

54866/18

Kunt v. TÃ¼rkiye

07/11/2018

Mehmet Akif KUNT 1984 BalÄ±kesir

Enes Malik KILIÃ‡

27.

56582/18

Ã–zÃ§elebi v. TÃ¼rkiye

13/11/2018

Fahrettin Ã–ZÃ‡ELEBÄ° 1984 Ankara

Ahmet Serdar GÃœNEÅž

28.

57182/18

GÃ¶ren v. TÃ¼rkiye

16/11/2018

Seyyit GÃ–REN 1981 NiÄŸde

29.

57545/18

BakÄ±r v. TÃ¼rkiye

15/11/2018

Levent BAKIR 1973 Ankara

Hasan HÃ¼seyin ERDOÄžAN

30.

58802/18

PÄ±narakar v. TÃ¼rkiye

21/11/2018

Hidayet PINARAKAR 1980 MuÄŸla

Adem KAPLAN

31.

58891/18

GÃ¶rÃ¼r v. TÃ¼rkiye

28/11/2018

Ä°hsan GÃ–RÃœR 1984 Trabzon

Metin KESKÄ°N

32.

21/19

UrgancÄ± v. TÃ¼rkiye

07/12/2018

Nihat URGANCI 1973 Amasya

Sevda URGANCI

33.

841/19

KarakuÅŸ v. TÃ¼rkiye

12/12/2018

Fesih KARAKUÅž 1990 Istanbul

AyÅŸe BAÄžCI KARAKUÅž

34.

1470/19

SÃ¶nmez v. TÃ¼rkiye

13/12/2018

Dinar SÃ–NMEZ 1988 Istanbul

Muhammed Nuh POLAT

35.

2274/19

ArpacÄ± v. TÃ¼rkiye

13/12/2018

Ä°smail ARPACI 1982 ElazÄ±ÄŸ

Mehmet SÄ±ddÄ±k KARAGÃ–Z

36.

2843/19

IÅŸÄ±k v. TÃ¼rkiye

03/01/2019

Ayhan IÅžIK 1972 Isparta

Kadir Ã–ZTÃœRK

37.

3430/19

Ã–zgul v. TÃ¼rkiye

02/01/2019

Muharrem Ã–ZGÃœL 1974 Ankara

TarÄ±k Said GÃœLDÄ°BÄ°

38.

4061/19

Metin v. TÃ¼rkiye

28/12/2018

Yakup METÄ°N 1977 Ankara

Adem KAPLAN

39.

4558/19

Ã–ztel v. TÃ¼rkiye

31/12/2018

Fatih Ã–ZTEL 1981 Istanbul

Neslihan BÄ°LÄ°CÄ°

40.

4585/19

Ã‡ulha v. TÃ¼rkiye

28/12/2018

Kemal Ã‡ULHA 1971 Adana

41.

5304/19

Onursal v. TÃ¼rkiye

03/01/2019

Soner ONURSAL 1987 Hatay

Dudu ERTUNÃ‡

42.

5531/19

Hamarat v. TÃ¼rkiye

15/01/2019

Murat HAMARAT 1977 Izmir

43.

5933/19

GÃ¶ren v. TÃ¼rkiye

11/01/2019

Yavuz GÃ–REN 1983 Zonguldak

Erdi KOSTÄ°K

44.

6201/19

Say v. TÃ¼rkiye

17/12/2018

Buket SAY 1988 Ankara

Adem KAPLAN

45.

6254/19

YÄ±lmaz v. TÃ¼rkiye

10/01/2019

Hakan YILMAZ 1971 Ankara

Burak Ã‡OLAK

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CASE OF ERİŞ AND OTHERS v. TÜRKİYE

CASE OF ERİŞ AND OTHERS v. TÜRKİYE

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