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CASE OF MECİT AND OTHERS v. TÜRKİYE

Doc ref: 69884/17, 4625/18, 4697/18, 6670/18, 9584/18, 9585/18, 9586/18, 12124/18, 12490/18, 26360/18, 27004/... • ECHR ID: 001-229393

Document date: December 12, 2023

  • Inbound citations: 0
  • Cited paragraphs: 0
  • Outbound citations: 6

CASE OF MECİT AND OTHERS v. TÜRKİYE

Doc ref: 69884/17, 4625/18, 4697/18, 6670/18, 9584/18, 9585/18, 9586/18, 12124/18, 12490/18, 26360/18, 27004/... • ECHR ID: 001-229393

Document date: December 12, 2023

Cited paragraphs only

SECOND SECTION

CASE OF MECİT AND OTHERS v. TÜRKİYE

(Applications nos. 69884/17 and 81 others)

JUDGMENT

STRASBOURG

12 December 2023

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

In the case of Mecit and Others v. Türkiye,

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

Jovan Ilievski , President , Lorraine Schembri Orland, Diana Sârcu , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eighty-two Turkish nationals, whose relevant details are listed in the appended table (“the applicants”), 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 (“the Government”) represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the applications;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 21 November 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 “Fetullahist Terror Organisation / Parallel State Structure” ( Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması , hereinafter referred to as “FETÖ/PDY”), which was considered by the authorities to be behind the coup attempt (for further background information see Akgün v. Turkey , no. 19699/18, §§ 3-9 and §§ 106-07, 20 July 2021).

2 . On various dates, the applicants were arrested and placed in pre-trial detention, mainly on suspicion of membership of the FETÖ/PDY, an offence punishable under Article 314 of the Criminal Code (see Baş v. Turkey , no. 66448/17, § 58, 3 March 2020 ). 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 “catalogue” offences listed in Article 100 § 3 of the Code of Criminal Procedure (CCP) (for the text of Article 100 of the CCP, as relevant, see Baş , cited above, § 61). It appears from the initial detention orders and the documents available in the case files that the majority of the applicants were identified as users of the ByLock messaging system. Moreover, some of the applicants were suspected of financing the FETÖ/PDY in view of their use of accounts in Bank Asya – a bank allegedly linked to FETÖ/PDY –, possession of pro-FETÖ/PDY publications and/or United States one-dollar bills with an “F” serial number (denoting the initial of the forename “Fetullah”), and/or their employment by and/or memberships in FETÖ/PDY-affiliated institutions and organisations. 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 COURT’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 § 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 Türkiye (see, for instance, Baş v. Turkey, no. 66448/17 , §§ 118-21, and Turan and Others v. Turkey , nos. 75805/16 and 426 others, §§ 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 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

8. The Court notes that the applicants’ initial pre-trial detention was based on information indicating their use of the ByLock messaging system, banking activities considered as financing the FETÖ/PDY, subscriptions to certain pro-FETÖ/PDY publications, having in their possessions United States one ‑ dollar bills with an “F” serial number, and/or their employment by and/or memberships in FETÖ/PDY-affiliated institutions and organisations. To the extent that the detention orders have taken into account the applicants’ 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 “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to the applicants (see Akgün v. Turkey , no. 19699/18, §§ 151-85, 20 July 2021, and Taner Kılıç v. Turkey (no. 2) , no. 208/18, §§ 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 applicants’ membership of a terrorist organisation (compare Taner Kılıç , cited above, §§ 104-05 and the cases cited therein).

9. Since the Government have not provided any other indications, “facts” or “information” capable of satisfying it that the applicants were “reasonably suspected”, at the time of their initial detention, of having committed the alleged offence, the Court finds that the requirements of Article 5 § 1 (c) regarding the “reasonableness” of a suspicion justifying detention have not been satisfied (see Baş , cited above, § 195, and Taner Kılıç , cited above, §§ 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 – that is, the event that prompted the declaration of the state of emergency and the notice of derogation by Türkiye –, 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 Baş , cited above, §§ 115-16 and §§ 196 ‑ 201). It therefore concludes that there has been a violation of Article 5 § 1 of the Convention.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

11. The applicants, except for the applicants in application nos. 6670/18, 7824/19, 9380/19 and 9462/19, requested compensation in varying amounts in respect of non‑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 applicants’ claims as being unsubstantiated and excessive.

13. For the reasons put forth in Turan and Others (cited above, §§ 102 ‑ 07), the Court rejects any claims for pecuniary damage and awards each of the applicants, save for the applicants in application nos. 6670/18, 7824/19, 9380/19 and 9462/19, 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 applicants in application nos. 6670/18, 7824/19, 9380/19 and 9462/19, 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 12 December 2023, pursuant to Rule 77 §§ 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 Nationality

Represented by

1.

69884/17

Mecit v. Türkiye

04/09/2017

Hamit MECİT 1972 Malatya Turkish

Büşra KESER

2.

4625/18

Çevik v. Türkiye

13/07/2017

Hasan Hüseyin ÇEVİK 1973 Konya Turkish

Mustafa DEMİR

3.

4697/18

Tarhan v. Türkiye

13/07/2017

Osman TARHAN 1980 Konya Turkish

Mustafa DEMİR

4.

6670/18

Özkul v. Türkiye

09/01/2018

Salih ÖZKUL 1987 Ankara Turkish

Abidin ŞAHİN

5.

9584/18

Yücedağ v. Türkiye

13/02/2018

Mesut YÜCEDAĞ 1989 Bursa Turkish

Fatma ALBAYRAK

6.

9585/18

Aydoğmuş v. Türkiye

13/02/2018

Yasin AYDOÄžMUÅž 1982 Ankara Turkish

Fatma ALBAYRAK

7.

9586/18

Sıryol v. Türkiye

13/02/2018

Münevver SIRYOL 1985 Istanbul Turkish

Fatma ALBAYRAK

8.

12124/18

Özcan v. Türkiye

06/03/2018

Abdurrahman ÖZCAN 1975 Istanbul Turkish

Fatma ALBAYRAK

9.

12490/18

Mila v. Türkiye

02/03/2018

Mehmet MİLA 1983 Van Turkish

Büşra KURT KÜÇÜK

10.

26360/18

Karakaya v. Türkiye

08/05/2018

Musa KARAKAYA 1979 Aydın Turkish

Adem KAPLAN

11.

27004/18

Boran v. Türkiye

18/05/2018

Hasan Basri BORAN 1973 Adana Turkish

Sinan TUMLUKOLÇU

12.

27075/18

Dursun v. Türkiye

18/05/2018

Yaşar DURSUN 1975 Çankırı Turkish

Adem KAPLAN

13.

27086/18

Duran v. Türkiye

18/05/2018

Erdal DURAN 1976 Çankırı Turkish

Adem KAPLAN

14.

29602/18

Öz v. Türkiye

11/06/2018

Mahmut ÖZ 1984 Kastamonu Turkish

Fatma Zehra ÖZDİPİ

15.

30140/18

Bereket v. Türkiye

13/06/2018

Ömer BEREKET 1975 Gaziantep Turkish

Fadıl ULUTAŞ

16.

40409/18

Öztürk v. Türkiye

06/08/2018

Celal ÖZTÜRK 1971 Sinop Turkish

Bekir DEMİRCİOĞLU

17.

41513/18

Yontar v. Türkiye

17/08/2018

Şükrü YONTAR 1977 Tekirdağ Turkish

Mehmet Ertürk ERDEVİR

18.

44762/18

Yarbı v. Türkiye

17/09/2018

Aydın YARBI 1972 Yalova Turkish

Mehmet GÜL

19.

44766/18

Yalçın v. Türkiye

14/09/2018

Fatih YALÇIN 1976 Ankara Turkish

Mehmet YALÇIN

20.

45472/18

Aydoğan v. Türkiye

07/09/2018

İbrahim AYDOĞAN 1974 Ankara Turkish

Adem KAPLAN

21.

45473/18

Akmirza v. Türkiye

07/09/2018

Bekir AKMİRZA 1968 Kırşehir Turkish

Adem KAPLAN

22.

45482/18

Gündüz v. Türkiye

07/09/2018

Murat GÜNDÜZ 1973 Ankara Turkish

Adem KAPLAN

23.

47781/18

Tekdemir v. Türkiye

09/10/2018

Gazi TEKDEMİR 1964 Istanbul Turkish

Kamile ÖZBULUT

24.

48351/18

Kırdağ v. Türkiye

09/10/2018

Hakan KIRDAÄž 1963 Ankara Turkish

Adem KAPLAN

25.

49301/18

Talu v. Türkiye

09/10/2018

Emre TALU 1990 Sivas Turkish

Åžeyma MISIRLIOÄžLU

26.

49903/18

Örsel v. Türkiye

03/10/2018

Yaşar ÖRSEL 1972 Kırşehir Turkish

Lale KARADAÅž

27.

50798/18

Demir v. Türkiye

11/10/2018

Abdussamet DEMİR 1991 Ankara Turkish

Adem KAPLAN

28.

50799/18

Kara v. Türkiye

11/10/2018

Harun KARA 1980 Isparta Turkish

Adem KAPLAN

29.

51577/18

Özdemir v. Türkiye

15/10/2018

İsmet ÖZDEMİR 1974 Manisa Turkish

İsmail GÜNEY

30.

51690/18

Geleken v. Türkiye

26/10/2018

Turgut GELEKEN 1973 İzmir Turkish

Mevlüt Burak KAPTAN

31.

52456/18

Acar v. Türkiye

02/11/2018

Emre ACAR 1985 Kırıkkale Turkish

Abdurrahim SIĞIRTMAÇ

32.

52523/18

Günal v. Türkiye

24/10/2018

Hüseyin GÜNAL 1971 Aksaray Turkish

İhsan MAKAS

33.

52623/18

Bayram v. Türkiye

26/10/2018

Mehmet BAYRAM 1985 Tokat Turkish

Emre AKARYILDIZ

34.

53261/18

Kemer v. Türkiye

09/11/2018

Selçuk KEMER 1967 Bartın Turkish

Bekir DÖNMEZ

35.

53933/18

Kalpaklı v. Türkiye

22/10/2018

Fatma KALPAKLI 1991 TekirdaÄŸ Turkish

Mehmet Ertürk ERDEVİR

36.

54989/18

Yağız v. Türkiye

05/11/2018

İbrahim YAĞIZ 1971 Antalya Turkish

Burhan AYDIN

37.

56023/18

Alakuş v. Türkiye

31/10/2018

Fatih ALAKUÅž 1970 EskiÅŸehir Turkish

Kurtuluş BAŞTİMAR

38.

56482/18

Asiltürk v. Türkiye

26/11/2018

Ramazan ASILTÜRK 1977 Bolu Turkish

Adem DÜZGÜN

39.

57561/18

Demir v. Türkiye

02/11/2018

Osman DEMİR 1976 Ankara Turkish

Demet YÜREKLİ KAYAALP

40.

58256/18

Kaleli v. Türkiye

21/11/2018

Nurullah KALELİ 1987 Konya Turkish

Recep ALTUN

41.

58801/18

Karakaş v. Türkiye

21/11/2018

Mecit KARAKAÅž 1989 EskiÅŸehir Turkish

Adem KAPLAN

42.

59988/18

Acar v. Türkiye

07/12/2018

Mehmet ACAR 1974 Bursa Turkish

Çiğdem DERDİYOK KUBULAN

43.

2366/19

Cildan v. Türkiye

03/12/2018

Halit CİLDAN 1969 Hatay Turkish

Bilal ÇÖRTÜK

44.

2857/19

Öbekci v. Türkiye

03/01/2019

Yusuf ÖBEKCİ 1971 Ankara Turkish

45.

3026/19

Kulaksız v. Türkiye

21/12/2018

Muhammet Yusuf KULAKSIZ 1970 Istanbul Turkish

Hasan Tahsin IÅžILTAN

46.

3252/19

Yaprak v. Türkiye

25/12/2018

Amir YAPRAK Tokat Turkish

Åžeyma MISIRLIOÄžLU

47.

3774/19

Turhan v. Türkiye

26/12/2018

Murat TURHAN 1984 Denizli Turkish

Gülhis YÖRÜK

48.

3984/19

Dakeşoğlu v. Türkiye

09/01/2019

Ali İhsan DAKEŞOĞLU 1979 Rize Turkish

49.

4053/19

Seçkin v. Türkiye

28/12/2018

Ahmet SEÇKİN 1977 Ankara Turkish

Adem KAPLAN

50.

4074/19

Deniz v. Türkiye

28/12/2018

Cengiz DENİZ 1973 Elazığ Turkish

Adem KAPLAN

51.

4079/19

İnan v. Türkiye

28/12/2018

Burhan İNAN 1983 Ankara Turkish

Adem KAPLAN

52.

4105/19

Doğan v. Türkiye

30/11/2018

Ramazan Fatih DOĞAN 1985 İzmir Turkish

Kadir ÖZTÜRK

53.

4240/19

Yelkesen v. Türkiye

07/01/2019

Mehmet Akif YELKESEN 1972 Hatay Turkish

Erdoğan SARAÇ

54.

5539/19

Çoşkun v. Türkiye

07/01/2019

Ferhat COÅžKUN 1981 Kayseri Turkish

Zehra KARAKULAK BOZDAÄž

55.

5561/19

Gürşen v. Türkiye

31/12/2018

Cihan Murat GÜRŞEN 1980 Konya Turkish

Kadir ÖZTÜRK

56.

5900/19

Özdemir v. Türkiye

17/01/2019

Mikail ÖZDEMİR 1991 Trabzon Turkish

Vahdeddin VARLI

57.

6189/19

Aygen v. Türkiye

17/12/2018

Ziya AYGEN 1974 Ankara Turkish

Adem KAPLAN

58.

6193/19

Vurucu v. Türkiye

17/12/2018

İsmail VURUCU 1985 Ankara Turkish

Adem KAPLAN

59.

6316/19

Reçber v. Türkiye

10/01/2019

Emre REÇBER 1986 Ankara Turkish

Burak ÇOLAK

60.

6588/19

Kılıç v. Türkiye

23/01/2019

Hüseyin Gazi KILIÇ 1974 Kahramanmaraş Turkish

Emre KOZANDAÄžI

61.

6979/19

Akgül v. Türkiye

17/01/2019

Raşit AKGÜL 1962 Kırıkkale Turkish

Hasan Hüseyin ERDOĞAN

62.

7100/19

Yıldız v. Türkiye

24/01/2019

Sezgin YILDIZ 1976 Manisa Turkish

Ömer KÖSTEKÇİ

63.

7134/19

Asrı v. Türkiye

23/01/2019

Ekrem ASRI Antalya Turkish

Yusuf Sait PEKGÖZ

64.

7269/19

Ejder v. Türkiye

24/01/2019

AyÅŸe EJDER 1964 Kars Turkish

Özcan AKINCI

65.

7824/19

Düzgün v. Türkiye

28/01/2019

İsmail DÜZGÜN 1983 Antalya Turkish

Emre ÖZDİKİCİERLER

66.

7996/19

Kaya v. Türkiye

24/01/2019

Mehmet KAYA 1988 Istanbul Turkish

İrem TATLIDEDE

67.

8413/19

Atalay v. Türkiye

30/01/2019

Cemal ATALAY 1986 Bursa Turkish

68.

8990/19

Bal v. Türkiye

30/01/2019

Mustafa BAL 1972 Giresun Turkish

Şükrü KOCUK

69.

9121/19

Asrı v. Türkiye

11/02/2019

İsa Samet ASRI 1996 Antalya Turkish

Yusuf Sait PEKGÖZ

70.

9195/19

Kököz v. Türkiye

22/01/2019

Ramazan KÖKÖZ 1973 Manisa Turkish

Asım Burak GÜNEŞ

71.

9332/19

Şenyayla v. Türkiye

06/02/2019

Zeki ÅžENYAYLA 1974 Ankara Turkish

Üsame İNAN

72.

9380/19

Irk v. Türkiye

25/01/2019

Mümtaz İRK 1980 Aksaray Turkish

Emre KOZANDAÄžI

73.

9446/19

Güneş v. Türkiye

09/02/2019

Cemal GÜNEŞ 1988 Antalya Turkish

Yusuf Sait PEKGÖZ

74.

9452/19

Uzay v. Türkiye

31/01/2019

Sadettin UZAY 1972 KahramanmaraÅŸ Turkish

Mehmet ÖNCÜ

75.

9462/19

Öz v. Türkiye

15/01/2019

Ali ÖZ 1970 Konya Turkish

Selda Devrim YILDIRIM

76.

9815/19

Güneş v. Türkiye

05/02/2019

Recep GÜNEŞ 1974 Siirt Turkish

Hasan TOK

77.

9981/19

Yıldırım v. Türkiye

05/02/2019

Zeynel YILDIRIM 1980 Ankara Turkish

Tarık Said GÜLDİBİ

78.

10173/19

Taşkın v. Türkiye

07/02/2019

Ahmet TAÅžKIN 1972 Antalya Turkish

Yusuf Sait PEKGÖZ

79.

11313/19

Gürbüz v. Türkiye

20/02/2019

Ahmet GÜRBÜZ 1974 Elazığ Turkish

Mehmet Sıddık KARAGÖZ

80.

11333/19

Hazin v. Türkiye

11/02/2019

Mesut HAZIN 1980 Kırşehir Turkish

Lale KARADAÅž

81.

21352/19

Başyiğit v. Türkiye

16/04/2019

Mahmut BAŞYİĞİT 1970 Aydin Turkish

Özlem SUZAN

82.

36350/19

Altıparmak v. Türkiye

01/07/2019

Ömer ALTIPARMAK 1975 Kahramanmaraş Turkish

Necip Fazıl YILDIZ

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