Last Updated on September 9, 2022 by LawEuro
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 Terrorist 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 (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 Baş v. Turkey, no. 66448/17, §§ 7‑14 and §§ 109-110, 3 March 2020). All of the applicants were serving as ordinary judges or prosecutors at different types and/or levels of court, subject to Law no. 2802 on judges and prosecutors (“Law no. 2802”) (see Baş, cited above, §§ 66-67), at the material time.
SECOND SECTION
CASE OF GELEŞ AND OTHERS v. TÜRKİYE
(Application no. 75881/16 and 69 others – see appended list)
JUDGMENT
STRASBOURG
6 September 2022
This judgment is final but it may be subject to editorial revision.
In the case of Geleş and Others v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Pauliine Koskelo, President,
Gilberto Felici,
Saadet Yüksel, judges,
and Hasan Bakırcı, 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 seventy 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 applications 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;
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 28 June 2022,
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 Terrorist 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 (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 Baş v. Turkey, no. 66448/17, §§ 7‑14 and §§ 109-110, 3 March 2020). All of the applicants were serving as ordinary judges or prosecutors at different types and/or levels of court, subject to Law no. 2802 on judges and prosecutors (“Law no. 2802”) (see Baş, cited above, §§ 66-67), at the material time.
2. On 16 July 2016 the Ankara chief public prosecutor’s office initiated a criminal investigation into, inter alios, the suspected members of FETÖ/PDY within the judiciary, in accordance with the provisions of the ordinary law, on the ground that there had been a case of discovery in flagrante delicto falling within the jurisdiction of the assize courts (further information regarding the orders issued by the chief public prosecutor’s office within the context of that investigation, as well as the ensuing suspensions and dismissals of judges and prosecutors suspected of being members of FETÖ/PDY, may be found in Baş, cited above, §§ 9-10 and 15-21).
3. Following their arrest and detention in police custody on the orders of the regional and provincial prosecutors’ offices, the applicants were placed in pre-trial detention on various dates, mainly on suspicion of membership of the FETÖ/PDY organisation, an offence punishable under Article 314 of the Criminal Code (see Baş, cited above, § 58). The pre-trial detention decisions were issued by the magistrates’ courts located at the respective places of the applicants’ arrest. In the majority of the decisions, it was noted specifically that the criminal investigation was governed by the ordinary rules, given that the offence of which the suspects were accused, namely membership of an armed terrorist organisation, was a “continuing offence” and that there was a case of discovery in flagrante delicto governed by the relevant provisions of domestic law (see Baş, cited above, § 67).
4. 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, and a few were acquitted. It appears that, for the most part, the appeal proceedings are still pending.
5. In the meantime, the applicants lodged individual applications with the Constitutional Court in respect of, inter alia, the alleged violation of their right to liberty and security on various accounts, including the alleged unlawfulness of their detention by reason of the disregard of the procedural safeguards afforded to members of the judiciary in domestic law, all of which were declared inadmissible (see Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 26-27, 23 November 2021).
THE COURT’S ASSESSMENT
I. JOINDER OF THE APPLICATIONS
6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
7. The applicants complained that they had been placed in pre-trial detention in breach of the domestic laws governing the arrest and pre-trial detention of the members of the judiciary and disputed that there had been a case of discovery in flagrante delicto for the purposes of section 94 of Law no. 2802.
A. All applications except for applications nos. 51506/19 and 51588/19
8. The Government invited the Court to declare this complaint inadmissible for the reasons that they had raised in the case of Turan and Others (cited above, § 55). The Court notes that the Government’s objections have already been dismissed in the case of Turan and Others (cited above, §§ 57-64) and sees no reason to depart from those findings in the present case. The Court therefore considers that this complaint, insofar as it concerns all applications except for applications nos. 51506/19 and 51588/19, 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.
9. The Court further considers, having regard to its findings in the cases of Baş and Turan and Others (both cited above, §§ 143-158 and §§ 79-92, respectively), that the pre-trial detention of the applicants had not taken place in accordance with a procedure prescribed by law within the meaning of Article 5 § 1 of the Convention and that, therefore, there has been a violation of Article 5 § 1 on account of the unlawfulness of the initial pre-trial detention of the applicants in question. Moreover, 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 (see Baş, cited above, §§ 115-116 and §§ 159-162, and Turan and Others, cited above, § 91).
B. Applications nos. 51506/19 and 51588/19
10. The Court notes that the applicants who have lodged applications nos. 51506/19 and 51588/19, namely Mr Şimşek and Mr Yorulmaz, respectively (noted as the 69th and the 70th applicants in the appended list), are the same individuals who have lodged applications nos. 51526/17 and 20018/18, respectively (noted as the 24th and the 64th applicants in the appended list).
11. Having regard to the finding of a violation of Article 5 § 1 above in respect of the complaint brought by Mr Şimsek and Mr Yorulmaz regarding the unlawfulness of their pre-trial detention within the scope of applications nos. 51526/17 and 20018/18 (see paragraph 9 above), the Court considers the same complaint introduced by those two applicants under applications nos. 51506/19 and 51588/19 to be inadmissible in terms of Article 35 § 2 (b) of the Convention for being substantially the same as that examined in applications nos. 51526/17 and 20018/18. This part of the applications nos. 51506/19 and 51588/19 must therefore be rejected pursuant to Article 35 § 4.
III. OTHER COMPLAINTS
12. As regards the applicants’ remaining complaints under Article 5 §§ 1, 3, 4 and 5, 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
13. The applicants requested compensation in varying amounts in respect of non‑pecuniary damage. Most of the applicants also claimed pecuniary damage, corresponding mainly to their loss of earnings resulting from their dismissal, as well as the legal costs and expenses incurred before the domestic courts and the Court.
14. The Government contested the applicants’ claims as being unsubstantiated and excessive.
15. For the reasons put forth in Turan and Others (cited above, §§ 102‑107), the Court rejects any claims for pecuniary damage and awards each of the applicants 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. Insofar as the applicants Mr Şimşek and Mr Yorulmaz are concerned, the lump sum award is made only in respect of applications nos. 51526/17 and 20018/18, in the light of the Court’s findings in paragraphs 10 and 11 above.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the complaint under Article 5 § 1 of the Convention concerning the lawfulness of the applicants’ initial pre-trial detention admissible in respect of all applications, except for applications nos. 51506/19 and 51588/19;
3. Declares the complaint under Article 5 § 1 of the Convention concerning the lawfulness of the applicants’ initial pre-trial detention inadmissible in respect of applications nos. 51506/19 and 51588/19;
4. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the initial pre-trial detention of the applicants, except in respect of applications nos. 51506/19 and 51588/19;
5. Holds that there is no need to examine the admissibility and merits of the applicants’ remaining complaints under Article 5 of the Convention;
6. Holds
(a) that the respondent State is to pay each of the applicants, except in relation to applications nos. 51506/19 and 51588/19, 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 these amounts, which are 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;
7. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 6 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Pauliine Koskelo
Registrar President
_______________
APPENDIX
List of cases:
| No. | Application no. | Case name | Lodged on | Applicant Date of Birth |
Represented by |
| 1. | 75881/16 | Geleş v. Türkiye | 22/11/2016 | Hasan GELEŞ 13/10/1975 |
Tufan YILMAZ |
| 2. | 1101/17 | Bozoğlu v. Türkiye | 01/12/2016 | Süleyman BOZOĞLU 04/06/1977 |
İsa ÖZBİLEN |
| 3. | 12467/17 | Aşılar v. Türkiye | 20/01/2017 | Behçet AŞILAR 03/04/1974 |
Cihat ÇITIR |
| 4. | 14638/17 | Korkmaz v. Türkiye | 02/02/2017 | Gökhan KORKMAZ 07/02/1982 |
Coşkun TAŞKIN |
| 5. | 14652/17 | Taşkın v. Türkiye | 02/02/2017 | Sinan TAŞKIN 10/04/1968 |
Coşkun TAŞKIN |
| 6. | 14669/17 | Bozkurt v. Türkiye | 23/01/2017 | Özcan BOZKURT 11/11/1983 |
Tarık Said GÜLDİBİ |
| 7. | 14967/17 | Kalkan v. Türkiye | 26/01/2017 | Erkan KALKAN 01/05/1977 |
Sefanur BOZGÖZ |
| 8. | 15051/17 | Şenli v. Türkiye | 26/01/2017 | Eren ŞENLİ 10/03/1978 |
Mehmet ÖNCÜ |
| 9. | 20092/17 | Erdoğan v. Türkiye | 23/02/2017 | İlyas ERDOĞAN 01/01/1983 |
|
| 10. | 30652/17 | Akbilek v. Türkiye | 17/02/2017 | Nevzat AKBİLEK 10/05/1973 |
İrem TATLIDEDE |
| 11. | 39578/17 | Kaya v. Türkiye | 17/03/2017 | Vedat KAYA 03/02/1977 |
Ömer Faruk ERGÜN |
| 12. | 40067/17 | Rusum v. Türkiye | 05/05/2017 | Emin RUSUM 01/01/1962 |
Merve Elif GÜRACAR |
| 13. | 40704/17 | Bayraktar v. Türkiye | 28/03/2017 | Aytekin BAYRAKTAR 23/03/1984 |
Hatice AVCI BAYRAKTAR |
| 14. | 41477/17 | Apaçık v. Türkiye | 24/04/2017 | Ramazan APAÇIK 18/05/1968 |
Rukiye COŞGUN |
| 15. | 41479/17 | Ünal v. Türkiye | 18/05/2017 | Emrah ÜNAL 20/03/1983 |
|
| 16. | 41516/17 | Zengin v. Türkiye | 11/04/2017 | Sinan ZENGİN 03/11/1977 |
Gülşen ZENGİN |
| 17. | 41619/17 | Gültekin v. Türkiye | 05/05/2017 | Mehmet İkbal GÜLTEKİN 27/01/1980 |
|
| 18. | 41823/17 | Güleç v. Türkiye | 28/03/2017 | Ramazan GÜLEÇ 05/10/1974 |
|
| 19. | 42190/17 | Kılıç v. Türkiye | 28/04/2017 | Özkan KILIÇ 22/01/1978 |
Adem AKYÜREK |
| 20. | 42848/17 | Şevik v. Türkiye | 04/04/2017 | Özcan ŞEVİK 21/12/1980 |
Zehra KILIÇ |
| 21. | 43763/17 | Kul v. Türkiye | 04/05/2017 | Hamza KUL 17/09/1977 |
Murat YILMAZ |
| 22. | 44803/17 | Gökkaya v. Türkiye | 03/05/2017 | Ömer GÖKKAYA 15/10/1979 |
Recep ÇINAR |
| 23. | 48765/17 | Parıltı v. Türkiye | 05/05/2017 | Yılmaz PARILTI 10/09/1969 |
Mustafa AÇICI |
| 24. | 51526/17 | Şimşek v. Türkiye | 22/03/2017 | Engin ŞİMŞEK 14/11/1978 |
Selma AKKOYUNLU KILINÇ |
| 25. | 58445/17 | Tekintaş v. Türkiye | 30/06/2017 | Mücahit TEKİNTAŞ 25/08/1972 |
İbrahim TOKTAMIŞ |
| 26. | 58512/17 | Togay v. Türkiye | 07/02/2017 | Mehmet TOGAY 11/03/1966 |
Kadir Soner KILINÇ |
| 27. | 58551/17 | Yüzlü v. Türkiye | 07/07/2017 | Yavuz YÜZLÜ 29/11/1977 |
|
| 28. | 59691/17 | Bakırcı v. Türkiye | 13/02/2017 | Kadir BAKIRCI 01/11/1967 |
Coşkun TAŞKIN |
| 29. | 60284/17 | Öztürk v. Türkiye | 23/06/2017 | Bilgin ÖZTÜRK 17/11/1978 |
|
| 30. | 60335/17 | Şahin v. Türkiye | 05/07/2017 | Mehmet ŞAHİN 13/09/1975 |
Furkan YILDIRIM |
| 31. | 60374/17 | Akın v. Türkiye | 10/07/2017 | Mehmet AKIN 05/01/1985 |
Janset ATİLA |
| 32. | 60382/17 | Dere v. Türkiye | 04/07/2017 | Ahmet DERE 27/04/1980 |
Vedat ÇAPRAZ |
| 33. | 62020/17 | Kardeşler v. Türkiye | 02/05/2017 | Erdoğan KARDEŞLER 01/08/1982 |
|
| 34. | 62610/17 | Akpınar v. Türkiye | 25/01/2017 | Ali AKPINAR 10/04/1977 |
Mehmet ÖNCÜ |
| 35. | 62737/17 | Uz v. Türkiye | 01/02/2017 | Alpaslan UZ 09/12/1975 |
İrem TATLIDEDE |
| 36. | 62750/17 | Gürgen v. Türkiye | 14/06/2017 | Fatih GÜRGEN 26/08/1978 |
Rukiye COŞGUN |
| 37. | 62770/17 | Doğan v. Türkiye | 02/05/2017 | Salih DOĞAN 01/01/1988 |
|
| 38. | 62917/17 | Duran v. Türkiye | 03/05/2017 | Bekir DURAN 10/06/1979 |
Recep ÇINAR |
| 39. | 63724/17 | Karadeniz v. Türkiye | 14/04/2017 | Ender KARADENİZ 15/09/1972 |
|
| 40. | 63769/17 | Öztürk v. Türkiye | 13/06/2017 | Selim ÖZTÜRK 21/08/1977 |
Şefik KARAKIŞ |
| 41. | 63771/17 | Ekinci v. Türkiye | 18/01/2017 | Neslihan EKİNCİ 30/08/1971 |
Semra İŞLER ALBAYRAK |
| 42. | 63778/17 | Duman v. Türkiye | 29/05/2017 | Mehmet DUMAN 01/01/1974 |
Fatih DÖNMEZ |
| 43. | 63802/17 | Atıcı v. Türkiye | 29/05/2017 | Seyfettin ATICI 02/05/1972 |
Fatih DÖNMEZ |
| 44. | 63973/17 | Demir v. Türkiye | 25/04/2017 | Ahmet Nebi DEMİR 19/08/1988 |
Hülya POLAT |
| 45. | 66686/17 | Kıran v. Türkiye | 23/01/2017 | Mehmet KIRAN 06/02/1973 |
İrem TATLIDEDE |
| 46. | 66689/17 | M.T. v. Türkiye | 23/05/2017 | M.T. 01/01/1980 |
Abdullah BİRDİR |
| 47. | 69580/17 | Uyar v. Türkiye | 21/07/2017 | Celal UYAR 23/01/1980 |
Türker İKİBAŞ |
| 48. | 70538/17 | Ünüvar v. Türkiye | 08/08/2017 | Tamer ÜNÜVAR 01/01/1974 |
Fatih DÖNMEZ |
| 49. | 71995/17 | Yurtdakal v. Türkiye | 19/04/2017 | Turgay YURTDAKAL 30/09/1974 |
Emre AKARYILDIZ |
| 50. | 72339/17 | Yılmaz v. Türkiye | 25/07/2017 | Ahmet Serdar YILMAZ 11/12/1985 |
Mehmet ÖNCÜ |
| 51. | 74763/17 | Albayrak v. Türkiye | 03/10/2017 | Süleyman ALBAYRAK 20/06/1980 |
Sibel İSA |
| 52. | 79632/17 | Tekkoyun v. Türkiye | 19/10/2017 | Muhammet TEKKOYUN 27/10/1974 |
İbrahim KOCAOĞUL |
| 53. | 82521/17 | Pazar v. Türkiye | 13/06/2017 | Beytullah PAZAR 18/02/1975 |
Yusuf RENKLİ |
| 54. | 6504/18 | Avcı v. Türkiye | 16/01/2018 | Ahmet AVCI 05/02/1977 |
Mehmet ÖNCÜ |
| 55. | 8021/18 | Can v. Türkiye | 02/02/2018 | Hasan CAN 20/10/1970 |
Mehmet Fatih İÇER |
| 56. | 9589/18 | Akın v. Türkiye | 13/02/2018 | Serhat AKIN 01/11/1984 |
Fatma ALBAYRAK |
| 57. | 12596/18 | Genç v. Türkiye | 09/02/2018 | Hayrettin GENÇ 01/09/1979 |
Orhan ŞAHNA |
| 58. | 12850/18 | Belge v. Türkiye | 05/03/2018 | Fatih BELGE 10/09/1980 |
İhsan MAKAS |
| 59. | 15312/18 | Uzun v. Türkiye | 16/03/2018 | Nuh UZUN 22/09/1988 |
Ramazan DANIŞMAN |
| 60. | 15892/18 | Ercan v. Türkiye | 09/03/2018 | İhsan ERCAN 06/03/1985 |
Nilgün GÜRCAN |
| 61. | 16812/18 | Özdemir v. Türkiye | 27/03/2018 | Şaban ÖZDEMİR 17/08/1976 |
|
| 62. | 17552/18 | Kaya v. Türkiye | 19/02/2018 | Mehmet KAYA 03/09/1986 |
Ahmet Can DEMİRCİ |
| 63. | 18059/18 | Durak v. Türkiye | 06/04/2018 | Selami DURAK 10/09/1971 |
Basri GÜNDÜZ |
| 64. | 20018/18 | Yorulmaz v. Türkiye | 02/03/2018 | Özgür YORULMAZ 10/07/1971 |
|
| 65. | 22181/18 | Ketenoğlu v. Türkiye | 04/05/2018 | Feyyaz KETENOĞLU 15/04/1987 |
Menekşe Merve TEKTEN |
| 66. | 25239/18 | İlci v. Türkiye | 18/05/2018 | Şükrü İLCİ 19/06/1976 |
Ahmet Can DEMİRCİ |
| 67. | 31224/18 | Gül v. Türkiye | 22/06/2018 | Cevat GÜL 01/09/1970 |
Tarık Said GÜLDİBİ |
| 68. | 47422/18 | Sezgin v. Türkiye | 21/09/2018 | İsmail SEZGİN 14/04/1974 |
|
| 69. | 51506/19 | Şimşek v. Türkiye | 10/05/2019 | Engin ŞİMŞEK 14/11/1978 |
Selma AKKOYUNLU KILINÇ |
| 70. | 51588/19 | Yorulmaz v. Türkiye | 16/04/2019 | Özgür YORULMAZ 10/07/1971 |
Leave a Reply