CASE OF MORAL AND OTHERS v. TÜRKİYE (European Court of Human Rights) 49867/17 and 31 others

Last Updated on October 18, 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 July2016, on suspicion of their membership of an organisation described by the Turkish authorities as the “Fetullahist Terror Organisation / Parallel State Structure”, which was considered by the authorities to be behind the coup attempt.

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SECOND SECTION
CASE OF MORAL AND OTHERS v. TÜRKİYE
(Applications nos. 49867/17 and 31 others)
JUDGMENT
STRASBOURG
18 October 2022

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

In the case of Moral and Others v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
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 thirty-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 concerning the lawfulness and length of pre-trial detention and the alleged lack of reasonable suspicion regarding the commission of an offence, the alleged lack of prompt information of the reasons for the applicants’ arrest and of any charge against them, as well as the ineffectiveness of judicial review of the lawfulness of detention and the absence of a remedy to obtain compensation 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 applicationsby a Committee;

Having deliberated in private on 27 September 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 July2016, on suspicion of their membership of an organisation described by the Turkish authorities as the “Fetullahist Terror Organisation / Parallel State Structure” (FetullahçıTerörÖrgütü / ParalelDevletYapılanması, 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, §§ 6-14 and §§ 109-110, 3 March 2020). All of the applicants, except for the applicants in applications nos. 17209/19 and 28696/19, were serving as ordinary judges or prosecutors at different types and/or levels of court at the material time. The remaining two applicants in question had already been dismissed from judicial office at the time of their arrest and pre-trial detention.

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. Subsequently, on various dates, the High Council of Judges and Prosecutors (HakimlerveSavcılarYüksekKurulu – “the HSYK”) decided to suspend thousands of judges and prosecutors – including some of the applicants – from their duties, on the grounds that there was strong suspicion that they were members of the terrorist organisation that had instigated the attempted coup (further details regarding the relevant HSYK decision may be found in Baş, ibid., §§ 15-21, and Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 13-15, 23 November 2021). In the HSYK’s suspension decision dated 16 July 2016, reference was made to disciplinary proceedings initiated, amongst other persons, against one of the applicants (namely, the applicant in application no. 61373/17) in 2015 on account of his failure to take up duties allegedly for health reasons following an order for his reassignment, which the HSYK considered to be an organisational activity in protest of the reassignments.

3. 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, cited above, § 58). The detention orders relied principally on the fact that the applicants had been suspended from their duties as judges or prosecutors, or their authorities revoked, on grounds of their membership of the organisation that had instigated the attempted coup. In respect of some applicants, the use of the ByLock messaging system was relied on as evidence. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed an offence, were dismissed, including by the Constitutional Court (compare, mutatis mutandis, Turan and Others, cited above, §§ 22-27).

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.

THE COURT’S ASSESSMENT

I. JOINDER OF THE APPLICATIONS

5. 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

6. 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.

7. 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, as well as the applicants who had received some compensation and 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.

8. The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, Baş, cited above, §§ 118-121, and 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 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 notes that the applicants’ initial pre-trial detention was based solely on the decisions taken by the HSYK for their suspension from office, and/or on information indicating their use of the ByLock messaging system. The Court has already found that neither of these grounds relied on by the domestic courts in ordering the applicants’ pre-trial detention was of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to them (compare Baş, cited above, §§ 170-195, and Akgün v. Turkey, no. 19699/18, §§ 151-185, 20 July 2021, respectively). Moreover, as regards the disciplinary investigation in respect of the applicant mentioned in the HSYK decision (see paragraph 2 above), the Government have not provided arguments to support the conclusion that the act underlying the investigation in question could as such suggest membership of FETÖ/PDY and that it could have thereby formed the basis for the suspicion giving rise to the order for the relevant applicant’s detention (compare, mutatis mutandis, Baş, cited above, § 188).

10. In the absence of any other information or evidence available at the time of the applicants’ initial pre-trial detention that would satisfy an objective observer that they may have committed the offence attributed to them, the Court sees no reason to depart from its findings in the aforementioned cases and finds that there has been a violation of Article 5 § 1. The Court 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, §§ 115-116 and §§ 196-201).

III. OTHER COMPLAINTS

11. As regards any remaining complaints under Article 5 §§ 1, 2, 3, 4 and 5, the Court decides not to examine them, in view of its findings under Article 5 § 1above and its considerations in the case of Turan and Others (cited above, § 98).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12. 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.

13. The Government contested the applicants’ claims as being unsubstantiated and excessive.

14. 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decidesto join the applications;

2. Declares the complaint under Article 5 § 1 of the Convention, concerning the alleged lack of reasonable suspicion, at the time of the applicants’ initial pre-trial detention, that they had committed an offence, admissible;

3. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the lack of reasonable suspicion, at the time of the applicants’ initial pre-trial detention, that they had committed an offence;

4. Holdsthat there is no need to examine the admissibility and merits of the applicants’ remaining complaints under Article 5 of the Convention;

5. Holds

(a) that the respondent State is to pay each of the applicants, 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;

6. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 18 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Dorothee von Arnim                   Branko Lubarda
Deputy Registrar                            President

___________

APPENDIX

List of cases:

No.	Application no.	Case name	Lodged on	Applicant Date of Birth	Represented by	Applicant’s status at the time of pre-trial detention	Evidence relied on at the time of initial pre-trial detention
1.	49867/17	Moral v. Türkiye	28/04/2017	Nurullah MORAL 09/03/1990		Ordinary judge or public prosecutor	ByLock messaging system HSYK decision
2.	61373/17	Duran v. Türkiye	19/04/2017	Bekir DURAN 23/02/1972	İhsan MAKAS	Ordinary judge or public prosecutor	HSYK decision
3.	21859/18	Şahin v. Türkiye	17/04/2018	Mesut ŞAHİN 06/10/1972	Hakan ÇELİKKESER	Ordinary judge or public prosecutor	HSYK decision
4.	3933/19	Önay v. Türkiye	04/12/2018	Adem ÖNAY 20/02/1973	Muhammet GÜNEY	Ordinary judge or public prosecutor	HSYK decision
5.	9498/19	Fırat v. Türkiye	07/02/2019	Ercan FIRAT 04/01/1973	İrem TATLIDEDE	Ordinary judge or public prosecutor	HSYK decision
6.	11767/19	Z.E. v. Türkiye	21/02/2019	Z.E. 21/05/1974	Ebubekir RENK	Ordinary judge or public prosecutor	HSYK decision
7.	15183/19	Çifçi v. Türkiye	28/02/2019	Alim ÇİFÇİ 17/02/1990	Hilal YILDIZ ÇİFÇİ	Ordinary judge or public prosecutor	HSYK decision
8.	15900/19	Kara v. Türkiye	11/03/2019	Hatice KARA 05/01/1968	Ahmet KARA	Ordinary judge or public prosecutor	HSYK decision
9.	16418/19	Acar v. Türkiye	01/03/2019	Neşe ACAR 04/01/1983	KararKoray ATAK	Ordinary judge or public prosecutor	HSYK decision
10.	17209/19	Balkan v. Türkiye	05/03/2019	Servet BALKAN 15/11/1990	Mehmet Fatih İÇER	Former judge	HSYK decision
11.	17330/19	Turan v. Türkiye	25/03/2019	Nusret TURAN 18/03/1985	Hanifi BAYRI	Ordinary judge or public prosecutor	ByLock messaging system HSYK decision
12.	17479/19	Üre v. Türkiye	26/03/2019	Mehmet ÜRE 15/12/1987	Hanifi BAYRI	Ordinary judge or public prosecutor	HSYK decision
13.	18428/19	Yakar v. Türkiye	14/03/2019	Ahmet Gazi YAKAR 18/12/1980	ArifNazif AYDIN	Ordinary judge or public prosecutor	HSYK decision
14.	18777/19	Doğanay v. Türkiye	20/03/2019	Aykut DOĞANAY 20/07/1987	İrem TATLIDEDE	Ordinary judge or public prosecutor	HSYK decision
15.	19105/19	Çelebi v. Türkiye	21/03/2019	Mehmet ÇELEBİ 01/03/1972	Tarık Said GÜLDİBİ	Ordinary judge or public prosecutor	HSYK decision
16.	20084/19	İkibaş v. Türkiye	25/03/2019	Türker İKİBAŞ 01/12/1974	AyçaBeyza İKİBAŞ	Ordinary judge or public prosecutor	HSYK decision
17.	20713/19	Çınar v. Türkiye	02/04/2019	İbrahim ÇINAR 05/03/1970	Mehmet ÖNCÜ	Ordinary judge or public prosecutor	HSYK decision
18.	21193/19	Şahin v. Türkiye	12/04/2019	Hasan ŞAHİN 01/06/1973	Hilal YILMAZ PUSAT	Ordinary judge or public prosecutor	HSYK decision
19.	21948/19	Bayar v. Türkiye	03/04/2019	Bayram BAYAR 20/11/1975	Özcan AKINCI	Ordinary judge or public prosecutor	HSYK decision
20.	22682/19	Çakmak v. Türkiye	11/04/2019	Mehmet ÇAKMAK 18/03/1978	Ömer Faruk ERGÜN	Ordinary judge or public prosecutor	HSYK decision
21.	22727/19	Kalkan v. Türkiye	19/04/2019	Nurullah KALKAN 10/06/1982	Ayşe Sümeyye BEKLEYEN	Ordinary judge or public prosecutor	HSYK decision
22.	24620/19	Öcal v. Türkiye	24/04/2019	Ceyhun ÖCAL 25/05/1984	Oktay AYDOĞDU	Ordinary judge or public prosecutor	HSYK decision
23.	24753/19	Güngör v. Türkiye	29/04/2019	Orhan GÜNGÖR 03/06/1971	Muhammet GÜNEY	Ordinary judge or public prosecutor	HSYK decision
24.	25250/19	Say v. Türkiye	06/05/2019	Kadir SAY 07/08/1980	Muhammet GÜNEY	Ordinary judge or public prosecutor	HSYK decision
25.	28696/19	Kiziroğlu v. Türkiye	03/05/2019	Akif KİZİROĞLU 15/08/1980		Former judge	ByLock messaging system
26.	29315/19	Yoncalık v. Türkiye	10/05/2019	Feyyaz YONCALIK 05/04/1975	Tarık Said GÜLDİBİ	Ordinary judge or public prosecutor	HSYK decision
27.	32274/19	Türkel v. Türkiye	28/05/2019	Adem TÜRKEL 10/02/1976	Tarık Said GÜLDİBİ	Ordinary judge or public prosecutor	HSYK decision
28.	35475/19	Çolak v. Türkiye	17/06/2019	Mustafa Kamil ÇOLAK 06/04/1980		Ordinary judge or public prosecutor	HSYK decision
29.	36545/19	Güney v. Türkiye	17/06/2019	Kenan GÜNEY 01/01/1973	Muhammet GÜNEY	Ordinary judge or public prosecutor	HSYK decision
30.	40854/19	Duran v. Türkiye	22/07/2019	Mustafa DURAN 10/04/1970	HakanGökay SARIOĞLU	Ordinary judge or public prosecutor	HSYK decision
31.	41022/19	Varol v. Türkiye	29/07/2019	Levent VAROL 24/06/1981	Clemens LAHNER	Ordinary judge or public prosecutor	HSYK decision
32.	41361/19	Güzeltaş v. Türkiye	26/07/2019	Gülşah GÜZELTAŞ 16/04/1982		Ordinary judge or public prosecutor	HSYK decision