CASE OF ERİŞ AND OTHERS v. TÜRKİYE – 58665/17 and 44 others

Last Updated on October 24, 2023 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 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 ERİŞ AND OTHERS v. TÜRKİYE
(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 Eriş 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 forty-five 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 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 “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 (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 §§ 109-10, 3 March 2020).

2. On various dates, the applicants were arrested and placed in pre-trial detention, mainly on suspicion of membership of the FETÖ/PDY, an offence punishable under Article 314 of the Criminal Code (see Baş, cited above, § 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 “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 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 FETÖ/PDY in view of their use of accounts in Bank Asya – a bank allegedly linked to FETÖ/PDY – and/or possession of pro-FETÖ/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 COURT’S ASSESSMENT

I. JOINDER OF THE APPLICATIONS

4. 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

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, cited above, §§ 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 and, in respect of some of them, banking activities considered as financing the FETÖ/PDY and subscriptions to certain pro-FETÖ/PDY publications. 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.

III. OTHER COMPLAINTS

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 applicant in application no. 70782/17, 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 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,

1. Decides to 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. Holds that 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, 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;

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

Done in English, and notified in writing on 24 October 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	Represented by
1.	58665/17	Eriş v. Türkiye	28/07/2017	Ahmet ERİŞ 1987 Ankara	Gülhis YÖRÜK
2.	59699/17	Kurt v. Türkiye	08/11/2016	İbrahim KURT 1986 Sivas	Gülbahar KOÇAK
3.	69774/17	Taze v. Türkiye	29/08/2017	Ali TAZE 1974 Kahramanmaraş	Emre KOZANDAĞI
4.	70782/17	Gürbüz v. Türkiye	24/08/2017	Yusuf Ersin GÜRBÜZ 1989 Kutahya	Deniz ÖZERDEM
5.	3462/18	Köksal v. Türkiye	04/01/2018	Mehmet Fatih KÖKSAL 1985 Ankara	Gülhis YÖRÜK
6.	9582/18	Ilık v. Türkiye	13/02/2018	Hasan Hüseyin ILIK 1989 Kütahya	Fatma ALBAYRAK
7.	9881/18	Polat v. Türkiye	29/01/2018	Davut POLAT 1987 Tekirdag
8.	11420/18	Sis v. Türkiye	27/02/2018	Ahmet SİS 1974 Düzce	Necip Fazıl YILDIZ
9.	12700/18	Aydemir v. Türkiye	06/03/2018	Muhammet Hamza AYDEMİR 1987 İzmir	Seçkin KESKİN
10.	14670/18	Arslan v. Türkiye	13/03/2018	Yaşar ARSLAN 1977 İstanbul	Necip Fazıl YILDIZ
11.	14845/18	Zenginerler v. Türkiye	02/02/2018	İbrahim ZENGİNERLER 1969 Kocaeli	Hakan Ruşen ARDA
12.	16396/18	Şenel v. Türkiye	27/03/2018	Ünal ŞENEL 1981 Trabzon	Kadir ÖZTÜRK
13.	17575/18	Kılıçarslan v. Türkiye	21/03/2018	Mesut KILIÇARSLAN 1981 Yozgat	Betül Feyza UĞUR AYDIN
14.	17825/18	Ünal v. Türkiye	05/04/2018	Mehmet Murat ÜNAL 1981 Kırıkkale	Vedat ÇAPRAZ
15.	18539/18	Kartal v. Türkiye	02/03/2018	Hamdi KARTAL 1983 Istanbul	Mehmet ÖNCÜ
16.	18580/18	Arslan v. Türkiye	19/03/2018	Mustafa Kemal ARSLAN 1970 Konya	Mustafa DEMİR
17.	20404/18	Ata v. Türkiye	17/04/2018	İsmail ATA 1984 Konya	Hüseyin DÖNMEZ
18.	45540/18	Çıtaker v. Türkiye	07/09/2018	Sema ÇITAKER 1986 Ankara	Adem KAPLAN
19.	45556/18	Celik v. Türkiye	07/09/2018	Ahmet ÇELİK 1985 Osmaniye	Adem KAPLAN
20.	46212/18	Elgün v. Türkiye	18/09/2018	Nagihan ELGÜN 1989 Balikesir	Mehmet Ertürk ERDEVİR
21.	46256/18	Budaklı v. Türkiye	17/09/2018	Engin BUDAKLI 1974 Aksaray	Nurgül YAYMAN YILMAZ
22.	46824/18	Uzun v. Türkiye	20/09/2018	Erdem UZUN 1977 Ankara	Rukiye TURAN KARACA
23.	47027/18	Argündoğan v. Türkiye	28/09/2018	Tahir ARGÜNDOĞAN 1993 İzmir	Metin BOZKURT
24.	47046/18	Eldemir v. Türkiye	17/09/2018	Uğur ELDEMİR 1974 Istanbul	İlyas TEKİN
25.	54826/18	Horuz v. Türkiye	19/11/2018	Yusuf HORUZ 1989 Kahramanmaraş	Yasin TORUNOĞLU
26.	54866/18	Kunt v. Türkiye	07/11/2018	Mehmet Akif KUNT 1984 Balıkesir	Enes Malik KILIÇ
27.	56582/18	Özçelebi v. Türkiye	13/11/2018	Fahrettin ÖZÇELEBİ 1984 Ankara	Ahmet Serdar GÜNEŞ
28.	57182/18	Gören v. Türkiye	16/11/2018	Seyyit GÖREN 1981 Niğde
29.	57545/18	Bakır v. Türkiye	15/11/2018	Levent BAKIR 1973 Ankara	Hasan Hüseyin ERDOĞAN
30.	58802/18	Pınarakar v. Türkiye	21/11/2018	Hidayet PINARAKAR 1980 Muğla	Adem KAPLAN
31.	58891/18	Görür v. Türkiye	28/11/2018	İhsan GÖRÜR 1984 Trabzon	Metin KESKİN
32.	21/19	Urgancı v. Türkiye	07/12/2018	Nihat URGANCI 1973 Amasya	Sevda URGANCI
33.	841/19	Karakuş v. Türkiye	12/12/2018	Fesih KARAKUŞ 1990 Istanbul	Ayşe BAĞCI KARAKUŞ
34.	1470/19	Sönmez v. Türkiye	13/12/2018	Dinar SÖNMEZ 1988 Istanbul	Muhammed Nuh POLAT
35.	2274/19	Arpacı v. Türkiye	13/12/2018	İsmail ARPACI 1982 Elazığ	Mehmet Sıddık KARAGÖZ
36.	2843/19	Işık v. Türkiye	03/01/2019	Ayhan IŞIK 1972 Isparta	Kadir ÖZTÜRK
37.	3430/19	Özgul v. Türkiye	02/01/2019	Muharrem ÖZGÜL 1974 Ankara	Tarık Said GÜLDİBİ
38.	4061/19	Metin v. Türkiye	28/12/2018	Yakup METİN 1977 Ankara	Adem KAPLAN
39.	4558/19	Öztel v. Türkiye	31/12/2018	Fatih ÖZTEL 1981 Istanbul	Neslihan BİLİCİ
40.	4585/19	Çulha v. Türkiye	28/12/2018	Kemal ÇULHA 1971 Adana
41.	5304/19	Onursal v. Türkiye	03/01/2019	Soner ONURSAL 1987 Hatay	Dudu ERTUNÇ
42.	5531/19	Hamarat v. Türkiye	15/01/2019	Murat HAMARAT 1977 Izmir
43.	5933/19	Gören v. Türkiye	11/01/2019	Yavuz GÖREN 1983 Zonguldak	Erdi KOSTİK
44.	6201/19	Say v. Türkiye	17/12/2018	Buket SAY 1988 Ankara	Adem KAPLAN
45.	6254/19	Yılmaz v. Türkiye	10/01/2019	Hakan YILMAZ 1971 Ankara	Burak ÇOLAK