CASE OF MECIT AND OTHERS v. TÜRKİYE – 69884/17 and 81 others

Last Updated on December 12, 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”

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European Court of Human Rights
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

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 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.

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 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,

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 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;

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

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 AYDOĞMUŞ 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 KIRDAĞ 1963 Ankara Turkish	Adem KAPLAN
25.		49301/18	Talu v. Türkiye	09/10/2018	Emre TALU 1990 Sivas Turkish	Şeyma MISIRLIOĞLU
26.		49903/18	Örsel v. Türkiye	03/10/2018	Yaşar ÖRSEL 1972 Kırşehir Turkish	Lale KARADAŞ
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 Tekirdağ 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 ALAKUŞ 1970 Eskişehir 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 KARAKAŞ 1989 Eskişehir 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 IŞILTAN
46.		3252/19	Yaprak v. Türkiye	25/12/2018	Amir YAPRAK Tokat Turkish	Şeyma MISIRLIOĞLU
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 COŞKUN 1981 Kayseri Turkish	Zehra KARAKULAK BOZDAĞ
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 KOZANDAĞI
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	Ayşe 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 ŞENYAYLA 1974 Ankara Turkish	Üsame İNAN
72.	9380/19	Irk v. Türkiye	25/01/2019	Mümtaz İRK 1980 Aksaray Turkish	Emre KOZANDAĞI
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 Kahramanmaraş 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 TAŞKIN 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 KARADAŞ
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