{"id":19290,"date":"2022-09-09T09:42:03","date_gmt":"2022-09-09T09:42:03","guid":{"rendered":"https:\/\/laweuro.com\/?p=19290"},"modified":"2022-09-09T09:42:03","modified_gmt":"2022-09-09T09:42:03","slug":"case-of-ataman-and-others-v-turkiye-european-court-of-human-rights-14676-17-and-30-others","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=19290","title":{"rendered":"CASE OF ATAMAN AND OTHERS v. T\u00dcRKIYE (European Court of Human Rights) 14676\/17 and 30 others"},"content":{"rendered":"

The present applications mainly concern the arrest and pre-trial detention of the applicants in the aftermath of the coup attempt of 15\u00a0July 2016, on suspicion of their membership of an organisation described by the Turkish authorities as the \u201cFetullahist Terrorist Organisation \/ Parallel State Structure\u201d (Fetullah\u00e7\u0131 Ter\u00f6r \u00d6rg\u00fct\u00fc \/ Paralel Devlet Yap\u0131lanmas\u0131, hereinafter referred to as \u201cFET\u00d6\/PDY\u201d), 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 Ba\u015f v. Turkey, no.\u00a066448\/17, \u00a7\u00a7\u00a07-14 and \u00a7\u00a7 109-110, 3 March 2020). All of the applicants were serving as judges or prosecutors at different types and\/or levels of court at the material time.<\/p>\n

\n

SECOND SECTION
\nCASE OF ATAMAN AND OTHERS v. T\u00dcRK\u0130YE<\/strong>
\n(Applications nos. 14676\/17 and 30 others \u2013 see appended list)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n6 September 2022<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Ataman and Others v. T\u00fcrkiye,<\/strong><\/p>\n

The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n

Pauliine Koskelo, President,
\nGilberto Felici,
\nSaadet Y\u00fcksel, judges,
\nand Hasan Bak\u0131rc\u0131, Section Registrar,
\nHaving regard to:<\/p>\n

the applications against the Republic of T\u00fcrkiye lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by thirty-one Turkish nationals, whose relevant details are listed in the appended table (\u201cthe applicants\u201d), on the various dates indicated therein;<\/p>\n

the decision to give notice of the applications to the Turkish Government (\u201cthe Government\u201d) represented by their Agent, Mr Hac\u0131 Ali A\u00e7\u0131kg\u00fcl, Head of the Department of Human Rights of the Ministry of Justice of the Republic of T\u00fcrkiye;<\/p>\n

the parties\u2019 observations;
\nthe decision to reject the Government\u2019s objection to the examination of the applications by a Committee;
\nHaving deliberated in private on 28 June 2022,
\nDelivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT MATTER OF THE CASE<\/strong><\/p>\n

1. The present applications mainly concern the arrest and pre-trial detention of the applicants in the aftermath of the coup attempt of 15\u00a0July 2016, on suspicion of their membership of an organisation described by the Turkish authorities as the \u201cFetullahist Terrorist Organisation \/ Parallel State Structure\u201d (Fetullah\u00e7\u0131 Ter\u00f6r \u00d6rg\u00fct\u00fc \/ Paralel Devlet Yap\u0131lanmas\u0131, hereinafter referred to as \u201cFET\u00d6\/PDY\u201d), 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 Ba\u015f v. Turkey, no.\u00a066448\/17, \u00a7\u00a7\u00a07-14 and \u00a7\u00a7 109-110, 3 March 2020). All of the applicants were serving as judges or prosecutors at different types and\/or levels of court at the material time.<\/p>\n

2. On 16 July 2016 the Ankara chief public prosecutor\u2019s office initiated a criminal investigation into, inter alios, the suspected members of FET\u00d6\/PDY within the judiciary, including members of high courts, 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\u2019s office within the context of that investigation, as well as the ensuing suspensions and dismissals of judges and prosecutors suspected of being members of FET\u00d6\/PDY, may be found in Ba\u015f, cited above, \u00a7\u00a7\u00a09-10 and 15-21).<\/p>\n

3. Following their arrest and detention in police custody on the orders of the regional and provincial prosecutors\u2019 offices, the applicants were placed in pre-trial detention on various dates, mainly on suspicion of membership of the FET\u00d6\/PDY organisation, an offence punishable under Article 314 of the Criminal Code (see Ba\u015f, cited above, \u00a7 58). The pre-trial detention decisions were issued by the magistrates\u2019 courts located at the respective places of the applicants\u2019 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 \u201ccontinuing offence\u201d and that there was a case of discovery in flagrante delicto governed by the relevant provisions of domestic law (see Ba\u015f, cited above, \u00a7 67, and Turan and Others v.\u00a0Turkey, nos.\u00a075805\/16 and 426 others, \u00a7\u00a7 30-31, 23 November 2021).<\/p>\n

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.<\/p>\n

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, cited above, \u00a7\u00a7\u00a026-27).<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/strong><\/p>\n

6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 5 \u00a7 1 OF THE CONVENTION<\/strong><\/p>\n

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.\u00a02802 on judges and prosecutors and section 46 of the Court of Cassation Act (Law no. 2797).<\/p>\n

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, \u00a7 55). The Court notes that the Government\u2019s objections have already been dismissed in the case of Turan and Others (cited above, \u00a7\u00a7\u00a057\u00a0–\u00a064) 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 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

9. The Court further considers, having regard to its findings in the cases of Ba\u015f and Turan and Others (both cited above, \u00a7\u00a7 143-158 and \u00a7\u00a7\u00a079-96, 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\u00a05 \u00a7 1 of the Convention and that, therefore, there has been a violation of Article 5 \u00a7 1 on account of the unlawfulness of the applicants\u2019 initial pre-trial detention. Moreover, while the applicants were detained a short time after the coup attempt \u2013 that is, the event that prompted the declaration of the state of emergency and the notice of derogation by T\u00fcrkiye \u2013, 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 Ba\u015f, cited above, \u00a7\u00a7 115-116 and \u00a7\u00a7\u00a0159-162, and Turan and Others, cited above, \u00a7\u00a7 91 and 95).<\/p>\n

III. OTHER COMPLAINTS<\/strong><\/p>\n

10. As regards any remaining complaints under Article 5 \u00a7\u00a7 1, 3, 4 and\u00a05, the Court decides not to examine them, in view of its findings under Article\u00a05 \u00a7\u00a01 above and its considerations in the case of Turan and Others (cited above, \u00a7\u00a098).<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

11. The applicants requested compensation in varying amounts in respect of non\u2011pecuniary 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.<\/p>\n

12. The Government contested the applicants\u2019 claims as being unsubstantiated and excessive.<\/p>\n

13. For the reasons put forth in Turan and Others (cited above, \u00a7\u00a7\u00a0102-107), 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

2. Declares the complaint under Article 5 \u00a7 1 of the Convention concerning the lawfulness of the applicants\u2019 initial pre-trial detention admissible;<\/p>\n

3. Holds that there has been a violation of Article 5 \u00a7 1 of the Convention on account of the unlawfulness of the initial pre-trial detention of the applicants;<\/p>\n

4. Holds that there is no need to examine the admissibility and merits of the applicants\u2019 remaining complaints under Article 5 of the Convention;<\/p>\n

5. Holds<\/p>\n

(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 these amounts, which are to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n

(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;<\/p>\n

6. Dismisses the remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n

Done in English, and notified in writing on 6 September 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Hasan Bak\u0131rc\u0131 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Pauliine Koskelo
\nRegistrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

____________<\/p>\n

APPENDIX<\/strong><\/p>\n

List of cases:<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong><\/td>\nCase name<\/strong><\/td>\nLodged on<\/strong><\/td>\nApplicant
\nDate of Birth<\/strong>\u00a0<\/strong><\/td>\n		Represented by<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1.<\/td>\n14676\/17<\/td>\nAtaman v. T\u00fcrkiye<\/td>\n11\/01\/2017<\/td>\n\u0130brahim Tufan ATAMAN
\n29\/07\/1968<\/strong><\/td>\n		Beyza Esma TUNA<\/td>\n<\/tr>\n
2.<\/td>\n15648\/17<\/td>\nDemir v. T\u00fcrkiye<\/td>\n19\/01\/2017<\/td>\nCo\u015fkun DEM\u0130R<\/strong><\/p>\n

15\/12\/1958<\/strong><\/td>\n

\u0130smail Safa AKKU\u015e<\/td>\n<\/tr>\n
3.<\/td>\n60397\/17<\/td>\nArseven v. T\u00fcrkiye<\/td>\n14\/04\/2017<\/td>\nMuammer ARSEVEN
\n22\/09\/1968<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
4.<\/td>\n62630\/17<\/td>\nGen\u00e7 v. T\u00fcrkiye<\/td>\n30\/06\/2017<\/td>\nMustafa GEN\u00c7
\n05\/01\/1967<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
5.<\/td>\n62632\/17<\/td>\n\u00c7\u0131rak v. T\u00fcrkiye<\/td>\n30\/06\/2017<\/td>\nHalil \u00c7IRAK
\n06\/06\/1966<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
6.<\/td>\n62636\/17<\/td>\nEkinci v. T\u00fcrkiye<\/td>\n30\/06\/2017<\/td>\nMehmet Vehip EK\u0130NC\u0130
\n18\/07\/1963<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
7.<\/td>\n62640\/17<\/td>\n\u0130\u015flek v. T\u00fcrkiye<\/td>\n30\/06\/2017<\/td>\nKemalettin \u0130\u015eLEK
\n01\/01\/1969<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
8.<\/td>\n62914\/17<\/td>\nY\u0131lba\u015f\u0131 v. T\u00fcrkiye<\/td>\n04\/05\/2017<\/td>\nHannan YILBA\u015eI
\n17\/10\/1971<\/strong><\/td>\n		Ekrem Bahad\u0131r MERCANTA\u015e<\/td>\n<\/tr>\n
9.<\/td>\n72263\/17<\/td>\nAcu v. T\u00fcrkiye<\/td>\n24\/08\/2017<\/td>\nOktay ACU
\n15\/11\/1968<\/strong><\/td>\n		Necip Faz\u0131l YILDIZ<\/td>\n<\/tr>\n
10.<\/td>\n76346\/17<\/td>\nSaylak v. T\u00fcrkiye<\/td>\n06\/10\/2017<\/td>\nEsabil SAYLAK
\n05\/06\/1967<\/strong><\/td>\n		\u0130smet \u00c7EL\u0130K<\/td>\n<\/tr>\n
11.<\/td>\n81572\/17<\/td>\nSeyhan v. T\u00fcrkiye<\/td>\n06\/11\/2017<\/td>\nEdat Y\u00fccel SEYHAN
\n09\/10\/1969<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
12.<\/td>\n6156\/18<\/td>\nBayrak v. T\u00fcrkiye<\/td>\n22\/01\/2018<\/td>\nRamazan BAYRAK
\n08\/04\/1965<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
13.<\/td>\n7206\/18<\/td>\nEmiro\u011flu v. T\u00fcrkiye<\/td>\n29\/01\/2018<\/td>\nTurgut EM\u0130RO\u011eLU
\n02\/10\/1965<\/strong><\/td>\n		Seydi Ahmet \u00d6ZDEM\u0130R<\/td>\n<\/tr>\n
14.<\/td>\n17506\/18<\/td>\nUral v. T\u00fcrkiye<\/td>\n12\/02\/2018<\/td>\nSami Sezai URAL
\n01\/04\/1968<\/strong><\/td>\n		Melike B\u00fc\u015fra URAL<\/td>\n<\/tr>\n
15.<\/td>\n2779\/19<\/td>\nG\u00fcle\u00e7 v. T\u00fcrkiye<\/td>\n14\/12\/2018<\/td>\nNuri G\u00dcLE\u00c7
\n01\/01\/1969<\/strong><\/td>\n		Serra YA\u011eMUR ERG\u00dc\u00c7<\/td>\n<\/tr>\n
16.<\/td>\n11439\/19<\/td>\nK\u0131ldan v. T\u00fcrkiye<\/td>\n15\/02\/2019<\/td>\n\u0130smail Turgut KILDAN
\n01\/01\/1983<\/strong><\/td>\n		Emre AKARYILDIZ<\/td>\n<\/tr>\n
17.<\/td>\n11822\/19<\/td>\nKaya v. T\u00fcrkiye<\/td>\n13\/02\/2019<\/td>\nHac\u0131 Osman KAYA
\n10\/08\/1965<\/strong><\/td>\n		K\u00fcbra KAYA<\/td>\n<\/tr>\n
18.<\/td>\n20004\/19<\/td>\n\u00d6zer v. T\u00fcrkiye<\/td>\n09\/02\/2019<\/td>\nCumhur \u00d6ZER
\n02\/09\/1969<\/strong><\/td>\n		Handan CAN<\/td>\n<\/tr>\n
19.<\/td>\n25373\/19<\/td>\nS\u00f6nmez v. T\u00fcrkiye<\/td>\n03\/05\/2019<\/td>\nMehmet S\u00d6NMEZ
\n01\/09\/1970<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
20.<\/td>\n25426\/19<\/td>\nS\u00f6zen v. T\u00fcrkiye<\/td>\n24\/04\/2019<\/td>\nBekir S\u00d6ZEN
\n16\/08\/1964<\/strong><\/td>\n		Seda S\u00d6ZEN<\/td>\n<\/tr>\n
21.<\/td>\n25878\/19<\/td>\nDemirci v. T\u00fcrkiye<\/td>\n15\/04\/2019<\/td>\n\u00dcnal DEM\u0130RC\u0130
\n03\/03\/1960<\/strong><\/td>\n		<\/td>\n<\/tr>\n
22.<\/td>\n27279\/19<\/td>\nG\u00fcney v. T\u00fcrkiye<\/td>\n07\/05\/2019<\/td>\nMuhammet G\u00dcNEY
\n15\/06\/1968<\/strong><\/td>\n		Ayhan DO\u011eAN<\/td>\n<\/tr>\n
23.<\/td>\n28562\/19<\/td>\nDemir v. T\u00fcrkiye<\/td>\n09\/05\/2019<\/td>\nHasan DEM\u0130R
\n01\/09\/1969<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
24.<\/td>\n29063\/19<\/td>\nAr\u0131 v. T\u00fcrkiye<\/td>\n31\/05\/2019<\/td>\nMehmet ARI
\n15\/10\/1965<\/strong><\/td>\n		Arzu \u015eeyma ARI<\/td>\n<\/tr>\n
25.<\/td>\n29353\/19<\/td>\nY\u0131ld\u0131z v. T\u00fcrkiye<\/td>\n11\/05\/2019<\/td>\nAli YILDIZ
\n01\/12\/1965<\/strong><\/td>\n		Handan CAN<\/td>\n<\/tr>\n
26.<\/td>\n33507\/19<\/td>\n\u00c7elik v. T\u00fcrkiye<\/td>\n14\/06\/2019<\/td>\nMehmet \u00c7EL\u0130K
\n23\/01\/1969<\/strong><\/td>\n		Tar\u0131k Said G\u00dcLD\u0130B\u0130<\/td>\n<\/tr>\n
27.<\/td>\n37094\/19<\/td>\nTa\u015fk\u0131n v. T\u00fcrkiye<\/td>\n27\/06\/2019<\/td>\nAhmet TA\u015eKIN
\n26\/01\/1965<\/strong><\/td>\n		H\u00fcseyin AYG\u00dcN<\/td>\n<\/tr>\n
28.<\/td>\n37126\/19<\/td>\nAyd\u0131n v. T\u00fcrkiye<\/td>\n05\/07\/2019<\/td>\nOktay AYDIN
\n04\/09\/1971<\/strong><\/td>\n		Tar\u0131k Said G\u00dcLD\u0130B\u0130<\/td>\n<\/tr>\n
29.<\/td>\n39236\/19<\/td>\nTosun v. T\u00fcrkiye<\/td>\n24\/06\/2019<\/td>\nY\u0131lmaz TOSUN
\n04\/08\/1963<\/strong><\/td>\n		Serra YA\u011eMUR ERG\u00dc\u00c7<\/td>\n<\/tr>\n
30.<\/td>\n43562\/19<\/td>\nToker v. T\u00fcrkiye<\/td>\n03\/08\/2019<\/td>\nAhmet TOKER
\n24\/05\/1969<\/strong><\/td>\n		Beyza Esma TUNA<\/td>\n<\/tr>\n
31.<\/td>\n44461\/19<\/td>\nBoyraz v. T\u00fcrkiye<\/td>\n15\/08\/2019<\/td>\nOrhan BOYRAZ
\n15\/08\/1970<\/strong><\/td>\n		<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n