Published on 14 June 2021
SECOND SECTION
Application no. 3038/18
Cevdet BALIKÇI against Turkey
and 103 other applications
(see list appended)
communicated on 25 May 2021
SUBJECT MATTER OF THE CASE
The applications mainly concern the applicants’ arrest and pre-trial detention, on suspicion of membership of FETÖ/PDY (Fetullahist Terrorist Organisation / Parallel State Structure), in the aftermath of the attempted coup d’état which took place on 15 July 2016.
The applicants complain of a violation of Article 5 of the Convention on the basis of the following allegations (see the appended table for detailed information as to the specific complaints raised by each applicant):
- They were detained in the absence of any suspicion that they committed an offence;
- There were no relevant and sufficient reasons to justify their initial and/or continued pre-trial detention;
- The length of their pre-trial detention was excessive;
- The reviews of detention took place without a hearing and they were not notified of the opinion of the public prosecutor on those reviews;
- Their access to the investigation files was restricted;
- The objections to their detention or their requests for release were not examined or examined belatedly;
- The decisions extending their pre-trial detention were not notified to them, or were notified with a delay, which prevented them from appealing against those decisions;
- They did not benefit from effective legal assistance and facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers was monitored by the prison authorities;
- The time taken by the Constitutional Court to conduct its examination on their individual applications was excessive.
QUESTIONS TO THE PARTIES
On the basis of the complaints communicated in accordance with the list in the Appendix
1. Can the applicants be considered to have been detained on the basis of “a reasonable suspicion” that they had committed an offence (see, in particular, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A No. 182), taking into account, in particular, Article 100 of the Code of Criminal Procedure, which requires “concrete evidence demonstrating the existence of strong suspicions” as to the commission of the offence?
Moreover, has the Constitutional Court based the existence of reasonable suspicion on evidence discovered after the decisions had been taken to detain the applicants?
2. (a) Did the applicants exhaust the remedies available in domestic law in relation to their complaints under Article 5 § 3 of the Convention? To the extent that the applicants’ complaints did not relate solely to the length of their pre-trial detention but also concerned the alleged failure of the domestic courts to provide relevant and sufficient reasons to justify their initial and continued pre-trial detention, can a compensation claim under Article 141 § 1(d) of the Code of Criminal Procedure be regarded as an effective remedy in respect of those complaints (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 213, 22 December 2020)?
The Government are invited to provide sample decisions to demonstrate whether the remedy under Article 141 § 1(d) of the Code of Criminal Procedure has been interpreted and applied by the national courts in a manner that extends to complaints concerning the lack of relevant and sufficient reasons to justify pre-trial detention.
(b) Was the applicants’ pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular:
(i) Did the judges, who ordered the applicants’ initial pre-trial detention and the prolongation of their detention, and who examined the objections lodged against those decisions, fulfil their obligation to provide relevant and sufficient grounds for the deprivation of liberty in question (see, in particular, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 102, ECHR 2016 (extracts))?
(ii) Was the length of the applicants’ pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?
3. Did the applicants have at their disposal an effective remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular, the Government are invited to respond to the following complaints made by the applicants:
(i) the principle of equality of arms had not been respected, as the decisions to extend their detention and their objections to those decisions had been examined without a hearing and the prosecutors’ opinions had not been communicated to them;
(ii) they had been unable to challenge their detention in an effective manner because of the restriction imposed on their access to the investigation file;
(iii) their objections to their detention had not been examined or had been examined belatedly;
(iv) the decisions to extend their detention had not been notified to them or had been notified with a delay, which had prevented them from lodging objections against those decisions;
(v) they had had no effective legal assistance or facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers had been monitored;
(vi) the time taken by the Constitutional Court to examine their individual applications had been protracted.
4. Did the compensation remedy provided under Article 141 of the Code of Criminal Procedure constitute an effective remedy, within the meaning of Article 5 § 4 of the Convention, in respect of complaints concerning (i) the lack of an oral hearing during the review of detention; (ii) the non‑notification or belated notification of the detention decision; and (iii) the lack of or delay in the examination of the objection against detention by the magistrates’ courts?
The Government are invited to provide sample domestic court decisions in support of their reply.
APPENDIX
No.
Application No.
Case Title
Date of Intro
Complaints
1
3038/18
Balıkçı v. Turkey
04/01/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
2
41340/18
Kılıçalp v. Turkey
10/08/2018
Lack of reasonable suspicion
3
41513/18
Yontar v. Turkey
17/08/2018
Lack of reasonable suspicion
4
41571/18
Küçük v. Turkey
02/08/2018
Length of pre-trial detention
Lack of reasonable suspicion
5
48214/18
Üzümcü v. Turkey
02/10/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Failure/Delay in examining requests for enlargement/objection
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
6
49835/18
Akbulut v. Turkey
11/10/2018
Lack of relevant and sufficient reasons for detention
Failure/Delay to communicate decisions relating to detention
Lack of reasonable suspicion
7
49861/18
Alkan v. Turkey
12/10/2018
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
8
52160/18
Şimşek v. Turkey
22/10/2018
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
9
53261/18
Kemer v. Turkey
09/11/2018
Lack of reasonable suspicion
10
53385/18
Körsulu v. Turkey
08/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
11
53933/18
Kalpaklı v. Turkey
22/10/2018
Lack of reasonable suspicion
12
56280/18
Temiz v. Turkey
21/11/2018
Lack of hearing during the detention review
Lack of reasonable suspicion
13
5498/19
Ekinci v. Turkey
09/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
14
6468/19
Özduran v. Turkey
16/01/2019
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
15
6588/19
Kılıç v. Turkey
23/01/2019
Lack of reasonable suspicion
16
6597/19
Tiryaki v. Turkey
17/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
17
6676/19
Memiş v. Turkey
15/01/2019
Lack of reasonable suspicion
18
6755/19
Yılmaz v. Turkey
18/01/2019
Lack of reasonable suspicion
19
6903/19
Önel v. Turkey
16/01/2019
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
20
6932/19
Gülgen v. Turkey
18/01/2019
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
21
6940/19
Saygılı v. Turkey
24/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
22
6979/19
Akgül v. Turkey
17/01/2019
Failure/Delay in examining requests for enlargement/objection
Lack of reasonable suspicion
23
7100/19
Yıldız v. Turkey
24/01/2019
Lack of reasonable suspicion
24
7107/19
Güçlü v. Turkey
30/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
25
7134/19
Asri v. Turkey
23/01/2019
Lack of reasonable suspicion
26
7246/19
Arslan v. Turkey
29/01/2019
Lack of reasonable suspicion
27
7251/19
Öz v. Turkey
29/01/2019
Lack of hearing during the detention review
Restriction of access to the investigation file
28
7254/19
Özcel v. Turkey
29/01/2019
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
29
7269/19
Ejder v. Turkey
24/01/2019
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
Lack of reasonable suspicion
30
7279/19
Koyuncuoğlu v. Turkey
24/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
31
7281/19
Uysal v. Turkey
23/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
32
7289/19
Beşik v. Turkey
22/01/2019
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
33
7294/19
Işık v. Turkey
26/01/2018
Lack of reasonable suspicion
34
7302/19
Türkmen v. Turkey
23/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
35
7352/19
Büyükkalaycı v. Turkey
21/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
36
7404/19
Doğan v. Turkey
25/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
37
7410/19
Tekerek v. Turkey
25/01/2019
Lack of reasonable suspicion
38
7442/19
Kuş v. Turkey
22/01/2019
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Failure to communicate the prosecutor’s opinion
Failure/Delay to communicate decisions relating to detention
Lack of reasonable suspicion
39
7480/19
Toprak v. Turkey
15/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
40
7511/19
Şimşek v. Turkey
23/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
41
7531/19
Arduç v. Turkey
30/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
42
7570/19
Eser v. Turkey
09/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
43
7824/19
Düzgün v. Turkey
28/01/2019
Lack of reasonable suspicion
44
7996/19
Kaya v. Turkey
24/01/2019
Lack of reasonable suspicion
45
8354/19
Şimşek v. Turkey
23/01/2019
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
46
8413/19
Atalay v. Turkey
30/01/2019
Lack of reasonable suspicion
47
8720/19
Sekmen v. Turkey
22/01/2019
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
48
8990/19
Bali v. Turkey
30/01/2019
Lack of reasonable suspicion
49
9121/19
Asri v. Turkey
11/02/2019
Lack of reasonable suspicion
50
9127/19
Karabacak v. Turkey
07/02/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
51
9195/19
Kököz v. Turkey
22/01/2019
Lack of reasonable suspicion
52
9222/19
Cankurtaran v. Turkey
06/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
53
9226/19
Şen v. Turkey
08/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
54
9232/19
Demir v. Turkey
01/02/2019
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
55
9243/19
Sertçelik v. Turkey
16/01/2019
Lack of reasonable suspicion
56
9324/19
Bartan v. Turkey
29/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
57
9332/19
Şenyayla v. Turkey
06/02/2019
Lack of reasonable suspicion
58
9355/19
Barin v. Turkey
07/02/2019
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
59
9360/19
Çetin v. Turkey
07/02/2019
Lack of reasonable suspicion
60
9380/19
Irk v. Turkey
25/01/2019
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
61
9394/19
Duman v. Turkey
05/02/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
62
9397/19
Köse v. Turkey
04/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
63
9426/19
Büberci v. Turkey
15/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
64
9433/19
Uzun v. Turkey
31/01/2019
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
65
9442/19
Erdal v. Turkey
31/01/2019
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
66
9443/19
Müdürhanoğlu v. Turkey
08/02/2019
Lack of reasonable suspicion
67
9444/19
Şahin v. Turkey
31/01/2019
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
68
9445/19
Zengin v. Turkey
08/02/2019
Length of pre-trial detention
Lack of reasonable suspicion
69
9446/19
Guneş v. Turkey
09/02/2019
Lack of reasonable suspicion
70
9452/19
Uzay v. Turkey
31/01/2019
Lack of reasonable suspicion
71
9462/19
Öz v. Turkey
15/01/2019
Lack of reasonable suspicion
72
9463/19
Barutcu v. Turkey
08/02/2019
Restriction of access to the investigation file
Lack of reasonable suspicion
73
9466/19
Usta v. Turkey
04/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
74
9471/19
Örs v. Turkey
07/02/2019
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
75
9493/19
Tekin v. Turkey
06/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
76
9539/19
Çoban v. Turkey
31/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
77
9682/19
Tokuş v. Turkey
08/02/2019
Lack of reasonable suspicion
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
78
9704/19
Gerez v. Turkey
06/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
79
9751/19
Kandaz v. Turkey
05/02/2019
Lack of reasonable suspicion
80
9810/19
Küçük v. Turkey
28/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
81
9815/19
Güneş v. Turkey
05/02/2019
Lack of reasonable suspicion
82
9818/19
Sağdıç v. Turkey
04/02/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
83
9981/19
Yıldırım v. Turkey
05/02/2019
Restriction of access to the investigation file
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
84
10066/19
Yiğit v. Turkey
30/01/2019
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
85
10173/19
Taşkın v. Turkey
07/02/2019
Lack of reasonable suspicion
86
10535/19
Yaslan v. Turkey
22/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
87
10593/19
Topal v. Turkey
19/02/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
88
10599/19
Özer v. Turkey
11/02/2019
Lack of reasonable suspicion
89
10619/19
Asan v. Turkey
11/02/2019
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
90
10911/19
Yücel v. Turkey
13/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
91
10914/19
Pazar v. Turkey
13/02/2019
Lack of reasonable suspicion
92
10917/19
Şahin v. Turkey
14/02/2019
Lack of reasonable suspicion
93
10937/19
Varolu v. Turkey
19/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
94
10954/19
Erdin v. Turkey
07/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
95
10977/19
Öztaş v. Turkey
13/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
96
10981/19
Aygün v. Turkey
14/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
97
10985/19
Yarıkan v. Turkey
19/02/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
98
11075/19
Varsın v. Turkey
19/02/2019
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
99
11082/19
Bağcı v. Turkey
18/02/2019
Lack of reasonable suspicion
100
11281/19
Akman v. Turkey
12/02/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
101
11313/19
Gürbüz v. Turkey
20/02/2019
Lack of reasonable suspicion
102
11333/19
Hazin v. Turkey
11/02/2019
Lack of reasonable suspicion
103
22762/19
Kaya v. Turkey
10/04/2019
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
104
36350/19
Altıparmak v. Turkey
01/07/2019
Lack of reasonable suspicion
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