SECOND SECTION
CASE OF ACAR AND OTHERS v. TURKEY
(Applications nos. 64251/16 and 49 others)
JUDGMENT
STRASBOURG
28 June 2022
This judgment is final but it may be subject to editorial revision.
In the case of Acar and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and, Hasan Bakırcı, Section Registrar,
Having regard to:
the applications against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifty 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 applications 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 Turkey;
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 7 June 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 July 2016, on suspicion of their membership of an organisation described by the Turkish authorities as the “Fetullahist Terrorist 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, §§ 7-14 and §§ 109-110, 3 March 2020). All of the applicants were sitting as judges or prosecutors at different types and/or levels of court, or appointed as trainee judges, at the material time.
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 (Hakimler ve Savcılar Yüksek Kurulu – “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 four of the applicants (namely, applications nos. 31681/17, 47014/17, 47407/18 and 59568/18) in 2015 on account of their failure to take up their duties allegedly for health reasons following an order for their reassignment, which the HSYK considered to be an organisational activity in protest of the reassignments.
3. On 17 July 2016 the 1st Presidency Board of the Court of Cassation similarly issued a decision revoking the existing authorities of the members of the Court of Cassation against whom action had been taken by the Ankara chief public prosecutor’s office, including some of the applicants (see Turan and Others, cited above, § 16).
4. 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. It further appears that 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 detentions, including by reason of the alleged lack of reasonable suspicion of having committed an offence, were dismissed, including by the Constitutional Court (see, mutatis mutandis, Turan and Others, cited above, §§ 22-27).
5. 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
JOINDER OF THE APPLICATIONS6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION7. 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.
8. 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.
9. The Court notes that similar objections have already been dismissed in other cases against Turkey (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.
10. The Court notes from the information in the case files that the applicants’ initial pre-trial detention was based solely on the decisions taken by the HSYK or the 1st Presidency Board of the Court of Cassation for their suspension from office or the revocation of their authorities, 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. The Court refers in this connection to its findings in the judgment of Baş (cited above, §§ 170-195) in respect of the HSYK decision, which can be applied mutatis mutandis to the decision of the 1st Presidency Board of the Court of Cassation noted in paragraph 3 above by reason of its essentially similar object and content, as well as to the findings in Akgün v. Turkey (no. 19699/18, §§ 151-185, 20 July 2021) regarding the use of the ByLock messaging system. Moreover, as regards the disciplinary investigation in respect of the four applicants 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 applicants’ detention (see, mutatis mutandis, Baş, cited above, § 188).
11. 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 Turkey – , 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, Baş, cited above, §§ 115-116 and §§ 196-201).
OTHER COMPLAINTS12. As regards any remaining complaints under Article 5 §§ 1, 3, 4 and 5, 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
13. 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.
14. The Government contested the applicants’ claims as being unsubstantiated and excessive.
15. 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,
Decides to join the applications;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;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;Holds that there is no need to examine the admissibility and merits of the applicants’ remaining complaints under Article 5 of the Convention;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 these amounts, which are 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;
Dismisses the remainder of the applicants’ claims for just satisfaction.Done in English, and notified in writing on 28 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Branko Lubarda
Registrar President
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year 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.
64251/16
Acar v. Turkey
03/11/2016
Fatih ACAR
1979
Abdulselam DURAN
Ordinary judge or public prosecutor
HSYK decision
2.
25324/17
Çökelez v. Turkey
24/03/2017
Ali ÇÖKELEZ
1986
Regaip DEMİR
Ordinary judge or public prosecutor
HSYK decision
3.
27060/17
Şendil v. Turkey
17/03/2017
Üzeyir ŞENDİL
1976
Mehmet ARI
Ordinary judge or public prosecutor
HSYK decision
4.
27430/17
Demir v. Turkey
08/03/2017
Erkan DEMİR
1979
Engin ERDAL
Ordinary judge or public prosecutor
HSYK decision
5.
31681/17
Karasu v. Turkey
28/02/2017
Akar KARASU
1962
Ordinary judge or public prosecutor
HSYK decision
6.
34038/17
Özlük v. Turkey
13/03/2017
Mutahhar ÖZLÜK
1981
Hüseyin AKYOL
Ordinary judge or public prosecutor
HSYK decision
7.
40091/17
Yamalı v. Turkey
04/05/2017
Nurullah YAMALI
1975
Burçak ATAMAN KUŞ
Ordinary judge or public prosecutor
HSYK decision
8.
43958/17
Gür v. Turkey
20/02/2017
Tarık GÜR
1969
Merve Elif GÜRACAR
Ordinary judge or public prosecutor
HSYK decision
9.
47014/17
Rahman v. Turkey
15/03/2017
Atilla RAHMAN
1969
Uğur KARADAĞ
Ordinary judge or public prosecutor
HSYK decision
10.
53749/17
Karadağ v. Turkey
03/06/2017
Ersin KARADAĞ
1978
İrem TATLIDEDE
Ordinary judge or public prosecutor
HSYK decision
11.
61259/17
İğneci v. Turkey
24/05/2017
Yasin İĞNECİ
1985
Cahit ÇİFTÇİ
Ordinary judge or public prosecutor
ByLock messaging system
HSYK decision
12.
61438/17
Uğur v. Turkey
30/06/2017
Hüsamettin UĞUR
1965
Gökhan GÜNAYDIN
Member of Court of Cassation
Decision of the 1st Presidency Board of the Court of Cassation
13.
61446/17
Cevher v. Turkey
30/06/2017
Dursun Murat CEVHER
1963
Gökhan GÜNAYDIN
Member of Court of Cassation
Decision of the 1st Presidency Board of the Court of Cassation
14.
63732/17
Oğuz v. Turkey
13/06/2017
Abdulhadi OĞUZ
1988
İrem TATLIDEDE
Ordinary judge or public prosecutor
HSYK decision
15.
63888/17
Zorlu v. Turkey
29/05/2017
Emre ZORLU
1988
Mustafa ÇOLAK
Ordinary judge or public prosecutor
HSYK decision
16.
66358/17
Doğan v. Turkey
27/01/2017
Murat DOĞAN
1980
Nilgün ARI
Ordinary judge or public prosecutor
HSYK decision
17.
66698/17
Çakır v. Turkey
18/05/2017
Yüksel ÇAKIR
1974
Fatma HACIPAŞALIOĞLU
Ordinary judge or public prosecutor
HSYK decision
18.
70888/17
Ceylan v. Turkey
03/08/2017
Mevlüt CEYLAN
1983
İrem TATLIDEDE
Ordinary judge or public prosecutor
HSYK decision
19.
79065/17
Yıldırım v. Turkey
11/04/2017
Fatih YILDIRIM
1979
Nilgün ARI
Ordinary judge or public prosecutor
HSYK decision
20.
81501/17
Dursun v. Turkey
06/11/2017
Altınöz DURSUN
1969
Hüseyin AYGÜN
Member of Court of Cassation
Decision of the 1st Presidency Board of the Court of Cassation
21.
81841/17
Sarıömeroğlu v. Turkey
06/11/2017
Hüseyin SARIÖMEROĞLU
1967
Hüseyin AYGÜN
Member of Court of Cassation
Decision of the 1st Presidency Board of the Court of Cassation
22.
81858/17
Canpolat v. Turkey
07/11/2017
Muhammed CANPOLAT
1985
Hüseyin AYGÜN
Ordinary judge or public prosecutor
HSYK decision
23.
84621/17
Kıvrıl v. Turkey
13/11/2017
Halit KIVRIL
1968
Sümeyra Betül BABACAN ALKAN
Member of Court of Cassation
Decision of the 1st Presidency Board of the Court of Cassation
24.
3449/18
Güler v. Turkey
12/12/2017
Zeki GÜLER
1978
Sinan BALOTA
Ordinary judge or public prosecutor
HSYK decision
25.
6984/18
Emirhasanoğlu v. Turkey
25/01/2018
Nazmi EMİRHASANOĞLU
1977
Ayşe Sümeyye BEKLEYEN
Ordinary judge or public prosecutor
HSYK decision
26.
11488/18
Ata v. Turkey
16/02/2018
Şeref ATA
1983
Cahit ÇİFTÇİ
Ordinary judge or public prosecutor
HSYK decision
27.
17249/18
Candar v. Turkey
23/03/2018
Mehmet CANDAR
1968
Muhterem SAYAN
Ordinary judge or public prosecutor
HSYK decision
28.
17591/18
Kılıçelli v. Turkey
03/04/2018
Ahmet KILIÇELLİ
1980
Ordinary judge or public prosecutor
ByLock messaging system
HSYK decision
29.
19457/18
Helvacı v. Turkey
12/04/2018
Rahmi HELVACI
1974
Hüseyin AZAKOĞLU
Ordinary judge or public prosecutor
ByLock messaging system
30.
19758/18
Karahan v. Turkey
12/04/2018
Cemalettin KARAHAN
1977
Sinan BALOTA
Ordinary judge or public prosecutor
HSYK decision
31.
22051/18
Ayluçtarhan v. Turkey
30/04/2018
Salih AYLUÇTARHAN
1983
Hasan Celil GÜNENÇ
Ordinary judge or public prosecutor
HSYK decision
32.
28555/18
Güneş v. Turkey
12/06/2018
Ahmet GÜNEŞ
1990
Asım Burak GÜNEŞ
Trainee judge/prosecutor
ByLock messaging system
33.
29588/18
Usta v. Turkey
11/06/2018
İbrahim USTA
1971
Mehmet Fatih İÇER
Ordinary judge or public prosecutor
HSYK decision
34.
29699/18
Coşkun v. Turkey
13/06/2018
Osman COŞKUN
1971
Hüseyin UÇAN
Ordinary judge or public prosecutor
HSYK decision
35.
30252/18
Şahin v. Turkey
13/06/2018
Levent ŞAHİN
1973
İrem TATLIDEDE
Ordinary judge or public prosecutor
HSYK decision
36.
30483/18
Rafet v. Turkey
18/06/2018
Emre RAFET
1966
Muhammet GÜNEY
Ordinary judge or public prosecutor
HSYK decision
37.
36168/18
Tozar v. Turkey
25/07/2018
Seyfi TOZAR
1978
Mehmet Fatih İÇER
Ordinary judge or public prosecutor
ByLock messaging system
38.
38541/18
Akar v. Turkey
02/08/2018
Fatih AKAR
1987
Mehmet ARI
Ordinary judge or public prosecutor
HSYK decision
39.
42362/18
Yardımcı v. Turkey
07/08/2018
Erhan YARDIMCI
1985
Mehmet Fatih İÇER
Ordinary judge or public prosecutor
HSYK decision
40.
46821/18
Taşdemir v. Turkey
20/09/2018
Orhan TAŞDEMİR
1974
Cengiz BALCI
Ordinary judge or public prosecutor
HSYK decision
41.
47407/18
Kaya v. Turkey
24/09/2018
Şeref KAYA
1968
İrem TATLIDEDE
Ordinary judge or public prosecutor
HSYK decision
42.
48080/18
Arıç v. Turkey
27/09/2018
Mehmet ARIÇ
1980
Numan ARIÇ
Ordinary judge or public prosecutor
HSYK decision
43.
49289/18
Kılavuz v. Turkey
16/10/2018
İshak KILAVUZ
1975
Hanifi BAYRI
Ordinary judge or public prosecutor
HSYK decision
44.
54347/18
Özelce v. Turkey
02/11/2018
Cuma ÖZELCE
1983
Salih KOÇAK
Ordinary judge or public prosecutor
HSYK decision
45.
56607/18
Saykı v. Turkey
15/11/2018
Ergün SAYKI
1983
Sabahattin KARAGÖZ
Ordinary judge or public prosecutor
HSYK decision
46.
59568/18
Uslu v. Turkey
21/11/2018
Ramazan USLU
1971
Ahmet Levent İLGİN
Ordinary judge or public prosecutor
HSYK decision
47.
59690/18
Baş v. Turkey
06/12/2018
Kaan BAŞ
1990
Sultan TEKE SOYDİNÇ
Ordinary judge or public prosecutor
HSYK decision
48.
1653/19
Köşten v. Turkey
25/12/2018
Uğur KÖŞTEN
1977
Elif Nurbanu OR
Ordinary judge or public prosecutor
HSYK decision
49.
3574/19
Sevgiliocak v. Turkey
31/12/2018
Ömer SEVGİLİOCAK
1974
Zehra ARSLAN
Ordinary judge or public prosecutor
HSYK decision
50.
6355/19
Balcı v. Turkey
14/01/2019
Ebuzer BALCI
1984
Sertan DAVDAV
Ordinary judge or public prosecutor
HSYK decision