CASE OF ATÇA AND ÇELEBİ v. TÜRKİYE

SECOND SECTION

CASE OF ATÇA AND ÇELEBİ v. TÜRKİYE

(Applications nos. 25280/19 and 36151/19)

JUDGMENT
 

STRASBOURG

13 May 2025

This judgment is final but it may be subject to editorial revision.

In the case of Atça and Çelebi v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Péter Paczolay, President,
 Stéphane Pisani,
 Juha Lavapuro, 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints under Article 5 §§ 1 and 4 of the Convention concerning the unlawfulness of the arrest and the alleged restriction on access to the investigation file, and Article 8 of the Convention concerning the unlawfulness of the search carried out of the applicants’ private homes to the Turkish Government (“the Government”) represented by their Agent at the time, Mr Hacı Ali Açıkgül, former 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 22 April 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present applications mainly concern the arrest and 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, and the house search conducted by police officers of the applicants’ family homes before their arrest.

2.  The applicants were serving members of the judiciary: the applicant in application no. 25280/19 (“the first applicant”) was a prosecutor and the applicant in application no. 36151/19 (“the second applicant”) was a judge. They were both subject to Law no. 2802 on judges and prosecutors (“Law no. 2802”) at the time of the events.

3.  The house of the first applicant was searched by police officers as per a search warrant issued by the Ceyhan Magistrates’ Court on 16 July 2016. The police officers seized certain objects and documents during the search. The first applicant was placed in police custody on 17 July 2016. The magistrates’ court made a restriction order regarding access to the investigation file on the same day.

4.  The house of the second applicant was searched as per a search warrant issued by the Hatay Chief Public Prosecutor on 17 July 2016. The police officers seized various objects and documents during the search. On the following day, the second applicant was placed in police custody.

5.  The applicants were subsequently interrogated by the prosecutor’s office as well as the magistrates’ court. Throughout the interrogations, the applicants’ lawyers were present. They were asked questions about the evidence taken as a basis for their arrest and detention. In particular, they were asked about certain witness statements and were given the opportunity to provide counter‑statements.

6.  After the interrogations, the first applicant was released with judicial control measures (house arrest) being ordered on 20 July 2016 while the second applicant was released on 19 July 2016, with a judicial control measure of prohibition to leave the country being ordered. As to the investigation concerning the second applicant, the magistrates’ court subsequently made a restriction order regarding access to the file on 20 July 2016.

7.  The applicants subsequently lodged individual applications with the Constitutional Court, which declared their complaints inadmissible on several grounds. In particular, referring to the remedy under Article 141 of the Code of Criminal Procedure, it found the first applicant’s complaints under Articles 5 § 1 and 8 of the Convention inadmissible for non-exhaustion of domestic remedies and those under Article 5 § 4 of the Convention manifestly ill-founded. It also declared the second applicant’s complaints under, inter alia, Articles 5 §§ 1 and 4, and 8 of the Convention inadmissible in a summary fashion for not complying with the admissibility criteria.

8.  According to the latest information provided by the parties, the applicants were subsequently acquitted of the charges.

9.  Section 88 of Law no. 2802 prohibits the house and personal search of judges and prosecutors except in the case of discovery in flagrante delicto falling within the jurisdiction of the assize courts (see for the wording of that provision, Baş v. Turkey, no. 66448/17, § 67, 3 March 2020).

THE COURT’S ASSESSMENT

10.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

11.  Relying on Article 5 § 4 of the Convention, the applicants claimed that due to the restrictions on access to their investigation files, they were not able to challenge properly the lawfulness of their deprivation of liberty.

12.  Referring to its Atilla Taş v. Türkiye judgment (no. 72/17, §§ 149-53, 19 January 2021), the Court reiterates that proceedings conducted under Article 5 § 4 of the Convention before the court examining an appeal against detention must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention. Having sufficient knowledge of the evidence is thus of essential importance for an effective challenge to the legality of detention.

13.  In the present case, the Court notes that access to the first applicant’s investigation file was restricted while she was detained in police custody (see paragraph 3 above), following which a court ordered her house arrest. Even assuming the applicability of Article 5 § 4 to the proceedings at issue, the Court observes that the first applicant was questioned in the presence of her lawyers. She was asked questions about the evidence, in particular the witness statements, as also transcribed in the records of statement (see paragraph 5 above). The Court therefore notes that the applicant was sufficiently informed of the evidence leading to her deprivation of liberty to be able to challenge effectively its lawfulness, and she had the opportunity to discuss this evidence and give counter-statements about it (see Ceviz v. Turkey, no. 8140/08, § 43, 17 July 2012 and Atilla Taş, cited above, § 153). It follows that this part of the application is inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

14.  As for the second applicant, the restriction of access to the investigation file was imposed by the domestic courts only after her release from detention (see paragraph 6 above). Article 5 § 4 is therefore not applicable to her complaint regarding lack of access to the investigation file and this part of the application must thus be rejected as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

15.  Relying on Article 8 of the Convention, the applicants complained of the alleged unlawfulness of the search carried out of their private homes. In particular, they claim that the searches were carried out contrary to the specific provisions concerning judges and prosecutors, as governed by the provisions of Law no. 2802.

16.  The Government invited the Court to declare these complaints inadmissible for non-exhaustion of domestic remedies. In particular, the Government indicated that the applicants have failed to use the compensatory remedy under Article 141 § 1 (i) of the CCP, which provides for the possibility of bringing a compensation claim if the search has been carried out in a disproportionate manner (ölçüsüz bir şekilde; for the wording of that provision see Tercan v. Turkey, no. 6158/18, § 64, 29 June 2021). The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, Budak v. Turkey, no. 69762/12, §§ 39-48, 16 February 2021, and Tercan, cited above, §§ 190-95), and sees no reason to depart from those findings in the present case.

17.  In the light of the above findings, the Court notes 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.

18.  The Court observes that the applicants mainly refer to Section 88 of Law no. 2802 (see paragraph 9 above), arguing that no house search of their homes could be carried out, except in the case of discovery in flagrante delicto, which was not the situation in their cases. They raise no complaint as to the quality or foreseeability of the provisions of Law no. 2802, nor any argument in this respect, but solely argue that the relevant provisions were applicable to their cases.

19.  The Government do not contest the applicability of Law no. 2802. They argue that the searches were carried out according to the general provisions as well as Section 88 of that Law, alleging in this respect the existence of discovery in flagrante delicto concerning the applicants as membership of a terrorist organisation was a continuing offence.

20.  The Court notes that, as the applicants’ family homes were searched in the framework of a criminal investigation by the authorities, who seized several objects and documents during the search (see paragraphs 3 and 4 above), there was an interference with the applicants’ right to respect for their home. It is therefore necessary to determine whether this interference was justified under paragraph 2 of Article 8 of the Convention, that is, whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question.

21.  The Court notes that the crux of the applicants’ grievances concerns the non-compliance of the search with the provisions of Section 88 of Law no. 2802, which prohibits house and personal searches of judges and prosecutors except in the case of discovery in flagrante delicto falling within the jurisdiction of the assize courts.

22.  The main legal question is therefore whether there is a case of discovery in flagrante delicto, which triggers the application of the rules of ordinary law. The Court points out that it has already found in similar cases concerning magistrates that the notion of “discovery in flagrante delicto” so as to cover membership of a criminal organisation without the need to establish any current factual element or any other indication of an ongoing criminal act was interpreted and applied in an extensive manner by the Turkish authorities (see Baş, cited above, §§ 145‑58). In the absence of pertinent arguments presented by the Government to the contrary, the Court considers that there is no reason to depart from its previous findings in the present case.

23.  Therefore, the Court concludes that although the provisions of Section 88 of Law no. 2802 were clear and foreseeable, the interpretation and application of the notion of in flagrante delicto by the domestic authorities – and as a result, the application of the rules of ordinary law – was not foreseeable in the circumstances of this case (see, mutatis mutandis, Tercan, cited above, §§ 200-01). The Court thus concludes that the measure complained of was not “in accordance with law” within the meaning of Article 8 of the Convention.

24.  There has accordingly been a violation of Article 8 of the Convention.

25.  The applicants also complained under Article 5 § 1 of the Convention that judicial control measures against them were imposed in breach of the domestic laws, without raising any particular argument elaborating their complaints.

26.  In the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

27.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  The applicants submitted claims in respect of non‑pecuniary damage in varying amounts: 25,000 euros (EUR) for the first applicant and EUR 10,000 for the second applicant. The second applicant further requested EUR 10,000 for pecuniary damage. The applicants also claimed certain amounts for costs and expenses: EUR 1,000 for the first applicant and EUR 6,000 for the second applicant for legal fees paid to their lawyers. The first applicant submitted the invoice for her payment of legal fees, as well as the Union of the Turkish Bar Associations’ minimum fee tariff. The second applicant referred to the Istanbul Bar Association’s scale of fees and did not submit any other supporting documents in respect of her claims.

29.  The Government contested the applicants’ claims as being unsubstantiated and excessive.

30.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the claim presented in this respect by the second applicant. However, it awards each of the applicants EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

31.  As regards the costs and expenses, and having regard to the documents before it, the Court considers it reasonable to award the sum claimed by the first applicant (EUR 1,000) in full, plus any tax that may be chargeable to her. It rejects, however, the claim of the second applicant in respect of costs and expenses as she failed to submit any supporting documents.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable, to each applicant, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to her, to the first applicant (application no. 25280/19), in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 13 May 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Péter Paczolay
 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.

25280/19

Atça v. Türkiye

25/04/2019

Hülya ATÇA
1982
Burdur
Turkish

Ahmet KARAHAN

2.

36151/19

Çelebi v. Türkiye

31/05/2019

Emine Selma ÇELEBİ
1978
Van
Turkish

Regaip DEMİR