CASE OF ÇAKAR AND OTHERS v. TÜRKİYE

 

 

SECOND SECTION

CASE OF ÇAKAR AND OTHERS v. TÜRKİYE

(Applications nos. 2541/19 and 15 others –

see appended list)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

17 March 2026

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

In the case of Çakar and Others v. Türkiye,

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

 Jovan Ilievski, President,
 Péter Paczolay,
 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 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 applicants’ pre‑trial detention, the length of the pre‑trial detention and the alleged ineffectiveness of the judicial review of the lawfulness of detention to the Turkish Government (“the Government”), represented by their then Agent, 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 the remainder of the applications inadmissible;

the parties’ observations;

the decision to dismiss the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 17 February 2026,

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 attempted coup d’état of 15 July 2016, primarily 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 (further information regarding the events that unfolded after the coup attempt, including the details of the state of emergency declared by the 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 Baş v. Turkey, no. 66448/17, §§ 6‑14 and 109‑10, 3 March 2020).

2.  On various dates the applicants were arrested and placed in pre‑trial detention, mainly on suspicion of membership of FETÖ/PDY, an offence punishable under Article 314 of the Criminal Code (see Baş, cited above, § 58). The competent judicial authorities dismissed objections raised by the applicants against their detention.

3.  On various dates in the course of the ensuing criminal investigations and trials the competent judicial authorities ordered the applicants’ continued detention. The applicants were held in pre‑trial detention for periods ranging from one year to four years and five days.

4.  It is apparent from the information and documents in the case files that, when ordering and extending the applicants’ pre-trial detention, the competent judicial authorities relied on various evidential grounds, including but not limited to: (a) witness statements indicating ties with FETÖ/PDY; (b) social media posts; (c) possession of pro-FETÖ/PDY publications; (d) working in, or being a member of, institutions with ties to the organisation in question or an organisation shut down by the state‑of‑emergency legislative decrees; (e) provision of financial support to FETÖ/PDY or to institutions with ties to FETÖ/PDY; (f) attending or holding meetings (sohbet); (g) communication with senior executives of the organisation; (h) ensuring communication among FETÖ/PDY members; (i) using the ByLock encrypted messaging application; (j) staying in FETÖ/PDY houses; and (k) carrying out various other activities on the orders of the organisation.

5.  It is further apparent from the case files that, in accordance with Articles 100 and 101 of the Code of Criminal Procedure (for the text of those provisions, see Kavala v. Turkey, no. 28749/18, §§ 71-72, 10 December 2019), the competent judicial authorities justified their decisions to deprive the applicants of their liberty not only on the basis of the existence of reasonable suspicion, but also on the grounds of the nature and severity of the alleged offence of membership of an armed terrorist organisation and the fact that that offence was among the “catalogue” offences listed in Article 100 § 3 of the Code of Criminal Procedure. Without making an individualised assessment, they also relied on the state of the evidence and the risk of the applicants’ absconding and tampering with evidence and considered that detention would be a proportionate measure in the circumstances. Moreover, in the later stages of the proceedings, when deciding to extend their detention, the competent judges took into account the time spent by the applicants in pre‑trial detention, without explaining the relevance of that factor to their decision.

6.  In the meantime, the applicants lodged one or more individual applications with the Constitutional Court in respect of the detention orders, alleging, inter alia, a lack of reasonable suspicion that they had committed an offence and a lack of reasons to justify the decision to remand them in pre‑trial detention. All of their applications were declared inadmissible by the Constitutional Court.

7.  According to the latest information provided by the parties, most of the applicants were convicted of membership of an armed terrorist organisation by the courts of first instance on the basis of evidence that was available at the time of their detention or that appeared at a later stage in the proceedings. It is further apparent that some of the criminal proceedings are still pending before the appellate courts or the Constitutional Court.

THE COURT’S ASSESSMENT

JOINDER OF THE APPLICATIONS

8.  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 and 3 OF THE CONVENTION

9.  The applicants complained that there had been no specific evidence giving rise to a reasonable suspicion that they had committed a criminal offence necessitating their pre‑trial detention. They further argued that the domestic courts had not provided relevant and sufficient reasons in their decisions ordering their placement in detention and their continued detention. They also maintained that the domestic authorities had failed to consider alternative measures to detention. In that connection, they alleged that there had been a violation of Article 5 §§ 1 (c) and 3 of the Convention.

Admissibility

10.  The Government urged the Court to declare these complaints 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. The Government further submitted that some of the applicants had been granted compensation under Article 141 of the Code of Criminal Procedure and had therefore lost their victim status. In addition, they asked the Court to declare the applications inadmissible as being an abuse of the right of application, in so far as the applicants had not informed the Court of the developments in their cases following the lodging of their applications. They also asked the Court to declare some of the applications inadmissible on account of the applicants’ failure to duly raise their complaints under Article 5 § 3 of the Convention before the Turkish Constitutional Court. The Government lastly submitted that the applicants’ initial and continued pre‑trial detention had complied with domestic legislation and Article 5 §§ 1 (c) and 3 of the Convention.

11.  The Court notes that similar objections raised by the Government have already been dismissed in other cases against Türkiye (see, for instance, Selahattin Demirtaş v. Turkey (no.2) [GC], no. 14305/17, §§ 212-14, 22 December 2020; Alparslan Altan v. Turkey, no. 12778/17, §§ 84-85, 16 April 2019; Baş, cited above, §§ 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. Moreover, as regards the objections concerning the failure to use the remedy of an individual application to the Constitutional Court, an examination of the case files reveals that, contrary to the Government’s assertions, the applicants concerned expressly raised their complaints pertaining to Article 5 § 3 of the Convention in their application forms submitted to the Constitutional Court.

12.  The Court therefore considers that the applicants’ complaints under Article 5 §§ 1 (c) and 3 of the Convention are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other grounds. They must therefore be declared admissible.

MeritsAlleged lack of reasoning in the decisions ordering the applicants’ pre‑trial detention (Article 5 § 3 of the Convention)

13.  As regards the merits, the Court reiterates that, according to its well‑established case-law under Article 5 § 3 of the Convention, the persistence of a reasonable suspicion that a detainee has committed an offence is a condition sine qua non for the validity of his or her continued detention. The Court must further establish whether the national authorities gave relevant and sufficient reasons for the detention from the time of the first decision ordering detention on remand onwards. Those other grounds may be a risk of flight, a risk of pressure being brought to bear on witnesses or of evidence being tampered with, a risk of collusion, a risk of reoffending, or a risk of public disorder and the related need to protect the detainee (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87-88 and 101-02, 5 July 2016). Those risks must be duly substantiated, and the authorities’ reasoning on those points cannot be abstract, general or stereotyped (see Merabishvili v. Georgia [GC], no. 72508/13, § 222, 28 November 2017).

14.  The Court notes that when ordering the applicants’ initial and continued pre‑trial detention, the judicial authorities cited, in a formulaic manner, numerous pieces of evidence in support of their findings that there were concrete indications that the applicants had committed an offence (see paragraph 4 above). However, the Court has doubts as to whether the national courts convincingly demonstrated the link between the evidence they mentioned in the detention orders and the existence of a “reasonable suspicion” that the applicants had committed the offence of membership of an armed organisation of which they were suspected.

15.  Even assuming that there was “reasonable suspicion” that an offence has been committed, decisions ordering and prolonging pre‑trial detention must contain relevant and sufficient reasons justifying the necessity of the detention. In that connection, the Court observes that in Türkiye, as required by the Convention, domestic law provides that the competent judicial authorities must put forward “relevant and sufficient” reasons when considering the need to place and keep a suspect in pre‑trial detention. This is a procedural obligation laid down in Articles 100 and 101 of the Code of Criminal Procedure, which provide that decisions to place or keep a suspect in pre‑trial detention must include legal and factual reasons (see Tuncer Bakırhan v. Turkey, no. 31417/19, §§ 23‑24, 14 September 2021).

16.  The Court notes in this connection that the competent courts in the present case referred to the following grounds for detention: the nature of the offence; the severity of the sentences prescribed by law for the offence concerned; the state of the evidence; the period spent in detention; the risk of the applicants’ absconding and tampering with evidence; and the finding that alternative measures to detention appeared insufficient (see paragraph 5 above).

17.  In so far as the detention was justified on the basis of the “nature of the offence”, the Court notes that the domestic courts which ruled on the applicants’ detention considered that they had been accused of offences listed in Article 100 § 3 of the Code of Criminal Procedure (also referred to as “catalogue” offences). As regards these “catalogue” offences, the Court observes that under Article 100 § 3 of the Code of Criminal Procedure, Turkish law provides that for certain offences there is a statutory presumption of the existence of grounds for detention (risk of absconding, tampering with evidence or putting pressure on witnesses, victims and other persons). In this connection, the Court reaffirms that any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the Convention. Where the law provides for a presumption concerning the grounds for pre‑trial detention, it must nevertheless be convincingly demonstrated that there are concrete facts warranting a departure from the rule of respect for individual liberty. This is also the case where the judicial authorities justify the detention of a suspect by the nature of the offence in question or the severity of the potential sentence prescribed by law (compare Tuncer Bakırhan, cited above, §§ 46-49). The Court therefore needs to examine whether the national courts carried out an individualised examination when ordering the applicants’ pre‑trial detention.

18.  As regards the other reasons given by the national courts for placing or keeping the applicants in pre‑trial detention, the Court observes firstly that they entail a formulaic enumeration of the grounds for detention under domestic law in a general and abstract manner, such as the state of the evidence, the period spent in detention and the risk of the applicants’ absconding and tampering with evidence. While the Court is prepared to accept that, in view of the particular circumstances surrounding the attempted coup, the risk of the applicants’ absconding and/or tampering with evidence might have justified the measure of detention, at least during the initial phase of the criminal investigation, it nevertheless observes that the subsequent decisions ordering the applicants’ continued pre‑trial detention did not contain an individualised analysis in that regard. In the Court’s view, decisions worded in formulaic and stereotyped terms, as in the present case, can on no account be regarded as sufficient to justify a person’s continued pre‑trial detention (see, mutatis mutandis, Şık v. Turkey, no. 53413/11, § 62, 8 July 2014). This is particularly so given that the applicants in the present case were remanded in pre‑trial detention for periods ranging from one year to more than four years.

19.  The Court notes that it has already examined many cases in which it has found a violation of Article 5 § 3 of the Convention for similar reasons (see Tuncer Bakırhan, cited above, §§ 40‑58, and the cases cited therein; see also Kolay and Others v. Türkiye [Committee], nos. 15231/17 and 283 others, §§ 11-19, 12 December 2023 and the references therein). In the present case, having regard to the grounds provided by the national judicial authorities, the Court considers that they ordered and extended the applicants’ pre‑trial detention on grounds that cannot be regarded as “sufficient” to justify the measure in issue.

20.  The Court further considers that while the applicants were detained a short time after the coup attempt – which is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article 5 of the Convention – it has not been established that the failure to comply with the requirements described above could be justified by the derogation notified by the Government of Türkiye under Article 15 of the Convention and did not go beyond the “extent strictly required by the exigencies of the situation”. This is particularly so having regard to the duration of the applicants’ pre‑trial detention, which lasted at least one year in each case. The Court points out in this connection that the considerations giving rise to the application of Article 15 of the Convention have gradually become less forceful and relevant, as the public emergency threatening the life of the nation, while still persisting, has declined in intensity, at which point the “exigency” criterion must be applied more stringently (see Baş, cited above, § 224; compare Kolay and Others, cited above, § 18, and Taş and Others v. Türkiye [Committee], nos. 41527/17 and 212 others, § 20, 17 December 2024, with further references in both judgments).

21.  In the light of the foregoing, the Court concludes that there has been a violation of Article 5 § 3 of the Convention in respect of all the applicants.

Alleged lack of reasonable suspicion that the applicants committed a criminal offence (Article 5 § 1 (c) of the Convention)

22.  Having regard to the particular circumstances of the present case (see paragraphs 14-15 above) and its findings under Article 5 § 3 of the Convention (see paragraph 21 above), the Court considers that it is not necessary to determine whether there was any objective information showing that the suspicion against the applicants was “reasonable” at the time of their detention (for a similar approach, see Tuncer Bakırhan, cited above, §§ 36‑39; see also Kolay and Others, cited above, § 20, and Taş and Others, cited above, § 22).

OTHER COMPLAINTS

23.  As regards any remaining complaints under Article 5 of the Convention, the Court decides not to examine the admissibility and merits of those complaints, in view of its findings under Article 5 § 3 above and its considerations in Turan and Others (cited above, § 98).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicants in applications nos. 4720/20 and 44838/20 did not submit a claim for just satisfaction or failed to do so within the prescribed time‑limit. Accordingly, the Court considers that there is no call to award them any sum on that account.

25.  The remaining applicants submitted their claims within the time-limit allotted and requested varying amounts in respect of non‑pecuniary damage. The majority of them also claimed amounts in respect of pecuniary damage, as well as the legal costs and expenses incurred before the domestic courts and the Court.

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

27.  For the reasons set out in Turan and Others (cited above, §§ 102‑07), the Court rejects any claims in respect of pecuniary damage and awards each of the applicants who submitted relevant claims 3,000 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 admissible the complaints under Article 5 §§ 1 (c) and 3 of the Convention concerning the alleged lack of reasonable suspicion regarding the commission of an offence and the alleged lack of relevant and sufficient reasons when ordering and extending the pre-trial detention;Holds that there has been a violation of Article 5 § 3 of the Convention on account of the absence of sufficient grounds for ordering and extending the applicants’ pre‑trial detention;Holds that there is no need to examine separately the merits of the complaints under Article 5 § 1 (c) of the Convention;Holds that there is no need to examine the admissibility and merits of the remaining complaints under Article 5 of the Convention;Holds

(a)  that the respondent State is to pay each of the applicants, save for the applicants in applications nos. 4720/20 and 44838/20, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage and costs and expenses, 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 amounts 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’ claim for just satisfaction.

Done in English, and notified in writing on 17 March 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 {signature_p_1} {signature_p_2}

 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.

2541/19

Çakar v. Türkiye

18/12/2018

Latif ÇAKAR
1973
Ankara
Turkish

Zümrüt ŞAHİN

2.

7570/19

Eser v. Türkiye

09/01/2019

Murat ESER
1974
Konya
Turkish

İhsan MAKAS

3.

60015/19

Beyaz v. Türkiye

18/10/2019

İsmail BEYAZ
1971
Aydın
Turkish

Elif KANDİLLİ

4.

1294/20

Nergiz v. Türkiye

19/12/2019

Ali Fuat NERGİZ
1968
Istanbul
Turkish

Merve Vildan DUMAN

5.

4720/20

Metin v. Türkiye

03/10/2019

Abdurrahim METİN
1991
Eskişehir
Turkish

 

6.

31603/20

Güngör v. Türkiye

10/07/2020

Abdurrahman GÜNGÖR
1978
Kocaeli
Turkish

Said İsmail TÜRKOĞLU

7.

36180/20

Arslan v. Türkiye

06/08/2020

Turan ARSLAN
1978
Sivas
Turkish

Emine ARSLAN

8.

36376/20

Sönmez v. Türkiye

08/07/2020

İbrahim Halil SÖNMEZ
1986
Kahramamaraş
Turkish

Hakan KAPLANKAYA

9.

42198/20

Solak v. Türkiye

03/09/2020

Özgür SOLAK
1977
Konya
Turkish

Mustafa SOYLU

10.

44838/20

Eski v. Türkiye

10/09/2020

Uğur ESKİ
1977
Konya
Turkish

Süleyman ÖZGÜN

11.

52796/20

Kara v. Türkiye

17/11/2020

Mustafa KARA
1990
Istanbul
Turkish

Ahmet Serdar GÜNEŞ

12.

55029/20

Şanlı v. Türkiye

26/10/2020

Ahmet ŞANLI
1981
Manisa
Turkish

 

13.

17686/21

Akgün v. Türkiye

30/03/2021

Kasım AKGÜN
1990
Erzurum
Turkish

Zeynep AKGÜN

14.

22753/21

Topal v. Türkiye

28/01/2021

Ahmet TOPAL
1973
Malatya
Turkish

Kadir ÖZTÜRK

15.

38708/21

Bacak v. Türkiye

29/06/2021

Yasin BACAK
1988
Konya
Turkish

 

16.

49294/21

Gökçelik v. Türkiye

17/09/2021

Tayfur GÖKÇELİK
1992
Kocaeli
Turkish

Mehmet ULAŞ

 

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