CASE OF ELİBOL AND OTHERS v. TÜRKİYE

SECOND SECTION

CASE OF ELİBOL AND OTHERS v. TÜRKİYE

(Applications nos. 59648/16 and 50 others)

JUDGMENT
 

STRASBOURG

4 March 2025

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

In the case of Elibol and Others v. Türkiye,

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

 Jovan Ilievski, President,
 Péter Paczolay,
 Davor Derenčinović, 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 fifty-one 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 complaints under Article 5 of the Convention concerning the lawfulness of pre-trial detention, 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
pre-trial detention, the length of pre-trial detention, as well as the ineffectiveness of judicial review of the lawfulness of detention and under Article 8 of the Convention concerning the lawfulness of the searches conducted by the authorities in certain applicants’ 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 4 February 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 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 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 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, §§ 6‑14 and §§ 109-10, 3 March 2020). All the applicants were serving as judges or prosecutors at different types and/or levels of court at the material time.

2.  On 16 July 2016 the Ankara chief public prosecutor’s office initiated a criminal investigation into, inter alia, the suspected members of FETÖ/PDY within the judiciary, including members of high courts, in accordance with the provisions of the ordinary law, on the grounds 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’s office within the context of that investigation, as well as the ensuing suspensions and dismissals of judges and prosecutors suspected of being members of FETÖ/PDY, may be found in Baş, cited above, §§ 9-10 and 15-21).

3.  Following their arrest and detention in police custody on the orders of the regional and provincial prosecutors’ offices, the applicants were placed in pre-trial detention on various dates, 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 pre-trial detention decisions were issued by the magistrates’ courts located at the respective places of the applicants’ 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 “continuing offence” and that there was a case of discovery in flagrante delicto governed by the relevant provisions of domestic law (see Baş, cited above, § 67, and Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 30-31, 23 November 2021).

4.   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 (compare also Turan and Others, cited above, §§ 26-27).

THE COURT’S ASSESSMENT

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

6.  The applicants complained under Article 5 § 1 of the Convention that they had been placed in pre-trial detention in breach of the domestic laws governing the arrest and pre-trial detention of 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. 2802 on judges and prosecutors, section 46 of the Court of Cassation Act (Law no. 2797) and sections 76 and 82 of the Supreme Administrative Court Act (Law no. 2575) (see Baş, cited above, § 67, and Turan and Others, cited above, §§ 30-31).

7.  The Government claimed that five of the applicants, namely those in applications nos. 33576/18, 34975/18, 33932/19, 31910/20 and 13390/21, had not duly exhausted the available domestic remedies in relation to their complaint under Article 5 § 1, as they had not made use of the individual application remedy before the Constitutional Court. They further invited the Court to declare this complaint inadmissible in respect of all applicants for the reasons that they had raised in the case of Turan and Others (cited above, § 55).

8.  Firstly, an examination of the case files of the five applicants mentioned above reveals that contrary to the Government’s claim, they have expressly raised their complaints under Article 5 § 1 of the Convention in the application forms submitted to the Constitutional Court. Secondly, as for the remaining objections relating to all applicants, the Court notes that similar objections raised by the Government have already been dismissed in the case of 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.

9.  The Court further considers, having regard to its findings in the cases of Baş and Turan and Others (both cited above, §§ 143-58 and §§ 79-96, 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 5 § 1 of the Convention. Therefore, there has been a violation of Article 5 § 1 on account of the unlawfulness of the applicants’ initial pre‑trial detention. Moreover, 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 Türkiye –, 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, §§ 115-16 and §§ 159-62, and Turan and Others, cited above, §§ 91 and 95).

10.  As regards any remaining complaints under Article 5 §§ 1, 3, and 4 and Article 8 of the Convention, 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

11.  The applicants requested compensation in varying amounts in respect of non‑pecuniary damage within the time-limit allotted. Most of the applicants in question 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.

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

13.  For the reasons put forth in Turan and Others (cited above, §§ 102‑07), 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,

(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 this amount, which is 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;

Done in English, and notified in writing on 4 March 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 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.

59648/16

Elibol v. Türkiye

07/10/2016

Mert ELİBOL
1980
Ankara
Turkish

Muhammet GÜNEY

2.

40605/17

Yılmaz v. Türkiye

21/03/2017

Erhan YILMAZ
1982
Istanbul
Turkish

Tufan YILMAZ

3.

8610/18

Turğut v. Türkiye

27/04/2017

Hatice TURĞUT
1988
Tekirdağ
Turkish

Oktay BAHADIR

4.

32618/18

Yılmaz v. Türkiye

26/06/2018

Bilal YILMAZ
1981
Mersin
Turkish

5.

32859/18

Dalda v. Türkiye

16/05/2018

Vedat DALDA
1974
Samsun
Turkish

Sefer GÖK

6.

33576/18

Aslan v. Türkiye

03/07/2018

Rahmi ASLAN
1979
Gaziantep
Turkish

Mustafa ASLAN

7.

34975/18

Orhan v. Türkiye

06/07/2018

Nurten ORHAN
1987
Istanbul
Turkish

İlker KILIÇ

8.

35752/18

Tokar v. Türkiye

11/07/2018

İsmail TOKAR
1980
Van
Turkish

Hacer YETKİN

9.

37004/18

Yavaş v. Türkiye

29/05/2018

Emre YAVAŞ
1984
Ankara
Turkish

10.

49856/18

Taşlıtepe v. Türkiye

17/10/2018

Murat TAŞLITEPE
1981
Muş
Turkish

Tufan YILMAZ

11.

54861/18

Kazancı v. Türkiye

10/11/2018

Yaşar KAZANCI
1984
Çorum
Turkish

Kübra KAZANCI TOSUN

12.

8405/19

Beyazıt v. Türkiye

18/12/2018

Özgür BEYAZIT
1980
Ankara
Turkish

Arzu BEYAZIT

13.

9796/19

Girdi v. Türkiye

29/01/2019

Seyfettin GİRDİ
1988
Istanbul
Turkish

İrem GÜNEŞ (DANACIOĞLU)

14.

19800/19

Güney v. Türkiye

05/04/2019

Haşim GÜNEY
1968
Kırıkkale
Turkish

Tarık Said GÜLDİBİ

15.

21440/19

Dinçer v. Türkiye

05/04/2019

Mehmet Ali DİNÇER
1978
Manisa
Turkish

Burcu HAS

16.

21587/19

Acar v. Türkiye

01/04/2019

Ömer Oğuzhan ACAR
1980
Bursa
Turkish

Tufan YILMAZ

17.

30505/19

Özgür v. Türkiye

30/05/2019

Bedrettin ÖZGÜR
1971
Ankara
Turkish

Muhammet AKÇAY

18.

33932/19

Bingöl v. Türkiye

21/06/2019

Bülent BİNGÖL
1968
Istanbul
Turkish

Taner ÜNLÜ

19.

40542/19

Yılmaz v. Türkiye

27/07/2019

Menderes YILMAZ
1967
Denizli
Turkish

Tarık Said GÜLDİBİ

20.

46485/19

Gök v. Türkiye

11/07/2019

Yüksel GÖK
1981
Mersin
Turkish

Mehmet GÖK

21.

50439/19

Görenez v. Türkiye

11/09/2019

Zekeriya GÖRENEZ
1987
Manisa
Turkish

Tarık Said GÜLDİBİ

22.

58168/19

Arkuntaş v. Türkiye

04/09/2019

Mesut ARKUNTAŞ
1973
Konya
Turkish

Sefanur BOZGÖZ

23.

58363/19

Bulut v. Türkiye

30/10/2019

Mutlu BULUT
1984
Antalya
Turkish

Ahmet KESKİN

24.

7115/20

Haydar v. Türkiye

29/01/2020

Ali HAYDAR
1963
Istanbul
Turkish

Muhammet GÜNEY

25.

8220/20

Erdem v. Türkiye

21/01/2020

Hüseyin ERDEM
1985
Istanbul
Turkish

26.

9458/20

Kuzgun v. Türkiye

20/08/2019

Ersan KUZGUN
1984
Kırklareli
Turkish

Cebrail Eren KAYNAR

27.

22796/20

Atalay v. Türkiye

29/05/2020

Taner ATALAY
1969
İzmir
Turkish

28.

23417/20

Yar v. Türkiye

21/05/2020

Yakup YAR
1968
Gaziantep
Turkish

Mehmet Fatih İÇER

29.

27201/20

Kocagöz v. Türkiye

25/06/2020

Aynur Derya KOCAGÖZ
1986
Kütahya
Turkish

30.

30642/20

Alpertonga v. Türkiye

03/07/2020

Mustafa Yusuf ALPERTONGA
1981
Sakarya
Turkish

Semih ECER

31.

31910/20

Sülün v. Türkiye

22/05/2020

Bayram SÜLÜN
1976
Adana
Turkish

Mustafa SÜLÜN

32.

34097/20

Süzer v. Türkiye

08/06/2020

Feridun SÜZER
1970
Kırrıkale
Turkish

Hatice Kübra EKİCİ

33.

44792/20

Güllü v. Türkiye

24/09/2020

Yavuz GÜLLÜ
1982
Ankara
Turkish

34.

52810/20

Demircan v. Türkiye

27/11/2020

Alper DEMİRCAN
1980
Tokat
Turkish

Emre AKARYILDIZ

35.

54964/20

Koçak v. Türkiye

27/11/2020

Okay KOÇAK
1970
Artvin
Turkish

Güntaç DEĞER

36.

8272/21

Deveci v. Türkiye

01/02/2021

Murat DEVECİ
1967
Muğla
Turkish

Cengiz Cankat ÖZKAYA

37.

11396/21

Sayıldı v. Türkiye

21/01/2021

Selçuk SAYILDI
1969
Yalova
Turkish

Ahmet Serdar GÜNEŞ

38.

11901/21

Baydilli v. Türkiye

05/02/2021

Mustafa Haluk BAYDILLI
1969
Mersin
Turkish

Kadir ÖZTÜRK (not lawyer)

39.

13390/21

Sarıkaya v. Türkiye

26/02/2021

Mesut SARIKAYA
1981
Istanbul
Turkish

Emre AKARYILDIZ

40.

15834/21

Onuk v. Türkiye

22/02/2021

Mustafa ONUK
1968
İzmir
Turkish

Elkan ALBAYRAK

41.

18521/21

Ayral v. Türkiye

26/03/2021

Mustafa AYRAL
1977
Istanbul
Turkish

Murat CÖPÜRKAYA

42.

22560/21

Akarsu v. Türkiye

07/04/2021

Mustafa AKARSU
1969
Ankara
Turkish

Nurgül YAYMAN YILMAZ

43.

28487/21

Arslan v. Türkiye

18/05/2021

Necdet ARSLAN
1975
Isparta
Turkish

Mehmet ÖNCÜ
(not lawyer)

44.

32945/21

Demir v. Türkiye

21/06/2021

Lütfi DEMİR
1987
Erzurum
Turkish

Fatma DEMİR

45.

36192/21

Durmuş v. Türkiye

06/07/2021

Şükrü DURMUŞ
1979
Istanbul
Turkish

Ayşe DURMUŞ

46.

37172/21

Özdemir v. Türkiye

12/07/2021

Osman ÖZDEMİR
1990
Antalya
Turkish

Muhammet ERDEN

47.

41945/21

Zararsız v. Türkiye

16/08/2021

Suat ZARARSIZ
1981
Kayseri
Turkish

Metin POLAT

48.

44825/21

Altındağ v. Türkiye

03/09/2021

Emre ALTINDAĞ
1990
Ankara
Turkish

Özgür KUMAŞ

49.

48829/21

Kaya v. Türkiye

14/08/2020

Ali KAYA
1967
Ankara
Turkish

Şeyma İrem KAYA KARA

50.

6292/22

Durmuşoğlu v. Türkiye

14/01/2022

Serkan DURMUŞOĞLU
1982
Konya
Turkish

Muammer Said BULCA

51.

15081/22

Işık v. Türkiye

17/03/2022

Şaban IŞIK
1964
Ankara
Turkish

Ahmet Salih IŞIK