SECOND SECTION
CASE OF ERİŞ AND OTHERS v. TÜRKİYE
(Applications nos. 58665/17 and 44 others)
JUDGMENT
STRASBOURG
24 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Eriş and Others v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, 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 forty-five 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 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 and the ineffectiveness of the judicial review of the lawfulness of detention 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 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 3 October 2023,
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).
2. 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 nature of the alleged offence, the state of the evidence and the potential sentence. It was also noted that investigations into the coup attempt were being conducted across the country, that statements had not yet been taken from all the suspects and that the alleged offence was among the “catalogue” offences listed in Article 100 § 3 of the Code of Criminal Procedure (CCP) (for the text of Article 100 of the CCP, as relevant, see Baş, cited above, § 61). It appears from the initial detention orders and the documents available in the case files that all of the applicants were identified as users of the ByLock messaging system. Moreover, the applicants in application nos. 69774/17, 11420/18, 12700/18, 14670/18, 16396/18, 17825/18, 18580/18 and 21/19 were also suspected of financing the FETÖ/PDY in view of their use of accounts in Bank Asya – a bank allegedly linked to FETÖ/PDY – and/or possession of pro-FETÖ/PDY publications. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed the offence imputed to them, were dismissed, including by the Constitutional Court.
3. 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. It appears that, for the most part, the criminal proceedings are still pending before appeal courts or the Constitutional Court.
THE COURT’S ASSESSMENT
JOINDER OF THE APPLICATIONS4. 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 CONVENTION5. 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.
6. 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.
7. The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, 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. 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.
8. The Court notes that the applicants’ initial pre-trial detention was based on information indicating their use of the ByLock messaging system and, in respect of some of them, banking activities considered as financing the FETÖ/PDY and subscriptions to certain pro-FETÖ/PDY publications. To the extent that the detention orders have taken into account the applicants’ alleged use of the ByLock messaging system, the Court notes that it has already found that the use of ByLock was not of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to the applicants (see Akgün v. Turkey, no. 19699/18, §§ 151-85, 20 July 2021, and Taner Kılıç v. Turkey (no. 2), no. 208/18, §§ 102-03 and 106-09, 31 May 2022). The Court further considers, as relevant, that the other acts imputed to the applicants (see paragraph 2 above) were merely circumstantial elements which, in the absence of any other information capable of justifying the suspicions in question, benefited from the presumption of legality and cannot reasonably be regarded as constituting a body of evidence demonstrating the applicants’ membership of a terrorist organisation (compare Taner Kılıç, cited above, §§ 104-05 and the cases cited therein).
9. Since the Government have not provided any other indications, “facts” or “information” capable of satisfying it that the applicants were “reasonably suspected”, at the time of their initial detention, of having committed the alleged offence, the Court finds that the requirements of Article 5 § 1 (c) regarding the “reasonableness” of a suspicion justifying detention have not been satisfied (see Baş, cited above, § 195, and Taner Kılıç, cited above, §§ 114-16). At this juncture, it cannot be maintained, as the Government did, that the mere fact that the applicants were not members of the judiciary had any bearing on the conclusion reached. It 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 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 (compare Baş, cited above, §§ 115-16 and §§ 196‑201). It therefore concludes that there has been a violation of Article 5 § 1 of the Convention.
OTHER COMPLAINTS10. As regards any remaining complaints under Article 5 §§ 1, 3 and 4 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, except for the applicant in application no. 70782/17, 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, 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, save for the applicant in application no. 70782/17, 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, save for the applicant in application no. 70782/17, 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;
Dismisses the remainder of the applicants’ claims for just satisfaction.Done in English, and notified in writing on 24 October 2023, 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
Represented by
1.
58665/17
Eriş v. Türkiye
28/07/2017
Ahmet ERİŞ
1987
Ankara
Gülhis YÖRÜK
2.
59699/17
Kurt v. Türkiye
08/11/2016
İbrahim KURT
1986
Sivas
Gülbahar KOÇAK
3.
69774/17
Taze v. Türkiye
29/08/2017
Ali TAZE
1974
Kahramanmaraş
Emre KOZANDAĞI
4.
70782/17
Gürbüz v. Türkiye
24/08/2017
Yusuf Ersin GÜRBÜZ
1989
Kutahya
Deniz ÖZERDEM
5.
3462/18
Köksal v. Türkiye
04/01/2018
Mehmet Fatih KÖKSAL
1985
Ankara
Gülhis YÖRÜK
6.
9582/18
Ilık v. Türkiye
13/02/2018
Hasan Hüseyin ILIK
1989
Kütahya
Fatma ALBAYRAK
7.
9881/18
Polat v. Türkiye
29/01/2018
Davut POLAT
1987
Tekirdag
8.
11420/18
Sis v. Türkiye
27/02/2018
Ahmet SİS
1974
Düzce
Necip Fazıl YILDIZ
9.
12700/18
Aydemir v. Türkiye
06/03/2018
Muhammet Hamza AYDEMİR
1987
İzmir
Seçkin KESKİN
10.
14670/18
Arslan v. Türkiye
13/03/2018
Yaşar ARSLAN
1977
İstanbul
Necip Fazıl YILDIZ
11.
14845/18
Zenginerler v. Türkiye
02/02/2018
İbrahim ZENGİNERLER
1969
Kocaeli
Hakan Ruşen ARDA
12.
16396/18
Şenel v. Türkiye
27/03/2018
Ünal ŞENEL
1981
Trabzon
Kadir ÖZTÜRK
13.
17575/18
Kılıçarslan v. Türkiye
21/03/2018
Mesut KILIÇARSLAN
1981
Yozgat
Betül Feyza UĞUR AYDIN
14.
17825/18
Ünal v. Türkiye
05/04/2018
Mehmet Murat ÜNAL
1981
Kırıkkale
Vedat ÇAPRAZ
15.
18539/18
Kartal v. Türkiye
02/03/2018
Hamdi KARTAL
1983
Istanbul
Mehmet ÖNCÜ
16.
18580/18
Arslan v. Türkiye
19/03/2018
Mustafa Kemal ARSLAN
1970
Konya
Mustafa DEMİR
17.
20404/18
Ata v. Türkiye
17/04/2018
İsmail ATA
1984
Konya
Hüseyin DÖNMEZ
18.
45540/18
Çıtaker v. Türkiye
07/09/2018
Sema ÇITAKER
1986
Ankara
Adem KAPLAN
19.
45556/18
Celik v. Türkiye
07/09/2018
Ahmet ÇELİK
1985
Osmaniye
Adem KAPLAN
20.
46212/18
Elgün v. Türkiye
18/09/2018
Nagihan ELGÜN
1989
Balikesir
Mehmet Ertürk ERDEVİR
21.
46256/18
Budaklı v. Türkiye
17/09/2018
Engin BUDAKLI
1974
Aksaray
Nurgül YAYMAN YILMAZ
22.
46824/18
Uzun v. Türkiye
20/09/2018
Erdem UZUN
1977
Ankara
Rukiye TURAN KARACA
23.
47027/18
Argündoğan v. Türkiye
28/09/2018
Tahir ARGÜNDOĞAN
1993
İzmir
Metin BOZKURT
24.
47046/18
Eldemir v. Türkiye
17/09/2018
Uğur ELDEMİR
1974
Istanbul
İlyas TEKİN
25.
54826/18
Horuz v. Türkiye
19/11/2018
Yusuf HORUZ
1989
Kahramanmaraş
Yasin TORUNOĞLU
26.
54866/18
Kunt v. Türkiye
07/11/2018
Mehmet Akif KUNT
1984
Balıkesir
Enes Malik KILIÇ
27.
56582/18
Özçelebi v. Türkiye
13/11/2018
Fahrettin ÖZÇELEBİ
1984
Ankara
Ahmet Serdar GÜNEŞ
28.
57182/18
Gören v. Türkiye
16/11/2018
Seyyit GÖREN
1981
Niğde
29.
57545/18
Bakır v. Türkiye
15/11/2018
Levent BAKIR
1973
Ankara
Hasan Hüseyin ERDOĞAN
30.
58802/18
Pınarakar v. Türkiye
21/11/2018
Hidayet PINARAKAR
1980
Muğla
Adem KAPLAN
31.
58891/18
Görür v. Türkiye
28/11/2018
İhsan GÖRÜR
1984
Trabzon
Metin KESKİN
32.
21/19
Urgancı v. Türkiye
07/12/2018
Nihat URGANCI
1973
Amasya
Sevda URGANCI
33.
841/19
Karakuş v. Türkiye
12/12/2018
Fesih KARAKUŞ
1990
Istanbul
Ayşe BAĞCI KARAKUŞ
34.
1470/19
Sönmez v. Türkiye
13/12/2018
Dinar SÖNMEZ
1988
Istanbul
Muhammed Nuh POLAT
35.
2274/19
Arpacı v. Türkiye
13/12/2018
İsmail ARPACI
1982
Elazığ
Mehmet Sıddık KARAGÖZ
36.
2843/19
Işık v. Türkiye
03/01/2019
Ayhan IŞIK
1972
Isparta
Kadir ÖZTÜRK
37.
3430/19
Özgul v. Türkiye
02/01/2019
Muharrem ÖZGÜL
1974
Ankara
Tarık Said GÜLDİBİ
38.
4061/19
Metin v. Türkiye
28/12/2018
Yakup METİN
1977
Ankara
Adem KAPLAN
39.
4558/19
Öztel v. Türkiye
31/12/2018
Fatih ÖZTEL
1981
Istanbul
Neslihan BİLİCİ
40.
4585/19
Çulha v. Türkiye
28/12/2018
Kemal ÇULHA
1971
Adana
41.
5304/19
Onursal v. Türkiye
03/01/2019
Soner ONURSAL
1987
Hatay
Dudu ERTUNÇ
42.
5531/19
Hamarat v. Türkiye
15/01/2019
Murat HAMARAT
1977
Izmir
43.
5933/19
Gören v. Türkiye
11/01/2019
Yavuz GÖREN
1983
Zonguldak
Erdi KOSTİK
44.
6201/19
Say v. Türkiye
17/12/2018
Buket SAY
1988
Ankara
Adem KAPLAN
45.
6254/19
Yılmaz v. Türkiye
10/01/2019
Hakan YILMAZ
1971
Ankara
Burak ÇOLAK