SECOND SECTION
CASE OF GELEŞ AND OTHERS v. TÜRKİYE
(Application no. 75881/16 and 69 others –
see appended list)
JUDGMENT
STRASBOURG
6 September 2022
This judgment is final but it may be subject to editorial revision.
In the case of Geleş and Others v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Pauliine Koskelo, President,
Gilberto Felici,
Saadet Yüksel, judges,
and Hasan Bakırcı, 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 seventy 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 Türkiye;
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 28 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 serving as ordinary judges or prosecutors at different types and/or levels of court, subject to Law no. 2802 on judges and prosecutors (“Law no. 2802”) (see Baş, cited above, §§ 66-67), 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, in accordance with the provisions of the ordinary law, on the ground 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 organisation, 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).
4. 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.
5. In the meantime, 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 (see Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 26-27, 23 November 2021).
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 they had been placed in pre-trial detention in breach of the domestic laws governing the arrest and pre-trial detention of the 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.
All applications except for applications nos. 51506/19 and 51588/198. The Government invited the Court to declare this complaint inadmissible for the reasons that they had raised in the case of Turan and Others (cited above, § 55). The Court notes that the Government’s objections 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, insofar as it concerns all applications except for applications nos. 51506/19 and 51588/19, 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, §§ 143-158 and §§ 79-92, 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 and that, therefore, there has been a violation of Article 5 § 1 on account of the unlawfulness of the initial pre-trial detention of the applicants in question. 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, §§ 115-116 and §§ 159-162, and Turan and Others, cited above, § 91).
Applications nos. 51506/19 and 51588/1910. The Court notes that the applicants who have lodged applications nos. 51506/19 and 51588/19, namely Mr Şimşek and Mr Yorulmaz, respectively (noted as the 69th and the 70th applicants in the appended list), are the same individuals who have lodged applications nos. 51526/17 and 20018/18, respectively (noted as the 24th and the 64th applicants in the appended list).
11. Having regard to the finding of a violation of Article 5 § 1 above in respect of the complaint brought by Mr Şimsek and Mr Yorulmaz regarding the unlawfulness of their pre-trial detention within the scope of applications nos. 51526/17 and 20018/18 (see paragraph 9 above), the Court considers the same complaint introduced by those two applicants under applications nos. 51506/19 and 51588/19 to be inadmissible in terms of Article 35 § 2 (b) of the Convention for being substantially the same as that examined in applications nos. 51526/17 and 20018/18. This part of the applications nos. 51506/19 and 51588/19 must therefore be rejected pursuant to Article 35 § 4.
OTHER COMPLAINTS12. As regards the applicants’ 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. Insofar as the applicants Mr Şimşek and Mr Yorulmaz are concerned, the lump sum award is made only in respect of applications nos. 51526/17 and 20018/18, in the light of the Court’s findings in paragraphs 10 and 11 above.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Declares the complaint under Article 5 § 1 of the Convention concerning the lawfulness of the applicants’ initial pre-trial detention admissible in respect of all applications, except for applications nos. 51506/19 and 51588/19;Declares the complaint under Article 5 § 1 of the Convention concerning the lawfulness of the applicants’ initial pre-trial detention inadmissible in respect of applications nos. 51506/19 and 51588/19;Holds that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the initial pre-trial detention of the applicants, except in respect of applications nos. 51506/19 and 51588/19;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, except in relation to applications nos. 51506/19 and 51588/19, 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 6 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Pauliine Koskelo
Registrar President
APPENDIX
List of cases:
No.
Application no.
Case name
Lodged on
Applicant
Date of Birth
Represented by
1.
75881/16
Geleş v. Türkiye
22/11/2016
Hasan GELEŞ
13/10/1975
Tufan YILMAZ
2.
1101/17
Bozoğlu v. Türkiye
01/12/2016
Süleyman BOZOĞLU
04/06/1977
İsa ÖZBİLEN
3.
12467/17
Aşılar v. Türkiye
20/01/2017
Behçet AŞILAR
03/04/1974
Cihat ÇITIR
4.
14638/17
Korkmaz v. Türkiye
02/02/2017
Gökhan KORKMAZ
07/02/1982
Coşkun TAŞKIN
5.
14652/17
Taşkın v. Türkiye
02/02/2017
Sinan TAŞKIN
10/04/1968
Coşkun TAŞKIN
6.
14669/17
Bozkurt v. Türkiye
23/01/2017
Özcan BOZKURT
11/11/1983
Tarık Said GÜLDİBİ
7.
14967/17
Kalkan v. Türkiye
26/01/2017
Erkan KALKAN
01/05/1977
Sefanur BOZGÖZ
8.
15051/17
Şenli v. Türkiye
26/01/2017
Eren ŞENLİ
10/03/1978
Mehmet ÖNCÜ
9.
20092/17
Erdoğan v. Türkiye
23/02/2017
İlyas ERDOĞAN
01/01/1983
10.
30652/17
Akbilek v. Türkiye
17/02/2017
Nevzat AKBİLEK
10/05/1973
İrem TATLIDEDE
11.
39578/17
Kaya v. Türkiye
17/03/2017
Vedat KAYA
03/02/1977
Ömer Faruk ERGÜN
12.
40067/17
Rusum v. Türkiye
05/05/2017
Emin RUSUM
01/01/1962
Merve Elif GÜRACAR
13.
40704/17
Bayraktar v. Türkiye
28/03/2017
Aytekin BAYRAKTAR
23/03/1984
Hatice AVCI BAYRAKTAR
14.
41477/17
Apaçık v. Türkiye
24/04/2017
Ramazan APAÇIK
18/05/1968
Rukiye COŞGUN
15.
41479/17
Ünal v. Türkiye
18/05/2017
Emrah ÜNAL
20/03/1983
16.
41516/17
Zengin v. Türkiye
11/04/2017
Sinan ZENGİN
03/11/1977
Gülşen ZENGİN
17.
41619/17
Gültekin v. Türkiye
05/05/2017
Mehmet İkbal GÜLTEKİN
27/01/1980
18.
41823/17
Güleç v. Türkiye
28/03/2017
Ramazan GÜLEÇ
05/10/1974
19.
42190/17
Kılıç v. Türkiye
28/04/2017
Özkan KILIÇ
22/01/1978
Adem AKYÜREK
20.
42848/17
Şevik v. Türkiye
04/04/2017
Özcan ŞEVİK
21/12/1980
Zehra KILIÇ
21.
43763/17
Kul v. Türkiye
04/05/2017
Hamza KUL
17/09/1977
Murat YILMAZ
22.
44803/17
Gökkaya v. Türkiye
03/05/2017
Ömer GÖKKAYA
15/10/1979
Recep ÇINAR
23.
48765/17
Parıltı v. Türkiye
05/05/2017
Yılmaz PARILTI
10/09/1969
Mustafa AÇICI
24.
51526/17
Şimşek v. Türkiye
22/03/2017
Engin ŞİMŞEK
14/11/1978
Selma AKKOYUNLU KILINÇ
25.
58445/17
Tekintaş v. Türkiye
30/06/2017
Mücahit TEKİNTAŞ
25/08/1972
İbrahim TOKTAMIŞ
26.
58512/17
Togay v. Türkiye
07/02/2017
Mehmet TOGAY
11/03/1966
Kadir Soner KILINÇ
27.
58551/17
Yüzlü v. Türkiye
07/07/2017
Yavuz YÜZLÜ
29/11/1977
28.
59691/17
Bakırcı v. Türkiye
13/02/2017
Kadir BAKIRCI
01/11/1967
Coşkun TAŞKIN
29.
60284/17
Öztürk v. Türkiye
23/06/2017
Bilgin ÖZTÜRK
17/11/1978
30.
60335/17
Şahin v. Türkiye
05/07/2017
Mehmet ŞAHİN
13/09/1975
Furkan YILDIRIM
31.
60374/17
Akın v. Türkiye
10/07/2017
Mehmet AKIN
05/01/1985
Janset ATİLA
32.
60382/17
Dere v. Türkiye
04/07/2017
Ahmet DERE
27/04/1980
Vedat ÇAPRAZ
33.
62020/17
Kardeşler v. Türkiye
02/05/2017
Erdoğan KARDEŞLER
01/08/1982
34.
62610/17
Akpınar v. Türkiye
25/01/2017
Ali AKPINAR
10/04/1977
Mehmet ÖNCÜ
35.
62737/17
Uz v. Türkiye
01/02/2017
Alpaslan UZ
09/12/1975
İrem TATLIDEDE
36.
62750/17
Gürgen v. Türkiye
14/06/2017
Fatih GÜRGEN
26/08/1978
Rukiye COŞGUN
37.
62770/17
Doğan v. Türkiye
02/05/2017
Salih DOĞAN
01/01/1988
38.
62917/17
Duran v. Türkiye
03/05/2017
Bekir DURAN
10/06/1979
Recep ÇINAR
39.
63724/17
Karadeniz v. Türkiye
14/04/2017
Ender KARADENİZ
15/09/1972
40.
63769/17
Öztürk v. Türkiye
13/06/2017
Selim ÖZTÜRK
21/08/1977
Şefik KARAKIŞ
41.
63771/17
Ekinci v. Türkiye
18/01/2017
Neslihan EKİNCİ
30/08/1971
Semra İŞLER ALBAYRAK
42.
63778/17
Duman v. Türkiye
29/05/2017
Mehmet DUMAN
01/01/1974
Fatih DÖNMEZ
43.
63802/17
Atıcı v. Türkiye
29/05/2017
Seyfettin ATICI
02/05/1972
Fatih DÖNMEZ
44.
63973/17
Demir v. Türkiye
25/04/2017
Ahmet Nebi DEMİR
19/08/1988
Hülya POLAT
45.
66686/17
Kıran v. Türkiye
23/01/2017
Mehmet KIRAN
06/02/1973
İrem TATLIDEDE
46.
66689/17
M.T. v. Türkiye
23/05/2017
M.T.
01/01/1980
Abdullah BİRDİR
47.
69580/17
Uyar v. Türkiye
21/07/2017
Celal UYAR
23/01/1980
Türker İKİBAŞ
48.
70538/17
Ünüvar v. Türkiye
08/08/2017
Tamer ÜNÜVAR
01/01/1974
Fatih DÖNMEZ
49.
71995/17
Yurtdakal v. Türkiye
19/04/2017
Turgay YURTDAKAL
30/09/1974
Emre AKARYILDIZ
50.
72339/17
Yılmaz v. Türkiye
25/07/2017
Ahmet Serdar YILMAZ
11/12/1985
Mehmet ÖNCÜ
51.
74763/17
Albayrak v. Türkiye
03/10/2017
Süleyman ALBAYRAK
20/06/1980
Sibel İSA
52.
79632/17
Tekkoyun v. Türkiye
19/10/2017
Muhammet TEKKOYUN
27/10/1974
İbrahim KOCAOĞUL
53.
82521/17
Pazar v. Türkiye
13/06/2017
Beytullah PAZAR
18/02/1975
Yusuf RENKLİ
54.
6504/18
Avcı v. Türkiye
16/01/2018
Ahmet AVCI
05/02/1977
Mehmet ÖNCÜ
55.
8021/18
Can v. Türkiye
02/02/2018
Hasan CAN
20/10/1970
Mehmet Fatih İÇER
56.
9589/18
Akın v. Türkiye
13/02/2018
Serhat AKIN
01/11/1984
Fatma ALBAYRAK
57.
12596/18
Genç v. Türkiye
09/02/2018
Hayrettin GENÇ
01/09/1979
Orhan ŞAHNA
58.
12850/18
Belge v. Türkiye
05/03/2018
Fatih BELGE
10/09/1980
İhsan MAKAS
59.
15312/18
Uzun v. Türkiye
16/03/2018
Nuh UZUN
22/09/1988
Ramazan DANIŞMAN
60.
15892/18
Ercan v. Türkiye
09/03/2018
İhsan ERCAN
06/03/1985
Nilgün GÜRCAN
61.
16812/18
Özdemir v. Türkiye
27/03/2018
Şaban ÖZDEMİR
17/08/1976
62.
17552/18
Kaya v. Türkiye
19/02/2018
Mehmet KAYA
03/09/1986
Ahmet Can DEMİRCİ
63.
18059/18
Durak v. Türkiye
06/04/2018
Selami DURAK
10/09/1971
Basri GÜNDÜZ
64.
20018/18
Yorulmaz v. Türkiye
02/03/2018
Özgür YORULMAZ
10/07/1971
65.
22181/18
Ketenoğlu v. Türkiye
04/05/2018
Feyyaz KETENOĞLU
15/04/1987
Menekşe Merve TEKTEN
66.
25239/18
İlci v. Türkiye
18/05/2018
Şükrü İLCİ
19/06/1976
Ahmet Can DEMİRCİ
67.
31224/18
Gül v. Türkiye
22/06/2018
Cevat GÜL
01/09/1970
Tarık Said GÜLDİBİ
68.
47422/18
Sezgin v. Türkiye
21/09/2018
İsmail SEZGİN
14/04/1974
69.
51506/19
Şimşek v. Türkiye
10/05/2019
Engin ŞİMŞEK
14/11/1978
Selma AKKOYUNLU KILINÇ
70.
51588/19
Yorulmaz v. Türkiye
16/04/2019
Özgür YORULMAZ
10/07/1971