SECOND SECTION
CASE OF GÜNGÖR AND OTHERS v. TÜRKİYE
(Applications nos. 59639/17 and 81 others - see list appended)
JUDGMENT
STRASBOURG
13 December 2022
This judgment is final but it may be subject to editorial revision.
In the case of Güngör 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 eighty-two 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 concerning the lawfulness and length of pre-trial detention, the lack of information on the reasons for arrest, and the alleged lack of reasonable suspicion regarding the commission of an offence, as well as the ineffectiveness of judicial review of the lawfulness of detention and the absence of a remedy to obtain compensation 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 22 November 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 Terror Organisation / Parallel State Structure” (hereinafter referred to as the “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 §§ 109-110, 3 March 2020). All of the applicants were sitting as judges or prosecutors at different types and/or levels of court, at the material time, with the exception of sixteen applicants (namely, the applicants in applications nos. 66697/17, 70801/17, 76280/17, 1562/18, 2391/19, 5147/19, 14698/19, 15725/19, 26873/19, 36808/19, 39250/19, 39722/19, 40264/19, 40515/19, 41848/19 and 47694/19), who were former judges or prosecutors.
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. 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 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). While there was no express mention in the detention orders, it appears from the information and documents in the files that some of the applicants had been suspended from their duties as judges or prosecutors, or their authorities revoked, prior to their detention on grounds of their membership of the organisation that was considered to have instigated the attempted coup (see Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 13-16, 23 November 2021 for further details on the suspension procedure), or that some of them had been identified as users of the ByLock messaging system. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed an offence, 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, and a few were acquitted. It appears that, for the most part, the appeal proceedings are still pending.
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, as well as the applicants who had received some compensation 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, §§ 118-121, and 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.
8. The Court notes that, when ordering the applicants’ initial pre-trial detention, the magistrate’s courts sought to justify their decisions solely by making a general reference to Article 100 of the CCP and the potential sentence, as well as to “the evidence in the file”. However, in doing so, they simply cited the wording of the provision in question, without actually specifying what the evidence in question entailed and why it constituted a reasonable suspicion that the applicant had committed the offence in question. The Court refers in this connection to its findings in the judgment of Baş (cited above, §§ 190-195), according to which the vague and general references to the wording of Article 100 of the CCP and to the evidence in the file cannot be regarded as sufficient to justify the “reasonableness” of the suspicion on which the applicants’ detention was supposed to have been based, in the absence either of a specific assessment of the individual items of evidence in the file, or of any information available in the file at the material time that could have justified the suspicion against the applicants, or of any other kinds of verifiable material or facts. To the extent that the detention orders may have taken into account the applicants’ suspension from judicial office or their alleged use of the ByLock messaging system, the Court notes that it has already found that neither of those grounds was of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to the applicants (compare Baş, cited above, §§ 170-195, and Akgün v. Turkey, no. 19699/18, §§ 151-185, 20 July 2021). The Court also notes that as regards some of the applicants, the Government have referred to the existence of witness statements justifying the measures in question. It observes, however, that there are no statements in the case files referring to concrete and specific facts that may have given rise to a reasonable suspicion against the applicants concerned at the material time.
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 (compare Baş, cited above, § 195). 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, §§ 115-116 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, 2, 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
11. 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.
12. The Government contested the applicants’ claims as being unsubstantiated and excessive.
13. For the reasons put forth in Turan and Others (cited above, §§ 102-107), 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.
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, 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’ claim for just satisfaction.Done in English, and notified in writing on 13 December 2022, 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
Date of Birth
Represented by
Applicant’s status at the time of pre-trial detention
59639/17
Güngör v. Türkiye
10/02/2017
Murat GÜNGÖR
16/04/1978
Yaşar GÜNGÖR
Ordinary judge or public prosecutor
60999/17
Bostan v. Türkiye
01/08/2017
Özenç BOSTAN
18/10/1982
Utku Coşkuner SAKARYA
Ordinary judge or public prosecutor
62224/17
Kanmaz v. Türkiye
18/04/2017
Ahmet KANMAZ
05/02/1980
Nilgün ARI
Ordinary judge or public prosecutor
63794/17
Çalışır v. Türkiye
31/07/2017
Mehmet ÇALIŞIR
21/08/1974
Emre AKARYILDIZ
Ordinary judge or public prosecutor
66697/17
Sarıoğlu v. Türkiye
18/05/2017
Refik SARIOĞLU
06/03/1967
Ebubekir RENK
Former judge or public prosecutor
70801/17
Arslanoğlu v. Türkiye
18/08/2017
Ertuğrul ARSLANOĞLU
17/11/1966
Uğur ALTUN
Former judge or public prosecutor
71298/17
Gündoğdu v. Türkiye
15/09/2017
Fatih GÜNDOĞDU
01/08/1975
İbrahim KARANFİL
Ordinary judge or public prosecutor
71506/17
B.O. v. Türkiye
17/07/2017
Bülent OLCAY
07/02/1960
Tarık OLCAY
High Court judge
74818/17
Bağcı v. Türkiye
11/10/2017
Mehmet BAĞCI
13/08/1987
Hamza AKKAYA
Ordinary judge or public prosecutor
76280/17
Erkan v. Türkiye
29/09/2017
Fikret ERKAN
10/09/1971
Metin BOZKURT
Former judge or public prosecutor
79060/17
Oktar v. Türkiye
14/04/2017
Serdar OKTAR
01/07/1970
Zülküf ARSLAN
Ordinary judge or public prosecutor
79074/17
Durmaz v. Türkiye
11/04/2017
Murat DURMAZ
25/03/1979
Nilgün ARI
Ordinary judge or public prosecutor
79801/17
Büyükgümüş v. Türkiye
01/11/2017
İsmail BÜYÜKGÜMÜŞ
07/07/1973
Hüseyin AYGÜN
Ordinary judge or public prosecutor
79845/17
Köseoğlu v. Türkiye
24/10/2017
Muhammet Sacit KÖSEOĞLU
01/08/1989
Nevzat AKBİLEK
Ordinary judge or public prosecutor
81822/17
Karayol v. Türkiye
06/11/2017
Muharrem KARAYOL
05/09/1968
Hüseyin AYGÜN
High Court judge
81859/17
Eray v. Türkiye
24/10/2017
Gürtekin ERAY
06/05/1968
Hüseyin AYGÜN
High Court judge
84141/17
Akkaya v. Türkiye
16/11/2017
Hamza AKKAYA
02/10/1988
Hüseyin AYGÜN
Ordinary judge or public prosecutor
84149/17
Torlak v. Türkiye
16/11/2017
Ergün TORLAK
22/09/1969
Hüseyin AYGÜN
Ordinary judge or public prosecutor
84615/17
Kurt v. Türkiye
13/11/2017
İbrahim KURT
12/10/1966
Yücel ALKAN
High Court judge
84630/17
Çolak v. Türkiye
22/11/2017
Mehmet ÇOLAK
22/12/1979
Adem KAPLAN
Ordinary judge or public prosecutor
123/18
Beyhan v. Türkiye
06/12/2017
Metin BEYHAN
16/07/1975
Hüseyin AYGÜN
Ordinary judge or public prosecutor
126/18
Tanin v. Türkiye
06/12/2017
Necdet TANIN
10/10/1985
Hüseyin AYGÜN
Ordinary judge or public prosecutor
1210/18
Sarıçam v. Türkiye
07/12/2017
Mustafa SARIÇAM
06/03/1965
Hüseyin AYGÜN
High Court judge
1556/18
Demir v. Türkiye
06/12/2017
Serkan DEMİR
27/01/1986
Hüseyin AYGÜN
Ordinary judge or public prosecutor
1562/18
Şahin v. Türkiye
06/11/2017
Ali ŞAHİN
11/05/1963
Hüseyin AYGÜN
Former judge or public prosecutor
4018/18
Kulaç v. Türkiye
06/12/2017
Hüseyin KULAÇ
29/08/1966
Hüseyin AYGÜN
High Court judge
6246/18
Kılıç v. Türkiye
22/01/2018
Lokman KILIÇ
11/05/1963
Hüseyin AYGÜN
Ordinary judge or public prosecutor
7225/18
Karahan v. Türkiye
26/01/2018
Nadir KARAHAN
19/07/1978
Utku Coşkuner SAKARYA
Ordinary judge or public prosecutor
9899/18
Okumuş v. Türkiye
30/01/2018
İsmail OKUMUŞ
22/01/1976
İrem TATLIDEDE
Ordinary judge or public prosecutor
17915/18
Gözlüpınar v. Türkiye
07/04/2018
Mustafa GÖZLÜPINAR
07/02/1989
Ordinary judge or public prosecutor
22248/18
İskenderoğlu v. Türkiye
30/04/2018
Halil İbrahim İSKENDEROĞLU
23/08/1981
Mehmet Fatih İÇER
Ordinary judge or public prosecutor
23041/18
Nacak v. Türkiye
02/05/2018
İsmail NACAK
13/10/1982
Zülal ÜNSAL
Ordinary judge or public prosecutor
37684/18
Eker v. Türkiye
30/07/2018
Muhammet Ali Osman EKER
05/04/1983
Mustafa Lutfi EKER
Ordinary judge or public prosecutor
39688/18
Parlak v. Türkiye
16/08/2018
Asye PARLAK
01/03/1983
Mehtap KAMALAK GÖKKAYA
Ordinary judge or public prosecutor
40142/18
Şahin v. Türkiye
08/08/2018
Hüseyin ŞAHİN
20/04/1969
Emre AKARYILDIZ
Ordinary judge or public prosecutor
40478/18
Bayraktar v. Türkiye
01/08/2018
Yusuf BAYRAKTAR
03/03/1980
Yaşar GÜNGÖR
Ordinary judge or public prosecutor
43089/18
Sönmez v. Türkiye
07/08/2018
Salih SÖNMEZ
20/10/1964
Hüseyin AYGÜN
High Court judge
47383/18
Doğru v. Türkiye
26/09/2018
Nurettin DOĞRU
05/10/1979
Mehmet Fatih İÇER
Ordinary judge or public prosecutor
50440/18
Birsen v. Türkiye
03/10/2018
Derya BİRSEN
06/10/1986
İshak IŞIK
Ordinary judge or public prosecutor
749/19
Teke v. Türkiye
06/12/2018
Huriye TEKE
15/06/1988
Sultan TEKE SOYDİNÇ
Ordinary judge or public prosecutor
897/19
Telli v. Türkiye
29/11/2018
Kutlay TELLİ
31/10/1979
İhsan MAKAS
Ordinary judge or public prosecutor
1206/19
Yıldırım v. Türkiye
04/12/2018
Asım YILDIRIM
02/04/1987
Okan GÜNEL
Ordinary judge or public prosecutor
2391/19
Doğan v. Türkiye
29/11/2018
Zihni DOĞAN
04/02/1967
Adem KAPLAN
Former judge or public prosecutor
4305/19
Şanlı v. Türkiye
25/12/2018
Uğur ŞANLI
08/04/1989
Zülküf ARSLAN
Ordinary judge or public prosecutor
4349/19
Hızarcıoğlu v. Türkiye
07/01/2019
Burak HIZARCIOĞLU
15/05/1982
Sinan Kamil KÜÇÜKOĞLU
Ordinary judge or public prosecutor
5147/19
Beleç v. Türkiye
07/01/2019
Mehmet BELEÇ
01/02/1972
Zafer İRAZ
Former judge or public prosecutor
5975/19
Asiltürk v. Türkiye
09/01/2019
Murat ASİLTÜRK
01/10/1980
Cahit ÇİFTÇİ
Ordinary judge or public prosecutor
7354/19
Turanlı v. Türkiye
24/01/2019
Zafer TURANLI
01/10/1968
Şentürk DURSUN
High Court judge
8060/19
Kara v. Türkiye
23/01/2019
Fuat KARA
10/05/1977
Burhan Temel ÇINAR
Ordinary judge or public prosecutor
9308/19
Türk v. Türkiye
05/02/2019
Murat TÜRK
01/02/1972
Hüseyin AYGÜN
Ordinary judge or public prosecutor
9689/19
Günenç v. Türkiye
05/02/2019
İbrahim GÜNENÇ
01/09/1969
Hüseyin AYGÜN
Ordinary judge or public prosecutor
11902/19
Kılıç v. Türkiye
26/02/2019
Mustafa KILIÇ
20/09/1960
Hüseyin AYGÜN
High Court judge
14698/19
Noyan v. Türkiye
08/03/2019
Erdal NOYAN
06/06/1961
Muhammet GÜNEY
Former judge or public prosecutor
15725/19
Sarı v. Türkiye
08/03/2019
Eyüp SARI
25/10/1989
Nilgün ARI
Former judge or public prosecutor
18886/19
Bedirhan v. Türkiye
22/03/2019
Kamuran BEDİRHAN
01/09/1988
Hamza AKKAYA
Ordinary judge or public prosecutor
19590/19
Çelik v. Türkiye
27/03/2019
Arif ÇELİK
27/08/1990
Ordinary judge or public prosecutor
21593/19
Karaşlar v. Türkiye
10/04/2019
Ahmet Bahaddin KARAŞLAR
04/11/1977
İrem TATLIDEDE
Ordinary judge or public prosecutor
23701/19
Çeken v. Türkiye
10/04/2019
Mesut ÇEKEN
24/10/1975
Elif Nurbanu OR
Ordinary judge or public prosecutor
26422/19
Çamlıbel v. Türkiye
29/04/2019
Hasan ÇAMLIBEL
06/02/1979
Ordinary judge or public prosecutor
26873/19
Gençler v. Türkiye
30/04/2019
Bayram GENÇLER
10/05/1976
Tufan YILMAZ
Former judge or public prosecutor
28238/19
Keskin v. Türkiye
06/05/2019
İbrahim KESKİN
20/01/1978
Zeynep ŞEN KARAKUŞ
Ordinary judge or public prosecutor
28246/19
Özyiğit v. Türkiye
07/05/2019
Mehmet ÖZYİĞİT
22/12/1979
Helin MENTEŞE
Ordinary judge or public prosecutor
29327/19
Sakmak v. Türkiye
10/05/2019
Hakan SAKMAK
26/05/1970
Hülya SARSICIOĞLU
Ordinary judge or public prosecutor
30415/19
Bayazan v. Türkiye
20/05/2019
Erdal BAYAZAN
01/01/1988
Dudu ERTUNÇ
Ordinary judge or public prosecutor
30521/19
Akkuş v. Türkiye
18/05/2019
Mustafa AKKUŞ
13/06/1964
İsmail Safa AKKUŞ
Ordinary judge or public prosecutor
34672/19
Çabas v. Türkiye
31/05/2019
Mustafa ÇABAS
04/03/1973
Halil İbrahim KEBEŞOĞLU
Ordinary judge or public prosecutor
34904/19
Çelik v. Türkiye
21/06/2019
Akif ÇELİK
19/05/1978
Ordinary judge or public prosecutor
34922/19
Hadimli v. Türkiye
21/06/2019
Uğur HADİMLİ
25/06/1967
Serkan CENGİZ
Ordinary judge or public prosecutor
36808/19
Akdoğan v. Türkiye
02/07/2019
Sinan AKDOĞAN
10/03/1973
Former judge or public prosecutor
36987/19
Ergün v. Türkiye
31/05/2019
İsmail ERGÜN
01/01/1966
Ömer Faruk ERGÜN
High Court judge
37348/19
Bulut v. Türkiye
04/07/2019
Atilla BULUT
07/04/1983
Ordinary judge or public prosecutor
38924/19
Karadeniz v. Türkiye
11/07/2019
Mustafa KARADENİZ
01/01/1986
Sefanur BOZGÖZ
Ordinary judge or public prosecutor
39250/19
Özaykut v. Türkiye
19/06/2019
Salih ÖZAYKUT
01/01/1969
Hüseyin AYGÜN
Former judge or public prosecutor
39722/19
Halitoğlu v. Türkiye
31/05/2019
Coşkun HALİTOĞLU
23/09/1973
Cesim PARLAK
Former judge or public prosecutor
40264/19
Yılmaz v. Türkiye
25/07/2019
Halil YILMAZ
11/09/1965
İhsan MAKAS
Former judge or public prosecutor
40515/19
Sarıgedik v. Türkiye
19/07/2019
Mustafa SARIGEDİK
01/10/1973
Mehmet MİRZA
Former judge or public prosecutor
41848/19
Tabakcı v. Türkiye
29/07/2019
Ayşegül TABAKCI
30/12/1986
Former judge or public prosecutor
41850/19
Canbaz v. Türkiye
23/07/2019
Hüseyin CANBAZ
12/11/1981
Ordinary judge or public prosecutor
44467/19
Oğuz v. Türkiye
04/07/2019
Hüseyin OĞUZ
30/06/1971
Hilal YILMAZ PUSAT
High Court judge
47694/19
Aydoğan v. Türkiye
15/08/2019
Abdulkadir AYDOĞAN
09/01/1989
Ayşe Sümeyye BEKLEYEN
Former judge or public prosecutor
3517/20
Kılınç v. Türkiye
10/01/2020
Bülent KILINÇ
01/11/1965
Hüseyin AYGÜN
High Court judge
5565/20
Yılmaz v. Türkiye
09/01/2020
Şükrü Emrah YILMAZ
04/05/1985
Ordinary judge or public prosecutor