SECOND SECTION
CASE OF MECİT AND OTHERS v. TÜRKİYE
(Applications nos. 69884/17 and 81 others)
JUDGMENT
STRASBOURG
12 December 2023
This judgment is final but it may be subject to editorial revision.
In the case of Mecit 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 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 21 November 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 (for further background information see Akgün v. Turkey, no. 19699/18, §§ 3-9 and §§ 106-07, 20 July 2021).
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 v. Turkey, no. 66448/17, § 58, 3 March 2020). 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 the majority of the applicants were identified as users of the ByLock messaging system. Moreover, some of the applicants were suspected of financing the FETÖ/PDY in view of their use of accounts in Bank Asya – a bank allegedly linked to FETÖ/PDY –, possession of pro-FETÖ/PDY publications and/or United States one-dollar bills with an “F” serial number (denoting the initial of the forename “Fetullah”), and/or their employment by and/or memberships in FETÖ/PDY-affiliated institutions and organisations. 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 ASSESSMENTJOINDER OF THE APPLICATIONS
4. 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 CONVENTION
5. 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 v. Turkey, no. 66448/17, §§ 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, banking activities considered as financing the FETÖ/PDY, subscriptions to certain pro-FETÖ/PDY publications, having in their possessions United States one‑dollar bills with an “F” serial number, and/or their employment by and/or memberships in FETÖ/PDY-affiliated institutions and organisations. 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 COMPLAINTS
10. 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 applicants in application nos. 6670/18, 7824/19, 9380/19 and 9462/19, 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 applicants in application nos. 6670/18, 7824/19, 9380/19 and 9462/19, 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 applicants in application nos. 6670/18, 7824/19, 9380/19 and 9462/19, 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 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 12 December 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
Nationality
Represented by
1.
69884/17
Mecit v. Türkiye
04/09/2017
Hamit MECİT
1972
Malatya
Turkish
Büşra KESER
2.
4625/18
Çevik v. Türkiye
13/07/2017
Hasan Hüseyin ÇEVİK
1973
Konya
Turkish
Mustafa DEMİR
3.
4697/18
Tarhan v. Türkiye
13/07/2017
Osman TARHAN
1980
Konya
Turkish
Mustafa DEMİR
4.
6670/18
Özkul v. Türkiye
09/01/2018
Salih ÖZKUL
1987
Ankara
Turkish
Abidin ŞAHİN
5.
9584/18
Yücedağ v. Türkiye
13/02/2018
Mesut YÜCEDAĞ
1989
Bursa
Turkish
Fatma ALBAYRAK
6.
9585/18
Aydoğmuş v. Türkiye
13/02/2018
Yasin AYDOĞMUŞ
1982
Ankara
Turkish
Fatma ALBAYRAK
7.
9586/18
Sıryol v. Türkiye
13/02/2018
Münevver SIRYOL
1985
Istanbul
Turkish
Fatma ALBAYRAK
8.
12124/18
Özcan v. Türkiye
06/03/2018
Abdurrahman ÖZCAN
1975
Istanbul
Turkish
Fatma ALBAYRAK
9.
12490/18
Mila v. Türkiye
02/03/2018
Mehmet MİLA
1983
Van
Turkish
Büşra KURT KÜÇÜK
10.
26360/18
Karakaya v. Türkiye
08/05/2018
Musa KARAKAYA
1979
Aydın
Turkish
Adem KAPLAN
11.
27004/18
Boran v. Türkiye
18/05/2018
Hasan Basri BORAN
1973
Adana
Turkish
Sinan TUMLUKOLÇU
12.
27075/18
Dursun v. Türkiye
18/05/2018
Yaşar DURSUN
1975
Çankırı
Turkish
Adem KAPLAN
13.
27086/18
Duran v. Türkiye
18/05/2018
Erdal DURAN
1976
Çankırı
Turkish
Adem KAPLAN
14.
29602/18
Öz v. Türkiye
11/06/2018
Mahmut ÖZ
1984
Kastamonu
Turkish
Fatma Zehra ÖZDİPİ
15.
30140/18
Bereket v. Türkiye
13/06/2018
Ömer BEREKET
1975
Gaziantep
Turkish
Fadıl ULUTAŞ
16.
40409/18
Öztürk v. Türkiye
06/08/2018
Celal ÖZTÜRK
1971
Sinop
Turkish
Bekir DEMİRCİOĞLU
17.
41513/18
Yontar v. Türkiye
17/08/2018
Şükrü YONTAR
1977
Tekirdağ
Turkish
Mehmet Ertürk ERDEVİR
18.
44762/18
Yarbı v. Türkiye
17/09/2018
Aydın YARBI
1972
Yalova
Turkish
Mehmet GÜL
19.
44766/18
Yalçın v. Türkiye
14/09/2018
Fatih YALÇIN
1976
Ankara
Turkish
Mehmet YALÇIN
20.
45472/18
Aydoğan v. Türkiye
07/09/2018
İbrahim AYDOĞAN
1974
Ankara
Turkish
Adem KAPLAN
21.
45473/18
Akmirza v. Türkiye
07/09/2018
Bekir AKMİRZA
1968
Kırşehir
Turkish
Adem KAPLAN
22.
45482/18
Gündüz v. Türkiye
07/09/2018
Murat GÜNDÜZ
1973
Ankara
Turkish
Adem KAPLAN
23.
47781/18
Tekdemir v. Türkiye
09/10/2018
Gazi TEKDEMİR
1964
Istanbul
Turkish
Kamile ÖZBULUT
24.
48351/18
Kırdağ v. Türkiye
09/10/2018
Hakan KIRDAĞ
1963
Ankara
Turkish
Adem KAPLAN
25.
49301/18
Talu v. Türkiye
09/10/2018
Emre TALU
1990
Sivas
Turkish
Şeyma MISIRLIOĞLU
26.
49903/18
Örsel v. Türkiye
03/10/2018
Yaşar ÖRSEL
1972
Kırşehir
Turkish
Lale KARADAŞ
27.
50798/18
Demir v. Türkiye
11/10/2018
Abdussamet DEMİR
1991
Ankara
Turkish
Adem KAPLAN
28.
50799/18
Kara v. Türkiye
11/10/2018
Harun KARA
1980
Isparta
Turkish
Adem KAPLAN
29.
51577/18
Özdemir v. Türkiye
15/10/2018
İsmet ÖZDEMİR
1974
Manisa
Turkish
İsmail GÜNEY
30.
51690/18
Geleken v. Türkiye
26/10/2018
Turgut GELEKEN
1973
İzmir
Turkish
Mevlüt Burak KAPTAN
31.
52456/18
Acar v. Türkiye
02/11/2018
Emre ACAR
1985
Kırıkkale
Turkish
Abdurrahim SIĞIRTMAÇ
32.
52523/18
Günal v. Türkiye
24/10/2018
Hüseyin GÜNAL
1971
Aksaray
Turkish
İhsan MAKAS
33.
52623/18
Bayram v. Türkiye
26/10/2018
Mehmet BAYRAM
1985
Tokat
Turkish
Emre AKARYILDIZ
34.
53261/18
Kemer v. Türkiye
09/11/2018
Selçuk KEMER
1967
Bartın
Turkish
Bekir DÖNMEZ
35.
53933/18
Kalpaklı v. Türkiye
22/10/2018
Fatma KALPAKLI
1991
Tekirdağ
Turkish
Mehmet Ertürk ERDEVİR
36.
54989/18
Yağız v. Türkiye
05/11/2018
İbrahim YAĞIZ
1971
Antalya
Turkish
Burhan AYDIN
37.
56023/18
Alakuş v. Türkiye
31/10/2018
Fatih ALAKUŞ
1970
Eskişehir
Turkish
Kurtuluş BAŞTİMAR
38.
56482/18
Asiltürk v. Türkiye
26/11/2018
Ramazan ASILTÜRK
1977
Bolu
Turkish
Adem DÜZGÜN
39.
57561/18
Demir v. Türkiye
02/11/2018
Osman DEMİR
1976
Ankara
Turkish
Demet YÜREKLİ KAYAALP
40.
58256/18
Kaleli v. Türkiye
21/11/2018
Nurullah KALELİ
1987
Konya
Turkish
Recep ALTUN
41.
58801/18
Karakaş v. Türkiye
21/11/2018
Mecit KARAKAŞ
1989
Eskişehir
Turkish
Adem KAPLAN
42.
59988/18
Acar v. Türkiye
07/12/2018
Mehmet ACAR
1974
Bursa
Turkish
Çiğdem DERDİYOK KUBULAN
43.
2366/19
Cildan v. Türkiye
03/12/2018
Halit CİLDAN
1969
Hatay
Turkish
Bilal ÇÖRTÜK
44.
2857/19
Öbekci v. Türkiye
03/01/2019
Yusuf ÖBEKCİ
1971
Ankara
Turkish
45.
3026/19
Kulaksız v. Türkiye
21/12/2018
Muhammet Yusuf KULAKSIZ
1970
Istanbul
Turkish
Hasan Tahsin IŞILTAN
46.
3252/19
Yaprak v. Türkiye
25/12/2018
Amir YAPRAK
Tokat
Turkish
Şeyma MISIRLIOĞLU
47.
3774/19
Turhan v. Türkiye
26/12/2018
Murat TURHAN
1984
Denizli
Turkish
Gülhis YÖRÜK
48.
3984/19
Dakeşoğlu v. Türkiye
09/01/2019
Ali İhsan DAKEŞOĞLU
1979
Rize
Turkish
49.
4053/19
Seçkin v. Türkiye
28/12/2018
Ahmet SEÇKİN
1977
Ankara
Turkish
Adem KAPLAN
50.
4074/19
Deniz v. Türkiye
28/12/2018
Cengiz DENİZ
1973
Elazığ
Turkish
Adem KAPLAN
51.
4079/19
İnan v. Türkiye
28/12/2018
Burhan İNAN
1983
Ankara
Turkish
Adem KAPLAN
52.
4105/19
Doğan v. Türkiye
30/11/2018
Ramazan Fatih DOĞAN
1985
İzmir
Turkish
Kadir ÖZTÜRK
53.
4240/19
Yelkesen v. Türkiye
07/01/2019
Mehmet Akif YELKESEN
1972
Hatay
Turkish
Erdoğan SARAÇ
54.
5539/19
Çoşkun v. Türkiye
07/01/2019
Ferhat COŞKUN
1981
Kayseri
Turkish
Zehra KARAKULAK BOZDAĞ
55.
5561/19
Gürşen v. Türkiye
31/12/2018
Cihan Murat GÜRŞEN
1980
Konya
Turkish
Kadir ÖZTÜRK
56.
5900/19
Özdemir v. Türkiye
17/01/2019
Mikail ÖZDEMİR
1991
Trabzon
Turkish
Vahdeddin VARLI
57.
6189/19
Aygen v. Türkiye
17/12/2018
Ziya AYGEN
1974
Ankara
Turkish
Adem KAPLAN
58.
6193/19
Vurucu v. Türkiye
17/12/2018
İsmail VURUCU
1985
Ankara
Turkish
Adem KAPLAN
59.
6316/19
Reçber v. Türkiye
10/01/2019
Emre REÇBER
1986
Ankara
Turkish
Burak ÇOLAK
60.
6588/19
Kılıç v. Türkiye
23/01/2019
Hüseyin Gazi KILIÇ
1974
Kahramanmaraş
Turkish
Emre KOZANDAĞI
61.
6979/19
Akgül v. Türkiye
17/01/2019
Raşit AKGÜL
1962
Kırıkkale
Turkish
Hasan Hüseyin ERDOĞAN
62.
7100/19
Yıldız v. Türkiye
24/01/2019
Sezgin YILDIZ
1976
Manisa
Turkish
Ömer KÖSTEKÇİ
63.
7134/19
Asrı v. Türkiye
23/01/2019
Ekrem ASRI
Antalya
Turkish
Yusuf Sait PEKGÖZ
64.
7269/19
Ejder v. Türkiye
24/01/2019
Ayşe EJDER
1964
Kars
Turkish
Özcan AKINCI
65.
7824/19
Düzgün v. Türkiye
28/01/2019
İsmail DÜZGÜN
1983
Antalya
Turkish
Emre ÖZDİKİCİERLER
66.
7996/19
Kaya v. Türkiye
24/01/2019
Mehmet KAYA
1988
Istanbul
Turkish
İrem TATLIDEDE
67.
8413/19
Atalay v. Türkiye
30/01/2019
Cemal ATALAY
1986
Bursa
Turkish
68.
8990/19
Bal v. Türkiye
30/01/2019
Mustafa BAL
1972
Giresun
Turkish
Şükrü KOCUK
69.
9121/19
Asrı v. Türkiye
11/02/2019
İsa Samet ASRI
1996
Antalya
Turkish
Yusuf Sait PEKGÖZ
70.
9195/19
Kököz v. Türkiye
22/01/2019
Ramazan KÖKÖZ
1973
Manisa
Turkish
Asım Burak GÜNEŞ
71.
9332/19
Şenyayla v. Türkiye
06/02/2019
Zeki ŞENYAYLA
1974
Ankara
Turkish
Üsame İNAN
72.
9380/19
Irk v. Türkiye
25/01/2019
Mümtaz İRK
1980
Aksaray
Turkish
Emre KOZANDAĞI
73.
9446/19
Güneş v. Türkiye
09/02/2019
Cemal GÜNEŞ
1988
Antalya
Turkish
Yusuf Sait PEKGÖZ
74.
9452/19
Uzay v. Türkiye
31/01/2019
Sadettin UZAY
1972
Kahramanmaraş
Turkish
Mehmet ÖNCÜ
75.
9462/19
Öz v. Türkiye
15/01/2019
Ali ÖZ
1970
Konya
Turkish
Selda Devrim YILDIRIM
76.
9815/19
Güneş v. Türkiye
05/02/2019
Recep GÜNEŞ
1974
Siirt
Turkish
Hasan TOK
77.
9981/19
Yıldırım v. Türkiye
05/02/2019
Zeynel YILDIRIM
1980
Ankara
Turkish
Tarık Said GÜLDİBİ
78.
10173/19
Taşkın v. Türkiye
07/02/2019
Ahmet TAŞKIN
1972
Antalya
Turkish
Yusuf Sait PEKGÖZ
79.
11313/19
Gürbüz v. Türkiye
20/02/2019
Ahmet GÜRBÜZ
1974
Elazığ
Turkish
Mehmet Sıddık KARAGÖZ
80.
11333/19
Hazin v. Türkiye
11/02/2019
Mesut HAZIN
1980
Kırşehir
Turkish
Lale KARADAŞ
81.
21352/19
Başyiğit v. Türkiye
16/04/2019
Mahmut BAŞYİĞİT
1970
Aydin
Turkish
Özlem SUZAN
82.
36350/19
Altıparmak v. Türkiye
01/07/2019
Ömer ALTIPARMAK
1975
Kahramanmaraş
Turkish
Necip Fazıl YILDIZ
Full & Egal Universal Law Academy