Published on 7 June 2021
SECOND SECTION
Application no. 58665/17
Ahmet ERİŞ against Turkey
and 95 other applications
(see list appended)
communicated on 17 May 2021
SUBJECT MATTER OF THE CASE
The applications mainly concern the applicants’ arrest and pre-trial detention, on suspicion of membership of FETÖ/PDY (Fetullahist Terrorist Organisation / Parallel State Structure), in the aftermath of the attempted coup d’état which took place on 15 July 2016.
The applicants complain of a violation of Article 5 of the Convention on the basis of the following allegations (see the appended table for detailed information as to the specific complaints raised by each applicant):
- They were detained in the absence of any suspicion that they committed an offence;
- There were no relevant and sufficient reasons to justify their initial and/or continued pre-trial detention;
- The length of their pre-trial detention was excessive;
- The reviews of detention took place without a hearing and they were not notified of the opinion of the public prosecutor on those reviews;
- Their access to the investigation files was restricted;
- The objections to their detention or their requests for release were not examined or examined belatedly;
- The decisions extending their pre-trial detention were not notified to them, or were notified with a delay, which prevented them from appealing against those decisions;
- They did not benefit from effective legal assistance and facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers was monitored by the prison authorities;
- The time taken by the Constitutional Court to conduct its examination on their individual applications was excessive.
QUESTIONS TO THE PARTIES
On the basis of the complaints communicated in accordance with the list in the Appendix
1. Can the applicants be considered to have been detained on the basis of “a reasonable suspicion” that they had committed an offence (see, in particular, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A No. 182), taking into account, in particular, Article 100 of the Code of Criminal Procedure, which requires “concrete evidence demonstrating the existence of strong suspicions” as to the commission of the offence?
Moreover, has the Constitutional Court based the existence of reasonable suspicion on evidence discovered after the decisions had been taken to detain the applicants?
2. (a) Did the applicants exhaust the remedies available in domestic law in relation to their complaints under Article 5 § 3 of the Convention? To the extent that the applicants’ complaints did not relate solely to the length of their pre-trial detention but also concerned the alleged failure of the domestic courts to provide relevant and sufficient reasons to justify their initial and continued pre-trial detention, can a compensation claim under Article 141 § 1(d) of the Code of Criminal Procedure be regarded as an effective remedy in respect of those complaints (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 213, 22 December 2020)?
The Government are invited to provide sample decisions to demonstrate whether the remedy under Article 141 § 1(d) of the Code of Criminal Procedure has been interpreted and applied by the national courts in a manner that extends to complaints concerning the lack of relevant and sufficient reasons to justify pre-trial detention.
(b) Was the applicants’ pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular:
(i) Did the judges, who ordered the applicants’ initial pre-trial detention and the prolongation of their detention, and who examined the objections lodged against those decisions, fulfil their obligation to provide relevant and sufficient grounds for the deprivation of liberty in question (see, in particular, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 102, ECHR 2016 (extracts))?
(ii) Was the length of the applicants’ pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?
3. Did the applicants have at their disposal an effective remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular, the Government are invited to respond to the following complaints made by the applicants:
(i) the principle of equality of arms had not been respected, as the decisions to extend their detention and their objections to those decisions had been examined without a hearing and the prosecutors’ opinions had not been communicated to them;
(ii) they had been unable to challenge their detention in an effective manner because of the restriction imposed on their access to the investigation file;
(iii) their objections to their detention had not been examined or had been examined belatedly;
(iv) the decisions to extend their detention had not been notified to them or had been notified with a delay, which had prevented them from lodging objections against those decisions;
(v) they had had no effective legal assistance or facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers had been monitored;
(vi the time taken by the Constitutional Court to examine their individual applications had been protracted.
4. Did the compensation remedy provided under Article 141 of the Code of Criminal Procedure constitute an effective remedy, within the meaning of Article 5 § 4 of the Convention, in respect of complaints concerning (i) the lack of an oral hearing during the review of detention; (ii) the non‑notification or belated notification of the detention decision; and (iii) the lack of or delay in the examination of the objection against detention by the magistrates’ courts?
The Government are invited to provide sample domestic court decisions in support of their reply.
APPENDIX
No.
Application No.
Case Title
Date Of Intro
Complaints
1
58665/17
Eriş v. Turkey
28/07/2017
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
2
59699/17
Kurt v. Turkey
08/11/2016
Lack of reasonable suspicion
3
70782/17
Gürbüz v. Turkey
24/08/2017
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
4
81096/17
Diri v. Turkey
08/11/2017
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
5
84/18
Özbek v. Turkey
06/12/2017
Lack of reasonable suspicion
6
86/18
Tan v. Turkey
06/12/2017
Lack of reasonable suspicion
7
133/18
Çiftçi v. Turkey
06/12/2017
Lack of reasonable suspicion
8
144/18
Eker v. Turkey
06/12/2017
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
9
392/18
Kaplan v. Turkey
04/12/2017
Lack of reasonable suspicion
10
3462/18
Köksal v. Turkey
04/01/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
11
4625/18
Çevik v. Turkey
13/07/2017
Lack of reasonable suspicion
12
4697/18
Tarhan v. Turkey
13/07/2017
Lack of reasonable suspicion
13
6480/18
Arslan v. Turkey
03/01/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
14
6519/18
Özdemir v. Turkey
20/12/2017
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
15
6631/18
Çetinkaya v. Turkey
12/01/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
16
6670/18
Özkul v. Turkey
09/01/2018
Lack of reasonable suspicion
17
6691/18
Uzundal v. Turkey
25/01/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
18
7741/18
Güneş v. Turkey
15/01/2018
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Failure to communicate the prosecutor’s opinion
Failure/Delay to communicate decisions relating to detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
19
7747/18
Gökçe v. Turkey
17/01/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
20
8313/18
Kahraman v. Turkey
26/01/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
21
8386/18
Yiğit v. Turkey
26/01/2018
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Failure/Delay to communicate decisions relating to detention
Lack of reasonable suspicion
22
8565/18
Kaya v. Turkey
13/02/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
23
8607/18
Seçkiner v. Turkey
28/04/2017
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
24
8608/18
Karagöz v. Turkey
27/04/2017
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
25
8910/18
Çolak v. Turkey
23/05/2017
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
26
9567/18
Toker v. Turkey
13/02/2018
Lack of reasonable suspicion
27
9582/18
Ilık v. Turkey
13/02/2018
Lack of reasonable suspicion
28
9584/18
Yücedağ v. Turkey
13/02/2018
Lack of reasonable suspicion
29
9585/18
Aydoğmuş v. Turkey
13/02/2018
Lack of reasonable suspicion
30
9586/18
Sıryol v. Turkey
13/02/2018
Lack of reasonable suspicion
31
9587/18
Demir v. Turkey
13/02/2018
Lack of reasonable suspicion
32
9881/18
Polat v. Turkey
29/01/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
33
9887/18
Tunç v. Turkey
30/01/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
34
9904/18
Şimşek v. Turkey
30/01/2018
Lack of reasonable suspicion
35
9984/18
Türker v. Turkey
29/01/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
36
10891/18
Bulmuş v. Turkey
06/02/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
37
11420/18
Sis v. Turkey
27/02/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
38
11892/18
Balaban v. Turkey
15/02/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
39
11977/18
Aydoğdu v. Turkey
05/03/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
40
12124/18
Özcan v. Turkey
06/03/2018
Lack of reasonable suspicion
41
12147/18
Güngör v. Turkey
16/02/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
42
12700/18
Aydemir v. Turkey
06/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
43
14185/18
Kunçay v. Turkey
13/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
44
14670/18
Arslan v. Turkey
13/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
45
14845/18
Zenginerler v. Turkey
02/02/2018
Restriction of access to the investigation file
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
46
14910/18
Güler v. Turkey
13/03/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
47
15443/18
Sandal v. Turkey
22/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
48
15883/18
Çelik v. Turkey
20/03/2018
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
49
16261/18
Çakıcı v. Turkey
13/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
50
16300/18
Evren v. Turkey
14/03/2018
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
51
16308/18
Yıldırım v. Turkey
29/03/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Failure/Delay in examining requests for enlargement/objection
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
52
16396/18
Şenel v. Turkey
27/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
Lack of reasonable suspicion
53
16895/18
Arslanbaba v. Turkey
26/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
54
16900/18
Kartal v. Turkey
28/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
55
17569/18
Çengelci v. Turkey
08/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
56
17575/18
Kılıçarslan v. Turkey
21/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
57
17579/18
Baran v. Turkey
16/02/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
58
17907/18
Kağızman v. Turkey
10/04/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Failure/Delay in examining requests for enlargement/objection
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
59
18051/18
Uçkan v. Turkey
09/04/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
60
18539/18
Kartal v. Turkey
02/03/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
61
18580/18
Arslan v. Turkey
19/03/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
62
18599/18
Bol v. Turkey
13/03/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
63
19290/18
Yılmaz v. Turkey
13/04/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
64
19703/18
Evli v. Turkey
16/04/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
65
19714/18
Demirel v. Turkey
19/04/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
66
20393/18
Pala v. Turkey
17/04/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
67
20404/18
Ata v. Turkey
17/04/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
68
20469/18
Koç v. Turkey
17/04/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
69
20538/18
Altınkaynak v. Turkey
16/04/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
70
21002/18
Çelik v. Turkey
25/04/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
71
21908/18
Aksoy v. Turkey
27/04/2018
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
72
24450/18
Aslan v. Turkey
04/05/2018
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
73
29593/18
Yücel v. Turkey
04/06/2018
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
74
39764/18
Güler v. Turkey
06/08/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
75
41587/18
Esen v. Turkey
08/08/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
76
45534/18
Karadavut v. Turkey
07/09/2018
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
77
45540/18
Çıtaker v. Turkey
07/09/2018
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
78
45543/18
Nokta v. Turkey
07/09/2018
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
79
45545/18
Şahin v. Turkey
07/09/2018
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
80
45556/18
Celik v. Turkey
07/09/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
81
45718/18
Seçgin v. Turkey
19/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
82
45768/18
Karakaş v. Turkey
13/09/2018
Failure/Delay in examining requests for enlargement/objection
Failure/Delay to communicate decisions relating to detention
83
45893/18
Sunulah v. Turkey
20/09/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
84
46097/18
Dalar v. Turkey
14/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
85
46168/18
Altundal v. Turkey
05/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
86
46212/18
Elgün v. Turkey
18/09/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
87
46241/18
Kıran v. Turkey
24/09/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
88
46256/18
Budaklı v. Turkey
17/09/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
89
46274/18
Kose v. Turkey
26/09/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
90
46372/18
Tuncer v. Turkey
27/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
91
46421/18
Şakiroğlu v. Turkey
12/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
92
46824/18
Uzun v. Turkey
20/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
93
46901/18
Alimoğlu v. Turkey
24/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
94
47027/18
Argündoğan v. Turkey
28/09/2018
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
95
47046/18
Eldemir v. Turkey
17/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
96
18561/19
Ulusoy v. Turkey
20/03/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
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