Published on 7 June 2021
SECOND SECTION
Application no. 68983/17
Kadir Koray GÖKAY against Turkey
and 93 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
68983/17
Gökay v. Turkey
14/09/2017
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
2
76406/17
Günay v. Turkey
06/10/2017
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/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
3
36939/18
Kunt v. Turkey
26/07/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
4
37745/18
Balkaş v. Turkey
03/08/2018
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/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
5
40409/18
Öztürk v. Turkey
06/08/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
6
40525/18
Koçyiğit v. Turkey
03/08/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
7
40601/18
Şahpaz v. Turkey
10/08/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
8
41593/18
Gültekin v. Turkey
17/08/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
9
42866/18
Atılgan v. Turkey
29/08/2018
Lack of reasonable suspicion
10
44202/18
Aydın v. Turkey
08/09/2018
Lack of reasonable suspicion
11
44761/18
Olcabay v. Turkey
11/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
12
45291/18
Şafak v. Turkey
13/09/2018
Lack of reasonable suspicion
13
47328/18
Yıldız v. Turkey
26/09/2018
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/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
14
47781/18
Tekdemir v. Turkey
09/10/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
15
49903/18
Örsel v. Turkey
03/10/2018
Lack of reasonable suspicion
16
50062/18
Akkaya v. Turkey
12/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
17
50753/18
Yağmurlu v. Turkey
23/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
18
50974/18
Tekten v. Turkey
19/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
19
52946/18
Tekkoyun v. Turkey
30/10/2018
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/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
20
53071/18
Kara v. Turkey
22/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
21
54459/18
Zorlu v. Turkey
05/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
22
58891/18
Görür v. Turkey
28/11/2018
Length of pre-trial detention
Lack of reasonable suspicion
23
59144/18
Tosun v. Turkey
28/11/2018
Lack of reasonable suspicion
24
3146/19
Önerbay v. Turkey
14/12/2018
Lack of reasonable suspicion
25
3252/19
Yaprak v. Turkey
25/12/2018
Lack of reasonable suspicion
26
3357/19
Topuz v. Turkey
17/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
27
3430/19
Özgul v. Turkey
02/01/2019
Restriction of access to the investigation file
Lack of reasonable suspicion
28
3432/19
Türkmen v. Turkey
28/12/2018
Lack of reasonable suspicion
29
3441/19
Pala v. Turkey
09/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
30
3452/19
Yücel v. Turkey
08/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
31
3459/19
Ülkemen v. Turkey
21/12/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
32
3461/19
Leylek v. Turkey
10/12/2018
Lack of reasonable suspicion
33
3514/19
Lalek v. Turkey
27/12/2018
Lack of relevant and sufficient reasons for detention
34
3568/19
Sancak v. Turkey
17/12/2018
Lack of reasonable suspicion
35
3652/19
Dinlemez v. Turkey
18/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
36
3709/19
Kuş v. Turkey
21/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
37
3770/19
Kayacan v. Turkey
19/12/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
38
3774/19
Turhan v. Turkey
26/12/2018
Lack of reasonable suspicion
39
3984/19
Dakeşoğlu v. Turkey
09/01/2019
Lack of reasonable suspicion
40
4053/19
Seçkin v. Turkey
28/12/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
41
4061/19
Metin v. Turkey
28/12/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
42
4071/19
Nakaş v. Turkey
28/12/2018
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
43
4074/19
Deniz v. Turkey
28/12/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
44
4079/19
İnan v. Turkey
28/12/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
45
4105/19
Doğan v. Turkey
30/11/2018
Lack of hearing during the detention review
Failure/Delay to communicate decisions relating to detention
Lack of reasonable suspicion
46
4118/19
Ünaldı v. Turkey
27/11/2018
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of reasonable suspicion
47
4156/19
Aksoy v. Turkey
04/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
48
4176/19
Bozkurt v. Turkey
11/01/2019
Lack of reasonable suspicion
49
4181/19
Hatip v. Turkey
11/01/2019
Lack of reasonable suspicion
50
4198/19
Hanedar v. Turkey
11/01/2019
Lack of reasonable suspicion
51
4240/19
Yelkesen v. Turkey
07/01/2019
Lack of reasonable suspicion
52
4299/19
Bülbül v. Turkey
21/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
53
4300/19
Dilgin v. Turkey
03/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
54
4301/19
Akkaya v. Turkey
07/01/2019
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
55
4357/19
Çelebi v. Turkey
04/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
56
4405/19
Koçak v. Turkey
04/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
57
4558/19
Öztel v. Turkey
31/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
58
4571/19
Kocaer v. Turkey
28/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
59
4585/19
Çulha v. Turkey
28/12/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
60
4658/19
Bekdemir v. Turkey
31/12/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
61
4918/19
Şimşek v. Turkey
21/12/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
62
4991/19
İstek v. Turkey
10/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
63
5135/19
Topuz v. Turkey
21/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
64
5196/19
Gönülaçar v. Turkey
27/12/2018
Lack of reasonable suspicion
65
5257/19
Bayraktar v. Turkey
14/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
66
5304/19
Anursal v. Turkey
03/01/2019
Lack of reasonable suspicion
67
5408/19
Aslan v. Turkey
10/01/2019
Lack of reasonable suspicion
68
5413/19
Uyar v. Turkey
03/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
69
5418/19
Körpe v. Turkey
08/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
70
5476/19
İnam v. Turkey
30/11/2018
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
71
5494/19
Bulut v. Turkey
04/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
72
5531/19
Hamarat v. Turkey
15/01/2019
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
73
5539/19
Çoşkun v. Turkey
07/01/2019
Lack of reasonable suspicion
74
5558/19
Kılıç v. Turkey
25/12/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
75
5561/19
Gürşen v. Turkey
31/12/2018
Lack of reasonable suspicion
76
5613/19
Kızıltan v. Turkey
08/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
77
5713/19
Açıkgöz v. Turkey
17/01/2019
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
78
5900/19
Özdemir v. Turkey
17/01/2019
Lack of reasonable suspicion
79
5916/19
Ekemen v. Turkey
26/12/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
80
5933/19
Gören v. Turkey
11/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
81
5938/19
Kart v. Turkey
17/12/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
82
6059/19
Çakır v. Turkey
14/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
83
6078/19
Keskin v. Turkey
09/01/2019
Lack of reasonable suspicion
84
6189/19
Aygen v. Turkey
17/12/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
85
6193/19
Vurucu v. Turkey
17/12/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
86
6196/19
Güven v. Turkey
17/12/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
87
6201/19
Say v. Turkey
17/12/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
88
6249/19
Yılmazsoylu v. Turkey
11/01/2019
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
89
6254/19
Yilmaz v. Turkey
10/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
90
6315/19
Civan v. Turkey
07/01/2019
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
91
6316/19
Reçber v. Turkey
10/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
92
6321/19
Özata v. Turkey
26/12/2018
Length of pre-trial detention
Lack of reasonable suspicion
93
6329/19
Ayaz v. Turkey
21/12/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
94
14991/20
Arslan v. Turkey
09/03/2020
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
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