Published on 10 May 2021
SECOND SECTION
Application no. 29960/18
Selim GÜVEN against Turkey
and 95 other applications
(see list appended)
communicated on 20 April 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 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:
(iii) 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;
(iv) they had been unable to challenge their detention in an effective manner because of the restriction imposed on their access to the investigation file;
(v) their objections to their detention had not been examined or had been examined belatedly;
(vi) 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;
(vii) 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;
(viii) 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
ID No.
Date of Intro
Complaints
1
29960/18
Güven v. Turkey
06/06/2018
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
2
44192/18
Yapalak v. Turkey
11/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
3
47444/18
Özbayram v. Turkey
24/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
4
53925/18
Kisin v. Turkey
02/10/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
5
54441/18
Öztürk v. Turkey
01/11/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
6
54455/18
Saka v. Turkey
01/11/2018
Lack of reasonable suspicion
7
54826/18
Horuz v. Turkey
19/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
8
54866/18
Kunt v. Turkey
07/11/2018
Length of pre-trial detention
Failure/Delay in examining requests for enlargement/objection
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
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
9
54929/18
Yalçınkaya v. Turkey
01/11/2018
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
10
54954/18
Karaduman v. Turkey
15/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
11
54989/18
Yağız v. Turkey
05/11/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of reasonable suspicion
12
55894/18
Taşğın v. Turkey
05/10/2018
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
13
56023/18
Alakuş v. Turkey
31/10/2018
Lack of reasonable suspicion
14
56270/18
Şahin v. Turkey
16/11/2018
Restriction of access to the investigation file
Lack of reasonable suspicion
15
56482/18
Asiltürk v. Turkey
26/11/2018
Lack of hearing during the detention review
Restriction of access to the investigation file
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
16
56577/18
Bilgin v. Turkey
22/11/2018
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of reasonable suspicion
17
56582/18
Özçelebi v. Turkey
13/11/2018
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
57173/18
Çolak v. Turkey
29/11/2018
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of reasonable suspicion
19
57182/18
Gören v. Turkey
16/11/2018
Lack of reasonable suspicion
20
57185/18
Karhan v. Turkey
20/11/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
21
57196/18
Yaşa v. Turkey
12/11/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Failure/Delay to communicate decisions relating to detention
Lack of reasonable suspicion
22
57207/18
Ekinci v. Turkey
13/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
23
57214/18
Kaya v. Turkey
21/11/2018
Lack of reasonable suspicion
24
57288/18
Üçkuyu v. Turkey
14/11/2018
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
25
57545/18
Bakır v. Turkey
15/11/2018
Lack of hearing during the detention review
Lack of reasonable suspicion
26
57561/18
Demir v. Turkey
02/11/2018
Lack of hearing during the detention review
Lack of reasonable suspicion
27
57760/18
Keskin v. Turkey
21/11/2018
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
28
57907/18
Kara v. Turkey
05/12/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
29
57929/18
Eroğlu v. Turkey
05/12/2018
Lack of hearing during the detention review
30
58133/18
Bağcı v. Turkey
23/11/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
31
58217/18
Kara v. Turkey
16/11/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
32
58224/18
Çabuk v. Turkey
23/11/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
33
58232/18
Gedemenli v. Turkey
30/11/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
34
58254/18
Yaşa v. Turkey
21/11/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
35
58256/18
Kaleli v. Turkey
21/11/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
36
58393/18
Bekdil v. Turkey
29/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
37
58411/18
Eriktaş v. Turkey
03/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
38
58496/18
Artan v. Turkey
29/11/2018
Lack of reasonable suspicion
39
58549/18
Güler v. Turkey
19/11/2018
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
Lack of reasonable suspicion
40
58577/18
Aydın v. Turkey
20/02/2019
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
41
58728/18
Boyukata v. Turkey
23/11/2018
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
42
58796/18
Zengin v. Turkey
21/11/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
43
58801/18
Karakaş v. Turkey
21/11/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
44
58802/18
Pınarakar v. Turkey
21/11/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
45
58911/18
Şahin v. Turkey
28/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
46
59028/18
Özturk v. Turkey
21/11/2018
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
59202/18
Öztaş v. Turkey
22/11/2018
Length of pre-trial detention
Failure/Delay in examining requests for enlargement/objection
Lack of hearing during the detention review
Restriction of access to the investigation file
Failure/Delay to communicate decisions relating to detention
Lack of reasonable suspicion
48
59384/18
Çakar v. Turkey
29/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
49
59969/18
Çalışkan v. Turkey
07/12/2018
Lack of reasonable suspicion
50
59974/18
Karagöz v. Turkey
29/11/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
51
59988/18
Acar v. Turkey
07/12/2018
Lack of reasonable suspicion
52
59992/18
Çınar v. Turkey
21/11/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
53
21/19
Urgancı v. Turkey
07/12/2018
Lack of reasonable suspicion
54
28/19
Barlas v. Turkey
10/12/2018
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
55
113/19
Çalak v. Turkey
11/12/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
56
373/19
Çoban v. Turkey
07/12/2018
Lack of reasonable suspicion
57
525/19
Zor v. Turkey
25/12/2018
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
58
841/19
Karakuş v. Turkey
12/12/2018
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
59
1148/19
Tütüneken v. Turkey
06/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
60
1200/19
Silahşör v. Turkey
13/12/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
61
1470/19
Sönmez v. Turkey
13/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
62
1661/19
Kazan v. Turkey
17/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
63
1672/19
Yıldız v. Turkey
17/12/2018
Lack of reasonable suspicion
64
1675/19
Kurt v. Turkey
26/12/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
65
1684/19
Hallaç v. Turkey
20/12/2018
Length of pre-trial detention
Lack of reasonable suspicion
66
1686/19
Şahin v. Turkey
28/11/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
67
1765/19
Özsoylar v. Turkey
19/12/2018
Length of pre-trial detention
Failure/Delay in examining requests for enlargement/objection
Lack of relevant and sufficient reasons for detention
Failure/Delay to communicate decisions relating to detention
Lack of reasonable suspicion
68
1933/19
Yılmaz v. Turkey
03/01/2019
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
69
2014/19
Gülbey v. Turkey
27/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
70
2018/19
Eren v. Turkey
17/12/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
71
2127/19
İnan v. Turkey
28/11/2018
Lack of reasonable suspicion
72
2196/19
Sağlam v. Turkey
30/11/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
73
2204/19
Ataş v. Turkey
29/11/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
74
2220/19
Aktümen v. Turkey
29/11/2018
Delay in examination by the Constitutional Court
Lack of hearing during the detention review
Lack of reasonable suspicion
75
2232/19
Özer v. Turkey
26/11/2018
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
2255/19
Aksoy v. Turkey
28/11/2018
Lack of reasonable suspicion
77
2257/19
Koç v. Turkey
06/12/2018
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
78
2262/19
Imamoglu v. Turkey
05/12/2018
Lack of reasonable suspicion
79
2274/19
Arpacı v. Turkey
13/12/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
80
2366/19
Cildan v. Turkey
03/12/2018
Lack of reasonable suspicion
81
2541/19
Çakar v. Turkey
18/12/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
82
2615/19
Kuşcu v. Turkey
28/12/2018
Lack of reasonable suspicion
83
2717/19
Yüce v. Turkey
21/12/2018
Lack of reasonable suspicion
84
2735/19
Sezer v. Turkey
11/12/2018
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
85
2746/19
Zeytin v. Turkey
02/01/2019
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
86
2762/19
Torunler v. Turkey
20/12/2018
Length of pre-trial detention
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
87
2788/19
Dutlar v. Turkey
17/12/2018
Length of pre-trial detention
Lack of reasonable suspicion
88
2843/19
Işık v. Turkey
03/01/2019
Length of pre-trial detention
Lack of reasonable suspicion
89
2854/19
Çolak v. Turkey
04/01/2019
Lack of reasonable suspicion
90
2857/19
Öbekci v. Turkey
03/01/2019
Lack of reasonable suspicion
91
2863/19
Apaydın v. Turkey
03/01/2019
Length of pre-trial detention
Lack of reasonable suspicion
92
3026/19
Kulaksız v. Turkey
21/12/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
93
3054/19
Taşkın v. Turkey
05/12/2018
Length of pre-trial detention
Lack of hearing during the detention review
Restriction of access to the investigation file
Lack of reasonable suspicion
94
3136/19
Pekdemir v. Turkey
15/11/2018
Lack of hearing during the detention review
95
4611/19
Keleşoglu v. Turkey
28/09/2018
Length of pre-trial detention
Lack of reasonable suspicion
Lack of relevant and sufficient reasons for detention
96
21352/19
Başyiğit v. Turkey
16/04/2019
Length of pre-trial detention
Lack of reasonable suspicion
Full & Egal Universal Law Academy