Published on 3 May 2021
SECOND SECTION
Application no. 59568/17
Hakan KARALOĞLU against Turkey
and 90 other applications
(see list appended)
communicated on 15 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))?
(i) 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
ID No.
Date of Intro
Complaints for each application
1
59568/17
Karaloğlu v. Turkey
10/05/2017
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
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
2
63612/17
Aynı v. Turkey
06/06/2017
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
3
69774/17
Taze v. Turkey
29/08/2017
Lack of reasonable suspicion
4
69851/17
Laçiner v. Turkey
18/08/2017
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
5
69884/17
Mecit v. Turkey
04/09/2017
Lack of reasonable suspicion
6
76301/17
Yazıcı v. Turkey
13/10/2017
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
7
6701/18
Odabaşı v. Turkey
04/01/2018
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
8
10640/18
Demir v. Turkey
14/02/2018
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/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
9
12490/18
Mila v. Turkey
02/03/2018
Restriction of access to the investigation file
Lack of reasonable suspicion
10
13397/18
Abanoz v. Turkey
27/02/2018
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
11
26360/18
Karakaya v. Turkey
08/05/2018
Restriction of access to the investigation file
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
12
26880/18
Okuşluk v. Turkey
30/05/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
13
27004/18
Boran v. Turkey
18/05/2018
Lack of hearing during the detention review
Lack of reasonable suspicion
14
27016/18
Ayan v. Turkey
30/05/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
15
27075/18
Dursun v. Turkey
18/05/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
16
27086/18
Duran v. Turkey
18/05/2018
Lack of reasonable suspicion
17
27766/18
Aydın v. Turkey
31/05/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
18
29602/18
Öz v. Turkey
11/06/2018
Lack of reasonable suspicion
19
29766/18
Akdoğan v. Turkey
05/06/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
20
30140/18
Bereket v. Turkey
13/06/2018
Length of pre-trial detention
Lack of reasonable suspicion
21
32403/18
Şen v. Turkey
20/06/2018
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
22
33368/18
Dinç v. Turkey
03/07/2018
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
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
23
39113/18
Öztürk v. Turkey
28/04/2018
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/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
24
39152/18
Güç v. Turkey
31/07/2018
Lack of relevant and sufficient reasons for detention
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
25
39536/18
Kaya v. Turkey
02/08/2018
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
26
39678/18
Duysak v. Turkey
03/08/2018
Lack of relevant and sufficient reasons for
Lack of reasonable suspicion
27
39835/18
Tekin v. Turkey
06/08/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
28
40472/18
Abalı v. Turkey
10/08/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
29
44651/18
Atılgan v. Turkey
06/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
30
44657/18
Tokyay v. Turkey
10/09/2018
Length of pre-trial
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
31
44762/18
Yarbı v. Turkey
17/09/2018
Restriction of access to the investigation file
Lack of reasonable suspicion
32
44766/18
Yalçın v. Turkey
14/09/2018
Restriction of access to the investigation file
Failure to communicate the prosecutor’s opinion
Lack of reasonable suspicion
33
44807/18
Demir v. Turkey
14/09/2018
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
34
44960/18
Keleş v. Turkey
11/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
35
45087/18
Taşkın 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/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
36
45297/18
Ergin v. Turkey
21/09/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
37
45325/18
Sert v. Turkey
17/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
38
45330/18
Hazman v. Turkey
14/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
39
45334/18
Kaçar v. Turkey
11/09/2018
Delay in examination by the Constitutional Court
Lack of reasonable suspicion
40
45472/18
Aydoğan v. Turkey
07/09/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
41
45473/18
Akmirza v. Turkey
07/09/2018
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
42
45482/18
Gündüz v. Turkey
07/09/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
43
46225/18
Aydın v. Turkey
20/09/2018
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
44
47400/18
Armağan v. Turkey
28/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
45
47561/18
İçer v. Turkey
06/07/2018
Lack of reasonable suspicion
46
47703/18
Kaplan v. Turkey
25/09/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
47
48051/18
Yıldız v. Turkey
25/09/2018
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
Restriction of access to the investigation file
48
48106/18
Çelik v. Turkey
05/10/2018
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
49
48203/18
Çimen v. Turkey
02/10/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
50
48351/18
Kırdağ v. Turkey
09/10/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Failure/Delay to communicate decisions relating to detention
Lack of reasonable suspicion
51
48726/18
Tuğberk v. Turkey
05/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
52
48731/18
Tuğluk v. Turkey
08/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
53
48911/18
Kobalay v. Turkey
28/09/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
54
48917/18
Ürnez v. Turkey
06/10/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
55
49223/18
Dokur v. Turkey
15/10/2018
Length of pre-trial detention
Failure/Delay in examining requests for enlargement/objection
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
56
49298/18
Kocaer v. Turkey
08/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
57
49301/18
Talu v. Turkey
09/10/2018
Lack of reasonable suspicion
58
49309/18
Kubur v. Turkey
10/10/2018
Length of pre-trial detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
59
49399/18
Kansız v. Turkey
08/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
60
49405/18
Öztürk v. Turkey
12/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
61
49836/18
Yaşa v. Turkey
15/10/2018
Length of pre-trial detention
Failure/Delay in examining requests for enlargement/objection
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Failure/Delay to communicate decisions relating to detention
62
49840/18
Ateş v. Turkey
12/10/2018
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
63
49848/18
Şanlı v. Turkey
11/10/2018
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
64
49849/18
Kandemir v. Turkey
10/10/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
65
50055/18
Yılmaz v. Turkey
06/10/2018
Lack of reasonable suspicion
66
50258/18
İlhan v. Turkey
26/09/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
67
50346/18
Sağlam v. Turkey
08/10/2018
Lack of reasonable suspicion
68
50391/18
Genç v. Turkey
03/05/2018
Length of pre-trial detention
Lack of reasonable suspicion
69
50627/18
Sayın v. Turkey
22/10/2018
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
50798/18
Demir v. Turkey
11/10/2018
Delay in examination by the Constitutional Court
Restriction of access to the investigation file
Lack of reasonable suspicion
71
50799/18
Kara v. Turkey
11/10/2018
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
72
50802/18
Ertekin v. Turkey
11/10/2018
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
73
50884/18
Şahin Balcık v. Turkey
19/10/2018
Lack of reasonable suspicion
74
51101/18
Yanmaz v. Turkey
25/10/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
75
51313/18
Olgaç v. Turkey
19/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
76
51577/18
Özdemir v. Turkey
15/10/2018
Lack of reasonable suspicion
77
51602/18
Ahmedali v. Turkey
18/10/2018
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
78
51690/18
Geleken v. Turkey
26/10/2018
Restriction of access to the investigation file
Lack of reasonable suspicion
79
52009/18
Akdoğan v. Turkey
25/10/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
80
52386/18
Kafes v. Turkey
25/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
81
52456/18
Acar v. Turkey
02/11/2018
Length of pre-trial detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
82
52502/18
Fidan v. Turkey
26/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
83
52523/18
Günal v. Turkey
24/10/2018
Length of pre-trial detention
Lack of reasonable suspicion
84
52539/18
Arlı v. Turkey
22/10/2018
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
Failure/Delay to communicate decisions relating to detention
Lack/Difficulties of legal assistance/other facilities
Lack of reasonable suspicion
85
52623/18
Bayram v. Turkey
26/10/2018
Length of pre-trial detention
Restriction of access to the investigation file
Lack of reasonable suspicion
86
52966/18
Çabuk v. Turkey
07/11/2018
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
87
53443/18
Çelik v. Turkey
30/10/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
88
53542/18
Baloğlu v. Turkey
24/10/2018
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
89
53546/18
Suyabatmaz v. Turkey
08/11/2018
Lack of reasonable suspicion
90
53608/18
Kaya v. Turkey
08/11/2018
Lack of reasonable suspicion
91
53772/18
Tetik v. Turkey
31/10/2018
Length of pre-trial detention
Delay in examination by the Constitutional Court
Lack of relevant and sufficient reasons for detention
Lack of reasonable suspicion
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