Published on 11 December 2023
SECOND SECTION
Application no. 12589/18
İlhan KARASU against Türkiye
and 61 other applications
(see list appended)
communicated on 24 November 2023
SUBJECT MATTER OF THE CASE
The applications mainly concern the arrest and pre-trial detention of the applicants, on suspicion of being involved in the attempted coup d’état that took place on 15 July 2016 and membership of an organisation described by the Turkish authorities as FETÖ/PDY (“Fetullahist Terror Organisation/Parallel State Structure”). At the material time, most of the applicants were serving in the army as senior army officers, field officers or private soldiers. Some of the applicants were serving or former police officers.
Relying on Article 5 of the Convention, the applicants raise the following complaints (see the appended table for detailed information as to the specific complaints raised by each applicant):
- 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 restricted and monitored by the prison authorities;
- The time taken by the Constitutional Court to conduct its examination of their individual applications was excessive.
QUESTIONS TO THE PARTIES
On the basis of the complaints communicated in accordance with the list in the Appendix
Complaints under Article 5 of the Convention
1. (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)?
(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, 5 July 2016)?
(ii) Was the length of the applicants’ pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?
2. (a) 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 the 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; (iii) the lack of or delay in the examination of the objection against detention by the magistrates’ courts (compare, for example, Hebat Aslan and Firas Aslan v. Turkey, no. 15048/09, §§ 92-93, 28 October 2014).
(b) Did the applicants have at their disposal a 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 (see, in particular, Baş v. Turkey, no. 66448/17, §§ 212-214, 3 March 2020, and Kocamış and Kurt v. Turkey, no. 227/13, §§ 34-35, 25 January 2022);
(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 (see, inter alia, Ceviz v. Turkey, no. 8140/08, § 41, 17 July 2012);
(iii) their objections to their detention had not been examined or had been examined belatedly (see, for example, Shannon v. Latvia, no. 32214/03, §§ 67-74, 24 November 2009);
(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 (compare, for example, Voskuil v. the Netherlands, no. 64752/01, § 83, 22 November 2007);
(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 restricted and monitored (see, mutatis mutandis, Černák v. Slovakia, no. 36997/08, § 78, 17 December 2013);
(vi) the time taken by the Constitutional Court to examine their individual applications had been protracted (compare for the principles Kavala v. Turkey, no. 28749/18, §§ 181-184, 10 December 2019).
APPENDIX
List of applications
No
Application no.
Case title
Complaints
1.
12589/18
Karasu v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
2.
39026/18
Acar v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
3.
45069/18
Bakar v. Türkiye
Lack of relevant and sufficient reasons for detention
Restriction of access to the investigation file
4.
13107/19
Duğan v. Türkiye
Failure to communicate the prosecutor’s opinion
5.
23833/20
Göktürk v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
6.
36524/20
Köymen v. Türkiye
Restriction of access to the investigation file
Failure/delay in communicating decisions relating to detention
Failure to communicate the prosecutor’s opinion
Lack/difficulties of legal assistance/other facilities Delay in examination by the Constitutional Court
7.
37256/20
Haksal v. Türkiye
Length of pre-trial detention
Delay in examination by the Constitutional Court
8.
40085/20
Kukut v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
9.
40650/20
Özşahin v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
10.
40978/20
Yapıcı v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
11.
46463/20
Aydemir v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
12.
48317/20
Çetin v. Türkiye
Length of pre-trial detention
Lack of hearing during the detention review
Failure to communicate the prosecutor’s opinion
13.
48479/20
Göçmen v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
14.
50039/20
Turğan v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
15.
50144/20
Demir v. Türkiye
Lack of hearing during the detention review
Lack of relevant and sufficient reasons for detention
16.
50670/20
Ortaç v. Türkiye
Length of pre-trial detention
Failure/delay in communicating decisions relating to detention
Failure to communicate the prosecutor’s opinion
17.
53955/20
Koçyiğit v. Türkiye
Lack of hearing during the detention review
18.
55168/20
Yıldız v. Türkiye
Length of pre-trial detention
Delay in examination by the Constitutional Court
19.
2/21
Demirtürk v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
20.
202/21
Kabaklı v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
21.
959/21
Karlıdağ v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Failure/delay in communicating decisions relating to detention
22.
2372/21
Bülbül v. Türkiye
Lack of relevant and sufficient reasons for detention
23.
3103/21
Başpınar v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
24.
3282/21
Erkalkan v. Türkiye
Length of pre-trial detention
Lack of hearing during the detention review
Failure/delay in examining requests for release/objection
25.
3585/21
Yeniay v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
26.
4942/21
Taşkın v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Failure/delay in examining requests for release/objection
27.
5391/21
Okul v. Türkiye
Lack of relevant and sufficient reasons for detention Failure/delay in examining requests for release/objection
28.
6573/21
Ergin v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Lack of hearing during the detention review
29.
11073/21
Kürklü v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Failure/delay in examining requests for release/objection
30.
11258/21
Çiçek v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Lack of hearing during the detention review
31.
11751/21
Palalı v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Failure/delay in examining requests for release/objection
Failure to communicate the prosecutor’s opinion
32.
12038/21
Toygar v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
33.
13528/21
Nozoğlu v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file
Lack of hearing during the detention review
Failure/delay in examining requests for release/objection
Lack/difficulties of legal assistance/other facilities
Failure/delay in communicating decisions relating to detention
34.
13689/21
Kubatoğlu v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
35.
14597/21
Vardar v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Failure/delay in communicating decisions relating to detention
36.
15031/21
Açıkgöz v. Türkiye
Length of pre-trial detention
Restriction of access to the investigation file
37.
15949/21
Hamzaçebi v. Türkiye
Lack of relevant and sufficient reasons for detention Lack/difficulties of legal assistance/other facilities
38.
20137/21
Kahveci v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
39.
20841/21
Köse v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
40.
24071/21
Anaz v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
41.
26093/21
Aydoğdu v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
42.
26142/21
Akbal v. Türkiye
Lack of relevant and sufficient reasons for detention Failure/delay in examining requests for release/objection
43.
27484/21
Güney v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
44.
27775/21
Özcan v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Failure/delay in communicating decisions relating to detention
45.
27949/21
Demirkale v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
46.
28972/21
Yıldırım v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Lack of hearing during the detention review
47.
31048/21
Çayırlı v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
48.
31274/21
Akbulut v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file
Lack of hearing during the detention review
Lack/difficulties of legal assistance/other facilities
49.
37159/21
Gündüz v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of hearing during the detention review
50.
42324/21
Muzafferiyet v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of hearing during the detention review
51.
42866/21
Yozgat v. Türkiye
Lack of relevant and sufficient reasons for detention
52.
42878/21
Gökçe v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file
Lack of hearing during the detention review
53.
43401/21
Avşar v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
54.
44034/21
Ordu v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
55.
44179/21
Ercan v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
56.
47799/21
Kılıç v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Restriction of access to the investigation file
Lack of hearing during the detention review
Failure to communicate the prosecutor’s opinion
Lack/difficulties of legal assistance/other facilities
Delay in examination by the Constitutional Court
57.
293/22
Gür v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Failure/delay in examining requests for release/objection
58.
7843/22
Yılmaz v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
59.
8014/22
Tulgar v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Lack of hearing during the detention review Failure/delay in examining requests for release/objection
60.
13614/2
Cömert v. Türkiye
Lack of relevant and sufficient reasons for detention Failure/delay in examining requests for release/objection
61.
19675/22
Muratoğlu v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
62.
20852/22
Yıldız v. Türkiye
Length of pre-trial detention
Lack of relevant and sufficient reasons for detention
Restriction of access to the investigation file
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