Communicated on 3 October 2016
SECOND SECTION
Application no. 67483/12
Osman İŞÇİ and others
against Turkey
lodged on 20 September 2012
SUBJECT MATTER OF THE CASE
The application concerns the alleged unlawfulness of the applicants’ arrest and detention on remand, the alleged excessive length of their pre-trial detention and the alleged absence of effective remedies to challenge the lawfulness of the orders for their detention, within the context of a criminal investigation initiated against them on the charge of membership of a terrorist organisation, i.e. the KCK (the Kurdistan Communities Union) investigation. The first applicant was a member of Eğitim-Sen (the Education and Science Workers’ Union - Eğitim ve Bilim Emekçileri Sendikası), affiliated to the KESK (the Confederation of Public Sector Workers’ Union - Kamu Emekçileri Sendikaları Konfederasyonu) and İHD (Human Rights Association – İnsan Hakları Derneği). The second, third and fourth applicants were members of SES (the Health and Social Service Workers’ Union – Sağlık ve Sosyal Hizmet Emekçileri Sendikası), also affiliated to the KESK (the Confederation of Public Sector Workers’ Union - Kamu Emekçileri Sendikaları Konfederasyonu). The applicants rely on Article 5 §§ 1, 3 and 4 of the Convention.
QUESTIONS tO THE PARTIEs
1. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, did the investigation file (Ankara public prosecutor’s office - no. 2011/1268) contain facts and information which would satisfy an objective observer that the applicants might have committed the alleged offence?
2. Was the length of the applicants’ pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
3. Did the applicants have at their disposal a remedy by which they could challenge the lawfulness of the pre-trial detention orders issued in their respect, as required by Article 5 § 4 of the Convention? In particular,
(a) Was the absence of oral hearings and the applicants’ inability to be represented in the proceedings concerning the applicants’ pre-trial detention in conformity with Article 5 § 4 of the Convention?
(b) Did the decision restricting access to investigation file no. 2011/1268 have a bearing on the applicants’ exercise of the right enshrined in Article 5 § 4 of the Convention?
4. Bearing in mind that the Court is the master of the characterisation to be given in law to the facts of the case (see, for instance, Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015) and having regard to the submissions made on behalf of the first applicant, Mr Osman İşçi (see, in particular, paragraphs 20 and 21 of the application form submitted by Mr M. R. Tiryaki and Ms B. Boran Bulut), has there been a violation of Mr İşçi’s rights under Articles 10 and 11 of the Convention?
The Government are invited to submit a copy of the file of investigation no. 2011/1268 in so far as it concerns the applicants, including all documents relating to the reasons for the applicants’ arrest, detention in police custody and pre-trial detention, as well as the file of the case brought against the applicants and their co-accused.
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