ERSERT v. TÜRKİYE and 42 other applications

  Published on 24 February 2025   SECOND SECTION Application no. 76207/17 Mahmut ERSERT against Türkiye and 42 other applications (see list appended) communicated on 7 February 2025 SUBJECT MATTER OF THE CASE The applications mainly concern the arrest and pre-trial detention of the applicants, who appear to have all been judges or prosecutors at the material time, on suspicion of membership of FETÖ/PDY (an organisation described by the Turkish authorities as “Fetullahist Terror Organisation / Parallel State Structure”), in the aftermath of the attempted coup d’état which took place on 15 July 2016. 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): - They were detained in breach of the procedural guarantees provided in domestic law for the detention of judges and prosecutors; - 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 objecting 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.   Relying on Article 8 of the Convention, two of the applicants also complain that the searches conducted by the authorities in their homes and offices were unlawful. QUESTIONS TO THE PARTIES Case-specific question in respect of the admissibility of the application no. 13735/17 Did the applicant duly exhaust the domestic remedies available to her in respect of her complaints under Articles 5 and 8 of the Convention, within the meaning of Article 35 § 1 of the Convention? On the basis of the complaints communicated in accordance with the list in the Appendix Complaints under Article 5 of the Convention1.  (a)  Did the applicants’ pre-trial detention take place “in accordance with the procedure prescribed by law”, for the purposes of Article 5 § 1 of the Convention, in view of the procedural guarantees provided to judges and prosecutors by the domestic law in respect of their deprivation of liberty (compare Baş v. Turkey, no. 66448/17, §§ 130-62, 3 March 2020)? (b)  Can the applicants be considered to have been detained on the basis of “a reasonable suspicion” that they had committed an offence, for the purposes of Article 5 § 1 (c) of the Convention (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 (see, in particular, Baş, cited above, § 185)?   2.  Was the applicants’ pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular: (a)  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)? (b)  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: (a)  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, cited above, §§ 212-14, and Kocamış and Kurt v. Turkey, no. 227/13, §§ 34-35, 25 January 2022); (b)  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); (c)  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); (d)  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); (e)  they had not had 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); (f)  the time taken by the Constitutional Court to examine their individual applications had been excessive (compare for the relevant principles Kavala v. Turkey, no. 28749/18, §§ 181-84, 10 December 2019).   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 any of the applicant’s complaints? Complaints under Article 8 of the ConventionTaking into consideration the searches carried out by the authorities in certain applicants’ homes and offices (applications nos. 13735/17 and 49095/20), was there an interference with those applicants’ right to respect for their private life and home? If so, was that interference in accordance with the law and necessary in terms of Article 8 of the Convention (compare, for example, Tercan v. Turkey, no. 6158/18, §§ 189-202, 29 June 2021)?     APPENDIX No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by Complaints  76207/17 Ersert v. Türkiye 10/10/2017 Mahmut ERSERT 1969 Ankara Turkish   İsmet ÇELİK Lack of reasonable suspicion Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of hearing during detention review Failure to communicate the prosecutor’s opinion Lack/Difficulties of legal assistance/other facilities  13735/17 Aydın v. Türkiye 11/01/2017 Esra AYDIN 1990 Konya Turkish   Kadir ÖZTÜRK Failure to comply with procedural guarantees under domestic law Lack of reasonable suspicion Unlawful search of home and/or office  72003/17 Gülbay v. Türkiye 20/04/2017 Sinan GÜLBAY 1982 Ankara Turkish   Failure to comply with the procedural guarantees provided for in domestic law Length of pre-trial detention Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file Lack/Difficulties of legal assistance/other facilities  53171/19 Gençoğlu v. Türkiye 14/02/2019 Mehmet GENÇOĞLU 1989 Afyonkarahisar Turkish     Restriction of access to the investigation file Lack of hearing during the detention review Failure to communicate the prosecutor’s opinion Failure/Delay in examining requests for release/objection  53218/19 Ekici v. Türkiye 29/03/2019 Barbaros Hayrettin EKİCİ 1989 Afyonkarahisar Turkish Hacer EKİCİ Failure/Delay in examining requests for release/objection Lack/Difficulties of legal assistance/other facilities  53250/19 Gümüş v. Türkiye 01/08/2019 Mustafa Evren GÜMÜŞ 1981 Antalya Turkish   Delay in examination by the Constitutional Court  53342/19 İren v. Türkiye 24/04/2019 Muzaffer İREN 1974 Bursa Turkish   Lack/Difficulties of legal assistance/other facilities  53347/19 Aras v. Türkiye 24/08/2019 Yunus ARAS 1988 Erzincan Turkish Nimet ARAS Restriction of access to the investigation file  53367/19 Evren v. Türkiye 23/07/2019 Enver EVREN 1977 İzmir Turkish   Lack of hearing during the detention review  62865/19 Özdemir v. Türkiye 01/11/2019 Muzaffer ÖZDEMIR 1968 Istanbul Turkish Seydi Ahmet ÖZDEMİR Length of pre-trial detention Lack of hearing during the detention review Failure to communicate the prosecutor’s opinion Lack/Difficulties of legal assistance/other facilities  63876/19 Aksoy v. Türkiye 04/12/2019 Abdülkadir AKSOY 1953 Ankara Turkish Mehmet Fuat AKSOY Failure to comply with procedural guarantees provided for in domestic law Lack of reasonable suspicion Length of pre-trial detention Lack of relevant and sufficient reasons for detention Failure to communicate the prosecutor’s opinion Delay in examination by the Constitutional Court  64662/19 Reçber v. Türkiye 22/11/2019 Suat REÇBER 1978 Ankara Turkish   Lack of hearing during the detention review Failure/Delay in examining requests for release/objection Failure/Delay to communicate decisions relating to detention  400/20 Çalıkan v. Türkiye 16/07/2019 Abdullah Seçil ÇALIKAN 1985 Istanbul Turkish   Length of pre-trial detention Lack of relevant and sufficient reasons for detention  6907/20 Özkan v. Türkiye 31/12/2019 Mustafa ÖZKAN 1983 Konya Turkish   Lack of hearing during the detention review Delay in examination by the Constitutional Court  7553/20 Ocakhanoğlu v. Türkiye 31/01/2020 Mücahit OCAKHANOĞLU 1989 Denizli Turkish Hüseyin AYGÜN Failure to comply with procedural guarantees under domestic law  10692/20 Demir v. Türkiye 08/04/2019 İlhami DEMİR 1983 Konya Turkish   Length of the pre-trial detention Failure/Delay in examining requests for release/objection Restrictions of access to investigation file Failure/Delay to communicate decisions relating to detention Lack/Difficulties of legal assistance/other facilities  11689/20 Şimşek v. Türkiye 19/11/2019 Adnan ŞİMŞEK 1984 Amasya Turkish   Lack of hearing during the detention review Failure to communicate the prosecutor’s opinion  37786/20 Özmek v. Türkiye 13/08/2020 Murat ÖZMEK 1976 Istanbul Turkish Kadir ÖZTÜRK Failure to comply with procedural guarantees under domestic law Lack of relevant and sufficient reasons for detention Lack of hearing during the detention review Delay in examination by the Constitutional Court  40964/20 Yıldız v. Türkiye 04/09/2020 Ali YILDIZ 1973 Ankara Turkish Başar AVCI Length of pre-trial detention Lack of relevant and sufficient reasons for detention  41240/20 Çetin v. Türkiye 22/06/2020 Yunus ÇETİN 1966 Ankara Turkish Cengiz VAROL Lack of relevant and sufficient reasons for detention Failure/Delay to communicate decisions relating to detention Lack of hearing during the detention review  49095/20 Şanal v. Türkiye 28/10/2020 Osman ŞANAL 1972 Düzce Turkish   Restrictions of access to investigation file Lack of hearing during the detention review Unlawful search of home and/or office  49536/20 Taze v. Türkiye 22/10/2020 Mehmet TAZE 1977 Ankara Turkish   Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of hearing during the detention review  54993/20 Okur v. Türkiye 02/11/2020 İbrahim OKUR 1966 Istanbul Turkish Mehmet ÖNCÜ Lack of hearing during the detention review Failure/Delay in examining requests for release/objection  55330/20 Kılıç v. Türkiye 13/10/2020 Mustafa KILIÇ 1960 Konya Turkish Murat Esat KILIÇ Lack of relevant and sufficient reasons for detention  6869/21 Gündüz v. Türkiye 08/01/2021 Şahinder GÜNDÜZ 1974 Istanbul Turkish Semra BİLİNMEZ Lack of reasonable suspicion Length of pre-trial detention Lack of relevant and sufficient reasons for detention Restrictions of access to investigation file  21316/21 Oğuz v. Türkiye 15/04/2021 Memduh OĞUZ 1948 Istanbul Turkish Özgül AKIN AYDINÖZ Lack of reasonable suspicion Length of pre-trial detention Delay in examination by the Constitutional Court    34293/21 Karayol v. Türkiye 29/06/2021 Muharrem KARAYOL 1968 Istanbul Turkish Zeynep Rana EKİNCİ KOÇ 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 Failure/Delay to communicate decisions relating to detention Failure to communicate the prosecutor’s opinion Lack/Difficulties of legal assistance/other facilities  52104/21 Toksöz v. Türkiye 04/10/2021 Ali TOKSÖZ 1979 Bartın Turkish Gülsevil ÇİFTLER Failure to comply with procedural guarantees provided for in domestic law Lack of reasonable suspicion Length of pre-trial detention  12517/22 Tank v. Türkiye 04/03/2022 Mehmet TANK 1977 Kırıkkale Turkish   Lack of reasonable suspicion Restrictions of access to investigation file Failure/Delay in examining requests for release/objection Lack/Difficulties of legal assistance/other facilities  19958/22 Dinç v. Türkiye 06/04/2022 Ali DİNÇ 1982 Erzincan Turkish Kamile KILDAN Failure to comply with procedural guarantees under domestic law Lack of reasonable suspicion Length of pre-trial detention Lack of relevant and sufficient reasons for detention Restrictions of access to investigation file Lack of hearing during the detention review Failure/Delay in examining requests for release/objection Failure/Delay to communicate decisions relating to detention Delay in examination by the Constitutional Court  25136/22 Sayıldı v. Türkiye 23/03/2022 Yeşim SAYILDI 1972 Ankara Turkish Ahmet Serdar GÜNEŞ Length of pre-trial detention Lack of relevant and sufficient reasons for detention  26297/22 Cevher v. Türkiye 11/05/2022 Dursun Murat CEVHER 1963 Kırıkkale Turkish Behiç Fuat CEVHER Length of the pre-trial detention Lack of relevant and sufficient reasons for detention  42561/22 Öner v. Türkiye 08/08/2022 Hüseyin ÖNER 1978 ANKARA Turkish   Lack of reasonable suspicion Length of pre-trial detention Lack of relevant and sufficient reasons for detention  44282/22 Uygun v. Türkiye 24/08/2022 Zafer UYGUN 1974 Çorum Turkish Ayşe DURMUŞ Lack of reasonable suspicion Length of the 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 Failure to communicate prosecutor’s opinion Lack/Difficulties of legal assistance/other facilities  2220/23 Arı v. Türkiye 05/01/2023 Mehmet ARI 1965 Kırıkkale Turkish Arzu Şeyma ARI Failure to comply with procedural guarantees under domestic law Length of pre-trial detention Lack of relevant and sufficient reasons for detention Restrictions of access to investigation file Lack of hearing during the detention review Lack/Difficulties of legal assistance/other facilities  5091/23 Yıldız v. Türkiye 20/01/2023 İrfan YILDIZ 1973 Kayseri Turkish Zehra KARAKULAK BOZDAĞ Failure to comply with procedural guarantees provided for in domestic law Lack of reasonable suspicion 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  11388/23 Aydın v. Türkiye 22/02/2023 Önal AYDIN 1974 Denizli Turkish Ahmet ÇAVUŞ Lack of reasonable suspicion  13382/23 Şahin v. Türkiye 08/03/2023 Remzi ŞAHİN 1978 Ankara Turkish Levent KOCAMAN Lack of reasonable suspicion Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of hearing during the detention review Failure to communicate prosecutor’s opinion  24383/23 Dinçer v. Türkiye 09/06/2023 Ekrem DİNÇER 1968 Istanbul Turkish Mehmet MİRZA Failure to comply with procedural guarantees provided for in domestic law Lack of reasonable suspicion  27427/23 Aliusta v. Türkiye 05/07/2023 İbrahim ALİUSTA 1966 Ankara Turkish Cahit ALİUSTA Failure to comply with procedural guarantees provided for in domestic law Lack of reasonable suspicion  35826/23 Ceyhan v. Türkiye 12/09/2023 İlhami CEYHAN 1974 Denizli Turkish   Failure to comply with procedural guarantees provided for in domestic law Lack of reasonable suspicion Length of pre-trial detention Lack of examination of release requests by appeal courts  40538/23 Kaplan v. Türkiye 03/11/2023 Hüseyin KAPLAN 1971 Istanbul Turkish Fatma ALBAYRAK Failure to comply with procedural guarantees provided for in domestic law Lack of reasonable suspicion Lack of hearing during the detention review  7044/24 Çelik v. Türkiye 06/06/2018 Bahattin ÇELİK 1980 Asker Turkish   Failure to comply with procedural guarantees under domestic law Lack of reasonable suspicion Lack/Difficulties of legal assistance/other facilities