Přehled
Rozsudek
SECOND SECTION
CASE OF GÜNGÖR AND OTHERS v. TÜRKİYE
(Applications nos. 59639/17 and 81 others - see list appended)
JUDGMENT
STRASBOURG
13 December 2022
This judgment is final but it may be subject to editorial revision.
In the case of Güngör and Others v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the applications against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eighty-two Turkish nationals, whose relevant details are listed in the appended table (“the applicants”), on the various dates indicated therein;
the decision to give notice of the complaints concerning the lawfulness and length of pre-trial detention, the lack of information on the reasons for arrest, and the alleged lack of reasonable suspicion regarding the commission of an offence, as well as the ineffectiveness of judicial review of the lawfulness of detention and the absence of a remedy to obtain compensation to the Turkish Government (“the Government”) represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the applications;
the parties’ observations;
the decision to reject the Government’s objection to the examination of the applications by a Committee;
Having deliberated in private on 22 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The present applications mainly concern the arrest and pre-trial detention of the applicants in the aftermath of the coup attempt of 15 July 2016, on suspicion of their membership of an organisation described by the Turkish authorities as the “Fetullahist Terror Organisation / Parallel State Structure” (hereinafter referred to as the “FETÖ/PDY”), which was considered by the authorities to be behind the coup attempt (further information regarding the events that unfolded after the coup attempt, including the details of the state of emergency declared by the respondent Government and the ensuing notice of derogation given to the Secretary General of the Council of Europe, as well as the legislative developments that followed the declaration of the state of emergency, may be found in the case of Baş v. Turkey, no. 66448/17, §§ 6-14 and §§ 109-110, 3 March 2020). All of the applicants were sitting as judges or prosecutors at different types and/or levels of court, at the material time, with the exception of sixteen applicants (namely, the applicants in applications nos. 66697/17, 70801/17, 76280/17, 1562/18, 2391/19, 5147/19, 14698/19, 15725/19, 26873/19, 36808/19, 39250/19, 39722/19, 40264/19, 40515/19, 41848/19 and 47694/19), who were former judges or prosecutors.
2. On 16 July 2016 the Ankara chief public prosecutor’s office initiated a criminal investigation into, inter alios, the suspected members of FETÖ/PDY within the judiciary. On various dates, the applicants were arrested and placed in pre-trial detention, mainly on suspicion of membership of the FETÖ/PDY, an offence punishable under Article 314 of the Criminal Code (see Baş, cited above, § 58). The detention orders relied principally on the nature of the alleged offence, the state of the evidence and the potential sentence. It was also noted that investigations into the coup attempt were being conducted across the country, that statements had not yet been taken from all suspects and that the alleged offence was among the “catalogue” offences listed in Article 100 § 3 of the Code of Criminal Procedure (CCP) (for the text of Article 100 of the CCP, as relevant, see Baş, cited above, § 61). While there was no express mention in the detention orders, it appears from the information and documents in the files that some of the applicants had been suspended from their duties as judges or prosecutors, or their authorities revoked, prior to their detention on grounds of their membership of the organisation that was considered to have instigated the attempted coup (see Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 13-16, 23 November 2021 for further details on the suspension procedure), or that some of them had been identified as users of the ByLock messaging system. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed an offence, were dismissed, including by the Constitutional Court.
3. According to the latest information provided by the parties, most of the applicants were convicted of membership of a terrorist organisation by the first instance courts, and a few were acquitted. It appears that, for the most part, the appeal proceedings are still pending.
THE COURT’S ASSESSMENT
- JOINDER OF THE APPLICATIONS
4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
- ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
5. The applicants complained that there had been no specific evidence giving rise to a reasonable suspicion, within the meaning of Article 5 § 1 (c) of the Convention, that they had committed a criminal offence necessitating pre-trial detention.
6. The Government urged the Court to declare this complaint inadmissible in respect of the applicants who had not made use of the compensatory remedy under Article 141 of the Code of Criminal Procedure, as well as the applicants who had received some compensation or whose compensation claims were still pending. They further asked the Court to declare the applications inadmissible for abuse of the right of application to the extent that the applicants had not informed the Court of the developments in their cases following the lodging of their applications.
7. The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, Baş, cited above, §§ 118-121, and Turan and Others, cited above, §§ 57-64), and sees no reason to depart from those findings in the present case. The Court therefore considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
8. The Court notes that, when ordering the applicants’ initial pre-trial detention, the magistrate’s courts sought to justify their decisions solely by making a general reference to Article 100 of the CCP and the potential sentence, as well as to “the evidence in the file”. However, in doing so, they simply cited the wording of the provision in question, without actually specifying what the evidence in question entailed and why it constituted a reasonable suspicion that the applicant had committed the offence in question. The Court refers in this connection to its findings in the judgment of Baş (cited above, §§ 190-195), according to which the vague and general references to the wording of Article 100 of the CCP and to the evidence in the file cannot be regarded as sufficient to justify the “reasonableness” of the suspicion on which the applicants’ detention was supposed to have been based, in the absence either of a specific assessment of the individual items of evidence in the file, or of any information available in the file at the material time that could have justified the suspicion against the applicants, or of any other kinds of verifiable material or facts. To the extent that the detention orders may have taken into account the applicants’ suspension from judicial office or their alleged use of the ByLock messaging system, the Court notes that it has already found that neither of those grounds was of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to the applicants (compare Baş, cited above, §§ 170-195, and Akgün v. Turkey, no. 19699/18, §§ 151-185, 20 July 2021). The Court also notes that as regards some of the applicants, the Government have referred to the existence of witness statements justifying the measures in question. It observes, however, that there are no statements in the case files referring to concrete and specific facts that may have given rise to a reasonable suspicion against the applicants concerned at the material time.
9. Since the Government have not provided any other indications, “facts” or “information” capable of satisfying it that the applicants were “reasonably suspected”, at the time of their initial detention, of having committed the alleged offence, the Court finds that the requirements of Article 5 § 1 (c) regarding the “reasonableness” of a suspicion justifying detention have not been satisfied (compare Baş, cited above, § 195). It moreover considers that while the applicants were detained a short time after the coup attempt – that is, the event that prompted the declaration of the state of emergency and the notice of derogation by Türkiye –, which is undoubtedly a contextual factor that should be fully taken into account in interpreting and applying Article 5 of the Convention in the present case, the measure at issue cannot be said to have been strictly required by the exigencies of the situation (compare Baş, cited above, §§ 115-116 and §§ 196-201). It therefore concludes that there has been a violation of Article 5 § 1 of the Convention.
- OTHER COMPLAINTS
10. As regards any remaining complaints under Article 5 §§ 1, 2, 3, 4 and 5, the Court decides not to examine them, in view of its findings under Article 5 § 1 above and its considerations in the case of Turan and Others (cited above, § 98).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
11. The applicants requested compensation in varying amounts in respect of non‑pecuniary damage. Most of the applicants also claimed pecuniary damage, corresponding mainly to their loss of earnings resulting from their dismissal, as well as the legal costs and expenses incurred before the domestic courts and the Court.
12. The Government contested the applicants’ claims as being unsubstantiated and excessive.
13. For the reasons put forth in Turan and Others (cited above, §§ 102-107), the Court rejects any claims for pecuniary damage and awards each of the applicants a lump sum of 5,000 euros (EUR), covering non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
- Decides to join the applications;
- Declares the complaint under Article 5 § 1 of the Convention, concerning the alleged lack of reasonable suspicion at the time of the applicants’ initial pre-trial detention, that they had committed an offence, admissible;
- Holds that there has been a violation of Article 5 § 1 of the Convention on account of the lack of reasonable suspicion, at the time of the applicants’ initial pre-trial detention, that they had committed an offence;
- Holds that there is no need to examine the admissibility and merits of the applicants’ remaining complaints under Article 5 of the Convention;
- Holds
(a) that the respondent State is to pay each of the applicants, within three months, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on this amount, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 13 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President
APPENDIX
List of cases:
No. | Application no. | Case name | Lodged on | Applicant | Represented by | Applicant’s status at the time of pre-trial detention |
59639/17 | Güngör v. Türkiye | 10/02/2017 | Murat GÜNGÖR | Yaşar GÜNGÖR | Ordinary judge or public prosecutor | |
60999/17 | Bostan v. Türkiye | 01/08/2017 | Özenç BOSTAN | Utku Coşkuner SAKARYA | Ordinary judge or public prosecutor | |
62224/17 | Kanmaz v. Türkiye | 18/04/2017 | Ahmet KANMAZ | Nilgün ARI | Ordinary judge or public prosecutor | |
63794/17 | Çalışır v. Türkiye | 31/07/2017 | Mehmet ÇALIŞIR | Emre AKARYILDIZ | Ordinary judge or public prosecutor | |
66697/17 | Sarıoğlu v. Türkiye | 18/05/2017 | Refik SARIOĞLU | Ebubekir RENK | Former judge or public prosecutor | |
70801/17 | Arslanoğlu v. Türkiye | 18/08/2017 | Ertuğrul ARSLANOĞLU | Uğur ALTUN | Former judge or public prosecutor | |
71298/17 | Gündoğdu v. Türkiye | 15/09/2017 | Fatih GÜNDOĞDU | İbrahim KARANFİL | Ordinary judge or public prosecutor | |
71506/17 | B.O. v. Türkiye | 17/07/2017 | Bülent OLCAY | Tarık OLCAY | High Court judge | |
74818/17 | Bağcı v. Türkiye | 11/10/2017 | Mehmet BAĞCI | Hamza AKKAYA | Ordinary judge or public prosecutor | |
76280/17 | Erkan v. Türkiye | 29/09/2017 | Fikret ERKAN 10/09/1971 | Metin BOZKURT | Former judge or public prosecutor | |
79060/17 | Oktar v. Türkiye | 14/04/2017 | Serdar OKTAR | Zülküf ARSLAN | Ordinary judge or public prosecutor | |
79074/17 | Durmaz v. Türkiye | 11/04/2017 | Murat DURMAZ | Nilgün ARI | Ordinary judge or public prosecutor | |
79801/17 | Büyükgümüş v. Türkiye | 01/11/2017 | İsmail BÜYÜKGÜMÜŞ | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
79845/17 | Köseoğlu v. Türkiye | 24/10/2017 | Muhammet Sacit KÖSEOĞLU 01/08/1989 | Nevzat AKBİLEK | Ordinary judge or public prosecutor | |
81822/17 | Karayol v. Türkiye | 06/11/2017 | Muharrem KARAYOL | Hüseyin AYGÜN | High Court judge | |
81859/17 | Eray v. Türkiye | 24/10/2017 | Gürtekin ERAY | Hüseyin AYGÜN | High Court judge | |
84141/17 | Akkaya v. Türkiye | 16/11/2017 | Hamza AKKAYA | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
84149/17 | Torlak v. Türkiye | 16/11/2017 | Ergün TORLAK | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
84615/17 | Kurt v. Türkiye | 13/11/2017 | İbrahim KURT | Yücel ALKAN | High Court judge | |
84630/17 | Çolak v. Türkiye | 22/11/2017 | Mehmet ÇOLAK | Adem KAPLAN | Ordinary judge or public prosecutor | |
123/18 | Beyhan v. Türkiye | 06/12/2017 | Metin BEYHAN | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
126/18 | Tanin v. Türkiye | 06/12/2017 | Necdet TANIN | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
1210/18 | Sarıçam v. Türkiye | 07/12/2017 | Mustafa SARIÇAM | Hüseyin AYGÜN | High Court judge | |
1556/18 | Demir v. Türkiye | 06/12/2017 | Serkan DEMİR | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
1562/18 | Şahin v. Türkiye | 06/11/2017 | Ali ŞAHİN | Hüseyin AYGÜN | Former judge or public prosecutor | |
4018/18 | Kulaç v. Türkiye | 06/12/2017 | Hüseyin KULAÇ | Hüseyin AYGÜN | High Court judge | |
6246/18 | Kılıç v. Türkiye | 22/01/2018 | Lokman KILIÇ | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
7225/18 | Karahan v. Türkiye | 26/01/2018 | Nadir KARAHAN | Utku Coşkuner SAKARYA | Ordinary judge or public prosecutor | |
9899/18 | Okumuş v. Türkiye | 30/01/2018 | İsmail OKUMUŞ | İrem TATLIDEDE | Ordinary judge or public prosecutor | |
17915/18 | Gözlüpınar v. Türkiye | 07/04/2018 | Mustafa GÖZLÜPINAR 07/02/1989 | Ordinary judge or public prosecutor | ||
22248/18 | İskenderoğlu v. Türkiye | 30/04/2018 | Halil İbrahim İSKENDEROĞLU | Mehmet Fatih İÇER | Ordinary judge or public prosecutor | |
23041/18 | Nacak v. Türkiye | 02/05/2018 | İsmail NACAK | Zülal ÜNSAL | Ordinary judge or public prosecutor | |
37684/18 | Eker v. Türkiye | 30/07/2018 | Muhammet Ali Osman EKER | Mustafa Lutfi EKER | Ordinary judge or public prosecutor | |
39688/18 | Parlak v. Türkiye | 16/08/2018 | Asye PARLAK | Mehtap KAMALAK GÖKKAYA | Ordinary judge or public prosecutor | |
40142/18 | Şahin v. Türkiye | 08/08/2018 | Hüseyin ŞAHİN | Emre AKARYILDIZ | Ordinary judge or public prosecutor | |
40478/18 | Bayraktar v. Türkiye | 01/08/2018 | Yusuf BAYRAKTAR | Yaşar GÜNGÖR | Ordinary judge or public prosecutor | |
43089/18 | Sönmez v. Türkiye | 07/08/2018 | Salih SÖNMEZ | Hüseyin AYGÜN | High Court judge | |
47383/18 | Doğru v. Türkiye | 26/09/2018 | Nurettin DOĞRU | Mehmet Fatih İÇER | Ordinary judge or public prosecutor | |
50440/18 | Birsen v. Türkiye | 03/10/2018 | Derya BİRSEN | İshak IŞIK | Ordinary judge or public prosecutor | |
749/19 | Teke v. Türkiye | 06/12/2018 | Huriye TEKE | Sultan TEKE SOYDİNÇ | Ordinary judge or public prosecutor | |
897/19 | Telli v. Türkiye | 29/11/2018 | Kutlay TELLİ | İhsan MAKAS | Ordinary judge or public prosecutor | |
1206/19 | Yıldırım v. Türkiye | 04/12/2018 | Asım YILDIRIM | Okan GÜNEL | Ordinary judge or public prosecutor | |
2391/19 | Doğan v. Türkiye | 29/11/2018 | Zihni DOĞAN | Adem KAPLAN | Former judge or public prosecutor | |
4305/19 | Şanlı v. Türkiye | 25/12/2018 | Uğur ŞANLI | Zülküf ARSLAN | Ordinary judge or public prosecutor | |
4349/19 | Hızarcıoğlu v. Türkiye | 07/01/2019 | Burak HIZARCIOĞLU | Sinan Kamil KÜÇÜKOĞLU | Ordinary judge or public prosecutor | |
5147/19 | Beleç v. Türkiye | 07/01/2019 | Mehmet BELEÇ | Zafer İRAZ | Former judge or public prosecutor | |
5975/19 | Asiltürk v. Türkiye | 09/01/2019 | Murat ASİLTÜRK | Cahit ÇİFTÇİ | Ordinary judge or public prosecutor | |
7354/19 | Turanlı v. Türkiye | 24/01/2019 | Zafer TURANLI | Şentürk DURSUN | High Court judge | |
8060/19 | Kara v. Türkiye | 23/01/2019 | Fuat KARA | Burhan Temel ÇINAR | Ordinary judge or public prosecutor | |
9308/19 | Türk v. Türkiye | 05/02/2019 | Murat TÜRK | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
9689/19 | Günenç v. Türkiye | 05/02/2019 | İbrahim GÜNENÇ | Hüseyin AYGÜN | Ordinary judge or public prosecutor | |
11902/19 | Kılıç v. Türkiye | 26/02/2019 | Mustafa KILIÇ | Hüseyin AYGÜN | High Court judge | |
14698/19 | Noyan v. Türkiye | 08/03/2019 | Erdal NOYAN | Muhammet GÜNEY | Former judge or public prosecutor | |
15725/19 | Sarı v. Türkiye | 08/03/2019 | Eyüp SARI 25/10/1989 | Nilgün ARI | Former judge or public prosecutor | |
18886/19 | Bedirhan v. Türkiye | 22/03/2019 | Kamuran BEDİRHAN 01/09/1988 | Hamza AKKAYA | Ordinary judge or public prosecutor | |
19590/19 | Çelik v. Türkiye | 27/03/2019 | Arif ÇELİK 27/08/1990 | Ordinary judge or public prosecutor | ||
21593/19 | Karaşlar v. Türkiye | 10/04/2019 | Ahmet Bahaddin KARAŞLAR 04/11/1977 | İrem TATLIDEDE | Ordinary judge or public prosecutor | |
23701/19 | Çeken v. Türkiye | 10/04/2019 | Mesut ÇEKEN 24/10/1975 | Elif Nurbanu OR | Ordinary judge or public prosecutor | |
26422/19 | Çamlıbel v. Türkiye | 29/04/2019 | Hasan ÇAMLIBEL 06/02/1979 | Ordinary judge or public prosecutor | ||
26873/19 | Gençler v. Türkiye | 30/04/2019 | Bayram GENÇLER 10/05/1976 | Tufan YILMAZ | Former judge or public prosecutor | |
28238/19 | Keskin v. Türkiye | 06/05/2019 | İbrahim KESKİN 20/01/1978 | Zeynep ŞEN KARAKUŞ | Ordinary judge or public prosecutor | |
28246/19 | Özyiğit v. Türkiye | 07/05/2019 | Mehmet ÖZYİĞİT 22/12/1979 | Helin MENTEŞE | Ordinary judge or public prosecutor | |
29327/19 | Sakmak v. Türkiye | 10/05/2019 | Hakan SAKMAK 26/05/1970 | Hülya SARSICIOĞLU | Ordinary judge or public prosecutor | |
30415/19 | Bayazan v. Türkiye | 20/05/2019 | Erdal BAYAZAN 01/01/1988 | Dudu ERTUNÇ | Ordinary judge or public prosecutor | |
30521/19 | Akkuş v. Türkiye | 18/05/2019 | Mustafa AKKUŞ | İsmail Safa AKKUŞ | Ordinary judge or public prosecutor | |
34672/19 | Çabas v. Türkiye | 31/05/2019 | Mustafa ÇABAS | Halil İbrahim KEBEŞOĞLU | Ordinary judge or public prosecutor | |
34904/19 | Çelik v. Türkiye | 21/06/2019 | Akif ÇELİK 19/05/1978 | Ordinary judge or public prosecutor | ||
34922/19 | Hadimli v. Türkiye | 21/06/2019 | Uğur HADİMLİ 25/06/1967 | Serkan CENGİZ | Ordinary judge or public prosecutor | |
36808/19 | Akdoğan v. Türkiye | 02/07/2019 | Sinan AKDOĞAN 10/03/1973 | Former judge or public prosecutor | ||
36987/19 | Ergün v. Türkiye | 31/05/2019 | İsmail ERGÜN | Ömer Faruk ERGÜN | High Court judge | |
37348/19 | Bulut v. Türkiye | 04/07/2019 | Atilla BULUT | Ordinary judge or public prosecutor | ||
38924/19 | Karadeniz v. Türkiye | 11/07/2019 | Mustafa KARADENİZ 01/01/1986 | Sefanur BOZGÖZ | Ordinary judge or public prosecutor | |
39250/19 | Özaykut v. Türkiye | 19/06/2019 | Salih ÖZAYKUT | Hüseyin AYGÜN | Former judge or public prosecutor | |
39722/19 | Halitoğlu v. Türkiye | 31/05/2019 | Coşkun HALİTOĞLU 23/09/1973 | Cesim PARLAK | Former judge or public prosecutor | |
40264/19 | Yılmaz v. Türkiye | 25/07/2019 | Halil YILMAZ | İhsan MAKAS | Former judge or public prosecutor | |
40515/19 | Sarıgedik v. Türkiye | 19/07/2019 | Mustafa SARIGEDİK 01/10/1973 | Mehmet MİRZA | Former judge or public prosecutor | |
41848/19 | Tabakcı v. Türkiye | 29/07/2019 | Ayşegül TABAKCI 30/12/1986 | Former judge or public prosecutor | ||
41850/19 | Canbaz v. Türkiye | 23/07/2019 | Hüseyin CANBAZ | Ordinary judge or public prosecutor | ||
44467/19 | Oğuz v. Türkiye | 04/07/2019 | Hüseyin OĞUZ | Hilal YILMAZ PUSAT | High Court judge | |
47694/19 | Aydoğan v. Türkiye | 15/08/2019 | Abdulkadir AYDOĞAN | Ayşe Sümeyye BEKLEYEN | Former judge or public prosecutor | |
3517/20 | Kılınç v. Türkiye | 10/01/2020 | Bülent KILINÇ | Hüseyin AYGÜN | High Court judge | |
5565/20 | Yılmaz v. Türkiye | 09/01/2020 | Şükrü Emrah YILMAZ | Ordinary judge or public prosecutor |