TURGAY A OSTATNÍ proti Turecku

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Datum rozhodnutí

4.12.2018

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Číslo stížnosti / sp. zn.

34922/10

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SECOND SECTION

DECISION

Application no. 34922/10
Takibe TURGAY against Turkey
and 13 other applications
(see list appended)

The European Court of Human Rights (Second Section), sitting on 4 December 2018 as a Committee composed of:

Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

2. The Turkish Government (“the Government”) were represented by their Agent.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicants were arrested by police officers on suspicion of their membership of a terrorist organisation, namely the KCK (the Kurdistan Communities’ Union). They were detained on remand by the Diyarbakır Assize Court on various dates, as indicated in the appended table.

5. On 9 June 2010 a public prosecutor filed a bill of indictment with the Diyarbakır Assize Court charging the applicants with membership of a terrorist organisation.

6. On different dates between 15 October 2012 and 12 April 2014, the applicants were released pending trial.

7. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court delivered its judgment convicting some of the applicants and acquitting the others of the crimes imputed to them.

COMPLAINTS

8. The applicants complained under Article 5 §§§ 1(c), 2, 3 and 4 of the Convention of the lack of reasonable suspicion, of the failure to inform them about the reasons for their arrests, of the length of their detention on remand, of the lack of access to the investigation files and of the lack of remedies to effectively challenge the lawfulness of the orders for their arrest and detention.

THE LAW

9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

10. The Government maintained that the applicants had not exhausted domestic remedies, as they were still in detention on remand on 23 September 2012 and that they should have exhausted the remedy before the Constitutional Court.

11. The applicants contested this argument.

12. Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Hasan Uzun v. Turkey, (dec.), no. 10755/13, §§ 68-71, 30 April 2013).

13. The Court further notes that the Constitutional Court’s temporal jurisdiction had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had begun before the introduction of the right of individual application and had carried on after that date (Koçintar v. Turkey (dec.), no. 77429/12, § 39, 1 July 2014).

14. In the present case, the applicants’ detention ended after the Constitutional Court’s jurisdiction had begun. Accordingly, the applicants’ detention came within the Constitutional Court’s temporal jurisdiction (see Levent Bektaş v. Turkey, no. 70026/10, §§ 41-44, 16 June 2015). Accordingly, the Court observes that the applicants failed to exhaust this remedy before the Constitutional Court.

15. In view of this finding, the Court considers that there is no need to examine the Government’s remaining preliminary objections.

16. The Court concludes that the application must be rejected for non‑exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible;

Done in English and notified in writing on 17 January 2019.

Hasan Bakırcı Ledi Bianku
Deputy Registrar President

APPENDIX

No.	Application no.	Lodged on	Applicant Date of birth Place of residence	Represented by	Case specific details
	34922/10	5 June 2010	Takibe TURGAY 19/06/1971 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organisation, on 24 December 2009, and was placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court charging the applicant with membership of a terrorist organisation. On 19 February 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court acquitted the applicant of the crimes imputed to her.
	46424/13	5 June 2010	Yaşar SARI 22/09/1964 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organisation on 24 December 2009 and was placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court in respect of the applicant accusing him of his membership of a terrorist organization. On 15 October 2012 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court acquitted the applicant of the crimes imputed to him.
	46429/13	5 June 2010	Nadir BİNGÖL 01/04/1950 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organisation on 24 December 2009 and was placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court accusing the applicant of membership of a terrorist organisation. On 17 June 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court convicted the applicant as charged.
	46431/13	5 June 2010	Muharrem ERBEY 23/06/1969 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organization on 24 December 2009 and was placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court accusing the applicant of membership of a terrorist organisation. On 12 April 2014 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court convicted the applicant as charged.
	46434/13	5 June 2010	Fırat ANLI 06/03/1971 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organization on 24 December 2009 and was placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court accusing the applicant of membership of a terrorist organisation. On 19 February 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court convicted the applicant as charged.
	46436/13	5 June 2010	Ferhan TÜRK 01/08/1951 Mardin	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of his membership of a terrorist organization on 24 December 2009 and was placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court accusing the applicant of membership of a terrorist organisation. On 19 February 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court convicted the applicant as charged.
	46439/13	5 June 2010	Cibrahil KURT 01/11/1969 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of his membership of a terrorist organization on 24 December 2009 and placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court accusing the applicant of membership of a terrorist organisation. On 15 October 2012 the applicant was released On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court convicted the applicant as charged.
	46441/13	5 June 2010	Ali ORUÇ 01/01/1960 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organisation on 19 June 2009 and placed in detention on remand. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court accusing the applicant of membership of a terrorist organisation. On 17 June 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court acquitted the applicant of the crimes imputed to him.
	46460/13	5 June 2010	Bahri ÇEKEN 15/06/1978 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organisation on 17 June 2009 and placed in detention on remand by the Diyarbakır Assize Court on 19 June 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court charging the applicant with membership of a terrorist organisation. On 12 April 2014 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court acquitted the applicant of the crimes imputed to him.
	46499/13	5 June 2010	Hasan ÜNER 20/06/1978 Batman	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organisation on 14 April 2009 and placed in detention on remand by the Diyarbakır Assize Court on 18 April 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court charging the applicant with membership of a terrorist organisation. On 19 February 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court convicted the applicant.
	46501/13	5 June 2010	Arslan ÖZDEMİR 01/09/1965 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of his membership of a terrorist organisation on 14 April 2009 and placed in detention on remand by the Diyarbakır Assize Court on 18 April 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court charging the applicant with membership of a terrorist organisation. On 19 February 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court acquitted the applicant of the crimes imputed to him.
	46506/13	5 June 2010	Hüseyin KALKAN 20/09/1962 Batman	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organisation on 24 December 2009 and placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court charging him with membership of a terrorist organisation. On 19 February 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court convicted the applicant as charged.
	46507/13	5 June 2010	Kazım KURT 13/02/1966 Hakkari	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organization on 24 December 2009 and placed in detention on remand by the Diyarbakır Assize Court on 25 December 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court charging him with membership of a terrorist organisation. On 19 February 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court acquitted the applicant of the crimes imputed to him.
	46514/13	5 June 2010	Ahmet ERTAK 01/01/1965 Diyarbakır	Reyhan YALÇINDAĞ BAYDEMİR	The applicant was arrested by the police on suspicion of membership of a terrorist organisation on 11 September 2009 and placed in detention on remand by the Diyarbakır Assize Court on 14 September 2009 respectively. On 9 June 2010 a bill of indictment was filed with the 4th Chamber of the Diyarbakır Assize Court charging him with membership of a terrorist organisation. On 19 February 2013 the applicant was released. On 27 March 2017 the 2nd Chamber of the Diyarbakır Assize Court convicted the applicant as charged.