BUDAK A OSTATNÍ proti Turecku

SECOND SECTION

CASE OF BUDAK AND OTHERS v. TÜRKİYE

(Applications nos. 26831/17 and 93 others –

see appended list)

JUDGMENT

STRASBOURG

14 October 2025

This judgment is final but it may be subject to editorial revision.

In the case of Budak and Others v. Türkiye,

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

Jovan Ilievski, President,
Péter Paczolay,
Juha Lavapuro, 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints under Article 5 of the Convention concerning the alleged lack of reasonable suspicion regarding the commission of an offence, the alleged lack of relevant and sufficient reasons when ordering and extending pre-trial detention, the length of pre-trial detention and the ineffectiveness of the judicial review of the lawfulness of the detention to the Turkish Government (“the Government”), represented by their then Agent, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare the remainder of the applications inadmissible;

the parties’ observations;

the decision to dismiss the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 23 September 2025,

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 attempted coup d’état 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” (Fetullahçı Terör Örgütü/Paralel Devlet Yapılanması –hereinafter referred to as “FETÖ/PDY”), which was considered by the authorities to be behind the attempted coup d’état (for further background information, see Akgün v. Turkey, no. 19699/18, §§ 3‑9, and §§ 106‑07, 20 July 2021).

2. On various dates the applicants were arrested and placed in pre‑trial detention, mainly on suspicion of membership of FETÖ/PDY, an offence punishable under Article 314 of the Criminal Code (see Baş v. Turkey, no. 66448/17, § 58, 3 March 2020). The competent judicial authorities dismissed objections raised by the applicants against their detention.

3. On various dates in the course of the ensuing criminal investigations and trials, the competent judicial authorities ordered the applicants’ continued detention.

4. It appears from the information and documents in the case files that, when ordering and extending the applicants’ pre‑trial detention, the competent judicial authorities relied on various evidential grounds, including but not limited to: (a) using the ByLock encrypted messaging application; (b) provision of financial support to FETÖ/PDY in view of their use of accounts with Bank Asya, a bank with alleged ties to FETÖ/PDY; (c) provision of financial support, the details and nature of which were not provided, to FETÖ/PDY or to institutions with ties to FETÖ/PDY; (d) sharing social media posts or participating in protests in support of FETÖ/PDY; (e) possession of pro‑FETÖ/PDY publications; (f) having regular telephone contact with FETÖ/PDY suspects; (g) working in or being a member of institutions with ties with the organisation in question or an organisation shut down by the state‑of‑emergency legislative decrees; (h) suspension or dismissal from office; (i) possessing United States one‑dollar banknotes with an “F” serial number; (j) travelling abroad with FETÖ/PDY suspects; (k) enrolling their children in an educational institution allegedly affiliated with FETÖ/PDY; (l) attending or holding meetings (sohbet), the dates, nature or characteristics of which were not specified; (m) staying in FETÖ/PDY residences; (n) witness statements indicating ties with FETÖ/PDY; and (o) carrying out various other activities on the orders of the organisation.

5. It further appears from the case files that, in accordance with Articles 100 and 101 of the Code of Criminal Procedure (see Kavala v. Turkey, no. 28749/18, §§ 71-72, 10 December 2019, for the text of those provisions), the competent judicial authorities justified their decisions to deprive the applicants of their liberty not only on the basis of the existence of reasonable suspicion, but also on the grounds of the nature and the severity of the alleged offence of membership of an armed terrorist organisation and the fact that that offence was among the “catalogue” offences listed in Article 100 § 3 of the Code of Criminal Procedure. Without making an individualised assessment, they also relied on the state of the evidence and the risk of the applicants’ absconding and tampering with evidence, and considered that detention would be a proportionate measure in the circumstances.

6. In the meantime, the applicants lodged one or more individual applications with the Constitutional Court in respect of the detention orders, alleging, inter alia, a lack of reasonable suspicion that they had committed an offence and a lack of reasons to justify the decision to remand them in pre‑trial detention. All of their applications were declared inadmissible by the Constitutional Court.

7. According to the latest information provided by the parties, most of the applicants were convicted of membership of an armed terrorist organisation by the courts of first instance on the basis of evidence that was present at the time of their detention or that appeared at a later stage in the proceedings. It further appears that some of the criminal proceedings are still pending before the appellate courts or the Constitutional Court.

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

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

2. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

9. 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, in particular, their initial pre-trial detention.

10. 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, or whose compensation claims were still pending. They further asked the Court to declare the applications inadmissible as being an abuse of the right of application, in so far as the applicants had not informed the Court of the developments in their cases following the lodging of their applications.

11. The Court notes that similar objections raised by the Government have already been dismissed in other cases against Türkiye (see, for instance, Baş, cited above, §§ 118-21, and Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 57-64, 23 November 2021), 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, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

12. The Court notes that the applicants’ initial pre‑trial detention was mainly based on evidence of their (a) use of the ByLock messaging application; (b) banking activities considered as financing FETÖ/PDY; (c) sharing of social media posts or participation in protests in favour of FETÖ/PDY; (d) possession of certain pro‑FETÖ/PDY publications; (e) regular telephone or other contact with FETÖ/PDY suspects; (f) employment by and/or membership of FETÖ/PDY-affiliated institutions and organisations; (g) suspension or dismissal from office; and (h) possession of United States one‑dollar banknotes with an “F” serial number.

13. To the extent that the detention orders took into account the applicants’ alleged use of the ByLock messaging application, the Court notes that it has already found that the mere use of ByLock was not sufficient to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention in respect of the offence with which the applicants were charged (see Akgün, cited above, §§ 151-85, 20 July 2021, and Taner Kılıç v. Turkey (no. 2), no. 208/18, §§ 102-03 and 106-09, 31 May 2022). Accordingly, in applications where the use of ByLock constituted the principal basis for the applicants’ detention, the Court has found that there was no reasonable suspicion that they had committed an offence, for the purposes of Article 5 § 1 (c) of the Convention.

14. As regards the other evidential grounds referred to by the national courts where the use of ByLock was not the central or sole factor, the Court refers to its finding in Taner Kılıç (cited above, §§ 104-05) that acts such as subscribing to the organisation’s lawful publications, enrolling children in legally operating schools allegedly affiliated with the organisation, or holding an account with Bank Asya were merely circumstantial and, in the absence of further evidence, could not reasonably give rise to a suspicion of having committed the alleged offence. The Court emphasised in that case that such acts enjoyed a presumption of lawfulness unless there was further specific evidence capable of establishing the suspect’s intentional involvement in an organisation’s criminal activities (ibid., § 105). In the light of those considerations, the Court finds that the additional grounds relied on in the present applications for ordering the applicants’ detention, such as the possession of specific one-dollar banknotes, social media activity, protests, contact with other suspects, employment by and/or membership of affiliated entities, or dismissal from public service, likewise fall within the scope of acts which do not, per se, give rise to a reasonable suspicion that the applicants were members of a terrorist organisation. Those factors do not carry any greater evidential weight than the circumstantial evidence previously examined by the Court. The Court thus considers, a fortiori, that the other acts imputed to the applicants allegedly demonstrating an “organisational connection” (see paragraph 4 above) cannot reasonably be construed as evidence of membership of a terrorist organisation in the absence of further information substantiating such suspicions (compare Taner Kılıç, cited above, §§ 104-05, and the cases cited therein). The Court also notes, with regard to some of the applicants, that the Government have referred to the existence of witness statements justifying the measures in question. It observes, however, that the detention orders do not refer to any statements setting out concrete and specific facts that may have given rise to a reasonable suspicion at the material time that the applicants concerned were members of a terrorist organisation (compare also Tüzemen and Others v. Türkiye [Committee], nos. 66683/16 and 116 others, § 13, 8 July 2025).

15. The Court further notes that, when ordering the applicants’ initial pre‑trial detention, the judicial authorities sought to justify the detention orders by making a general reference to Article 100 of the Code of Criminal Procedure, the severity of the potential sentence prescribed by law, and “the evidence in the case files”. However, in doing so, they merely cited the wording of the provision in question, without actually specifying the evidence giving rise to a reasonable suspicion that the applicants had committed the offence in question. The Court refers in this connection to its findings in Baş (cited above, §§ 190‑95), according to which vague and general references to the wording of Article 100 of the Code of Criminal Procedure and to the evidence in the case 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.

16. Since the Government have not provided any other indications, facts or information capable of establishing, at the time of the applicants’ initial detention, a reasonable suspicion that they had committed the alleged offence, the Court finds that the requirements set out in Article 5 § 1 (c) of the Convention in that regard have not been satisfied (compare Baş, cited above, § 195, and Taner Kılıç, cited above, §§ 114-16). Lastly, the Court notes that the applicants were detained a short time after the attempted coup d’état – that is, the event that prompted the declaration of the state of emergency and the notice of derogation by Türkiye. While this 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, §§ 115-16 and 196‑201).

17. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention.

3. OTHER COMPLAINTS

18. As regards any remaining complaints under Article 5 §§ 1, 3 and 4 of the Convention, the Court decides not to examine them, in view of its findings under Article 5 § 1 above and its considerations in Turan and Others (cited above, § 98).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19. The applicants, except for the applicants in applications nos. 8565/18, 43864/18, 19141/19, 22748/19 and 30860/19, requested varying amounts in respect of non‑pecuniary damage, submitting their claims within the time‑limit allotted. The majority of them also claimed amounts in respect of pecuniary damage, as well as the legal costs and expenses incurred before the domestic courts and the Court.

20. The Government contested the applicants’ claims as being unsubstantiated and excessive.

21. For the reasons set out in Turan and Others (cited above, §§ 102‑07), the Court rejects any claims in respect of pecuniary damage and awards each of the applicants, save for the applicants in applications nos. 8565/18, 43864/18, 19141/19, 22748/19 and 30860/19, a lump sum of 5,000 euros, covering non‑pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. 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;
3. 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;
4. Holds that there is no need to examine the admissibility and merits of the applicants’ remaining complaints under Article 5 of the Convention;
5. Holds

(a) that the respondent State is to pay, within three months, each of the applicants, save for the applicants in applications nos. 8565/18, 43864/18, 19141/19, 22748/19 and 30860/19, EUR 5,000 (five thousand euros) in respect of non‑pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 14 October 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President

APPENDIX

List of cases: