European Court of Human Rights

 

 

SECOND SECTION

CASE OF ACAR AND OTHERS v. TURKEY

(Applications nos. 64251/16 and 49 others)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 June 2022

 

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

In the case of Acar and Others v. Turkey,

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

          Branko Lubarda, President,
          Jovan Ilievski,
          Diana Sârcu, judges,
and, Hasan Bakırcı, Section Registrar,

Having regard to:

the applications against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifty 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 applications 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 Turkey;

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 7 June 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 Terrorist 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 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, §§ 7-14 and §§ 109-110, 3 March 2020). All of the applicants were sitting as judges or prosecutors at different types and/or levels of court, or appointed as trainee judges, at the material time.

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. Subsequently, on various dates, the High Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu - “the HSYK”) decided to suspend thousands of judges and prosecutors - including some of the applicants - from their duties, on the grounds that there was strong suspicion that they were members of the terrorist organisation that had instigated the attempted coup (further details regarding the relevant HSYK decision may be found in Baş, ibid., §§ 15-21, and Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 13-15, 23 November 2021). In the HSYK’s suspension decision dated 16 July 2016, reference was made to disciplinary proceedings initiated, amongst other persons, against four of the applicants (namely, applications nos. 31681/17, 47014/17, 47407/18 and 59568/18) in 2015 on account of their failure to take up their duties allegedly for health reasons following an order for their reassignment, which the HSYK considered to be an organisational activity in protest of the reassignments.

3.  On 17 July 2016 the 1^st Presidency Board of the Court of Cassation similarly issued a decision revoking the existing authorities of the members of the Court of Cassation against whom action had been taken by the Ankara chief public prosecutor’s office, including some of the applicants (see Turan and Others, cited above, § 16).

4.  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 fact that the applicants had been suspended from their duties as judges or prosecutors, or their authorities revoked, on grounds of their membership of the organisation that had instigated the attempted coup. It further appears that in respect of some applicants, the use of the ByLock messaging system was relied on as evidence. The challenges brought by the applicants against their detentions, including by reason of the alleged lack of reasonable suspicion of having committed an offence, were dismissed, including by the Constitutional Court (see, mutatis mutandis, Turan and Others, cited above, §§ 22-27).

5.  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

I.        JOINDER OF THE APPLICATIONS

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

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

7.  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.

8.  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 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.

9.  The Court notes that similar objections have already been dismissed in other cases against Turkey (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.

10.  The Court notes from the information in the case files that the applicants’ initial pre-trial detention was based solely on the decisions taken by the HSYK or the 1^st Presidency Board of the Court of Cassation for their suspension from office or the revocation of their authorities, and/or on information indicating their use of the ByLock messaging system. The Court has already found that neither of these grounds relied on by the domestic courts in ordering the applicants’ pre-trial detention was of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to them. The Court refers in this connection to its findings in the judgment of Baş (cited above, §§ 170-195) in respect of the HSYK decision, which can be applied mutatis mutandis to the decision of the 1^st Presidency Board of the Court of Cassation noted in paragraph 3 above by reason of its essentially similar object and content, as well as to the findings in Akgün v. Turkey (no. 19699/18, §§ 151-185, 20 July 2021) regarding the use of the ByLock messaging system. Moreover, as regards the disciplinary investigation in respect of the four applicants mentioned in the HSYK decision (see paragraph 2 above), the Government have not provided arguments to support the conclusion that the act underlying the investigation in question could as such suggest membership of FETÖ/PDY and that it could have thereby formed the basis for the suspicion giving rise to the order for the relevant applicants’ detention (see, mutatis mutandis, Baş, cited above, § 188).

11.  In the absence of any other information or evidence available at the time of the applicants’ initial pre-trial detention that would satisfy an objective observer that they may have committed the offence attributed to them, the Court sees no reason to depart from its findings in the aforementioned cases and finds that there has been a violation of Article 5 § 1. The Court 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 Turkey – , 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 (see, Baş, cited above, §§ 115-116 and §§ 196-201).

III.   OTHER COMPLAINTS

12.  As regards any remaining complaints under Article 5 §§ 1, 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

13.  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.

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

15.  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,

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 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 these amounts, which are 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;

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

Done in English, and notified in writing on 28 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Hasan Bakırcı                                                   Branko Lubarda
                 Registrar                                                             President

 

 

APPENDIX

 

No.	Application no.	Case name	Lodged on	Applicant Year of Birth	Represented by	Applicant’s status at the time of pre-trial detention	Evidence relied on at the time of initial pre-trial detention
1.	64251/16	Acar v. Turkey	03/11/2016	Fatih ACAR 1979	Abdulselam DURAN	Ordinary judge or public prosecutor	HSYK decision
2.	25324/17	Çökelez v. Turkey	24/03/2017	Ali ÇÖKELEZ 1986	Regaip DEMİR	Ordinary judge or public prosecutor	HSYK decision
3.	27060/17	Şendil v. Turkey	17/03/2017	Üzeyir ŞENDİL 1976	Mehmet ARI	Ordinary judge or public prosecutor	HSYK decision
4.	27430/17	Demir v. Turkey	08/03/2017	Erkan DEMİR 1979	Engin ERDAL	Ordinary judge or public prosecutor	HSYK decision
5.	31681/17	Karasu v. Turkey	28/02/2017	Akar KARASU 1962		Ordinary judge or public prosecutor	HSYK decision
6.	34038/17	Özlük v. Turkey	13/03/2017	Mutahhar ÖZLÜK 1981	Hüseyin AKYOL	Ordinary judge or public prosecutor	HSYK decision
7.	40091/17	Yamalı v. Turkey	04/05/2017	Nurullah YAMALI 1975	Burçak ATAMAN KUŞ	Ordinary judge or public prosecutor	HSYK decision
8.	43958/17	Gür v. Turkey	20/02/2017	Tarık GÜR 1969	Merve Elif GÜRACAR	Ordinary judge or public prosecutor	HSYK decision
9.	47014/17	Rahman v. Turkey	15/03/2017	Atilla RAHMAN 1969	Uğur KARADAĞ	Ordinary judge or public prosecutor	HSYK decision
10.	53749/17	Karadağ v. Turkey	03/06/2017	Ersin KARADAĞ 1978	İrem TATLIDEDE	Ordinary judge or public prosecutor	HSYK decision
11.	61259/17	İğneci v. Turkey	24/05/2017	Yasin İĞNECİ 1985	Cahit ÇİFTÇİ	Ordinary judge or public prosecutor	ByLock messaging system HSYK decision
12.	61438/17	Uğur v. Turkey	30/06/2017	Hüsamettin UĞUR 1965	Gökhan GÜNAYDIN	Member of Court of Cassation	Decision of the 1st Presidency Board of the Court of Cassation
13.	61446/17	Cevher v. Turkey	30/06/2017	Dursun Murat CEVHER 1963	Gökhan GÜNAYDIN	Member of Court of Cassation	Decision of the 1st Presidency Board of the Court of Cassation
14.	63732/17	Oğuz v. Turkey	13/06/2017	Abdulhadi OĞUZ 1988	İrem TATLIDEDE	Ordinary judge or public prosecutor	HSYK decision
15.	63888/17	Zorlu v. Turkey	29/05/2017	Emre ZORLU 1988	Mustafa ÇOLAK	Ordinary judge or public prosecutor	HSYK decision
16.	66358/17	Doğan v. Turkey	27/01/2017	Murat DOĞAN 1980	Nilgün ARI	Ordinary judge or public prosecutor	HSYK decision
17.	66698/17	Çakır v. Turkey	18/05/2017	Yüksel ÇAKIR 1974	Fatma HACIPAŞALIOĞLU	Ordinary judge or public prosecutor	HSYK decision
18.	70888/17	Ceylan v. Turkey	03/08/2017	Mevlüt CEYLAN 1983	İrem TATLIDEDE	Ordinary judge or public prosecutor	HSYK decision
19.	79065/17	Yıldırım v. Turkey	11/04/2017	Fatih YILDIRIM 1979	Nilgün ARI	Ordinary judge or public prosecutor	HSYK decision
20.	81501/17	Dursun v. Turkey	06/11/2017	Altınöz DURSUN 1969	Hüseyin AYGÜN	Member of Court of Cassation	Decision of the 1st Presidency Board of the Court of Cassation
21.	81841/17	Sarıömeroğlu v. Turkey	06/11/2017	Hüseyin SARIÖMEROĞLU 1967	Hüseyin AYGÜN	Member of Court of Cassation	Decision of the 1st Presidency Board of the Court of Cassation
22.	81858/17	Canpolat v. Turkey	07/11/2017	Muhammed CANPOLAT 1985	Hüseyin AYGÜN	Ordinary judge or public prosecutor	HSYK decision
23.	84621/17	Kıvrıl v. Turkey	13/11/2017	Halit KIVRIL 1968	Sümeyra Betül BABACAN ALKAN	Member of Court of Cassation	Decision of the 1st Presidency Board of the Court of Cassation
24.	3449/18	Güler v. Turkey	12/12/2017	Zeki GÜLER 1978	Sinan BALOTA	Ordinary judge or public prosecutor	HSYK decision
25.	6984/18	Emirhasanoğlu v. Turkey	25/01/2018	Nazmi EMİRHASANOĞLU 1977	Ayşe Sümeyye BEKLEYEN	Ordinary judge or public prosecutor	HSYK decision
26.	11488/18	Ata v. Turkey	16/02/2018	Şeref ATA 1983	Cahit ÇİFTÇİ	Ordinary judge or public prosecutor	HSYK decision
27.	17249/18	Candar v. Turkey	23/03/2018	Mehmet CANDAR 1968	Muhterem SAYAN	Ordinary judge or public prosecutor	HSYK decision
28.	17591/18	Kılıçelli v. Turkey	03/04/2018	Ahmet KILIÇELLİ 1980		Ordinary judge or public prosecutor	ByLock messaging system HSYK decision
29.	19457/18	Helvacı v. Turkey	12/04/2018	Rahmi HELVACI 1974	Hüseyin AZAKOĞLU	Ordinary judge or public prosecutor	ByLock messaging system
30.	19758/18	Karahan v. Turkey	12/04/2018	Cemalettin KARAHAN 1977	Sinan BALOTA	Ordinary judge or public prosecutor	HSYK decision
31.	22051/18	Ayluçtarhan v. Turkey	30/04/2018	Salih AYLUÇTARHAN 1983	Hasan Celil GÜNENÇ	Ordinary judge or public prosecutor	HSYK decision
32.	28555/18	Güneş v. Turkey	12/06/2018	Ahmet GÜNEŞ 1990	Asım Burak GÜNEŞ	Trainee judge/prosecutor	ByLock messaging system
33.	29588/18	Usta v. Turkey	11/06/2018	İbrahim USTA 1971	Mehmet Fatih İÇER	Ordinary judge or public prosecutor	HSYK decision
34.	29699/18	Coşkun v. Turkey	13/06/2018	Osman COŞKUN 1971	Hüseyin UÇAN	Ordinary judge or public prosecutor	HSYK decision
35.	30252/18	Şahin v. Turkey	13/06/2018	Levent ŞAHİN 1973	İrem TATLIDEDE	Ordinary judge or public prosecutor	HSYK decision
36.	30483/18	Rafet v. Turkey	18/06/2018	Emre RAFET 1966	Muhammet GÜNEY	Ordinary judge or public prosecutor	HSYK decision
37.	36168/18	Tozar v. Turkey	25/07/2018	Seyfi TOZAR 1978	Mehmet Fatih İÇER	Ordinary judge or public prosecutor	ByLock messaging system
38.	38541/18	Akar v. Turkey	02/08/2018	Fatih AKAR 1987	Mehmet ARI	Ordinary judge or public prosecutor	HSYK decision
39.	42362/18	Yardımcı v. Turkey	07/08/2018	Erhan YARDIMCI 1985	Mehmet Fatih İÇER	Ordinary judge or public prosecutor	HSYK decision
40.	46821/18	Taşdemir v. Turkey	20/09/2018	Orhan TAŞDEMİR 1974	Cengiz BALCI	Ordinary judge or public prosecutor	HSYK decision
41.	47407/18	Kaya v. Turkey	24/09/2018	Şeref KAYA 1968	İrem TATLIDEDE	Ordinary judge or public prosecutor	HSYK decision
42.	48080/18	Arıç v. Turkey	27/09/2018	Mehmet ARIÇ 1980	Numan ARIÇ	Ordinary judge or public prosecutor	HSYK decision
43.	49289/18	Kılavuz v. Turkey	16/10/2018	İshak KILAVUZ 1975	Hanifi BAYRI	Ordinary judge or public prosecutor	HSYK decision
44.	54347/18	Özelce v. Turkey	02/11/2018	Cuma ÖZELCE 1983	Salih KOÇAK	Ordinary judge or public prosecutor	HSYK decision
45.	56607/18	Saykı v. Turkey	15/11/2018	Ergün SAYKI 1983	Sabahattin KARAGÖZ	Ordinary judge or public prosecutor	HSYK decision
46.	59568/18	Uslu v. Turkey	21/11/2018	Ramazan USLU 1971	Ahmet Levent İLGİN	Ordinary judge or public prosecutor	HSYK decision
47.	59690/18	Baş v. Turkey	06/12/2018	Kaan BAŞ 1990	Sultan TEKE SOYDİNÇ	Ordinary judge or public prosecutor	HSYK decision
48.	1653/19	Köşten v. Turkey	25/12/2018	Uğur KÖŞTEN 1977	Elif Nurbanu OR	Ordinary judge or public prosecutor	HSYK decision
49.	3574/19	Sevgiliocak v. Turkey	31/12/2018	Ömer SEVGİLİOCAK 1974	Zehra ARSLAN	Ordinary judge or public prosecutor	HSYK decision
50.	6355/19	Balcı v. Turkey	14/01/2019	Ebuzer BALCI 1984	Sertan DAVDAV	Ordinary judge or public prosecutor	HSYK decision