European Court of Human Rights

SECOND SECTION

CASE OF AYVAZ AND OTHERS v. TÜRKİYE

(Applications nos. 14347/17 and 130 others -
see appended list)

JUDGMENT
 

STRASBOURG

11 July 2023

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

In the case of Ayvaz and Others v. Türkiye,

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

 Pauliine Koskelo, President,
 Lorraine Schembri Orland,
 Davor Derenčinović, 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 one hundred thirty-one 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 under Article 5 of the Convention concerning the lawfulness and length of pre-trial detention and the alleged lack of reasonable suspicion regarding the commission of an offence, the alleged lack of prompt information of the reasons for the applicants' arrest and of any charge against them, the alleged lack of relevant and sufficient reasons when ordering and extending the pre-trial detention, as well as the ineffectiveness of judicial review of the lawfulness of detention, the absence of a remedy to obtain compensation and under Article 8 of the Convention concerning the lawfulness of the searches conducted by the authorities 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;

Having deliberated in private on 20 June 2023,

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" (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, §§ 6-14 and §§ 109-110, 3 March 2020). All of the applicants were serving as judges or prosecutors at different types and/or levels of court 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, including members of high courts, in accordance with the provisions of the ordinary law, on the ground that there had been a case of discovery in flagrante delicto falling within the jurisdiction of the assize courts (further information regarding the orders issued by the chief public prosecutor's office within the context of that investigation, as well as the ensuing suspensions and dismissals of judges and prosecutors suspected of being members of FETÖ/PDY, may be found in Baş, cited above, §§ 9-10 and 15-21).

3.  Following their arrest and detention in police custody on the orders of the regional and provincial prosecutors' offices, the applicants were placed in pre-trial detention on various dates, 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 pre-trial detention decisions were issued by the magistrates' courts located at the respective places of the applicants' arrest. In the majority of the decisions, it was noted specifically that the criminal investigation was governed by the ordinary rules, given that the offence of which the suspects were accused, namely membership of an armed terrorist organisation, was a "continuing offence" and that there was a case of discovery in flagrante delicto governed by the relevant provisions of domestic law (see Baş, cited above, § 67, and Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 30-31, 23 November 2021).

4.  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.

5.  In the meantime, the applicants lodged individual applications with the Constitutional Court in respect of, inter alia, the alleged violation of their right to liberty and security on various accounts, including the alleged unlawfulness of their detention by reason of the disregard of the procedural safeguards afforded to members of the judiciary in domestic law, all of which were declared inadmissible (compare also Turan and Others, cited above, §§ 26-27).

THE COURT'S ASSESSMENT

1. 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.

2. THE GOVERNMENT'S PRELIMINARY OBJECTION IN RESPECT OF APPLICATION No. 36993/19

7.  The Government argued that the applicant in application no. 36993/19 had submitted his complaints to another procedure of international investigation or settlement within the meaning of Article 35 § 2 (b) of the Convention, namely the United Nations Working Group on Arbitrary Detention (the "WGAD"), and invited the Court to dismiss the application as being inadmissible. In this connection, they referred to a letter entitled "joint urgent appeal", relating to the detention of and the criminal charges against the applicant, along with twelve other individuals similarly charged with membership of the FETÖ/PDY, signed by the Vice-Chair of the WGAD and four UN Special Rapporteurs. The letter, which had been sent to the Turkish Government on 4 May 2018 and which invited the latter to submit their observations on, inter alia, the applicant's detention, concluded as follows:

"Lastly, we would like to inform your Excellency's Government that after having transmitted an urgent appeal such as this to the Government, the Working Group on Arbitrary Detention may also transmit the individual cases to the Government through its regular procedure in order to render an opinion on whether the deprivation of liberty was arbitrary or not. The present communication in no way prejudges any opinion the Working Group may render. The Government is expected to respond separately to the present urgent appeal and to the communication of the Working Group under its regular procedure."

8.  The applicant contested the Government's argument. He explained that despite having lodged an application before the WGAD, he had subsequently withdrawn it. In this regard, he provided copies of two e-mails dated 4 January and 11 March 2022 that he had submitted to the WGAD to request the discontinuation of his application, to which he had not received any reply to date.

9.  The Court has previously examined the procedure before the WGAD and concluded that this Working Group was indeed a "procedure of international investigation or settlement" within the meaning of Article 35 § 2 (b) of the Convention (see Peraldi v. France (dec.), no. 2096/05, 7 April 2009, and Sabuncu and Others v. Turkey, no. 23199/17, § 112, 10 November 2020; see for the "urgent action" procedure of the WGAD also Kavala v. Turkey, no. 28749/18, §§ 78-79, 10 December 2019).

10.  Admittedly, and as indicated in the aforementioned letter (see paragraph 7 above), an urgent appeal may give rise to the opening of a regular procedure, in the context of which the WGAD is called upon to issue an opinion as to whether or not the deprivation of liberty was arbitrary (compare also Kavala, cited above, § 93). However, there is nothing in the case file to indicate that the WGAD has actually opened such a procedure in respect of the present applicant, or that it has rendered such an opinion (compare in this latter respect also Peraldi, cited above). The Court further notes that the applicant's allegation that he had subsequently withdrawn his application before the WGAD has not been contested by the Government.

11.  The Government's objection under Article 35 § 2 (b) of the Convention must accordingly be dismissed.

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

12.  The applicants complained under Article 5 § 1 of the Convention that they had been placed in pre-trial detention in breach of the domestic laws governing the arrest and pre-trial detention of the members of the judiciary and disputed that there had been a case of discovery in flagrante delicto for the purposes of section 94 of Law no. 2802 on judges and prosecutors and section 46 of the Court of Cassation Act (Law no. 2797) (see Baş v. Turkey, no. 66448/17, § 67, 3 March 2020, and Turan and Others v. Turkey, nos. 75805/16 and 426 others, §§ 30-31, 23 November 2021).

13.  The Government claimed that seven of the applicants, namely those in applications nos. 45059/18, 62714/19, 11664/20, 22923/20, 36837/20, 37234/20 and 50209/20, had not duly exhausted the available domestic remedies in relation to their complaint under Article 5 § 1, as they had not made use of the individual application remedy before the Constitutional Court. They further invited the Court to declare this complaint inadmissible in respect of all applicants for the reasons that they had raised in the case of Turan and Others (cited above, § 55).

14.  Firstly, an examination of the case files of the seven applicants mentioned above reveals that contrary to the Government's claim, they have expressly raised their complaints under Article 5 § 1 of the Convention in the application forms submitted to the Constitutional Court. Secondly, as for the remaining objections relating to all applicants, the Court notes that similar objections raised by the Government have already been dismissed in the case of 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.

15.  The Court further considers, having regard to its findings in the cases of Baş and Turan and Others (both cited above, §§ 143-158 and §§ 79-96, respectively), that the pre-trial detention of the applicants had not taken place in accordance with a procedure prescribed by law within the meaning of Article 5 § 1 of the Convention and that, therefore, there has been a violation of Article 5 § 1 on account of the unlawfulness of the applicants' initial pre-trial detention. Moreover, 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 (see Baş, cited above, §§ 115-116 and §§ 159-162, and Turan and Others, cited above, §§ 91 and 95).

4. OTHER COMPLAINTS

16.  As regards any remaining complaints under Article 5 §§ 1, 2, 3, 4 and 5 and Article 8 of the Convention, 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

17.  The applicants, except for those in applications nos. 61445/17, 64047/17, 13104/19, 15783/19, 15883/19, 26715/19, 36192/19, 51877/19, 22923/20 and 41241/20, requested compensation in varying amounts in respect of non-pecuniary damage within the time-limit allotted. Most of the applicants in question 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.

18.  The Government contested the applicants' claims as being unsubstantiated and excessive.

19.  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, save for those in applications nos. 61445/17, 64047/17, 13104/19, 15783/19, 15883/19, 26715/19, 36192/19, 51877/19, 22923/20 and 41241/20, 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 lawfulness of the applicants' initial pre-trial detention admissible;
3. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the initial pre-trial detention of the applicants;
4. Holds that there is no need to examine the admissibility and merits of the applicants' remaining complaints under Articles 5 and 8 of the Convention;
5. Holds

(a)  that the respondent State is to pay each of the applicants, save for those in applications nos. 61445/17, 64047/17, 13104/19, 15783/19, 15883/19, 26715/19, 36192/19, 51877/19, 22923/20 and 41241/20, 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;

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

Done in English, and notified in writing on 11 July 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Pauliine Koskelo
 Deputy Registrar President

APPENDIX

List of cases: