European Court of Human Rights

SECOND SECTION

CASE OF KOLAY AND OTHERS v. TÜRKİYE

(Applications nos. 15231/17 and 283 others)

JUDGMENT
 

STRASBOURG

12 December 2023

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

In the case of Kolay 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 the applicants listed in the appended table ("the applicants");

the decision to give notice 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, 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 for detention, the length of pre-trial detention, the ineffectiveness of judicial review of the lawfulness of detention, and the absence of a remedy to obtain compensation, 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 21 November 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 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 Baş v. Turkey, no. 66448/17, §§ 6-14 and 109-10, 3 March 2020).

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, cited above, § 58). The applicants lodged objections against the detention orders but without success. On various dates in the course of the ensuing criminal investigations and trials, the competent judicial authorities ordered the applicants' continued detention. The applicants were held in pre-trial detention for periods ranging from one year to four years and six months.

3.  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: witness statements indicating ties with FETÖ/PDY; social media posts; possession of pro-FETÖ/PDY publications; working in, or being a member of, institutions having ties with the organisation in question or an organisation shut down by the state-of-emergency legislative decrees; provision of financial support to FETÖ/PDY or to institutions with ties to FETÖ/PDY; attending or holding meetings (sohbet); communication with senior executives of the organisation; ensuring communication between FETÖ/PDY members; staying in FETÖ/PDY houses; and carrying out various other activities on the orders of the organisation.

4.  It further appears from the case files that, in accordance with Articles 100 and 101 of the Code of Criminal Procedure ("the CCP", for the text of these provisions see Kavala v. Turkey, no. 28749/18, §§ 71-72, 10 December 2019), 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 CCP. 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. Moreover, in the later stages of the proceedings, the competent judges took into account the time spent by the applicants in pre-trial detention when deciding to extend their detention, without explaining the relevance of that factor to their decision.

5.  In the meantime, the applicants lodged one or more individual applications with the Constitutional Court in respect of the detention orders, complaining, inter alia, about the alleged lack of reasonable suspicion that they had committed an offence and the alleged lack of reasons to justify the decision to remand them in pre-trial detention, all of which were declared inadmissible by the Constitutional Court in summary fashion.

6.  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, for the most part, the proceedings are still pending before the appellate courts or the Constitutional Court.

THE COURT'S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

7.  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 and 3 OF THE CONVENTION

8.  The applicants complained that there had been no specific evidence giving rise to a reasonable suspicion that they had committed a criminal offence necessitating pre-trial detention. They further argued that the domestic courts had not provided relevant and sufficient reasons in their decisions ordering their placement in detention and their continued detention. They also maintained that the domestic authorities had failed to consider alternative measures to detention. In that connection, they alleged that there had been a violation of Article 5 §§ 1 (c) and 3 of the Convention.

9.  The Government first urged the Court to declare those complaints inadmissible in respect of the applicants who had not made use of the compensatory remedy under Article 141 of the CCP, or whose compensation claims were still pending. The Government further claimed that some of the applicants had been granted compensation pursuant to Article 141 of the CCP and had therefore lost their victim status. They also 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. The Government lastly submitted that the applicants' initial and continued pre-trial detention had complied with the domestic legislation and Article 5 §§ 1 (c) and 3 of the Convention.

10.  The Court notes that similar objections raised by the Government have already been dismissed in other cases against Türkiye (see, for instance, Baş v. Turkey, no. 66448/17, §§ 118-21, 3 March 2020; Alparslan Altan v. Turkey, no. 12778/17, §§ 84-85, 16 April 2019; Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 212-214, 22 December 2020; 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 the applicants' complaints under Article 5 §§ 1 (c) and 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

1. Alleged lack of reasoning in the decisions ordering the applicants' pre-trial detention (Article 5 § 3 of the Convention)

11.  Under the Court's established case-law under Article 5 § 3, the persistence of a reasonable suspicion that the detainee has committed an offence is a condition sine qua non for the validity of his or her continued detention. The Court must further establish whether the national authorities gave relevant and sufficient reasons for the detention from the time of the first decision ordering detention on remand onwards. Those other grounds may be a risk of flight, a risk of pressure being brought to bear on witnesses or of evidence being tampered with, a risk of collusion, a risk of reoffending, or a risk of public disorder and the related need to protect the detainee (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87-88 and 101-102, 5 July 2016). Those risks must be duly substantiated, and the authorities' reasoning on those points cannot be abstract, general or stereotyped (see Merabishvili v. Georgia [GC], no. 72508/13, § 222, 28 November 2017).

12.  The Court notes that when ordering the applicants' initial and continued pre-trial detention, the judicial authorities cited, in a formulaic manner, numerous pieces of evidence in support of their findings that there were concrete indications that the applicants had committed an offence (see paragraph 3 above). However, in the Court's view, the national courts failed to demonstrate the link between the pieces of evidence they mentioned in the detention orders and the existence of a "reasonable suspicion" that the applicants had committed the offence of membership of an armed organisation they were suspected of.

13.  Even assuming that there was "reasonable suspicion" that an offence has been committed, decisions ordering pre-trial detention must contain relevant and sufficient reasons justifying the necessity of the detention. In that connection, the Court observes that in Türkiye, as required by the Convention, domestic law provides that the competent judicial authorities must put forward "relevant and sufficient" reasons when considering the need to place and keep a suspect in pre-trial detention. This is a procedural obligation laid down in Articles 100 and 101 of the CCP, which provide that decisions to place or keep a suspect in pre-trial detention must include legal and factual reasons (see Tuncer Bakırhan v. Turkey, no. 31417/19, §§ 23-24, 14 September 2021).

14.  The Court notes in this regard that the competent courts relied on the following grounds for detention: the nature of the offence; the severity of the sentences prescribed by law for the offence concerned; the state of the evidence; the period spent in detention; the risk of the applicants' absconding and tampering with evidence; and the finding that alternative measures to detention appeared insufficient (see paragraph 4 above).

15.  In so far as the detentions were justified on the basis of the "nature of the offence", the Court notes that the courts ruling on the applicants' detention considered that they were accused of offences listed in Article 100 § 3 of the CCP (also referred to as the "catalogue" offences). As regards these "catalogue" offences, the Court notes that under Article 100 § 3 of the CCP, Turkish law provides that for certain offences there is a statutory presumption of the existence of grounds for detention (risk of absconding, tampering with evidence or putting pressure on witnesses, victims and other persons). In this connection, the Court reaffirms that any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the Convention. Where the law provides for a presumption concerning the grounds for pre-trial detention, it must nevertheless be convincingly demonstrated that there are concrete facts warranting a departure from the rule of respect for individual liberty. This is also the case where the judicial authorities justify the detention of a suspect by the nature of the offence in question or the severity of the potential sentence prescribed by law (compare also Tuncer Bakırhan, cited above, §§ 46-49). The Court therefore needs to examine whether the national courts carried out an individualised examination when ordering the applicants' pre-trial detention.

16.  As regards the other reasons given by the national courts for placing or keeping the applicants in pre-trial detention, the Court observes firstly that they entail a formulaic enumeration of the grounds for detention under domestic law in a general and abstract manner, such as the state of the evidence, the period spent in detention and the risk of the applicants' absconding and tampering with evidence. While the Court is prepared to accept that, in view of the particular circumstances surrounding the attempted coup, the risk of the applicants' absconding and/or tampering with evidence might justify the measure of detention, at least during the initial phase of the criminal investigation, it nevertheless observes that the subsequent decisions ordering the applicants' continued pre-trial detention did not contain an individualised analysis in that respect. In the Court's view, decisions worded in formulaic and stereotyped terms as in the present case can on no account be regarded as sufficient to justify a person's continued pre-trial detention (see, mutatis mutandis, Şık v. Turkey, no. 53413/11, § 62, 8 July 2014). This is particularly so given that the applicants in the present case were remanded in pre-trial detention for periods ranging from one year to four years and six months.

17.  The Court notes that it has already examined many cases in which it has found a violation of Article 5 § 3 of the Convention for similar reasons (see Tuncer Bakırhan, cited above, §§ 40-58, and the cases cited therein). In the present case, having regard to the grounds provided by the national judicial authorities, the Court considers that they ordered and extended the applicants' pre-trial detention on grounds that cannot be regarded as "sufficient" to justify the measure in issue.

18.  As regards Article 15 of the Convention and Türkiye's derogation, the Court notes at the outset that 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 (see Alparslan Altan v. Turkey, no. 12778/17, § 147, 16 April 2019). Nonetheless, Articles 100 and 101 of the CCP, which specifically require the judicial authorities to provide "relevant and sufficient" reasons when deciding to place or keep a suspect in pre-trial detention and to provide legal and factual reasons as to why alternative measures would be insufficient, were not amended during the state of emergency, unlike some other provisions of the CCP in relation to deprivations of liberty (see, for instance, Alparslan Altan, §§ 113 and 117, and Baş, § 81, both cited above, for the restrictions introduced after the coup attempt on the procedural safeguards laid down in domestic law for those held in pre-trial detention, such as restrictions on access to case files and on the examination of objections against detention orders). The applicants' detention was therefore decided on the basis of the legislation in force before the declaration of the state of emergency, legislation which is still applicable (see, mutatis mutandis, Akgün v. Turkey, no. 19699/18, § 183, 20 July 2021). While the Government requested that the applicants' complaints under Article 5 be examined from the perspective of Article 15 of the Convention, they have not submitted arguments to justify the derogation from the above-mentioned requirements set out under Articles 100 and 101 of the CCP. Therefore, the Court considers that it is not established that the failure to comply with the requirements described above could be justified by the derogation notified by the Government of Türkiye under Article 15 of the Convention and had not gone beyond the "extent strictly required by the exigencies of the situation" (see, mutatis mutandis, Mehmet Hasan Altan v. Turkey, no. 13237/17, § 140, 20 March 2018). This is particularly so having regard to the duration of the applicants' pre-trial detention, which lasted at least one year in each case. The Court points out in this connection that the considerations giving rise to the application of Article 15 of the Convention have gradually become less forceful and relevant as the public emergency threatening the life of the nation, while still persisting, has declined in intensity, at which point the "exigency" criterion must be applied more stringently (see Baş, cited above, § 224).

19.  In the light of the foregoing, the Court concludes that there has been a violation of Article 5 § 3 of the Convention in respect of all the applicants.

2. Alleged lack of reasonable suspicion that the applicants committed a criminal offence (Article 5 § 1 (c) of the Convention)

20.  Having regard to the particular circumstances of the present case (see paragraphs 12-13 above) and its findings under Article 5 § 3 of the Convention (see paragraph 19 above), the Court considers that it is not necessary to determine whether in the present case there was any objective information showing that the suspicion against the applicants was "reasonable" at the time of their initial detention (for a similar approach, see Tuncer Bakırhan, cited above, §§ 36-39).

3. OTHER COMPLAINTS

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  Some of the applicants did not submit, or failed to submit within the allotted time-limit, a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account (see the appended table indicating the applicants to whom no award is to be made).

23.  The remaining applicants requested varying amounts in respect of non-pecuniary damage, submitting their claims within the time-limit allotted. The majority of them also claimed compensation in respect of pecuniary damage, as well as the legal costs and expenses incurred before the domestic courts and the Court.

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

25.  For the reasons set out in Turan and Others (cited above, §§ 102-07), the Court rejects any claims for pecuniary damage and awards each of the applicants who submitted claims a lump sum of 3,000 euros in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on that amount (see the last column of the appended table).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the complaints concerning Article 5 §§ 1 (c) and 3 of the Convention admissible;
3. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the absence of sufficient grounds for ordering and keeping the applicants in pre-trial detention;
4. Holds that there is no need to examine separately the merits of the complaints under Article 5 § 1 (c) of the Convention;
5. Holds that there is no need to examine the admissibility and merits of the applicants' remaining complaints under Article 5 of the Convention;
6. Holds

(a)  that the respondent State is to pay, within three months, to each of the applicants who submitted a claim for just satisfaction (see the appended table), EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and costs and expenses, 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;

7. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 12 December 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Jovan Ilievski
 Deputy Registrar President

APPENDIX

List of cases: