CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 janvier 2023

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The applicants were amongst those persons whose names were indicated on the lists of military personnel to be appointed by the instigators of the attempted coup to serve in the aftermath of the coup ( Sıkıyönetim Komutanlıkları Atama Listesi ). Relying on Article 5 of the Convention, the applicants raise the following complaints (see the appended table for detailed information as to the specific complaints raised by each applicant): - There were no relevant and sufficient reasons to justify their initial and/or continued pre-trial detention; - The length of their pre-trial detention was excessive; - The reviews of detention took place without a hearing and they were not notified of the opinion of the public prosecutor on those reviews; - Their access to the investigation files was restricted; - The decisions extending their pre-trial detention were not notified to them, or were notified with a delay, which prevented them from appealing against those decisions; - They did not benefit from effective legal assistance and facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers was restricted and monitored by the prison authorities; - The time taken by the Constitutional Court to conduct its examination of their individual applications was excessive; - There was no remedy available to them to obtain compensation for the alleged breach of their rights under Article 5. QUESTIONS TO THE PARTIES On the basis of the complaints communicated in accordance with the list in the Appendix Complaints under Article 5 of the Convention 1.     (a)( Did the applicants exhaust the remedies available in domestic law in relation to their complaints under Article 5 § 3 of the Convention? To the extent that the applicants’ complaints did not relate solely to the length of their pre-trial detention but also concerned the alleged failure of the domestic courts to provide relevant and sufficient reasons to justify their initial and continued pre-trial detention, can a compensation claim under Article   141 §   1 (d) of the Code of Criminal Procedure be regarded as an effective remedy in respect of those complaints (see Selahattin Demirtaş v.   Turkey (no. 2) [GC], no.   14305/17, § 213, 22 December 2020)?   (b) Was the applicants’ pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular: (i) Did the judges, who ordered the applicants’ initial pre-trial detention and the prolongation of their detention, and who examined the objections lodged against those decisions, fulfil their obligation to provide relevant and sufficient grounds for the deprivation of liberty in question (see, in particular, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §   102, ECHR 2016 (extracts))? (ii) Was the length of the applicants’ pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?   2.     Did the applicants have at their disposal a remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article   5 § 4 of the Convention? In particular, the Government are invited to respond to the following complaints made by the applicants:   (i) the principle of equality of arms had not been respected, as the decisions to extend their detention and their objections to those decisions had been examined without a hearing and the prosecutors’ opinions had not been communicated to them (see, in particular, Baş v. Turkey, no.   66448/17, §§   212-214, 3   March 2020, and Kocamış and Kurt v. Turkey, no.   227/13, §§   34-   35, 25 January 2022); (ii)( they had been unable to challenge their detention in an effective manner because of the restriction imposed on their access to the investigation file (see, inter alia, Ceviz v. Turkey, no. 8140/08, § 41, 17 July 2012); iii) the decisions to extend their detention had not been notified to them or had been notified with a delay, which had prevented them from lodging objections against those decisions (compare, for example, Voskuil v.   the   Netherlands, no. 64752/01, § 83, 22 November 2007); (iv) they had had no effective legal assistance or facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers had been restricted and monitored (see, mutatis mutandis, Černák v.   Slovakia, no.   36997/08, § 78, 17 December 2013); (v) the time taken by the Constitutional Court to examine their individual applications had been protracted (compare for the principles Kavala v.   Turkey, no. 28749/18, §§ 181-184, 10 December 2019).   3.     Did the compensation remedy provided under Article 141 of the Code of Criminal Procedure constitute an effective remedy, within the meaning of Article   5 §   4 of the Convention, in respect of complaints concerning (i) the unlawfulness of the arrest and pre-trial detention; (ii) the lack of an oral hearing during the review of detention; (iii) the non ‑ notification or belated notification of the detention decision; (iv) the lack of or delay in the examination of the objection against detention by the magistrates’ courts (compare, for example, Hebat Aslan and Firas Aslan v.   Turkey, no.   15048/09, §§ 92-93, 28 October 2014)?   4.     Did the applicants have, as required by Article 5 § 5 of the Convention, an effective and enforceable right in court to obtain compensation for their detention, which they consider to have been contrary to Article 5 §§ 1, 3 and   4 (Kocamış and Kurt, cited above, §§ 36-40)?   APPENDIX No. Application no. Case title Date of introduction Complaints 1. 40848/19 Ünlü v. Türkiye 23/07/2019 Lack of relevant and sufficient reasons for detention Delay in examination by the Constitutional Court 2. 49433/19 Demir v. Türkiye 18/09/2019 Restriction of access to the investigation file Delay in examination by the Constitutional Court 3. 1195/20 Bayır v. Türkiye 28/11/2019 Lack of relevant and sufficient reasons for detention 4. 5564/20 Erdemir v. Türkiye 06/01/2020 Lack of relevant and sufficient reasons for detention Length of pre-trial detention 5. 7427/20 Yalçın v. Türkiye 31/01/2020 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file Lack of hearing during the detention review No effective remedy for compensation 6. 23046/20 Barut v. Türkiye 21/05/2020 Length of pre-trial detention Lack of relevant and sufficient reasons for detention 7. 29061/20 Hakbilen v. Türkiye 21/02/2020 Length of pre-trial detention Lack of relevant and sufficient reasons for detention 8. 49166/20 Öztürk v. Türkiye 21/09/2020 Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file Failure/delay in communicating decisions relating to detention No effective remedy for compensation 9. 3577/21 Ölmez v. Türkiye 04/12/2020 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file Lack/difficulties of legal assistance/other facilities 10. 28282/21 Semiz v. Türkiye 26/05/2021 Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of hearing during the detention review 11. 36939/21 Taş v. Türkiye 36939/21 Length of pre-trial detention Lack of relevant and sufficient reasons for detention