SECOND SECTION

CASE OF ALTUN AND OTHERS v. TÜRKİYE

(Applications nos. 75370/17 and 22 others –
see appended list)

JUDGMENT
 

STRASBOURG

10 June 2025

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

In the case of Altun and Others v. Türkiye,

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

 Péter Paczolay, President,
 Stéphane Pisani,
 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 twenty-three 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 lawfulness and length of pre-trial detention and the alleged lack of relevant and sufficient reasons when ordering and extending the pre-trial detention and the ineffectiveness of judicial review of the lawfulness of detention 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 at the time, 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 inadmissible the remainder of the applications;

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 20 May 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 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 §§ 109-10, 3 March 2020). At the material time, the applicants were serving as judges or prosecutors at different types and/or levels of court or were former judges or prosecutors.

2.  On 16 July 2016 the Ankara chief public prosecutor’s office initiated a criminal investigation into, inter alia, 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 a strong suspicion that they were members of the terrorist organisation that was considered to have 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).

3.  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). In applications nos. 75370/17, 7027/19, 16151/19, 25207/20, 30088/20 and 48584/20, the detention orders relied principally on the fact that the applicants had been suspended from their duties as judges or prosecutors on account of their membership of the organisation that was considered to have instigated the attempted coup. Furthermore, in applications nos. 24694/18, 2870/19, 55086/19, 18293/21, 24054/21, 28713/21, 29098/21, 29508/21, 32263/21, 36745/21, 48277/21, 83/22 and 4326/22, the use of the ByLock messaging system was relied on as evidence. Moreover, in applications nos. 9478/22 and 9483/22, the applicants were suspected of being affiliated with the FETÖ/PDY based on witness statements, in application no. 24476/21 due to the contents of other peoples’ Bylock conversations and in application no. 29081/20 due to the evidence and other facts indicating the applicant’s organisational connection with the FETÖ/PDY. The challenges brought by the applicants against their detention, including by reason of the alleged lack of reasonable suspicion of having committed an offence, were dismissed, including by the Constitutional Court.

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

4.  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

5. 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.

6.  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, as well as the applicants 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.

7.  The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, Baş, cited above, §§ 118‑21, 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.

8.  The Court notes that, when ordering some of the applicants’ initial pre‑trial detention, the magistrate’s courts sought to justify their decisions by making a general reference to Article 100 of the CCP and the potential sentence, as well as to “the evidence in the file”. However, in doing so, they simply cited the wording of the provision in question, without specifying what the evidence in question entailed and why it constituted a reasonable suspicion that the applicant had committed the offence in question. The Court refers in this connection to its findings in the judgment of Baş (cited above, §§ 190-95), according to which the vague and general references to the wording of Article 100 of the CCP and to the evidence in the file cannot be regarded as sufficient to justify the “reasonableness” of the suspicion on which the applicants’ detention was 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.

9.  The Court further notes that the applicants’ initial pre-trial detention orders were mainly based on information indicating their use of the ByLock messaging system and the decisions taken by the HSYK for their suspension from their duties as judges or prosecutors, and, for some of the applicants, also on being affiliated with the FETÖ/PDY based on witness statements, the contents of other peoples’ Bylock conversations, and/or the evidence and other facts indicating the applicant’s organisational connection. The Court has already found that the applicants’ suspension from office, and/or an alleged use of the ByLock messaging system as such was not of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to them (see Baş, cited above, §§ 170‑95; Akgün v. Turkey, no. 19699/18, §§ 151-85, 20 July 2021; and Taner Kılıç v. Turkey (no. 2), no. 208/18, §§ 102-03 and 106-09, 31 May 2022). The Court also notes that as regards some of the applicants, the detention orders referred to the existence of witness statements justifying the detention or the content of third persons’ Bylock conversations. 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 against the applicants concerned at the material time that they were members of a terrorist organisation. The Court further considers, as relevant, that the other acts imputed to the applicants revealing an “organisational connection” (see paragraph 3 above), in the circumstances of the case were merely circumstantial elements which, in the absence of any other information capable of justifying the suspicions in question, benefited from the presumption of legality and cannot reasonably be regarded as constituting a body of evidence demonstrating the applicants’ membership of a terrorist organisation (compare Taner Kılıç, cited above, §§ 104-05 and the cases cited therein).

10.  Since the Government have not provided any other indications, “facts” or “information” capable of persuading it that the applicants were “reasonably suspected”, at the time of their initial detention, of having committed the alleged offence, the Court finds that the requirements of Article 5 § 1 (c) regarding the “reasonableness” of a suspicion justifying detention have not been satisfied (compare Baş, cited above, § 195, and Taner Kılıç, cited above, §§ 114-16). It 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 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 (compare Baş, cited above, §§ 115-16 and §§ 196‑201). It therefore concludes that there has been a violation of Article 5 § 1 of the Convention.

3. OTHER COMPLAINTS

11.  As regards any remaining complaints under Article 5 §§ 1, 3 and 4 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

12. The applicants, except for the applicant in application no. 29508/21, 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.

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

14.  For the reasons put forth in Turan and Others (cited above, §§ 102‑07), the Court rejects any claims for pecuniary damage and awards each of the applicants, except for the applicant in application no. 29508/21, 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 Articles 5 and 8 of the Convention;
5. Holds

(a)  that the respondent State is to pay each of the applicants, except for the applicant in application no. 29508/21, 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 10 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Péter Paczolay
 Deputy Registrar President

APPENDIX

List of cases: