SECOND SECTION

CASE OF TÜZEMEN AND OTHERS v. TÜRKİYE

(Applications nos. 66683/16 and 116 others –

see appended list)

JUDGMENT
 

STRASBOURG

8 July 2025

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

In the case of Tüzemen and Others v. Türkiye,

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

 Tim Eicke, President,
 Jovan Ilievski,
 Gediminas Sagatys, 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”), 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 alleged lack of relevant and sufficient reasons when ordering and extending the pre-trial detention, the length of the pre-trial detention and the ineffectiveness of the judicial review of the lawfulness of the detention 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 the remainder of the applications inadmissible;

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 17 June 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 attempted coup d’état 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 attempted coup d’état (for further background information see Akgün v. Turkey, no. 19699/18, §§ 3-9, and §§ 106-07, 20 July 2021).

2.  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 v. Turkey, no. 66448/17, § 58, 3 March 2020). The challenges brought by them against their detention were dismissed by the competent courts.

3.  On various dates in the course of the ensuing criminal investigations and trials, the competent judicial authorities ordered the applicants’ continued detention.

4.  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: using the Bylock messaging system; witness statements indicating ties with FETÖ/PDY; sharing social media posts or participating in protests in favour of FETÖ/PDY; possession of pro-FETÖ/PDY publications; having intensive telephone contact with FETÖ/PDY suspects; suspension or dismissal from office; 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; financing the FETÖ/PDY in view of their use of accounts in Bank Asya – a bank allegedly linked to FETÖ/PDY –; enrolling their children in an educational institution allegedly affiliated with the FETÖ/PDY; participating in journeys abroad with FETÖ/PDY suspects; provision of financial support, the details and nature of which are not provided, to FETÖ/PDY or to institutions with ties to FETÖ/PDY; attending or holding meetings (sohbet) the dates, nature or characteristics of which are not specified; staying in FETÖ/PDY residences; having in their possessions United States one‑dollar bills with an “F” serial number; and carrying out various other activities on the orders of the organisation.

5.  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.

6.  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, which were declared inadmissible by the Constitutional Court in summary fashion.

7.  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 some of the criminal proceedings are still pending before the appellate courts or the Constitutional Court.

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

8.  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

9.  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, in particular, their initial pre-trial detention.

10.  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 CCP, 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.

11.  The Court notes that similar objections have already been dismissed in other cases against Türkiye (see, for instance, Baş v. Turkey, no. 66448/17, §§ 118-21, 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 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.

12.  The Court notes that the applicants’ initial pre-trial detention orders were mainly based on information indicating their use of the ByLock messaging system, banking activities considered as financing the FETÖ/PDY, possession of certain pro-FETÖ/PDY publications, having in their possession United States one‑dollar bills with an “F” serial number, sharing social media posts or participating in protests in favour of FETÖ/PDY, having intensive telephone or other contact with FETÖ/PDY suspects, their suspension or dismissal from office, and/or their employment by and/or memberships in FETÖ/PDY-affiliated institutions and organisations. To the extent that the detention orders have taken into account the applicants’ alleged use of the ByLock messaging system, the Court notes that it has already found that the use of ByLock alone was not of a nature to constitute “reasonable suspicion” within the meaning of Article 5 § 1 (c) in respect of the offence attributed to the applicants (see 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). Accordingly, in applications where the use of Bylock constituted the principal basis for the applicants’ detention, the Court finds that there was no reasonable suspicion, for the purposes of Article 5 § 1 (c), that they had committed an offence.

13.  As regards the other evidentiary elements relied upon by the national courts where the use of Bylock was not the central or sole factor, the Court recalls its finding in Taner Kılıç (§§ 104-05, cited above), that acts such as subscribing to the organisation’s lawful publications, enrolling children in legally operating schools allegedly affiliated with the organisation, or holding an account with Bank Asya were merely circumstantial and, in the absence of further probative elements, could not reasonably give rise to a suspicion of having committed the alleged offence. The Court further emphasised that such acts enjoy a presumption of legality unless supported by additional elements such as concrete evidence of the suspect’s intentional engagement with an organisation’s criminal activities (§ 105). In the light of these considerations, the Court finds that the additional elements relied upon in the present applications for ordering the applicants’ detention, such as the possession of specific one-dollar bills, social media activity, protests, contacts with other suspects, employment/membership in affiliated entities or dismissal from public service, likewise fall within the scope of acts which do not, per se, give rise to a reasonable suspicion that the applicants were members of a terrorist organisation. These factors do not carry any greater evidentiary weight than the circumstantial elements previously examined by the Court. The Court thus considers, a fortiori, that the other acts imputed to the applicants allegedly demonstrating an “organisational connection” (see paragraph 4 above) cannot reasonably be construed as evidence of membership of a terrorist organisation in the absence of further information substantiating such suspicions (compare Taner Kılıç, cited above, §§ 104-05 and the cases cited therein). The Court also notes that as regards some of the applicants, the Government have referred to the existence of witness statements justifying the measures in question. 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.

14.  The Court further notes that, when ordering the applicants’ initial pre‑trial detention, the magistrates’ 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 actually 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 supposed to have been 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.

15.  Since the Government have not provided any other indications, “facts” or “information” capable of satisfying 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 finally considers that while the applicants were detained a short time after the attempted coup d’état – 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

16.  As regards any remaining complaints under Article 5 §§ 1, 3 and 4 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 the applicants in applications nos. 69572/17, 82344/17, 24217/19, 44360/19, 22579/21 and 51815/21, 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, 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, §§ 102‑07), the Court rejects any claims for pecuniary damage and awards each of the applicants, save for the applicants in applications nos. 69572/17, 82344/17, 24217/19, 44360/19, 22579/21 and 51815/21, 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 Article 5 of the Convention;
5. Holds

(a)  that the respondent State is to pay each of the applicants, save for the applicants in applications nos. 69572/17, 82344/17, 24217/19, 44360/19, 22579/21 and 51815/21 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’ claim for just satisfaction.

Done in English, and notified in writing on 8 July 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Tim Eicke
 Deputy Registrar President

APPENDIX

List of cases: