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06/12/2022
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European Court of Human Rights: Başer and Özçelik v. Turkey (nos. 30694/15 and 30803/15)

European Court of Human RightsSept. 13 Judgment: The applicants, Mustafa Başer and Metin Özçelik, are Turkish nationals who were born in 1969 and 1970 respectively.

At the time of the events in question, the applicants were judges in the criminal courts in Istanbul. The case concerns their pre-trial detention while being held on suspicion of, among other charges, attempting to overthrow the Government and membership of an illegal armed organisation. They had been involved in the decisions to release suspects allegedly connected to the Fetullahist Terrorist Organisation/Parallel State Structure (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması). The applicants were ultimately found guilty of membership of an armed terrorist organisation and abuse of power only in 2017.

Relying on Article 5 §§ 1 and 3 (right to liberty and security), Article 5 § 4 (right to have the lawfulness of detention decided speedily by a court), Article 7 (no punishment without law), and Article 10 (freedom of expression) of the Convention, the applicants complain, in particular, that their pre-trial detention was in breach of the law and was not adequately justified by the courts, that their challenge to that decision was hindered by lack of access to the case files, that their detention was overly long, and that the courts failed to respond to their arguments and interpreted the law in an arbitrary manner.

Violation of Article 5 § 1 on account of the unlawfulness of the applicants’ initial pre-trial detention for lack of prior authorisation for initiating a criminal investigation
No violation of Article 5 § 1 on account of the unlawfulness of the applicants’ initial pre-trial detention insofar as the applicants complained about the lack of jurisdiction of the 2nd Bakırköy Assize Court to decide on their detention
Violation of Article 5 § 1 (c) on account of the lack of reasonable suspicion, at the time of the applicants’ initial pre-trial detention, that they had committed an offence

Just satisfaction:
non-pecuniary damage: EUR 5,000 to each applicant