Inadmissibility appications before the ECtHR if similar allegations have been lodged before other jurisdictions, such as the Working Group on Arbitrary Detention of the United Nations Human Rights Council.
JUDGMENT
Doğan and Çakmak v. Turkey 06.06.2019 (no. 28484/10 and 58223/10)
SUMMARY
Inadmissible applications because the applicants had already filed a similar complaint before another jurisdiction. Attempt of a military coup in Turkey.
The Court found that the actions brought by the applicants were essentially the same as the petitions submitted to the Working Group on Arbitrary Detention of the United Nations Human Rights Council which had issued an opinion on this issue on 1 May 2013. The ECHR excludes from the jurisdiction of the Court any action that has been brought before another international body or international jurisdiction if it does not contain any new information. The actions concerned the provisional detention of the applicants in the criminal investigation against the alleged criminal organization “Balyoz” in the design of a military coup between 2002 and 2003
PROVISIONS
Article 5 § 4
Article 35 § 2b
PRINCIPAL FACTS
The applicants, Çetin Doğan and Cem Aziz Çakmak, are Turkish nationals who were born respectively
in 1940 and 1963 and live in Istanbul (Turkey).
In 2010 the Istanbul public prosecutor’s office opened a criminal investigation against a number of
presumed members of the criminal organisation “Balyoz”, who were all officers or civil servants
connected with the armed forces. They were accused of planning a military coup d’état between
2002 and 2003 seeking the overthrow of the elected government.
Between 2010 and 2011 the Istanbul public prosecutor brought criminal proceedings against 365
individuals, including Mr Doğan and Mr Çakmak, accusing them of taking part in the plan. They
denied the accusations. In particular, they challenged the authenticity of CDs produced in evidence
by the public prosecutor, arguing that the digital material on which the accusations were supposed
to be based had in fact been created or falsified in order to incriminate many army officers and
justify their dismissal.
During the proceedings they were held in pre-trial detention. Mr Doğan was held for a total of one
year, 10 months and 25 days, and Mr Çakmak for 18 months and 26 days. Their applications for
release were rejected by the domestic courts.
In 2015 the applicants were acquitted by the Anadolu Assize Court, which found that the evidence in
the file had been falsified. The court also decided to identify those presumed responsible for the
forgery.
THE DECISION OF THE COURT
Article 5 § 4 (right to a speedy decision on the lawfulness of detention)
On 1 May 2013 the Working Group on Arbitrary Detention of the United Nations Human Rights
Council issued an opinion (no. 6/2013) on the subject of 250 individuals – including Mr Doğan and
Mr Çakmak – who were held in pre-trial detention in connection with the “Balyoz” investigation.
The Court noted that the complaints submitted to it by Mr Doğan and Mr Çakmak were essentially
the same as those which had led to opinion no. 6/2013.
In that connection, the Court pointed out that Article 35 § 2 (b) of the Convention, which sought to
avoid multiplying international procedures in the same cases, excluded the admissibility of an
application which had previously been examined by an international body. That rule applied
regardless of the date on which those proceedings had started, the key factor being the prior
existence of a decision on the merits at the time the Court examined the case.
The Court also noted that the UN Working Group had found in its opinion that the depriving of
Mr Doğan and Mr Çakmak of their liberty had been arbitrary as it was at odds with Articles 9 and 14
of the International Covenant on Civil and Political Rights and Articles 9, 10 and 11 of the Universal
Declaration of Human Rights.
Consequently, given that the facts, the parties and the complaints were the same, the Court rejected
the applications in accordance with Article 35 § 2 (b) of the Convention(echrcaselaw.com).
