Last Updated on May 3, 2019 by LawEuro
SECOND SECTION
CASE OF EREN AND OTHERS v. TURKEY
(Application no. 11395/08)
JUDGMENT
This version was rectified on 19 March 2019
under Rule 81 of the Rules of Court.
STRASBOURG
11 December 2018
This judgment is final but it may be subject to editorial revision.
In the case of Eren and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated in private on 20 November 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 11395/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Mr Veysi Eren, Mr Resul Öz and Mr Uğur Medeni (“the applicants”), on 22 February 2008.
2. The applicants were represented by Mr İ. Akmeşe, a lawyer practising in İstanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 31 August 2012 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants, who were born in 1984, 1987 and 1988 respectively, live in İstanbul.
5. On 23 August 2007 the applicants were arrested and taken into custody on suspicion of membership of a terrorist organisation.
6. On the same day, the judge at the İstanbul Assize Court decided to restrict access to the investigation file, under Article 153 § 2 of the Code of Criminal Procedure (the “CCP”), Law no. 5271. The judge also decided to delay the second and third applicants’ right of access to their lawyer for twenty-four hours pursuant to section 10 of the Prevention of Terrorism Act (Law no. 3713), which was in force at the material time.
7. On 26 August 2007 the applicants were questioned by police officers from the Anti-Terror Branch of the İstanbul Security Directorate, in the presence of their lawyer. They used their right to remain silent.
8. On the same day, the applicants were also interrogated by the public prosecutor, in the presence of their lawyer. They were mainly questioned about certain records of telephone conversations and the incident of the arson of vehicles during an illegal demonstration. The prosecutor read out the transcripts of the intercepted conversations to the applicants. The applicants did not remember that they had had these conversations but claimed that these conversations did not prove that they had committed the offences with which they were charged with, or that they attended the illegal demonstration on behalf of a terrorist organisation.
9. On 26 August 2007, after having taken the applicants’ statements, the judge at the 10th Chamber of the İstanbul Assize Court ordered their pre‑trial detention.
10. On 31 August 2008 the applicants’ lawyer filed an objection against the decision of 26 August 2007 ordering the applicants’ detention, and requested their release. On the same day, the 10th Chamber of the İstanbul Assize Court, relying on the public prosecutor’s written opinion, which had not been communicated to the applicants or their representative, dismissed the objection without holding a hearing.
11. On 3 December 2007 the İstanbul public prosecutor filed a bill of indictment against the applicants, accusing them, inter alia, of membership of a terrorist organisation, illegal possession of explosives and causing damage to public property.
12. On 17 December 2007 the İstanbul Assize Court accepted the indictment.
13. On 27 December 2007 the İstanbul Assize Court held a preparatory hearing and dismissed the applicants’ requests for release.
14. On 18 April 2008 and 22 July 2008 the court held further hearings, in which the applicants and their lawyer were present. At the end of those hearings, the court ordered the continuation of the applicants’ detention.
15. At the end of the third hearing, held on 20 November 2008, the court prolonged the applicants’ detentions. The applicants were present at this hearing. Subsequently, they filed an objection against this decision. On 28 November 2008 the 11th Chamber of the İstanbul Assize Court dismissed the objection, without holding an oral hearing and based on the written opinions of the public prosecutor, which had not been communicated to the applicants or their representative.
16. On 19 December 2008 the court ex officio examined the applicants’ detention on remand on the basis of the case-file and decided to extend it.
17. At the hearings held on 19 March 2009 and 16 July 2009, in which the applicants were present, the trial court ordered the continuation of the applicants’ detention on remand.
18. On 24 November 2009, 30 March 2010 and 24 May 2012, respectively, the applicants were released from detention on remand.
19. On 1 October 2013 the İstanbul Assize Court acquitted the second applicant of the charges against him. The court convicted the first and the third applicants and sentenced them to imprisonment. The judgment in concerning the acquittal of the second applicant became final, as there was no appeal against it.
20. On 1 July 2016 the Court of Cassation quashed the judgment of the first instance court in so far as it concerned the convictions of the first and third applicants. Accordingly, the case file was remitted to the first instance court.
21. According to the latest information in the case file, the criminal proceedings against the first and third applicants are still pending before the İstanbul Assize Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
22. A description of the relevant domestic law and practice can be found in Altınok v. Turkey, no. 31610/08, §§ 28-32, 29 November 2011, Ceviz v. Turkey, no. 8140/08, §§ 24-28, 17 July 2012, Şefik Demir v. Turkey (dec.), no. 51770/07, §§ 29-33, 16 October 2012, and A.Ş. v. Turkey no. 58271/10, §§ 34-35, 13 September 2016.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
A. As regards the length of the applicants’ police custody
23. The applicants complained under Article 5 § 3 of the Convention that they had not been brought promptly before a court and that they had been kept in custody for a long time.
24. The Court reiterates that the promptness is to be assessed in each case according to its special features; the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5 § 3 of the Convention, that is to the point of effectively negativing the State’s obligation to ensure a prompt release or a prompt appearance before a judicial authority (see Brogan and Others v. the United Kingdom, 29 November 1988, § 59, Series A no. 145 B).
25. In the present case, the applicants were taken into police custody on 23 August 2007 at 3.15 p.m., 6.15 a.m. and 7.00 a.m. respectively. Their custody ended with the Assize Court’s decision to their detention on 26 August 2007. Even though the exact time of the end of the applicants’ custody was not specified, the Court observes that the applicants remained in custody for less than three and a half days until their detention was ordered.
26. The Court notes that, during the period of that the applicants’ custody, they were heard by the police and the public prosecutor. In addition, they were arrested in the context of an investigation involving several others suspects accused of terrorist offenses. In this regard, given the context in which the applicants were arrested, the Court concludes that the three and a half day long period of applicants’ police custody was justified.
27. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. As regards the length of the applicants’ pre-trial detention
28. Relying on Article 5 § 3 of the Convention, the applicants complained that the length of their detention on remand had been excessive and that the domestic courts had used identical, stereotyped reasoning when prolonging their detention.
29. The Government rejected the allegation, submitting that the applicants had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 § 1 (d) of the CCP.
30. The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of Şefik Demir v. Turkey, ((dec.), no. 51770/07, §§ 17-35, 16 October 2012), and A.Ş. v. Turkey (no. 58271/10, §§ 85‑95, 13 September 2016).
31. In the case of Şefik Demir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015, the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.
32. In the instant case, the Court notes that the applicants’ detention ended on 24 November 2009, 30 March 2010 and 24 May 2012, respectively, when they were released from detention on remand. On 1 October 2013 the proceedings against the second applicant became final. There is no information about whether the proceedings against the first and third applicants are still pending or have become final. The Court therefore observes that the applicants were entitled, in both situations, to seek compensation under Article 141 § 1 (d) of the CCP and that they must do so.
33. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006-I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey (dec.), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.
34. As a result, taking into account the Government’s objection, the Court concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
35. Relying on Articles 5 § 4 and 13 of the Convention, the applicants complained about not being able to appear before the courts when their pre‑trial detention was reviewed and lack of an effective remedy to challenge the unlawfulness of their detentions on account of the restriction placed on their access to the investigation file. Under the same Articles, they further stated that their objections were dismissed by the appeal court on the basis of the public prosecutor’s written opinion, which had not been communicated to them or to their representative.
36. The Court considers that the applicants’ complaint under Article 13 should be examined from the standpoint of Article 5 § 4 of the Convention, being the lex specialis in the matter (see Doğan and Kalın v. Turkey, no. 1651/05, § 15, 21 December 2010).
A. Concerning the applicants’ inability to appear before the appeal court when their objection was examined
37. Relying on Article 5 § 4 of the Convention the applicants complained about not being able to appear before the court when their pre‑trial detention was reviewed. In this connection, they firstly argued that they had not appeared before a court for more than seven months, namely between the initial detention order dated 26 August 2007 and the first hearing held on 18 April 2008. They further stated that they had not been able to appear before the court when their objection against their continued detention was examined by the appeal court on 28 November 2008.
38. The Government contested those arguments.
1. As to the complaint concerning the period between 26 August 2007 and 18 April 2008
39. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
40. In the present case, the applicants were placed in pre-trial detention on 26 August 2007 and their next appearance before a judge was on 18 April 2008 for the first hearing before the İstanbul Assize Court.
41. The Court reiterates that it has already examined a similar grievance in the cases of Erişen and Others v. Turkey (no. 7067/06, § 53, 3 April 2012) and Karaosmanoğlu and Özden (no. 4807/08, § 76, 17 June 2014), and found a violation of Article 5 § 4. It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned judgments.
42. There has therefore been a violation of Article 5 § 4 of the Convention under this head.
2. As to the complaint concerning the decision of 28 November 2008 dismissing the applicants’ release requests
43. The Court observes that at the end of the hearing held on 20 November 2008, the trial court decided on the continuation of the applicants’ detention. The applicants and their lawyer were present in that hearing. The applicants’ lawyer subsequently filed an objection against this decision.
44. The Court notes that this objection was dismissed on 28 November 2008 by the appeal court, without holding an oral hearing. Nevertheless, the applicants had already appeared before the trial court eight days before their objection was examined by the appeal court. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4.
45. The Court thus concludes that the lack of an oral hearing during the proceedings did not jeopardise the principle of equality of arms (see Altınok v. Turkey, no. 31610/08, §§ 54-55, 29 November 2011; Adem Serkan Gündoğdu v. Turkey, no. 67696/11, §§ 35-48. 16 January 2018).
46. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Concerning the non-communication of the public prosecutor’s opinion
47. The applicants complained under Article 5 § 4 of the Convention that they did not have an effective remedy to challenge the lawfulness of their detention. They contended that their right to have an effective remedy had been breached since their objections had been dismissed by the appeal courts on the basis of the public prosecutors’ written opinions, which had not been communicated to them or to their representative.
48. The Government contested that argument.
49. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
50. Turning to the merits of the applicants’ complaint, the Court notes that the present case raises issues similar to the case of Altınok (cited above, §§ 57-61), where it found a violation of Article 5 § 4 of the Convention. There is no reason to depart from those findings.
51. Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 4 of the Convention on account of the non‑communication of public prosecutors’ opinions to the applicants or their representative in the context of review proceedings of lawfulness of the applicants’ detentions.
C. Concerning the restriction of access to the investigation file
52. The applicants complained that, as a result of the restriction placed on their access to the investigation file, they had not been able to challenge the evidence which had been the grounds for the decision to detain them on remand.
53. The Government contested that argument.
54. The Court observes that people who have been arrested or detained are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see Ceviz v. Turkey, no. 8140/08, § 41, 17 July 2012).
55. In the instant case, the Court notes that on 23 August 2007 the judge at the İstanbul Assize Court decided to restrict access to the investigation file to ensure proper conduct of the investigation. However, on 26 August 2007, when the applicants were questioned in the presence of their lawyer by the public prosecutor and investigating judge, they were informed about the charges of which they were suspects. During their questioning their intercepted telephone conversations by the authorities were read out to them and they were asked to comment on them. They were further asked questions about the incriminating statements of one of their co-accused.
56. In the light of the foregoing, the Court considers that the applicants and their lawyer had sufficient knowledge of the content of the investigation file and that they had the opportunity to challenge the pre-trial detention order (see Ceviz, cited above, §§ 41-44; Karaosmanoğlu and Özden, cited above, § 74; and Ayboğa and Others v. Turkey, no. 35302/08, § 17, 21 June 2016).
57. The Court concludes that this part of the complaint is manifestly ill‑founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
58. The applicants complained under Article 5 § 5 of the Convention that they had been denied the right to compensation for the violation of their rights under Article 5 § § 1 to 4 of the Convention.
59. The Government contested that argument.
60. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
61. The Court reiterates that paragraph 5 of Article 5 requires a remedy in compensation for a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A). This right to compensation presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court.
62. In this connection, the Court notes that it has found that the applicants’ rights to have an effective remedy to challenge the lawfulness of their detentions were infringed in the present case on account of lack of appearance before a court to challenge the lawfulness of their pre‑trial detention and non-communication of the public prosecutor’s opinion (see paragraphs §§ 42, 52). It also recalls that it has examined a similar issue in the case of Altınok (cited above, §§ 66-69), and found a violation of Article 5 § 5 of the Convention. There is no reason to depart from those findings.
63. Accordingly, the Court concludes that in the present case there has also been a violation of Article 5 § 5 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION
64. The applicants complained under Article 6 § 1 of the Convention about the length of the criminal proceedings brought against them. Relying on Article 13 of the Convention the applicants further complained that no remedy had been available to them under the domestic law in force at relevant time, by which to challenge the length of the criminal proceedings brought against them.
65. As regards the applicants’ allegations raised under Article 6 § 1 of the Convention, the Court notes that the same complaint has already been examined by the Court in application no. 36845/12 (see Durusoy and Others v. Turkey, no. 34600/04, 21 May 2013). Consequently, this part of the present application is inadmissible in terms of Article 35 § 2 (b) of the Convention for being substantially the same as that examined in application no. 36845/12, and must be rejected pursuant to Article 35 § 4.
66. As regards the remaining complaint raised under Article 13 of the Convention, the Court considers that in the light of its finding in respect of of the complaint under Article 6 § 1 of the Convention, the applicant’s complaint under Article 13 should be rejected for being incompatible ratione materiae with the provisions of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
67. The applicants claimed 95,000 euros (EUR) in respect of non‑pecuniary damage.
68. The Government contested that claim.
69. The Court considers that the applicants must have sustained non‑pecuniary damage in connection with the above-mentioned violations of their rights under Article 5 §§ 4 and 5 of the Convention. Ruling on equitable basis, it awards each applicant EUR 750 in respect of non‑pecuniary damage.
B. Costs and expenses
70. The applicants also claimed 12,744 Turkish liras (TRY) (approximately EUR 2,300) in respect of lawyer’s fees and TRY 800 (approximately EUR 145) for other costs and expenses incurred before the Court and the domestic authorities, such as stationery, photocopying and translations. In that connection, the applicants’ lawyer submitted a receipt concerning the lawyer’s fee and the Turkish Bar Association’s list of recommended minimum fees.
71. The Government contested the claim.
72. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 750 for the proceedings before the Court.
C. Default interest
73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe applicants’ complaints under Article 5 §§ 4 and 5 of the Convention, concerning the non-communication of the public prosecutor’s opinion to the applicants or their representative, non‑appearance of the applicants before a court in the proceedings to challenge the lawfulness of their continued detention and the lack of compensation in these respects admissible, and the remainder of the application inadmissible;
2. Holdsthat there has been a violation of Article 5 § 4 of the Conventionon account of the non-communication of the public prosecutor’s opinion to the applicants or their representative and non-appearance of the applicants before a court in the proceedings to challenge the lawfulness of their continued detention;
3. Holds that there has been a violation of Article 5 § 5 of the Convention;
4. Holds[1]
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 750 (seven hundred and fifty euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) a total amount of EUR 750 (seven hundred and fifty euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses.
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismissesthe remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 11 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Julia Laffranque
Deputy Registrar President
_______________
[1]Rectified on 19 March 2019: the text was:
“(a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses.”
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