Last Updated on May 29, 2019 by LawEuro
SECOND SECTION
CASE OF ALKAYA v. TURKEY
(Application no. 2765/09)
JUDGMENT
STRASBOURG
4 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Alkaya v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 3 July 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 2765/09) 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 a Turkishnational, Mr AligülAlkaya (“the applicant”), on 23 December 2008.
2. The applicant was represented by Mr F.N. Ertekin and Mr K. Öztürk, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 11 December 2009 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1967 and was detained at the Tekirdağ F‑type prison when the application was lodged.
5. On 9 April 2003 the applicant was taken into police custody on suspicion of being a member of a terrorist organisation.
6. On 13 April 2003 the applicant was brought before the judge at the Istanbul State Security Court who placed him in detention on remand taking into consideration the nature of the offence, and the state of evidence.
7. On 23 July 2003 the Istanbul public prosecutor filed an indictment with the IstanbulState Security Court, charging the applicant with membership of a terrorist organisation, and attempting to undermine the constitutional order of the Republic of Turkey by force. The criminal proceedings against the applicant commenced.
8. On 10 November 2008 the court held a further hearing, in which both the applicant and his lawyer were present. At the end of that hearing, the court ordered the continuation of the applicant’s detention.
9. On 10 November 2008 the applicant’s lawyer filed an objection against this decision. On 27 November 2008 the 13th Chamber of the IstanbulAssize Court dismissed the objection without holding a hearing. In delivering its decision, the court took into consideration the written opinion of the public prosecutor, which had not been communicated to the applicant or his representative.
10. On 4 May 2011 the Istanbul Assize Court convicted the applicant and sentenced him to life imprisonment.
11. On 25 September 2012 the Court of Cassation upheld the judgment of the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
12. A description of the relevant domestic law and practice can be found in Altınok v. Turkey, no. 31610/08, §§ 28-32, 29 November 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
13. Relying on Article 5 § 3 of the Convention, the applicant complained that the length of his detention on remand had been excessive and that in dismissing his requests for release the court had used identical, stereotyped reasoning.
14. On 11 December 2009 notice of the application was given to the respondent Government under Rule 54 § 2 (b) of the Rules of Court and they were invited to submit written observations on the admissibility and merits of the case.
15. On 14 April 2010, upon the Government’s request, the Court decided to extend the time limit for submission of their observations until 21 May 2010. The Government submitted their observations, including a preliminary objection regarding Article 141 of the Code on Criminal Procedure on 9 June 2010, outside the time-limit given to them. By a letter of 21 June 2010, the Government were informed that the President of the Section had decided not to include the observations in the file.
16. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.
17. As regards the merits of the complaint, the Court observes that the applicant’s pre-trial detention started on 9 April 2003, with his arrest, and ended on 4 May 2011, with his conviction by the Istanbul Assize Court. The detention on remandthus lasted for eight years and twenty-five days.
18. The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre‑trial detention (see, for example, Tutar v. Turkey, no. 11798/03, § 20, 10 October 2006, and CahitDemirel v. Turkey, no. 18623/03, § 28, 7 July 2009). Having examined all the materialsin its possession and in view of its well‑establishedcase-law on the subject, the Court finds that in the instant case the length of the applicant’s pre-trial detention was excessive.
19. There has accordingly been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
A. Concerning the applicant’s inability to appear before the appeal court examining the objections to his detention
20. Relying on Article 5 § 4 of the Convention, the applicant complained about not being able to appear before the court when his pre‑trial detention was reviewed.
21. In the present case, the applicant was placed in detention on remand on 13 April 2003. At the end of the hearing held on 10 November 2008, the trial court decided on the continuation of the applicant’s detention. Both the applicant and his lawyer were present in that hearing. The applicant subsequently filed an objection against this decision.
22. The Court notes that this objection was dismissed on 27 November 2008 by the appeal court, without holding an oral hearing. Nevertheless, the applicant had already appeared before the trial court seventeen days prior to the examination of his objection 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(see Altınokv. Turkey, no. 31610/08, §§ 54-55, 29 November 2011, and AdemSerkanGündoğdu v Turkey, no. 67696/11, §§ 35-48, 16 January 2018)..
23. Moreover, the Court notes that this circumstance did not jeopardise the principle of equality of arms or the principle of adversarial proceedings as none of the parties participated orally in the proceedings (see,Altınokcited above, § 55).
24. 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
25. The applicant complained under Article 5 § 4 the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He contended that his right to have an effective remedy was breached since his objection was dismissed by the appeal court on the basis of the public prosecutor’s written opinion, which was not communicated to him or to his representative.
26. 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.
27. Turning to the merits of the applicant’s 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.
28. 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 prosecutor’s opinion to the applicant or his representative in the context of review proceedings of lawfulness of the applicant’s detention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
29. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage and EUR 25,936 in respect of pecuniary damage.
30. The Government contested the claim.
31. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects that claim. However, it considers that the applicant must have sustained non‑pecuniary damage in connection with the above-mentioned violations of his rights under Article 5 §§ 3 and 4 of the Convention. Ruling on an equitable basis, it awards EUR 8,000 to the applicant in respect of non-pecuniary damage.
B. Costs and expenses
32. The applicant also claimed EUR 9,448 for costs and expenses incurred before the Court.
33. The Government contested the claim.
34. 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, the applicant lawyer submitted a receipt concerning the payment of fees to his lawyer, a legal fee agreement, the Turkish Bar Association’s list of recommended minimum fees and vouchers of postage in support of that claim. Having regard to these documents, the Court considers it reasonable to award the applicant EUR 1,000 under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe applicant’s complaints under Article 5 § 3 of the Convention, concerning the length of his pre-trial detention, and under Article5 § 4, concerning the non-communication of the public prosecutor’s opinion to the applicant or his representative,admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the length of the applicant’s pre-trial detention;
3. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the non-communication of the public prosecutor’s opinion to the applicant or his representative;
4. Holds
(a) that the respondent State is to pay the applicant, within threemonths, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 1000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 September 2018, pursuant to Rule77§§2 and 3 of the Rules of Court.
Hasan Bakırcı Paul Lemmens
DeputyRegistrar President
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