SECOND SECTION
\nCASE OF ONAT v. TURKEY
\n(Application no. 26826\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n25 September 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Onat v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Paul Lemmens, President, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n Having deliberated in private on 4 September 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 26826\/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Turkish national, Mr \u015eafiOnat (\u201cthe applicant\u201d), on 20 April 2010.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr \u0130. Akme\u015fe, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 16 January 2012 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1988 and lives in Istanbul.<\/p>\n 5.\u00a0\u00a0On 12 May 2009 the judge at the Istanbul Assize Court decided to restrict access to the investigation file relating to an investigation against the applicant and others pursuant to Section 10 of the Prevention of Terrorism Act (Law no. 3713),which was in force at the material time.<\/p>\n 6.\u00a0\u00a0On 31 October 2009the applicant was arrested and taken into custody on suspicion of membership of a terrorist organisation.<\/p>\n 7.\u00a0\u00a0On 1 November 2009 the applicant\u2019s police statement was taken at the Anti-Terror Branch of the Istanbul Security Directorate, in the presence of his lawyer. He was questioned at length about his telephone conversations that had been intercepted. The police read out the transcripts of the said telephone conversations and asked the applicant to comment on them. He was further questioned in relation to allegations about aiding and abetting a terrorist organisation as well as his participation in several illegal demonstrations on behalf of this terrorist organisation and several incidents of assault and battery. He was further asked questions about a co\u2011accused\u2019s incriminating statements.<\/p>\n 8.\u00a0\u00a0On 2 November 2009 the public prosecutor questioned the applicant in the presence of his lawyer. The prosecutor read out the transcripts of the intercepted conversations to the applicant. The applicant did not deny that he had had these conversations but claimed that they were not made with the intention to plan a terrorist action.<\/p>\n 9.\u00a0\u00a0On the same day the judge at the Istanbul Assize Court ordered his pre-trial detention.<\/p>\n 10.\u00a0\u00a0On 2 November 2009 the applicant\u2019s lawyer asked the court to lift the restriction of access to the investigation file.\u00a0On 10 November 2009 the Istanbul Assize Court rejected this objection.<\/p>\n 11.\u00a0\u00a0On 4 November 2009 the applicant\u2019s lawyer filed an objection against the decision on the applicant\u2019s detention, and requested his release. On 12 November 2009 the Istanbul Assize Court, relying on the public prosecutor\u2019s written opinion, which had not been communicated to the applicant or his representative, dismissed the objection without holding a hearing.<\/p>\n 12.\u00a0\u00a0On 25 November 2009 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with aiding and abetting of a terrorist organisation, and looting.<\/p>\n 13.\u00a0\u00a0On 4 December 2009 the Istanbul Assize Court accepted the indictment. On the same date the restriction on the file was lifted.<\/p>\n 14.\u00a0\u00a0On 26 February 2010 the applicant was released.<\/p>\n 15.\u00a0\u00a0According to the latest information in the case file, the criminal proceedings against the applicant are still pending.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 4 OF THE CONVENTION<\/p>\n 16.\u00a0\u00a0Relying on Articles 5 \u00a7 4, 6 \u00a7 3 and 13 of the Convention, the applicant complained about not being able to appear before the courts when his pre\u2011trial detention was reviewed and lack of an effective remedy to challenge the unlawfulness of his detention on account of the restriction placed on his access to the investigation file. Under the same Articles, he further stated that his objection was dismissed by the appeal court on the basis of the public prosecutor\u2019s written opinion, which had not been communicated to him or to his representative.<\/p>\n 17.\u00a0\u00a0The Court considers that the applicant\u2019s complaints under Articles\u00a06 \u00a7\u00a03 and 13 should be examined from the standpoint of Article 5 \u00a7 4 of the Convention, being the lexspecialis in the matter (see Do\u011fan and Kal\u0131n v.\u00a0Turkey, no. 1651\/05, \u00a7 15, 21 December 2010).<\/p>\n A.\u00a0\u00a0Concerning the applicant\u2019s inability to be present before the appeal court examining the objections to his detention<\/strong><\/p>\n 18.\u00a0\u00a0The applicant complained under Article 5 \u00a7 4 of the Convention about not being able to appear before the courts when his pre- trial detention was reviewed.<\/p>\n 19.\u00a0\u00a0The Government contested that argument.<\/p>\n 20.\u00a0\u00a0In the present case, the applicant was placed in pre-trial detention on 2\u00a0November 2009. The applicant subsequently filed an objection against this decision.<\/p>\n 21.\u00a0\u00a0The Court notes that the applicant\u2019s objection was dismissed on 12\u00a0November 2009 by the appeal court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court ten days before his objection was examined. 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 \u00a7 4 of the Convention (see \u00c7elik v. Turkey, no.\u00a06670\/10, \u00a7 18, 17 March 2015).<\/p>\n 22.\u00a0\u00a0The Court concludes that this part of the complaint is manifestly ill\u2011founded and must be rejected, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n B.\u00a0\u00a0Concerning the restriction of access to the investigation file<\/strong><\/p>\n 23.\u00a0\u00a0The applicant complained that on account of the restriction placed on his access to the investigation file, he had not been able to challenge the evidence which had been the grounds for the decision to detain him on remand.<\/p>\n 24.\u00a0\u00a0The Government contested that argument.<\/p>\n 25.\u00a0\u00a0The 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 \u201clawfulness\u201d, 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 \u201cequality of arms\u201d between the parties, the prosecutor and the detained person (see Ceviz v.\u00a0Turkey, no. 8140\/08, \u00a7 41, 17 July 2012).<\/p>\n 26.\u00a0\u00a0In the instant case, the Court notes that on 12 May 2009 the judge at the Istanbul Assize Court decided to restrict access to the investigation file to ensure proper conduct of the investigation. However, on 1 and 2\u00a0November 2009, the applicant was questioned, in the presence of his lawyer, by the police and later by both the public prosecutor and investigating judge about his telephone conversations intercepted by the authorities and which were considered as part of the evidence of the offence of which the applicant was a suspect. Although the applicant did not remember some of the intercepted conversations, he did not deny the rest of them. Furthermore, when his representative was asked about the applicant\u2019s statements before the investigating judge, he referred to the incidents in question and the transcripts of the applicant\u2019s telephone conversations contained in the investigation file.<\/p>\n 27.\u00a0\u00a0In the light of the foregoing, the Court considers that both the applicant and his 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, \u00a7\u00a7 41-44; Karaosmano\u011flu and \u00d6zden, no. 4807\/08, \u00a7 74, 17 June 2014; and Aybo\u011fa and Others v.\u00a0Turkey, no.\u00a035302\/08, \u00a7 17, 21 June 2016).<\/p>\n 28.\u00a0\u00a0The Court concludes that this part of the application is manifestly ill\u2011founded and must be rejected, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n C.\u00a0\u00a0Concerning the non-communication of the public prosecutor\u2019s opinion<\/strong><\/p>\n 29.\u00a0\u00a0The applicant complained under Article 5 \u00a7 4 of 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\u2019s written opinion, which was not communicated to him or to his representative.<\/p>\n 30.\u00a0\u00a0The Government contested that argument.<\/p>\n 31.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 32.\u00a0\u00a0Turning to the merits of the applicant\u2019s complaint, the Court notes that the present case raises issues similar to the case of Alt\u0131nok v.\u00a0Turkey (no.\u00a031610\/08. \u00a7\u00a7 57-61, 29 November 2011), where it found a violation of Article\u00a05 \u00a7 4 of the Convention. There is no reason to depart from those findings.<\/p>\n 33.\u00a0\u00a0Accordingly, the Court finds that in the present case there has been a violation of Article 5 \u00a7 4 of the Convention on account of the non\u2011communication of public prosecutor\u2019s opinion to the applicant or his representative in the context of review proceedings of lawfulness of the applicant\u2019s detention.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 5 OF THE CONVENTION<\/p>\n 34.\u00a0\u00a0The applicant complained under Article 5 \u00a7 5 of the Convention that he had been denied the right to compensation for the violation of his right under Article 5 \u00a7 4 of the Convention.<\/p>\n 35.\u00a0\u00a0The Government contested that argument.<\/p>\n 36.\u00a0\u00a0The Court notes that this part of the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 37.\u00a0\u00a0The 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, \u00a7\u00a038, Series A no. 185\u2011A). 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.<\/p>\n 38.\u00a0\u00a0In this connection, the Court notes that it has found that the applicant\u2019s right to have an effective remedy to challenge the lawfulness of his detention was infringed in the present case on account of non\u2011communication of the public prosecutor\u2019s opinion in the proceedings relating to the objection to his pre-trial detention (see paragraphs\u00a032-33 above).It also recalls that it examined a similar issue in the case of Alt\u0131nok(cited above, \u00a7\u00a7 66-69), where it found a violation of Article 5 \u00a7 5 of the Convention. There is no reason to depart from those findings.<\/p>\n 39.\u00a0\u00a0Accordingly, the Court concludes that in the present case there has also been a violation of Article 5 \u00a7 5 of the Convention.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 40.\u00a0\u00a0The applicant claimed 15,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 41.\u00a0\u00a0The Government contested the claim.<\/p>\n 42.\u00a0\u00a0The Court, having regard to all the elements before it, considers that the finding of a violation of Article 5 \u00a7\u00a7 4 and 5 constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant (see Ceviz v. Turkey, no. 8140\/08, \u00a7 64, 17 July 2012).<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 43.\u00a0\u00a0The applicant also claimed 4,248 Turkish liras (TRY) (approximately EUR\u00a0800) in respect of lawyer\u2019s fees and TRY\u00a0800 (approximately EUR\u00a0155) for other costs and expenses incurred before the Court and the domestic authorities, such as stationery, photocopying and translations. In that connection, he submitted a receipt concerning the lawyer\u2019s fee and the Turkish Bar Association\u2019s list of recommended minimum fees.<\/p>\n 44.\u00a0\u00a0The Government contested the claim.<\/p>\n 45.\u00a0\u00a0According to the Court\u2019s 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 applicant EUR 750 covering costs under all heads.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 46.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaints under Article 5 \u00a7\u00a7 4 and 5 of the Convention, concerning the non-communication of the public prosecutor\u2019s opinion to the applicant or his representative, and the lack of compensation in this respect admissible, and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 5 \u00a7 4 of the Convention on account of the non-communication of the public prosecutor\u2019s opinion to the applicant or his representative;<\/p>\n 3.\u00a0\u00a0Holds that there has been a violation of Article 5 \u00a7 5 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;<\/p>\n 5.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three\u00a0months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR\u00a0750 (seven hundred fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 6.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 25 September 2018, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paul Lemmens
\nValeriu Gri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n