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FOURTH
SECTION
CASE OF ŞAHİN AND SÜRGEÇ v. TURKEY
(Applications
nos. 13007/02 and 13924/02)
JUDGMENT
STRASBOURG
31
October 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Şahin and Sürgeç v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 10 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 13007/02 and 13924/02)
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 two Turkish nationals,
Mr İbrahim Şahin and Mr Erdoğan Sürgeç
(“the applicants”) on 26 February 2002.
- The
applicants were represented by Mr H. Aygün and Mr Ö.U. Kaplan,
lawyers practising in Tunceli. The Turkish Government
(“the Government”) did not designate an Agent for
the purposes of the proceedings before the Court.
- On
4 September 2003 the Court joined the applications. It further
declared the applications partly inadmissible and decided to
communicate the complaint concerning the length of the applicants’
detention in police custody to the Government.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Fourth Section (Rule 52 § 1).
- In
a letter of 24 June 2005, the Court informed the parties that in
accordance with Article 29 §§ 1 and 3 of the Convention it
would decide on both the admissibility and merits of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1979 and 1973 respectively and were detained
in Malatya prison at the time of the lodging of their applications
with the Court.
- On
1 November 2001 the applicants were arrested and taken into police
custody on suspicion of their involvement in the activities of the
PKK (The Kurdistan Workers’ Party). On 9 November 2001 the
Tunceli Magistrates’ Court ordered their remand in custody.
- The
public prosecutor at the Malatya State Security Court in his
indictment, dated 7 December 2001, accused the first applicant of
membership of the PKK and the second applicant of aiding and abetting
that organisation. The charges were brought under Articles 168 and
169 of the Criminal Code and Article 5 of Law no. 3713.
- On
10 September 2002 the Malatya State Security Court convicted the
applicants as charged and sentenced the first applicant to twelve
years and six months’ imprisonment and the second applicant to
three years and nine months’ imprisonment and a fine of
177,957,000 Turkish liras.
- The
parties did not submit any documents pertaining to the outcome of the
criminal proceedings. However, in their submissions on just
satisfaction, dated 21 July 2005, the applicants stated that the
Malatya State Security Court, pursuant to Law no. 4959 of 29 July
2003 on rehabilitation (topluma kazandırma), had decided
not to sentence the applicants (ceza tertibi) and
suspended the proceedings. They further submitted that this decision
was upheld by the Court of Cassation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Daş v. Turkey judgment (no. 74411/01, § 18,
8 November 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicants alleged that they had not been brought promptly before a
judge, contrary to Article 5 § 3 of the Convention, which
provides as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power.”
A. Admissibility
- The Government asked the Court to dismiss the
complaint as being inadmissible for failure to comply with the
requirement of exhaustion of domestic remedies under Article 35 §
1 of the Convention. The Government argued that the applicants could
have challenged the length of their detention in police custody by
invoking Article 128 of the Code of Criminal Procedure.
- The
Court reiterates that it has already examined and rejected the
Government’s preliminary objections in similar cases (see, in
particular, Daş, cited above, § 21). The Court
finds no particular circumstances in the instant case which would
require it to depart from its findings in the above mentioned
application.
- In
view of the above, the Court rejects the Government’s
preliminary objection.
- 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.
B. Merits
- The
Government argued that the length of the applicants’ detention
in police custody had been in conformity with the legislation in
force at the time. They pointed out that the relevant law had since
been amended in accordance with the case-law of the Court.
- The
applicants maintained their allegations.
- The Court notes that the applicants’ detention
in police custody lasted eight days. It reiterates that, in the case
of Brogan and Others v. the United Kingdom
(judgment of 29 November 1988, Series A no. 145 B,
pp. 33-34, § 62), it held that detention in police custody
which had lasted four days and six hours without judicial control
fell outside the strict time constraints of Article
5 § 3 of the Convention, even though its purpose was to
protect the community as a whole against terrorism (see Brogan and
Others, cited above, pp. 33-34, § 62).
- Even
supposing that the activities of which the applicants stood accused
were serious, the Court cannot accept that it was necessary to detain
them for eight days without bringing them before a judge or other
officer authorised by law to exercise judicial power.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
their observations on just satisfaction, dated 21 July 2005, the
applicants complained under Article 6 of the Convention about the
length of their detention on remand.
- The
Court considers that this complaint falls under the scope of Article
5 § 3 of the Convention.
- The
Court observes that the applicants’ remand in custody ended on
10 September 2002 when the Malatya State Security Court convicted
them as charged. It also notes that there are no documents in the
case-file indicating that the applicants had been detained on remand
after this date. Accordingly, the Court finds that this complaint
either relates to events which occurred more than six months before
its date of introduction with the Court on 21 July 2005, or remains
unsubstantiated. It therefore rejects this complaint in accordance
with Article 35 §§ 1, 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed, in total, 19,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government contested the amount.
- Having
regard to its case law, and making its assessment on an equitable
basis, the Court awards the applicants, jointly, EUR 5,000 in respect
of non pecuniary damage.
B. Costs and expenses
- The
applicants also claimed 13,600 new Turkish liras (YTL) (approximately
EUR 8,427) for representation fees and EUR 2,400 for costs and
expenses incurred before the domestic courts and before the Court. In
support of their claims, the applicants submitted a schedule of costs
prepared by their representatives and the Tunceli Bar Association’s
recommended minimum fees list for 2005. However, they did not submit
any receipts.
- The
Government contested the amounts.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 1,000 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the failure to
bring the applicants promptly before a judge or other officer
authorised by law to exercise judicial power admissible and the
remainder of the applications inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR
5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 31 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
