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SECOND
SECTION
CASE OF
BAZ AND OTHERS v. TURKEY
(Application
no. 76106/01)
JUDGMENT
STRASBOURG
3
May 2007
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 Baz and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 3 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 76106/01) 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 six Turkish nationals, Mr Abdulkadir Baz,
Mr Sedrettin Dinar, Mr Mahrem Bulut, Mr Mehmet Akbalık,
Mr Tahsin Aktaş and Mr Yusuf Sebuk (“the
applicants”), on 14 September 2001.
- The
applicants were represented by Mr T. Elçi, a lawyer practising
in Diyarbakır. The Turkish Government (“the Government”)
did not designate an Agent for the purpose of the proceedings before
the Court.
- On
7 September 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1984, 1970, 1964, 1958, 1962 and 1961
respectively and live in Diyarbakır.
- The
applicants were active members of HADEP
in Diyarbakır at the time of the events giving rise to the
present application.
- In
2001, on various dates, the applicants were arrested and taken into
police custody on suspicion of their involvement in the activities of
an illegal armed organisation, namely the PKK (the Kurdistan Workers'
Party).
- The
periods spent by the applicants in police custody are as follows:
|
Name
|
Date(s) of arrest
|
Date(s) of release
|
|
Abdulkadir Baz
|
12 August 2001
|
21 August 2001
|
|
Sedrettin Dinar
|
12 August 2001
|
21 August 2001
|
|
Mahrem Bulut
|
4 May 2001
12 August 2001
|
7 May 2001
21 August 2001
|
|
Mehmet Akbalık
|
14 June 2001
12 August 2001
|
15 June 2001
21 August 2001
|
|
Tahsin Aktaş
|
12 August 2001
|
21 August 2001
|
|
Yusuf Sebuk
|
19 August 2001
|
21 August 2001
|
- According
to official documents, Mahrem Bulut and Mehmet Akbalık were
arrested for the first time on the basis of statements of Mr S.D.,
Mr M.A., Mr B.E., Mr H.I. and Mr T.G., who alleged that the
applicants were involved in PKK-related activities. As to the
applicants' arrest in August 2001, the case file reveals that the
police had been informed that there would be illegal violent acts and
demonstrations to celebrate the anniversary of the beginning of the
armed struggle of the PKK and that the names of the applicants came
up as possible organisers.
- Subsequent
to these events, criminal proceedings were instigated against the
applicants for membership of the PKK by the public prosecutor at the
Diyarbakır State Security Court, with the exception of Sedrettin
Dinar and Tahsin Aktaş.
- On
11 June 2002 the Diyarbakır State Security Court acquitted
Abdulkadir Baz and Yusuf Sebuk of the charges against them. The
criminal proceedings against Mahrem Bulut and Mehmet Akbalık
were pending at the time of their application to the Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in the Daş v. Turkey judgment (no. 74411/01, § 18,
8 November 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
12. The
applicants complained that there was no reasonable suspicion to
justify their arrest and detention. They further complained that they
had been held in police custody for an excessive period of time
without being brought before a judge or other officer authorised by
law to exercise judicial power. The applicants relied on Article 5 §§
1 (c) and 3 of the Convention which, in so far as relevant, reads as
follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law: ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
3. 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 application for failure to
comply with the requirement of exhaustion of domestic remedies under
Article 35 § 1 of the Convention. They argued that the
applicants failed to raise the substance of their complaints before
the domestic courts and, in particular, to challenge the legality and
length of their detention in custody pursuant to Article 128 of the
Code of Criminal Procedure.
- The
applicants disputed the Government's argument.
- As
regards the applicants' complaint under Article 5 § 1, the Court
considers it unnecessary to determine whether the applicants have
exhausted domestic remedies within the meaning of Article 35 § 1
of the Convention, since this part of the application is in any event
inadmissible for the following reasons.
- The
Court reiterates that the reasonable suspicion referred to in
Article 5 § 1 (c) of the Convention does not
mean that the suspected person's guilt must at that stage be
established. It is precisely the purpose of the investigation that
the reality and nature of the offences laid against the accused
should definitely be proved (see Murray v. the United Kingdom,
judgment of 28 October 1994, Series A no. 300-A, p. 27, §
55). Sub paragraph (c) of Article 5 § 1 does not even
presuppose that the police should have obtained sufficient evidence
to bring charges, either at the point of arrest or while the
applicant was in custody (see Erdagöz v. Turkey,
judgment of 22 October 1997, Reports of Judgments and
Decisions 1997 VI, p. 2314, § 51).
- In
the instant case the Court notes that the arrest of Mahrem Bulut and
Mehmet Akbalık, in May and June 2001 respectively, was prompted
by the receipt of statements pertaining to their involvement in PKK
related activities. As regards the applicants' arrest and custody in
August 2001 the Court observes that it was also prompted by the
receipt of information that the applicants might take part in
organising violent demonstrations to celebrate the anniversary of the
beginning of the armed struggle of the PKK.
- In
these circumstances, the Court is of the opinion that the
aforementioned elements are sufficient to support the conclusion that
there was “reasonable suspicion” to justify the
applicants' arrest. It further considers that the fact that no
criminal proceedings were instigated as regards some applicants and
that some of the others were eventually acquitted of the charges
against them, does not of itself call into question the existence of
a reasonable suspicion within the meaning of Article
5 § 1 (c). It follows that this part of the application
is manifestly ill-founded within the meaning of Article 35 § 3
of the Convention.
- As
to the applicants' complaint under Article 5 § 3, 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 aforementioned application.
- In
view of the above, the Court rejects the Government's preliminary
objection under this head.
- However,
the Court finds that the detention periods of Mahrem Bulut in
May (three days), Mehmet Akbalık in June 2001(one day) and Yusuf
Sebuk in August 2001 (two days) can be considered compatible with the
promptness requirement of Article 5 § 3 (see, amongst
others, Ayaz and Others v. Turkey (dec.), no. 11804/02,
6 June 2000). It follows that the complaints by
these three applicants must be rejected as being manifestly
ill founded, pursuant to Article 35 §§ 3 and
4 of the Convention.
- Finally,
the Court notes that the complaint relating to the length of
detention in police custody of Mr Baz, Mr Dinar, Mr Bulut, Mr Akbalık
and Mr Aktaş in August 2001 is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that this complaint 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 was 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
ten 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 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.
- 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 ten 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. 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 each claimed 7,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the amounts.
- The
Court observes that the applicants failed to substantiate their
claims in respect of pecuniary damage; it therefore rejects them.
However, deciding on an equitable basis, it awards EUR 3,000 each to
Mr Baz, Mr Dinar, Mr Bulut, Mr Akbalık and Mr Aktaş
for non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 5,225 for the costs and expenses incurred
both before the domestic courts and before the Court.
- The
Government contested the amount.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
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, jointly, to Mr Baz, Mr
Dinar, Mr Bulut, Mr Akbalık and Mr Aktaş 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 length of
detention in police custody of Mr Baz, Mr Dinar, Mr Bulut, Mr Akbalık
and Mr Aktaş in August 2001 admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay, 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 the
national currency of the respondent State at the date of settlement:
(i) EUR
3,000 (three thousand euros) each to Mr Baz, Mr Dinar, Mr Bulut,
Mr Akbalık and Mr Aktaş in respect of non pecuniary
damage;
(ii) EUR
1,000 (one thousand euros), jointly, to Mr Baz, Mr Dinar, Mr Bulut,
Mr Akbalık and Mr Aktaş, in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the abovementioned 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 aforementioned
applicants' claim for just satisfaction.
Done in English, and notified in writing on 3 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
