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SECOND
SECTION
CASE OF NART v. TURKEY
(Application
no. 20817/04)
JUDGMENT
STRASBOURG
6 May 2008
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 Nart v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Rıza
Türmen,
Vladimiro Zagrebelsky,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 27 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20817/04) 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 Turkish national, Mr Tolga Nart (“the
applicant”), on 29 May 2004.
- The
applicant was represented by Mrs B. Duran, a lawyer practising in
Izmir. The Turkish Government (“the Government”) were
represented by their Agent.
- On
10 July 2007 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the length of
detention on remand and the right to an effective remedy in this
respect 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
applicant was born in 1986 and is currently in detention on remand in
the Uşak Prison in connection with an offence unrelated to the
present case.
- On
28 November 2003 at about 11.30 p.m. the applicant, who was 17 years
old at the time, was arrested by police officers on suspicion of
being involved in the armed robbery of a small grocery shop. The
police found the applicant while he was asleep in an empty swimming
pool near the shop, which had been robbed that night.
- On
29 November 2003 he was examined by a doctor at Urla State Hospital.
His medical report recorded no signs of physical violence on his
body, but noted that the applicant was drugged and sleepy. It
concluded that there was nothing to prevent the applicant from being
taken into custody.
- On
the same day the applicant was once again examined by a doctor. The
medical report described the applicant as sleepy, unresponsive and
physically weak. The same day, the police requested the presence of a
duty lawyer from the Izmir Bar Association for the applicant, who was
to be brought before a public prosecutor.
- The
applicant and his lawyer were both present before the public
prosecutor. However, the prosecutor could not take a statement from
the applicant as he was asleep. The applicant was then brought before
the investigating judge, but he could only stand up with the help of
his co-accused. His lawyer maintained that, in the circumstances, it
would not be appropriate or lawful to take a statement from the
applicant. However, the judge rejected this objection and continued
with the interrogation. The judge noted that there were no previous
statements made by the applicant to the police or the prosecutor. The
applicant occasionally woke up and answered the questions; he denied
that he had committed the robbery. The lawyer repeated that the
applicant was not in a fit state to understand the charges against
him and that the taking of his statement would violate the law.
However, the applicant's co-accused accepted the charges. He admitted
that he and the applicant had drunk beer and taken tablets before the
incident and stolen some chocolates, cigarettes, coca-cola, sausages
and biscuits from the shop. The investigating judge remanded the
applicant and his co-accused in custody. The applicant was
accordingly sent to the Buca Prison, where he was kept together with
adults.
- On
2 December 2003 the applicant's lawyer challenged the detention
before the Izmir Criminal Court. In her petition, referring to
Articles 5 and 6 of the Convention, she submitted that the
applicant was incapable of understanding the charges against him and
that he had not been given adequate time and facilities to prepare
his defence as she was unable to communicate with him. She further
stated that the applicant was a minor and, according to Article 37
(b) of the United Nations Convention on the Rights of the Child, the
detention of a minor should be a preventive measure of last resort.
She also maintained that Article 10 § 5 of the Law on the
Establishment, Duties and Procedures of Juvenile Courts (Law
no. 2253), required that the applicant be placed in a hospital
or in residential social care, instead of being detained in prison.
- On
3 December 2003, the Izmir Assize Court rejected these objections,
having regard to the content of the case file, the nature of the
offence attributed to the applicant and the state of the evidence.
- On
12 December 2003, the public prosecutor filed an indictment with the
Izmir Juvenile Court, accusing the applicant and his co-accused of
armed robbery under Article 497 of the Criminal Code, for which the
minimum sentence was fifteen years' imprisonment.
- On
16 January 2004 the Izmir Juvenile Court commenced the trial. The
applicant was reminded of the statement made to the investigating
judge. He accepted its contents, but added that he did not recall
anything about the time when it was taken. An eyewitness heard by the
court identified the applicant's co-accused as the perpetrator. The
witness stated that he was living in one of the flats above the shop
and that the shopkeeper was his tenant. At 10.30 p.m. on the night of
the incident, he heard noises downstairs and went to check. He saw
that the window of the shop's door had been broken, and that the
applicant's collaborator was putting things in bags. He also saw the
applicant in the shop. Then, the applicant's collaborator pulled a
gun on him but the witness grabbed it immediately, whereupon the
applicant and his accomplice ran away. The applicant was released
pending trial the same day.
- On
12 April 2004 the Juvenile Court convicted the applicant of robbery
under Article 493 § 1 of the Criminal Code, instead of armed
robbery, noting that the gun used during the incident had been a
fake. Accordingly, it sentenced the applicant to one year and eight
months' imprisonment.
- On
13 April 2004 the applicant's lawyer appealed against this judgment.
- On
4 October 2006 the Court of Cassation quashed the judgment of the
first-instance court, holding that the applicant's conviction and
sentence should be reviewed following the entry into force of the new
Criminal Code on 1 June 2005.
- The
case was remitted to the Izmir Juvenile Court where, according to the
information in the case file, the proceedings are apparently still
pending.
II. RELEVANT INTERNATIONAL LAW
A. Recommendations of the Committee of Ministers
European Prison Rules
- The recommendation of the Committee of Ministers to
Member States of the Council of Europe on the European Prison Rules
(Rec (2006)2), adopted on 11 January 2006 at the 952nd
meeting of the Ministers' Deputies, insofar as relevant, reads as
follows:
“11.1 Children under the age of 18
years should not be detained in a prison for adults, but in an
establishment specially designed for the purpose.
11.2 If children are nevertheless
exceptionally held in such a prison there shall be special
regulations that take account of their status and needs. ...
35.1 Where exceptionally children under the
age of 18 years are detained in a prison for adults the authorities
shall ensure that, in addition to the services available to all
prisoners, prisoners who are children have access to the social,
psychological and educational services, religious care and
recreational programmes or equivalents to them that are available to
children in the community.
35.4 Where children are detained in a prison
they shall be kept in a part of the prison that is separate from that
used by adults unless it is considered that this is against the best
interests of the child.”
- The
recommendation of the Committee of Ministers to Member States of the
Council of Europe concerning new ways of dealing with juvenile
delinquency and the role of juvenile justice (Rec (2003)20),
adopted on 24 September 2003 at the 853rd meeting of the
Ministers' Deputies, insofar as relevant, reads as follows:
“16. When, as a last resort, juvenile
suspects are remanded in custody, this should not be for longer than
six months before the commencement of the trial. This period can only
be extended where a judge not involved in the investigation of the
case is satisfied that any delays in proceedings are fully justified
by exceptional circumstances.
17. Where possible, alternatives to remand in
custody should be used for juvenile suspects, such as placements with
relatives, foster families or other forms of supported accommodation.
Custodial remand should never be used as a punishment or form of
intimidation or as a substitute for child protection or mental health
measures.”
- The
recommendation of the Committee of Ministers to Member States of the
Council of Europe on social reactions to juvenile delinquency (no. R
(87)20), adopted on 17 September 1987 at the 410th meeting
of the Ministers' Deputies, insofar as relevant, reads as follows:
“Recommends the governments of member states to
review, if necessary, their legislation and practice with a view: ...
7. to exclude the remand in custody of
minors, apart from exceptional cases of very serious offences
committed by older minors; in these cases, restricting the length of
remand in custody and keeping minors apart from adults; arranging for
decisions of this type to be, in principle, ordered after
consultation with a welfare department on alternative proposals ...”
B. The European
Social Charter
- Article
17 of the European Social Charter 1961 regulates the right of mothers
and children to social and economic protection. In that context, the
European Committee of Social Rights noted in its Conclusions XVII-2
(Turkey) that young offenders were detained, if arrested, in parts of
adult prisons and in the two closed detention homes reserved for
juveniles and guarded by the gendarmerie. The Committee further noted
that the length of pre-trial detention was long and the conditions of
imprisonment poor.
C. The United Nations Convention on the Rights of the
Child, dated 20 November 1989
21. Article
37
of the United
Nations Convention on the Rights of the Child,
insofar as
relevant, reads as follows:
“States Parties shall ensure that ...
(b) No child shall be deprived of his or her
liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child shall be in conformity with the law and shall
be used only as a measure of last resort and for the shortest
appropriate period of time;
(c) Every child deprived of liberty shall be
treated with humanity and respect for the inherent dignity of the
human person, and in a manner which takes into account the needs of
persons of his or her age. In particular, every child deprived of
liberty shall be separated from adults unless it is considered in the
child's best interest not to do so and shall have the right to
maintain contact with his or her family through correspondence and
visits, save in exceptional circumstances.”
D. The Concluding Observations of the United Nations
Committee on the Rights of the Child: Turkey.
(09/07/2001(CRC/C/15/Add.152.))
22. The
relevant part of this text concerning “juvenile justice”
provides as follows:
“65. ... The fact that detention is not
used as a measure of last resort and that cases have been reported of
children being held incommunicado for long periods is noted with deep
concern. The Committee is also concerned that there are only a small
number of juvenile courts and none of them are based in the eastern
part of the country. Concern is also expressed at the long periods of
pre-trial detention and the poor conditions of imprisonment and at
the fact that insufficient education, rehabilitation and
reintegration programmes are provided during the detention period.
66. The Committee recommends that the State
party continue reviewing the law and practices regarding the juvenile
justice system in order to bring it into full compliance with the
Convention, in particular articles 37, 40 and 39, as well as with
other relevant international standards in this area, such as the
United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (the Beijing Rules) and the United Nations
Guidelines for the Prevention of Juvenile Delinquency (the Riyadh
Guidelines), with a view to raising the minimum legal age for
criminal responsibility, extending the protection guaranteed by the
Juvenile Law Court to all children up to the age of 18 and enforcing
this law effectively by establishing juvenile courts in every
province. In particular, it reminds the State party that juvenile
offenders should be dealt with without delay, in order to avoid
periods of incommunicado detention, and that pre-trial
detention should be used only as a measure of last resort, should be
as short as possible and should be no longer than the period
prescribed by law. Alternative measures to pre-trial detention should
be used whenever possible.”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government asked the Court to dismiss the application for failure to
exhaust domestic remedies, under Article 35 § 1 of the
Convention. In this regard, they submitted that the applicant had not
at any stage in the domestic proceedings relied on the provisions of
the Convention. They also maintained that the applicant could have
sought compensation pursuant to Law no. 466 on the Payment of
Compensation to Persons Unlawfully Arrested or Detained.
- As
regards the first objection, the Court notes that the applicant's
representative relied on Articles 5 and 6 of the Convention in her
petition dated 2 December 2003, and stated that the decision to place
the applicant in detention on remand constituted a breach of the said
provisions, as well as a breach of Article 37 (b) of the United
Nations Convention on the Rights of the Child. Therefore, this
objection cannot be upheld.
- In
respect of the second objection, the Court recalls that it has
already examined and rejected such an argument by the Government in
similar cases (see Bayam v. Turkey, no. 26896/02, § 16,
31 July 2007; Yağcı and Sargın v. Turkey,
judgment of 8 June 1995, Series A no. 319 A, § 44). It
finds no particular circumstances in the instant case which would
require it to depart from this jurisprudence. In conclusion, this
objection cannot be upheld either.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention on remand exceeded the
reasonable time requirement. He also contended that he had no
effective remedy to challenge the lawfulness of his detention on
remand. In respect of his complaints, the applicant invoked Article 5
§§ 3 and 4, which read as follows:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be ... entitled to trial within a reasonable time or to
release pending trial...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
- The
Government contested these arguments.
A. Article 5 § 3 of the Convention
- The
Government submitted that there had been valid reasons for holding
the applicant in detention on remand. They maintained in the first
place that the applicant had previous convictions for similar
offences and provided the relevant court decisions. Secondly, they
stated that, as the applicant had been charged with armed robbery, he
faced up to fifteen years' imprisonment. At this point, they referred
to Article 19 of the Law on the Establishment, Jurisdiction and
Judicial Procedures of Juvenile Courts which stipulated that minors
could not be held in detention if the charges they faced did not
carry a sentence of a minimum of three years' imprisonment.
- The
Court recalls that Article 5 § 3 of the Convention does not
imply a maximum length of pre-trial detention. The issue of whether a
period of detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention must
be assessed in each case according to its special features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty. It falls in the first place to the
national judicial authorities to examine all the circumstances
arguing for or against the existence of such a requirement and to set
them out in their decisions on the applications for release. It is
essentially on the basis of the reasons given in these decisions and
of the undisputed facts stated by the applicant in his appeals that
the Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 (see Klamecki v. Poland,
no. 25415/94, § 74, 28 March 2002; W. v. Switzerland,
judgment of 26 January 1993, Series A no. 254 A, pp. 15 19,
§§ 30 42; Contrada v. Italy, judgment of
24 August 1998, Reports of Judgments and Decisions 1998 V,
§ 54).
- In
the present case, the Court notes that the period to be taken into
consideration began on 28 November 2003 with the applicant's arrest
and ended on 16 January 2004 with his release during the first
hearing before the Izmir Juvenile Court. It thus lasted forty eight
days.
- In
examining this case, the Court has taken into account the wealth of
important international texts referred to above (paragraphs 17 22
above) and recalls that the pre-trial detention of minors should be
used only as a measure of last resort; it should be as short as
possible and, where detention is strictly necessary, minors should be
kept apart from adults.
- The
Court observes that, when the applicant objected to his detention on
remand, the Izmir Assize Court rejected his motion on the basis of
the contents of the case file, the nature of the offence and the
state of evidence (paragraph 10 above). Although, in general,
the expression “the state of evidence” may be a relevant
factor for the existence and persistence of serious indications of
guilt, in the present case it cannot alone justify the length of the
detention of which the applicant complains (see Selçuk
v. Turkey, no. 21768/02, § 34, 10 January 2006).
- It
is also noted that, although the applicant's lawyer brought to the
attention of the authorities the fact that the applicant was a minor,
it appears that the authorities never took the applicant's age into
consideration when ordering his detention. Furthermore, the case file
reveals that, during his detention, the applicant was kept in a
prison together with adults (paragraph 8 above).
- In
the light of the foregoing, and especially having regard to the fact
that the applicant was a minor at the time, the Court finds that the
length of the applicant's pre-trial detention contravened Article 5 §
3 of the Convention.
- There
has accordingly been a violation of this provision.
B. Article 5 § 4 of the Convention
1. Admissibility
- 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.
2. Merits
- The
Government contended that the domestic law provided an effective
remedy to challenge the lawfulness of the applicant's detention on
remand.
- The
applicant maintained that his objection to his detention on remand
received no serious consideration by the domestic courts, which used
stereotyped wording in dismissing his request.
- The
Court notes that, in several cases raising similar issues to the
present application, it has rejected the Government's foregoing
contention. It concluded that Article 298 of the Code of Criminal
Procedure could not be considered as an effective remedy and found a
violation of Article 5 § 4 of the Convention (see, mutatis
mutandis, Koşti and Others v. Turkey,
no. 74321/01, §§ 21 25, 3 May 2007; Öcalan
v. Turkey [GC], no. 46221/99, §§ 71 72,
ECHR 2005 IV). The Court finds no particular circumstances in
the instant case, which would require it to depart from these
previous findings.
- In
conclusion, the Court holds that there has been a violation of
Article 5 § 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
applicant claimed 4,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- Ruling
on an equitable basis, the Court awards the applicant EUR 750 under
this head.
B. Costs and expenses
- The
applicant also claimed EUR 2,000 for the costs and expenses incurred
before the Court.
- The
Government contested the claim.
- 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 were
reasonable as to quantum. In the present case, the applicant has not
substantiated that he has actually incurred the costs so claimed.
Accordingly, it makes no award under this head.
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
- Declares, unanimously, the remainder of the
application admissible;
- Holds, by 5 votes to 2, that there has been a
violation of Article 5 § 3 of the Convention;
3. Holds, unanimously, that there has been a
violation of Article 5 § 4 of the Convention;
- Holds, by 5 votes to 2,
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 750 (seven hundred
and fifty euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, which total sum is to be converted into New
Turkish liras at the rate applicable at the date of settlement;
(b) that
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;
- Dismisses, unanimously, the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 6 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint partly dissenting opinion
of Judges Türmen and Mularoni is annexed to this judgment.
F.T.
S.D.
JOINT PARTLY DISSENTING OPINION OF JUDGES TÜRMEN
AND MULARONI
We do
not agree with the majority who
consider that there has been a violation of Article 5 § 3 in
this case.
We
are fully aware that a number of international texts
recommend that prison detention for minors should be a measure
of last resort for dealing with juvenile delinquency. We completely
share the spirit behind all the
declarations, conventions and recommendations adopted in this
respect.
However,
we observe that all these texts admit the possibility for minors to
be detained in prison, although as a measure of last resort and, as
far as detention on remand is concerned, for limited periods (see
paragraphs 17 21
of the judgment). The Recommendation
(2003)20 of the Committee of Ministers of the Council of Europe, for
instance, provides for a maximum detention period in custody of six
months before the commencement of the trial (see paragraph
18 of the judgment). Along the same line, Article 37 of the UN
Convention on the Rights of the Child provides that the arrest,
detention or imprisonment of a child may be used, for the shortest
appropriate period of time, as a measure of last resort (see
paragraph 21 of the
judgment). The recommendation of the Committee of Ministers to Member
States of the Council of Europe (no.
(87)20), for its part, makes specific reference, in order to justify
the remand in custody of
minors, to “exceptional cases of very serious offences
committed by older minors” (see paragraph 19
of the judgment).
This
means, to our mind, that special attention must be paid to the
specific circumstances of every individual
case and to the personality of every single applicant.
We
observe that Mr Nart, who was 17 years
and 7 months old when he was arrested in connection with the present
case, had already been found guilty of burglary in 1999. He had been
sentenced to one month and fifteen days' imprisonment but,
having regard to his age, his sentence had been first converted into
a fine and then suspended.
In
2003, he had been found guilty of attempted
burglary. He had been sentenced to 2 months and 20 days'
imprisonment but, having
regard to his age, his sentence had been again converted into a fine.
As to
the present application, we observe that the applicant had been
charged with armed robbery, a serious
crime. At the end of the first hearing, which took place 48
days after his arrest, the applicant was released pending
trial.
Having
regard to the total duration of his
detention, the applicant's
previous convictions for similar offences and the
specific circumstances of the case, we consider that the applicant's
detention was in conformity with the “reasonable time”
requirement of Article 5 § 3 of the Convention.
Contrary to the majority, we do not consider that the fact that the
applicant was kept in a prison together with adults is a sufficiently
strong element to conclude to the contrary. We completely agree that
minors should not be detained in prisons with adults. However, it
seems to us that, if a
problem arises in this respect, it should be examined under Article 3
of the Convention rather than under Article 5 § 3.
