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SECOND
SECTION
CASE OF AYDOĞAN AND OTHERS v. TURKEY
(Applications
nos. 30441/08, 35835/08, 36481/08, 36482/08, 36483/08, 36484/08 and
36485/08)
JUDGMENT
STRASBOURG
8
February 2011
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 Aydoğan and
others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in seven applications (nos. 30441/08, 35835/08,
36481/08, 36482/08, 36483/08, 36484/08 and 36485/08) 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 seven Turkish nationals,
Erkan Aydoğan, Selaattin Demir, Nurettin Kılıçdoğan,
Halil Keten, Binali Güney, Hüseyin Babayiğit and
Atilla Yılmaz (“the applicants”), born in 1976,
1965, 1963, 1967, 1964, 1968, and 1974 respectively. The applications
were introduced on 2 June 2008.
- The
applicants were represented by Mr F. Saygılı and Mr O.
Durmaz, lawyers practising in İstanbul. The Turkish Government
(“the Government”) were represented by their Agent.
- On
12 June 2009 the Court decided to give notice of the applications to
the Government. It also decided to examine the merits of the
applications at the same time as their admissibility (former Article
29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are Turkish nationals who were arrested on suspicion of
founding an organisation for the purpose of committing crime, harming
property, violating the right to peaceful work through coercion in
order to obtain unfair pecuniary gain, obstructing enjoyment of union
rights and subsequently detained pending judicial proceedings. They
were released on 6 June 2008. The details of the date of the arrests,
the date of the orders for the applicants' pre trial detention,
the date of the indictment, the total period of pre-trial detention,
total period of criminal proceedings, the date of release and the
grounds for continued detention are set out in the appendix hereto.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Judicial review of pre-trial detention
- A description of the relevant domestic law and practice
prior to the entry into force of the new Code of Criminal Procedure
(“the CCP”) (Law no. 5271) on 1 June 2005
may be found in Çobanoğlu and Budak v. Turkey
(no. 45977/99, §§ 29-31, 30 January 2007). The
current practice under the CCP is outlined in Şayık and
Others v. Turkey (nos. 1966/07, 9965/07, 35245/07,
35250/07, 36561/07, 36591/07 and 40928/07, §§ 13 15,
8 December 2009).
B. Compensation for unlawful detention
- The
current practice may be found in Section 1 of Article 141 of the CCP,
which provides:
“Persons; ...
a) who were unlawfully arrested, detained or
held in continued detention,
b) who were not brought before a judge within
the period prescribed by law,
c) who were detained without being informed
of their rights or without being allowed to exercise these rights
against their wishes,
d) who were lawfully detained but not brought
before a legal authority within a reasonable time and who were not
tried within a reasonable time,
e) who, after being arrested or detained in
accordance with the law, were not subsequently committed for trial or
were acquitted,
f) who were sentenced to a period of
imprisonment shorter than the period spent in police custody and
detention or ordered to pay a pecuniary penalty because it was the
only sanction provided for the crime concerned,
g) who were not informed of the reasons for
their arrest or detention in writing or where this was not
immediately possible, verbally,
h) whose close family were not informed of
their arrest or detention,
i) whose arrest warrant was implemented in a
disproportionate manner,
j) whose belongings or other property were
confiscated in the absence of requisite guarantees or without the
necessary measures being taken for their protection, or whose
belongings and other property were used for unauthorised reasons or
were not returned on time,
during criminal investigation or prosecution may demand
compensation for all pecuniary and non pecuniary damage they
sustained from the State.”
- Section
1 of Article 142 of the CCP further provides:
“Compensation may be demanded [from the State]
within three months from the date of service of the final ...
judgment and, in any case, within one year following the date on
which the ... judgment becomes final.”
THE LAW
I. JOINDER
- Having
regard to the same subject matter of the applications, the Court
finds it appropriate to join them.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The
applicants complained under Article 5 § 3 of the Convention that
the length of their pre-trial detention had been excessive. They
further complained under Article 6 § 2 of the Convention that
their right to be presumed innocent had been violated in that they
had been held in pre-trial detention for an excessive length of time.
The Court considers it appropriate to examine these complaints from
the standpoint of Article 5 § 3 alone.
- The
applicants contended under Articles 5 § 4 and 13 of the
Convention that there had been no effective remedy to challenge the
lawfulness of the length of their pre-trial detention. The Court
considers it appropriate to examine this complaint under Article 5 §
4 alone.
- Lastly,
the applicants maintained under Article 5 § 5 of the
Convention that they had had no right to compensation in domestic law
for the alleged violation of Article 5 §§ 3 and 4 of the
Convention.
A. Article 5 § 3 of the Convention
- The
Government maintained that the applicants' detention had been based
on the existence of reasonable grounds of suspicion of them having
committed an offence, and that their detention had been reviewed
periodically by a competent authority, with special diligence, in
accordance with the requirements laid down by the applicable law.
They pointed out that the offences with which the applicants had been
charged had been of a serious nature, and that their continued remand
in custody had been necessary to prevent crime and to preserve public
order.
- The
applicants contested these arguments.
- The
Court notes that the applicants' pre-trial detention lasted from
20 November 2007 to 6 June 2008, that is, approximately six
months.
- The
Court observes that, given the nature of the offence the applicants
were charged with, the length of time they spent in detention was not
unreasonable (see Ateş v. Turkey (dec.), no.
2694/06, 17 November 2009). It follows that this complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
B. Article 5 § 4 of the Convention
- The
Government submitted that the applicants had in fact had the
possibility of challenging their pre-trial detention by lodging
objections pursuant to Article 297 and following articles of the
former CCP or under Article 104 (2) of the CCP. They further
contended that it had been possible to challenge the lawfulness of
pre-trial detention pursuant to Article 101 (5) of the CCP.
- The
applicants maintained their allegations.
- The
Court has already examined the possibility of challenging the
lawfulness of pre-trial detention in Turkey in other cases and
concluded that the Government had failed to show that the
above-mentioned remedies provided for a procedure that was genuinely
adversarial for the accused (see, for example, Koşti and
Others v. Turkey, no. 74321/01, § 19-24, 3 May 2007; Şayık
and Others, cited above, §§ 28-32; and Yiğitdoğan
v. Turkey,
no. 20827/08, §§ 28-31, 16 March 2010).
- The
Court notes that the Government have not put forward any argument or
material in the instant case which would require the Court to depart
from its previous findings.
- In
the light of the foregoing the Court concludes that there has been a
breach of Article 5 § 4 of the Convention.
C. Article 5 § 5 of the Convention
- The
Government argued that Turkish law had afforded the applicants an
enforceable right to compensation, contrary to their allegations.
They maintained in this regard that the applicants could have sought
compensation under Article 141 and following articles of the CCP
following its entry into force on 1 June 2005.
- The
Court reiterates that Article 5 § 5 is complied with where it is
possible to apply for compensation in respect of a deprivation of
liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4
(Wassink v. the Netherlands, 27 September 1990,
§ 38, Series A no. 185-A). The right to
compensation set forth in paragraph 5 therefore 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
(Saraçoğlu and Others v. Turkey, no. 4489/02, §
50, 29 November 2007).
- The
Court notes that in the present case it has found that the
applicants' right to challenge the lawfulness of their pre-trial
detention was infringed (see paragraph 20 above). It follows that
Article 5 § 5 of the Convention is applicable. The Court must
therefore establish whether or not Turkish law afforded the
applicants an enforceable right to compensation for the breaches of
Article 5 in this case.
- The
Court observes that the remedy envisaged under Article 141 § 1
of the CCP fails to provide an enforceable right to compensation for
the applicants' deprivation of liberty in breach of Article 5 §
4 of the Convention, as required by Article 5 § 5.
- The
Court concludes that there has been a violation of Article 5 § 5
of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
- The
applicants complained that the length of the criminal proceedings
against them had been incompatible with the reasonable time
requirement, laid down in Article 6 § 1 of the
Convention. They further complained under Article 13 of the
Convention that there had been no effective remedy in domestic law
whereby they could challenge the excessive length of the proceedings
in dispute.
- In
the light of all the material in its possession, the Court finds that
the above submissions by the applicants do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that these complaints must be
declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
IV. 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
- Each
of the applicants claimed 3,000 euros (EUR) in respect of pecuniary
damage and EUR 10,000 for non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it awards the applicants EUR 1,200 each in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed 3,540 Turkish Liras (TRY), (approximately EUR
1,796) each for legal fees and TRY 400 (approximately EUR 203) each
for costs and expenses. In support of their claims they submitted
legal fee agreements.
- The
Government contested these claims.
- 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, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicants EUR 500 each covering
costs and expenses under all heads.
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
- Decides to join the applications;
- Declares the complaints concerning the lack of a
remedy to challenge the lawfulness of the applicants' pre-trial
detention and lack of an enforceable right to compensation with
respect to this complaint admissible and the remainder of the
applications inadmissible;
- Holds that there has been a violation of Article
5 §§ 4 and 5 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 in accordance with
Article 44 § 2 of the Convention, the following amounts to be
converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
1,200 each (one thousand two hundred euros) in respect of
non pecuniary damage, plus any tax that may be chargeable;
(ii) EUR
500 each (five hundred euros) in respect of costs and expenses, plus
any tax that may be chargeable to the applicants;
(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 8 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
APPENDIX
|
Application
no.
|
Applicant
|
Date
of arrest
|
Date
of the order for the pre-trial detention
|
Date
of the bill of indictment
|
Date
of the judgments of the first instance court
|
Objections to the
pre-trial detention or continued pre-trial detention
|
Date
of the release of the applicant where applicable
|
Total
period of pre-trial detention and proceedings (on the basis of the
information in the case file)
|
Grounds for
continued detention (on the basis of the information in the case
file)
|
|
1-30441/08
|
Erkan
AYDOĞAN
|
20/11/2007
|
23/11/2007
|
27/03/2008
|
Pending
before the Ankara Assize Court
(E: 2008/133)
|
1. Lodged
on: 29/11/2007
Dismissed
on: 30/11/2007
2. Lodged
on: 28/01/2007
Dismissed
on 1/02/2008
3. Lodged
on: 21/02/2008
Dismissed on: 28/02/2008
|
06/06/2008
|
6 months
(pre-trial detention)
3 years (proceedings)
|
The applicants were released at the
first hearing
|
|
2-35835/08
|
Selaattin DEMİR
|
|
3-36481/08
|
Nurettin
KILIÇDOĞAN
|
|
4-36482/08
|
Halil KETEN
|
|
5-36483/08
|
Binali GŰNEY
|
|
6-36484/08
|
Hüseyin
BABAYİĞİT
|
|
7-36485/08
|
Atilla YILMAZ
|
