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SECOND
SECTION
CASE OF ETE v. TURKEY
(Application
no. 29315/02)
JUDGMENT
STRASBOURG
20
September 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 Ete 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,
Mr V.
Zagrebelsky, judges,
and Mrs S. Dollé, Section
Registrar,
Having
deliberated in private on 30August 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29315/02) 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, Mrs Fehime Ete and
Ms Şadiye Ete, on 21 May 2002.
- The
applicants were represented by Mrs R. Yalçındağ,
Mr O. Baydemir, Mr C. Aydın and Mr B. Kaya, lawyers
practising in Diyarbakır. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
13 June 2006 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaints bought by
Fehime Ete concerning the lawfulness and length of her detention
in police custody on the basis of Law-Decree no. 430 and her
right to an effective remedy whereby she could have challenged the
lawfulness of this detention. 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
first applicant, Fehime Ete (hereafter referred to simply as
“the applicant”), was born in 1960 and lives in Siirt.
- On
21 October 2001 the applicant was arrested and taken into police
custody on suspicion of aiding members of an illegal armed
organisation. She was remanded in custody on 24 October 2001.
- However,
at the request of the Governor of the State of Emergency Region and
the public prosecutor, pursuant to Article 3 (c) of Law-Decree 430,
which allowed them to take further measures within the framework of
the state of emergency, a single judge at the Van State Security
Court authorised, on 25 November 2001, the applicant's transfer from
prison to the Diyarbakır gendarmerie command for further
interrogation for a duration not exceeding ten days. This period was
extended by the same court for another ten days on 5 December 2001.
The objection lodged by the applicant's lawyer against this decision
was dismissed on 7 December 2001.
- Between
25 November and 12 December 2001, the applicant was held in the
Diyarbakır and Siirt gendarmerie command. On 12 December
2001 the applicant was returned to prison.
- The
subsequent criminal proceedings brought against the applicant ended
with her acquittal.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time can
be found in the case of Karagöz v. Turkey
(no. 78027/01, §§ 42-47, 8 November 2005).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Article 5 of the Convention of the length
and unlawfulness of her detention at the gendarmerie command from 25
November to 12 December 2001. She further complained under the same
provision about the absence of an effective remedy whereby she could
have challenged this detention.
- The
Court considers that these complaints should be examined from the
standpoint of Article 5 §§ 1 (c) and 4, which provide as
relevant:
“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; ...
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.”
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. In this respect, they argued
that the applicant could have challenged her detention, which had
been authorised pursuant to Article 3(c) of Law Decree no. 430,
and she could also have sought compensation pursuant to Law no. 466
pertaining to the payment of compensation to persons unlawfully
arrested or detained.
- The
applicant maintained her allegations.
- The
Court reiterates that it has already examined and rejected, in
previous cases, similar objections of the Government as regards the
alleged failure to exhaust domestic remedies (see, in particular,
Karagöz, cited above, §§ 67-68, and
Balık v. Turkey, no. 6663/02, §§ 24-24 and 28-29,
15 February 2007). It finds no particular circumstances in the
instant case which would require it to depart from its findings in
the abovementioned applications. It therefore rejects the
Government's objection under this head.
- The
Court notes that the application 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 submitted that the transfer of the applicant to the
gendarmerie command on the basis of Law-Decree no. 430 could not be
construed as detention in police custody and that the applicant's
complaints under this head were manifestly ill-founded.
- The
applicant maintained her allegations.
- The
Court has examined similar cases on previous occasions and has found
violations of Article 5 §§ 1 (c) and 4 in respect of
detentions authorised on the basis of Law-Decree no. 430 (see, in
particular, Karagöz, cited above,
§§ 56 60 and 67-68, and Dağ
and Yaşar v. Turkey, no. 4080/02, §§ 67-68
and 75 76, 8 November 2005). It finds no reason to depart from
these conclusions in the present case.
- Accordingly,
it concludes that there has been a violation of Article 5 §§ 1 (c)
and 4 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
her observations dated 29 January 2007, the applicant and her
daughter, Şadiye Ete, complained under Articles 3, 5, 6,
13, 14 and 18 of the Convention about the length and lawfulness of
their detention and repeated their allegations of ill treatment
in police custody.
- Even assuming that some of the complaints raised under
this head have not already been declared inadmissible at an earlier
stage (see paragraph 3 above), the Court finds that none of
them disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence. Therefore, this part of the
application is manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and must be
rejected pursuant to Article 35 § 4.
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 25,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. This sum included future medical expenses of
the applicant and her daughter, as well as expenses incurred by the
applicant's family while visiting her in prison.
- The
Government contested the amount.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, ruling on an equitable basis, it awards the applicant EUR
3,500 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,214 for the costs and expenses incurred
before the Court. She relied on the Diyarbakır Bar Association's
recommended minimum fees list for 2007.
- The
Government contested the claims.
- Since the applicant submitted no justification as
regards costs and expenses, as required by Rule
60 of the Rules of Court, the Court 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 UNANIMOUSLY
- Declares admissible the complaints concerning
the lawfulness and length of Fehime Ete's detention in police custody
on the basis of Law-Decree no. 430 and her right to an effective
remedy whereby she could have challenged the lawfulness of this
detention, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 §§ 1 (c) and 4 of the Convention;
- Holds
(a) that
the respondent State is to pay Fehime Ete, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500
(three thousand five hundred euros) in respect of non-pecuniary
damages, to be converted into new Turkish liras at the rate
applicable at the date of the settlement and free of any taxes or
charges that may be payable;
(b) that
from the expiry of the abovementioned 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 the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F.
Tulkens
Registrar President
