SECOND
SECTION
CASE OF FIRAT CAN v. TURKEY
(Application
no. 6644/08)
JUDGMENT
STRASBOURG
24 May
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 Fırat Can v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 3 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 6644/08) 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 a Turkish national, Mr Fırat Can (“the
applicant”), on 24 January 2008.
The
applicant was represented by Mr E. Kanar, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
On
14 April 2009 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the applicant’s
alleged ill-treatment during his transfer from Istanbul to Kırklareli
in June 2007, his right to be released pending trial, his right to
challenge the lawfulness of his pre-trial detention and his right to
a fair hearing within a reasonable time to the Government. It also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1974 and is currently detained in Kırklareli
E type Prison pending the criminal proceedings against him.
A. The criminal proceedings against the applicant
On
5 February 1997 the applicant was arrested and taken into police
custody by police officers from the Anti-Terrorist Branch of the
Istanbul Police Headquarters on suspicion of membership of an illegal
organisation.
On
19 February 1997 a single judge at the Istanbul State Security Court
ordered the applicant’s pre-trial detention.
On
20 May 1997 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment with that court, charging the
applicant with attempting to undermine the constitutional order, an
offence proscribed by Article 146 § 1 of the former
Criminal Code.
On
8 February 2002 the Istanbul State Security Court convicted the
applicant as charged and sentenced him to death.
On
15 October 2002 the Court of Cassation quashed the judgment of the
Istanbul State Security Court on account of a procedural defect which
had prejudiced the rights of the defence.
In
the meantime on 4 September 2002 the Head Office of the Institute of
Forensic Medicine issued a report noting that the applicant suffered
from Wernicke-Korsakoff syndrome and recommended the suspension of
the execution of his sentence for a period of six months for medical
reasons. It appears that this recommendation was not taken into
account by the authorities.
State
Security Courts were abolished by Law no. 5190 of 16 June 2004,
published in the Official Gazette on 30 June 2004. The case against
the applicant was therefore transferred to the Istanbul Assize Court.
At
the hearing held on 6 August 2008, the applicant asked to be released
in view of the excessive amount of time he had already spent in
pre-trial detention. The Fourteenth Chamber of the Istanbul Assize
Court, however, ordered the applicant’s continued detention in
view of the nature of the offence, the existence of a strong
suspicion that the applicant had committed the offence and the
possibility that he would abscond if released.
On
13 August 2008 the applicant objected to the decision of 6 August
2008 and again requested his release.
On
25 August 2008 the Ninth Chamber of the Istanbul Assize Court
dismissed the applicant’s objection without holding a hearing
and without providing any reasons for its decision.
On
18 December 2009 the Istanbul Assize Court convicted the applicant as
charged under Article 146 § 1 of the former Criminal Code and
sentenced him to aggravated life imprisonment. The applicant appealed
this judgment.
According
to the information in the case file, the case is still pending before
the Court of Cassation.
B. The applicant’s transfer between prisons and
the alleged ill treatment he was subjected to during the
transfer
On
an unspecified date the applicant was temporarily transferred from
Kırklareli E-type Prison to Istanbul Bayrampaşa Prison to
attend the final exams at Marmara University, where he was registered
as a student.
On
11 June 2007, before he was transferred from Istanbul back to
Kırklareli following the end of the exam period, he was
medically examined by the resident doctor at Bayrampaşa Prison,
who noted no signs of ill treatment on his body. On the same day
the applicant also signed a document stating that he had not been
ill treated or subjected to any other adverse treatment during
the course of his transfer to Kırklareli and that the
gendarmerie personnel had not confiscated his money or other
valuables. At 10.00 p.m. on the same day he was handed back to
the prison authorities in Kırklareli.
On
12 June 2007 the applicant lodged a complaint with the Kırklareli
Public Prosecutor’s Office against the gendarme soldiers in
charge of his transfer, alleging that he had been tortured at their
hands during the transfer from Istanbul to Kırklareli, and
requested to be referred to the forensic medicine institute for
examination. He also complained that the gendarme soldiers in
question had appropriated under duress two gold and two silver rings
he was wearing on the relevant day and he requested the return
thereof.
On
the same day a doctor at the Kırklareli Forensic Medicine
Institute examined the applicant and noted a slight abrasion on the
right inner corner of his upper lip, bruising and swelling on his
biceps, pain on his tenth, eleventh and twelfth right ribs,
widespread hyperaemia and pain in his right axial region (7-8 cm
below the armpit) caused by physical trauma, pain and swelling around
the metatarsal bones of his left foot, pain in the waist area and
throat and difficulty in swallowing related to trauma. The report
noted that the symptoms were likely to be the result of beatings or
violence, and requested the applicant’s referral to Kırklareli
State Hospital for the verification of any fractured bones.
On
13 June 2007 the applicant was examined at Kırklareli State
Hospital, where it was noted that the injuries he had sustained were
not life- threatening and would not cause long-term damage to his
health.
On
10 September 2007 the applicant repeated his allegations of
ill treatment against the gendarmerie personnel before the
Fourteenth Chamber of the Istanbul Assize Court.
C. Criminal proceedings against the gendarme sergeant
On
12 June 2007 Kırklareli Public Prosecutor interrogated the
applicant regarding his allegations of ill-treatment. The applicant
contended that on 11 June 2007, before he was put in the patrol wagon
bound for Kırklareli Prison, a gendarme sergeant and ten
gendarme soldiers in his command had shoved him into a toilet at
Bayrampaşa Prison and beaten him up, squeezed his testicles, hit
his throat with a truncheon and insulted him. He claimed that this
treatment had mainly resulted from his refusal to comply with the
gendarmes’ orders to remove and hand over his rings prior to
the transfer.
On
14 June 2007 the Kırklareli Public Prosecutor issued a decision
of lack of jurisdiction (görevsizlik kararı) in
respect of the applicant’s complaints and referred the matter
to the Eyüp Public Prosecutor.
On
10 January 2008 the Eyüp Public Prosecutor interrogated the
gendarme sergeant, N.T., who had been in charge of the applicant’s
transfer from Kırklareli to Istanbul on 11 June 2007. N.T.
stated that he had no recollection of the applicant, nor of the
events as recounted by him, and denied the allegations against him.
He added that in accordance with the relevant regulations and
instructions, prisoners’ valuables were removed prior to any
transfer and handed over to the prison administration, which was
responsible for their subsequent return to the prisoner.
On
the same day the Eyüp Public Prosecutor requested information
from the administration of Bayrampaşa Prison in respect of the
applicant’s confiscated rings. On 15 January 2008 the prison
administration informed the public prosecutor that the applicant’s
personal belongings had been handed over to his wife on 18 June 2007.
On
25 February 2009 the Eyüp Public Prosecutor filed a bill of
indictment with the Eyüp Magistrates’ Court against N.T.,
charging him with the offence of causing bodily harm under Article 86
§§ 2 and 3 of the Criminal Code and excessive use of force
under Article 256 of the Criminal Code. The public prosecutor noted
that despite N.T.’s outright denial of the charges against him,
the findings of the medical report dated 12 June 2007 appeared to
corroborate the applicant’s allegations of ill-treatment. He
further specified in the bill of indictment that since the offences
in question did not fall within the scope of Law no. 4483 (Law on the
Prosecution of Civil Servants and Public Officials), no
administrative authorisation was required for N.T.’s
prosecution.
On
2 March 2009 the Eyüp Magistrates’ Court admitted the
indictment and ordered that the first hearing be held on 10 November
2009. According to the information in the case file, the proceedings
are still pending before the Eyüp Magistrates’ Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Judicial review of pre-trial detention
A
description of the relevant domestic law and practice concerning
judicial review of pre-trial detention under the former Code of
Criminal Procedure (Law no. 1412) may be found in Çobanoğlu
and Budak v. Turkey (no. 45977/99, §§ 29-31, 30
January 2007).
B. Compensation scheme provided for under Article 141
of the new Code of Criminal Procedure (Law no. 5271)
Section
1 of Article 141 of the new Code of Criminal Procedure provides the
following:
“Persons; ...
b) who were not brought before a judge within
the period prescribed by law,
...
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,
during the 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 new Code of Criminal Procedure 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. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Article 3 of the Convention that he had
been subjected to ill-treatment by certain members of the Istanbul
gendarmerie prior to his transfer from Istanbul back to Kırklareli
E type Prison on 11 June 2007.
A. Admissibility
The
Government argued that the applicant had failed to exhaust domestic
remedies within the meaning of Article 35 § 1 of the Convention.
In this connection, they maintained that the criminal proceedings
against the gendarme officer, N.T., who had allegedly ill-treated the
applicant at Bayrampaşa Prison, were still pending before the
domestic courts. The Government further maintained that the applicant
had not availed himself of the civil and administrative law remedies
which could have provided reparation for the harm which he had
allegedly sustained.
The
applicant disputed the Government’s arguments.
As
regards the Government’s first preliminary objection, the Court
notes that the question whether the criminal proceedings pending
against N.T. could be regarded as effective under the Convention is
closely linked to the substance of the applicant’s complaint.
The Court therefore joins the Government’s objection on this
point to the merits (see Veli Tosun and Others v. Turkey,
no.62312/00, §§ 39-40, 16 January 2007 and the cases cited
therein).
As
regards the objection concerning recourse to alternative civil and
administrative remedies, the Court reiterates that it has already
examined and dismissed the Government’s preliminary objection
in similar cases (see, for example, Dur v. Turkey, no.
34027/03, § 26, 18 September 2008; Eser Ceylan v. Turkey,
no. 14166/02, § 23, 13 December 2007; and Arif Çelebi
and Others v. Turkey, nos. 3076/05 and 26739/05, § 53, 6
April 2010). It finds no particular circumstances in the instant case
requiring it to depart from its findings in the above-mentioned
cases. It therefore rejects the Government’s preliminary
objection.
The
Court notes that this part of 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 noted that prior to being taken back to Kırklareli on
11 June 2007, the applicant had undergone a medical examination
at Bayrampaşa Prison, which had revealed no signs of
ill-treatment on his body. Furthermore, before being handed over to
the Kırklareli prison authorities on the same day, he had signed
a document attesting that he had received no adverse treatment
throughout his transfer from Istanbul to Kırklareli. Without
making any comments on the findings of the medical report dated 12
June 2007, the Government went on to state that upon receiving the
applicant’s complaints, the public prosecutor had immediately
initiated a preliminary investigation, which had resulted in the
indictment of N.T. The relevant criminal proceedings were still
pending before the domestic courts and there was no reason to doubt
their effectiveness. The Government further emphasised that by virtue
of the nature of the charges brought against N.T., it had not been
necessary to seek administrative authorisation for his prosecution
under Law no. 4483, which had further accelerated the proceedings.
Relying
on the injuries identified on his body in the medical report dated 12
June 2007, the applicant maintained his allegations. As regards the
attestation dated 11 June 2007 submitted by the Government as
first-hand evidence that he had not been ill-treated by the
gendarmes, the applicant contended that the authenticity of the
signature on the document had not been verified by the public
prosecutor or the trial court. Moreover, even assuming that he had
signed the document without coercion, the State was still under an
obligation to account for the injuries he had sustained under their
control in custody, which they had failed to fulfil in the instant
case. As regards the effectiveness of the ongoing criminal
proceedings into his allegations of ill treatment, the applicant
stressed that proceedings had been initiated against only one of the
perpetrators, and that more than two years after his initial
complaint. No action had been taken against the other gendarme
soldiers involved in the incident. Noting in particular the limited
scope of the investigation, and the significant delays encountered
from the very beginning of the criminal proceedings, the applicant
argued that an effective investigation had not been conducted into
his allegations of ill-treatment.
The
Court indicates, as it has held on many occasions, that the
authorities have an obligation to protect the physical integrity of
persons in detention. It reiterates in this connection that where an
individual is taken into police custody or arrives otherwise under
the control of the authorities in good health and is found to be
injured while in detention or under their control, it is incumbent on
the State to provide a plausible explanation of how those injuries
were caused and to produce evidence casting doubt on the victim’s
allegations, particularly if those allegations were corroborated by
medical reports, failing which a clear issue arises under Article 3
of the Convention (see Tomasi v. France, 27 August 1992, §§
108-11, Series A no. 241-A; Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999 V; and Denisenko and
Bogdanchikov v. Russia, no. 3811/02, § 82, 12 February
2009).
In
the instant case, the Court notes that the medical report drawn by
the resident doctor at Bayrampaşa Prison in the applicant’s
respect prior to his departure from that prison on 11 June 2007
indicated no signs of ill treatment on his person. However, the
report issued the very next day by the Kırklareli Forensic
Medicine Institute upon the applicant’s request noted a number
of injuries on his body, particularly on his arms, torso and left
foot (see paragraph 20 above). The Court observes that the findings
in this report appear to corroborate the applicant’s
allegations, both as regards the sequence of events that occurred on
the relevant day and the particular treatment he had been subjected
to by members of the Istanbul gendarmerie. The Court notes on the
other hand that the Government failed to provide an explanation for
these injuries, which were undoubtedly sustained by the applicant
while under the absolute control of the State authorities.
Considering the circumstances of the case as a whole, and the absence
of a plausible explanation from the Government, the Court finds that
the Government bear responsibility for the injuries sustained by the
applicant.
The
Court emphasises in this connection that it attaches no weight to the
declaration allegedly signed by the applicant prior to being handed
over to the prison authorities in Kırklareli, exonerating the
gendarmes overseeing his transfer from any responsibility, in view of
the suspicious circumstances under which it was signed and the
unambiguous findings of the Kırklareli Forensic Medicine
Institute in its report of 12 June 2007. The Court moreover
notes that the Eyüp Public Prosecutor similarly appears to have
paid no attention to this document in the bill of indictment filed
against N.T.
The
Court further reiterates that Article 3 of the Convention also
requires the authorities to investigate allegations of ill-treatment
when they are “arguable” and “raise a reasonable
suspicion” (see, in particular, Ay v. Turkey, no.
30951/96, §§ 59-60, 22 March 2005). The minimum
standards as to effectiveness defined by the Court’s case-law
include the requirements that the investigation be independent,
impartial and subject to public scrutiny, and that the competent
authorities act with exemplary diligence and promptness (see, for
example, Çelik and İmret v. Turkey,
no. 44093/98, § 55, 26 October 2004). Moreover, when the
official investigation has led to the institution of proceedings in
the national courts, the proceedings as a whole, including the trial
stage, must satisfy the requirements of the prohibition of
ill-treatment. While there is no absolute obligation for all
prosecutions to result in conviction or in a particular sentence, the
national courts should not under any circumstances be prepared to
allow grave attacks on physical and moral integrity to go unpunished
(see Okkalı v. Turkey, no. 52067/99, § 65, ECHR
2006 XII (extracts)). The Court further reiterates that where a
State agent has been charged with crimes involving torture or
ill treatment, it is of the utmost importance that he or she be
suspended from duty during the investigation and trial, and should be
dismissed if convicted (see Abdülsamet Yaman v. Turkey,
no. 32446/96, § 55, 2 November 2004).
The
Court has found above that the respondent State was responsible,
under Article 3 of the Convention, for the injuries sustained by the
applicant. An effective investigation was therefore required.
The
Court notes that the applicant complained of his ill-treatment to the
public prosecutor’s office in Kırklareli on 12 June 2007,
the day after the impugned incidents and the Kırklareli Public
Prosecutor took the applicant’s official statement regarding
his allegations on the very same day. However, on 14 June 2007, he
issued a decision of lack of jurisdiction and referred the matter to
the Eyüp Public Prosecutor. It was not until seven months later
that the Eyüp Public Prosecutor questioned N.T., who was the
gendarme sergeant in charge of the applicant’s transfer.
According to the information in the case file, none of the other
gendarmes who were allegedly involved in the incidents was identified
by the public prosecutor, let alone questioned as a suspect or even
as a witness. Moreover, following N.T.’s questioning, it took
one year and one month to file a bill of indictment with the Eyüp
Magistrates’ Court against N.T. In the absence of any
information provided by the Government as to any investigative steps
taken by the public prosecutor in the meantime or, in the
alternative, to any obstacles that held the investigation back, the
Court cannot but assume that the public prosecutor remained passive
throughout this period. The Court further notes that although the
first instance court reviewed and admitted the bill of
indictment on 2 March 2009, it ordered the first hearing to be held
eight months later, that is, on 10 November 2009, a delay which
similarly remains unjustified. According to the information in the
case file, the proceedings are still pending before the
first-instance court. There is, moreover, no indication in the case
file to demonstrate that the accused gendarme sergeant was suspended
from duty during the investigation and trial or that any disciplinary
proceedings were taken against him or other gendarme soldiers
allegedly involved in the incident.
The
Court is aware that there may be obstacles or difficulties which
prevent progress in an investigation in a particular situation.
However, a prompt response by the authorities in investigating
torture or ill-treatment may generally be regarded as essential in
maintaining public confidence in their adherence to the rule of law
and in preventing any appearance of collusion in or tolerance of
unlawful acts. In the instant case, the substantial delays
encountered at every step of the proceedings indicate that the
authorities failed to act with the diligence and promptness required
under Article 3 of the Convention. In the Court’s opinion,
these delays are all the more unacceptable considering that no prior
authorisation was required for the prosecution of the gendarme in
question under Law no. 4483.
Furthermore,
the fact that none of the other gendarmes on duty at the time of the
relevant incidents was identified during the investigation, not even
to provide statements as a witness, and that the only person who was
charged has stayed in duty throughout this period without even being
subjected to disciplinary proceedings, raises significant concerns of
impunity for the alleged perpetrators.
In
view of the procedural shortcomings identified above, the Court
concludes that the national authorities failed to carry out an
effective and independent investigation into the applicant’s
allegations of ill treatment.
In
the light of the foregoing factors and conclusions, the Court also
dismisses the Government’s objection that the applicant failed
to exhaust domestic remedies in view of the pending criminal
proceedings against N.T. (see paragraph 33 above, and Veli Tosun
and Others, cited above, § 60).
There
has accordingly been a violation of Article 3 of the Convention under
its substantive limb, on account of the inhuman and degrading
treatment that the applicant was subjected to, and under its
procedural limb.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
The
applicant complained under Articles 5 § 3 and 13 of the
Convention that the length of his pre-trial detention had been
excessive, that he had not been released from detention despite the
fact that he had been diagnosed with Wernicke-Korsakoff syndrome and
that his requests to challenge the lawfulness of his pre-trial
detention had been rejected on stereotypical grounds. He further
submitted under Article 6 § 2 of the Convention that his lengthy
remand in custody had violated his right to be presumed innocent.
Lastly, he maintained under Articles 5 § 4 and 13 of the
Convention that there had been no effective domestic remedies to
challenge the lawfulness of his detention.
The
Court considers that the applicants’ complaints under
Articles 5 § 3, 13 and 6 § 2 of the Convention
concerning the length of his pre-trial detention should be examined
from the standpoint of Article 5 § 3 alone (see, mutatis
mutandis, Güler v. Turkey (dec.), no. 14152/02,
28 September 2006, and Tamamboğa and Gül v. Turkey,
no. 1636/02, § 26, 29 November 2007). The Court further
considers that the complaints concerning the lack of effective
remedies by which to challenge the lawfulness of the pre-trial
detention should be examined under Article 5 § 4 of the
Convention, which provides a lex specialis in relation to the
more general requirements of Article 13 (see A. and Others v.
the United Kingdom [GC], no. 3455/05, § 202, ECHR
2009 ...).
A. Admissibility
The
Government argued that the applicant could not claim to be a victim
of a violation of Article 5 § 3 of the Convention because the
time spent by him on remand would eventually be deducted from his
total sentence. The Government further maintained that, as the
applicant had lodged his complaint under Article 5 § 3 of the
Convention on 24 January 2008, the time he had spent in
detention between 8 February and 15 October 2002, that is, the
period starting with the applicant’s conviction by the Istanbul
State Security Court and ending with the quashing of the decision by
the Court of Cassation, should be rejected for having been introduced
outside the six-month time-limit laid down in Article 35 § 1.
The
applicant disputed the Government’s arguments.
As
regards the applicant’s victim status, the Court notes that it
has already examined and dismissed similar submissions made by the
respondent Government in other cases (see, for example, Arı
and Şen v. Turkey, no. 33746/02, § 19, 2 October
2007). The Government have not submitted any arguments which could
lead the Court to reach a different conclusion in the instant case.
Accordingly, the Government’s objection to the applicant’s
victim status must be rejected.
As
regards the Government’s preliminary objection concerning the
applicant’s failure to observe the six-month time-limit in
respect of his initial period of pre-trial detention, the Court
refers to the principles adopted in the Solmaz v. Turkey
judgment (no. 27561/02, § 36, ECHR 2007 II (extracts)),
where it was held that, if the applicant is in effect imprisoned
throughout, the multiple, consecutive detention periods should be
regarded as a whole and the six-month period should start running
only from the end of the last period. Bearing in mind that the
applicant’s pre-trial detention came to an end on 18 December
2009 after his conviction by a competent court within the meaning of
Article 5 § 1 (a) of the Convention, the Court dismisses the
Government’s objection.
The
Court further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Article 5 § 3 of the Convention
The
Government maintained that the applicant’s detention was based
on the existence of reasonable grounds of suspicion of him having
committed an offence, and that his detention had been reviewed
periodically by the competent authority, with special diligence, in
accordance with the requirements laid down by the applicable law at
the relevant time. They pointed out that the offence with which the
applicant had been charged was of a very serious nature, and that his
continued remand in custody was necessary to prevent him from
committing a further offence, absconding and removing evidence, as
well as to preserve public order.
The
Court notes that, after deducting the period when the applicant was
detained after conviction under Article 5 § 1 (a) of the
Convention (namely the period between 8 February and 15 October 2002)
from the total time that he has been held in pre-trial detention, the
period to be taken into consideration in the instant case is
approximately twelve years and two months (see Solmaz, cited
above, §§ 36-37).
The
Court reiterates in the first place that the Convention cannot be
construed as laying down a general obligation to release detainees on
health grounds (see, mutatis mutandis, Matencio v. France,
no. 58749/00, § 78, 15 January 2004). In the absence
of any particular complaints by the applicant about the unsuitability
of his detention conditions to his physical condition or the lack of
appropriate medical care in detention, which could have otherwise
necessitated his immediate release under Article 3 of the Convention,
the Court cannot criticise the assessment of the national authorities
not to release the applicant solely on account of the fact that he
had been diagnosed with Wernicke-Korsakoff syndrome back in 2002
(see, mutatis mutandis, Horoz v. Turkey (dec.), no.
1639/03, 31 March 2009).
The
Court, however, notes independently of the applicant’s medical
condition that it has frequently found violations of Article 5 §
3 of the Convention in cases disclosing comparable lengthy periods of
pre trial detention (see, for example, Tutar v. Turkey,
no. 11798/03, § 20, 10 October 2006, and Cahit Demirel
v. Turkey, no. 18623/03, § 28, 7 July 2009). Having examined
all the material submitted to it, the Court considers that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court finds that in
the instant case the length of the applicant’s pre-trial
detention was excessive.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
2. Article 5 § 4 of the Convention
The
Government contended that the domestic law provided an effective
remedy to challenge the lawfulness of pre-trial detention under
Article 297 of the former Code of Criminal Procedure and its
subsequent provisions.
The
applicant maintained that his objection to his detention had received
no serious consideration by the domestic courts, which used
stereotyped wording in dismissing his requests. He further claimed
that the proceedings reviewing his pre-trial detention had been
conducted on the basis of the case file and had not been truly
adversarial, as neither he nor his lawyer could participate in the
proceedings.
The
Court notes that it has already found that the remedy provided for by
Articles 297-304 of the former Code of Criminal Procedure, whereby
the applicant could object to the decisions ordering his continued
detention, offered little prospect of success in practice, and that
it did not provide for a procedure that was genuinely adversarial for
the accused (see Koşti and Others v. Turkey, no.
74321/01, § 22, 3 May 2007; Bağrıyanık
v. Turkey, no. 43256/04, §§ 50-51, 5 June
2007; Doğan Yalçın v. Turkey,
no. 15041/03, § 43, 19 February 2008; and Cahit Demirel
v. Turkey, no. 18623/03, § 34, 7 July 2009). The
Court further notes that, despite these apparent shortcomings in the
domestic law, the applicant in the present case has objected to his
continued detention on at least one occasion. His objection, however,
was rejected by the Istanbul Assize Court in circumstances which
lacked the guarantees appropriate to the kind of deprivation of
liberty in question, such as a hearing (see paragraph 14 above).
In
the present case, there is no element which would require the Court
to depart from its previous findings in the aforementioned cases. The
Court therefore concludes that, in the light of the aforementioned
case-law, the remedy indicated by the Government for the review of
the lawfulness of the applicant’s pre-trial detention was not
in conformity with the requirements of Article 5 § 4 of the
Convention.
There
has accordingly been a violation of Article 5 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained under Article 6 § 1 of the Convention that
the criminal proceedings against him had not been concluded within a
reasonable time.
A. Admissibility
The
Government asked the Court to dismiss the complaint under Article 6
§ 1 of the Convention for failure to exhaust domestic remedies,
as required by Article 35 § 1 of the Convention. They submitted
that the applicant could have sought compensation pursuant to Article
141 of the new Code of Criminal Procedure.
The
applicant maintained that the remedy referred to by the Government
was not effective.
The
Court reiterates that it has already examined this objection in the
case of Tunce and Others v. Turkey (nos. 2422/06, 3712/08,
3714/08, 3715/08, 3717/08, 3718/08, 3719/08, 3724/08, 3725/08,
3728/08, 3730/08, 3731/08, 3733/08, 3734/08, 3735/08, 3737/08,
3739/08, 3740/08, 3745/08, and 3746/08, §§ 35-37, 13
October 2009) and found it to be ineffective. The Court finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned application. It
therefore rejects the Government’s objection, and finds that
this part of the application is admissible.
B. Merits
The
Government submitted that the length of the proceedings could not be
considered to be unreasonable, particularly in view of the complexity
of the case, the number of the accused, the nature of the offence
with which the applicant was charged and the inherent difficulties in
collecting evidence in cases involving organised crime.
The
Court notes that the proceedings in question commenced on 5 February
1997 when the applicant was taken into police custody, and according
to the information in the case file, they are still pending before
the Court of Cassation. They have thus already lasted over fourteen
years and two months before two levels of jurisdiction.
The
Court has frequently found violations of Article 6 § 1 of the
Convention in applications raising issues similar to the one in the
present case (see Bahçeli v. Turkey, no. 35257/04, §
26, 6 October 2009; Er v. Turkey, no. 21377/04, §
23, 27 October 2009; and Şahap Doğan v. Turkey,
no. 29361/07, § 39, 27 May 2010). Having examined all the
material submitted to it, the Court considers that the Government
have not put forward any fact or argument capable of persuading it to
reach a different conclusion in the present case. Having regard to
its case-law on the subject, the Court therefore considers that the
length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
Lastly,
the applicant complained that the postponement by Law no. 5320
of the date of enforcement of Article 102 of the new Code of Criminal
Procedure, which regulates and decreases the authorised length of
pre-trial detention, to 31 December 2010 for certain types of
offences including his own, violated Article 14 of the Convention in
conjunction with Article 6.
The
Government did not make any submissions regarding this complaint.
The
Court considers in the first place that this question relates to the
length of the applicant’s pre-trial detention and should
therefore be examined under Article 14 taken together with Article 5
§ 3 of the Convention.
Secondly,
the Court notes that the distinction introduced by Law no. 5320
is made not between different groups of people, but between different
types of offences, according to the legislature’s view of their
gravity. The Court sees no ground for concluding that that practice
amounts to a form of discrimination that is contrary to the
Convention (see, mutatis mutandis, Gerger v. Turkey
[GC], no. 24919/94, § 69, 8 July 1999).
It
follows that this complaint is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
V. 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 and costs and expenses
The
applicant claimed 65,000 Turkish liras (TRY) (approximately
29,450 euros (EUR)) in respect of pecuniary damage and
TRY 100,000 (approximately EUR 45,300) in respect of
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, the Court considers that the applicant must have suffered
non pecuniary damage which cannot be compensated solely by the
finding of violations. Having regard to the gravity of the violations
and to equitable considerations, it awards the applicant EUR 23,400
for non-pecuniary damage.
Furthermore,
according to the information submitted by the parties, the criminal
proceedings against the applicant are still pending. In these
circumstances, the Court considers that an appropriate means for
putting an end to the violation which it has found would be to
conclude the criminal proceedings in issue as speedily as possible,
while taking into account the requirements of the proper
administration of justice (see Yakışan v. Turkey,
no. 11339/03, § 49, 6 March 2007).
The
applicant also claimed TRY 12,125 (approximately EUR 5,500) for
the legal fees incurred before the Court and TRY 8,500 (approximately
EUR 3,850) for those incurred during the domestic proceedings.
He further claimed TRY 1,500 (approximately EUR 680) for his postal,
telephone, translation and stationery expenses and TRY 3,000
(approximately EUR 1,360) for his representative’s travel
expenses in attending the hearings before the domestic courts and
visiting him at the prison. In addition, he demanded TRY 30,000
(approximately EUR 13,600) in respect of the costs and expenses borne
by his family on account of his detention, including travel expenses
made for prison visits. The applicant submitted two invoices
regarding legal fees incurred in the proceedings before the domestic
courts. In respect of the legal fees incurred before the Court, the
applicant relied on the Istanbul Bar Association’s recommended
fee list. He did not submit any invoices or other documents in
support of his remaining claims.
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 are
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 sum of EUR 2,000 to cover costs
under all heads (see Société Colas Est and Others v.
France, no. 37971/97, § 56, ECHR 2002 III).
B. 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
Joins by a majority to the merits the
Government’s preliminary objection on the issue of exhaustion
of domestic remedies in respect of Article 3 and dismisses
it;
Declares unanimously the complaint under Article
14 of the Convention inadmissible;
Declares by a majority the complaint under
Article 3 admissible ;
Declares unanimously the remainder of the
application admissible ;
Holds by 6 votes to 1 that there has been a
violation of Article 3 of the Convention under its substantive limb,
on account of the inhuman and degrading treatment that the applicant
was subjected to, and under its procedural limb;
Holds unanimously that there has been a
violation of Article 5 § 3 of the Convention on account of the
length of the applicant’s pre-trial detention;
Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention on account of the
lack of effective domestic remedies by which to challenge the
lawfulness of the applicant’s pre-trial detention;
Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention on account of the
length of the proceedings brought against the applicant;
Holds by 6 votes to 1
(a) that
the respondent State is to pay the applicant within three months of
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 on the date of
settlement:
(i) EUR
23,400 (twenty-three thousand four hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant;
(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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the statement of dissent of Judge
Sajó is annexed to this judgment.
F.T.
S.H.N.
STATEMENT OF DISSENT BY JUDGE SAJÓ
To my regret I was unable to follow the
finding of the majority that there has been a violation of Article
3 of the Convention as I would have relied on the findings of the
domestic court. As I could not find the Article 3 complaint
admissible I had no opportunity to share the concerns of my
colleagues as to the lack of suspension of the accused gendarme
sergeant.
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