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Cite as: [2007] ECHR 301

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THIRD SECTION

CASE OF TANGÜN AND OTHERS v. TURKEY

(Application no. 38128/02)

JUDGMENT

STRASBOURG

12 April 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 Tangün and Others v. Turkey,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E. Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mrs I. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

Having deliberated in private on 22 March 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 38128/02) 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 twelve Turkish nationals, Mr Tekin Tangün, Mr Metin Yavuz, Mr Ali Ercan Gökoğlu, Mr Egemen Seyfettin Kuşçu, Ms Hatice Ruken Kılıç, Ms Naciye Barbaros, Ms Duygu Eygi, Ms Yeter Gönül, Mr İsmail Özmen, Mr Murat Bargu, Mr Feridun Yücel Batu and İbrahim Akın (“the applicants”), on 5 October 2001.

The applicants were represented by Mr B. Aşçı, Mr M. Narin, Ms S. Yılmaz, Ms S. Özer, Mr Ö.M. Gider, Mr Z. Rüzgar, Mr S Şensoy, Mr A.G. Sevimli and Mr H.İ. Türkyılmaz, lawyers practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court.

On 1 June 2006 the Court decided to strike the case out of the list in so far as it concerned Mr İbrahim Akın. It further decided to communicate the remaining applicants’ complaint concerning the length of their detention in police custody to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1969, 1964, 1968, 1979, 1978, 1976, 1981, 1975, 1974, 1971 and 1969 respectively and live either in Istanbul or Ankara with the exception of Mr Batu who resides in Antalya.

On 7 August (Mr Tangün) and 8 August 2001 (the other applicants) were arrested and taken into custody on suspicion of their involvement in the activities of an illegal armed organisation. Upon the request of the police, the applicants’ detention period was extended first by the public prosecutor and later by the İstanbul State Security Court on 9 and 11 August 2001 respectively.

On 13 August 2001 İstanbul State Security Court ordered that Mr Tangün, Mr Yavuz, and Mr Gökoğlu be detained on remand and that the other applicants be released.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A description of the relevant domestic law at the material time can be found in the Daş v. Turkey judgment (no. 74411/01, § 18, 8 November 2005).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

The applicants alleged that they had not been brought promptly before a judge, contrary to Article 5 § 3 of the Convention, which provides as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power.”

A. Admissibility

The Government asked the Court to dismiss the application as being inadmissible for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. In this respect they maintained that the applicants could have challenged the length of their detention in police custody by invoking Article 128 of the Code of Criminal Procedure. The Government further submitted that the applicants could also have sought compensation pursuant to Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained.

The Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Daş, cited above, § 21; and Ahmet Mete v. Turkey, no. 77649/01, § 21, 25 April 2006). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the
above-mentioned applications.

Consequently, the Court rejects the Government’s preliminary objection. It further notes that this complaint is not inadmissible on any other grounds and must, therefore, be declared admissible.

B. Merits

The Government argued that the length of the applicants’ detention in police custody had been in conformity with the legislation in force at the time. They pointed out that the relevant law had since been amended in accordance with the case-law of the Court.

The applicants maintained their allegations.

The Court notes that the applicants’ detention in police custody lasted six (Mr Tangün) and five days (the other applicants) respectively. It reiterates that, in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 B, pp. 33-34, § 62), it held that detention in police custody which had lasted four days and six hours without judicial control fell outside the strict time constraints of Article 5 § 3 of the Convention, even though its purpose was to protect the community as a whole against terrorism (ibid).

Even supposing that the activities of which the applicants stood accused were serious, the Court cannot accept that it was necessary to detain them for five to six days without bringing them before a judge or other officer authorised by law to exercise judicial power.

There has accordingly been a violation of Article 5 § 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicants claimed, in total, 51,000 euros (EUR) in respect of non-pecuniary damage.

The Government contested the amount.

Having regard to its case law, and making its assessment on an equitable basis, the Court awards EUR 1,000 to Mr Tangün and EUR 500 to each of the other applicants in respect of non pecuniary damage.

B. Costs and expenses

The applicants also claimed EUR 5,600 for the costs and expenses incurred before the Court. The applicants submitted a schedule of costs prepared by their representative Mr Aşçı.

The Government contested the amount.

Deciding on an equitable basis and having regard to the criteria laid down in its case-law, the Court considers it reasonable to award the applicants, jointly, EUR 1,000 for their costs and expenses.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the remainder of the application admissible;

Holds that there has been a violation of Article 5 § 3 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 according to Article 44 § 2 of the Convention, the following amounts to be converted into new Turkish liras at the rate applicable at the date of settlement:

(i) EUR 1,000 (one thousand euros) to Mr Tangün and EUR 500 (five hundred euros) to each of the other applicants in respect of non pecuniary damage;

(ii) EUR 1,000 (one thousand euros), jointly, in respect of costs and expenses;

(iii) any tax that may be chargeable on the above amounts;

(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 12 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Boštjan M. Zupančič
Registrar President