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MEHMET BILEN v. TURKEY - 5337/02 [2008] ECHR 290 (8 April 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/290.html
Cite as:
[2008] ECHR 290
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THIRD
SECTION
CASE OF MEHMET BİLEN v. TURKEY
(Application
no. 5337/02)
JUDGMENT
STRASBOURG
8
April 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 Mehmet Bilen v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall, President,
Elisabet
Fura-Sandström,
Rıza
Türmen,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 18 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 5337/02) 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 a Turkish national, Mehmet Bilen (“the
applicant”), on 18 October 2001.
The
applicant was represented by Mr S. Çınar, a lawyer
practising in Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
On
24 May 2007 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the length of
the applicant's detention in police custody, the lack of an effective
remedy to challenge the lawfulness of this detention and the absence
of a remedy in domestic law to obtain compensation for the alleged
violation of Article 5 of the Convention 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 1960 and lives in Diyarbakır.
On
9 April 2001 the applicant was arrested and taken into police
custody.
On
11 April 2001 the applicant's detention in police custody was
prolonged for an additional period of two days, without his presence,
by the public prosecutor at the Diyarbakır State Security Court.
On
13 April 2001 the applicant's detention in police custody was
prolonged for an additional period of six days, without his presence,
by the Diyarbakır State Security Court.
On
18 April 2001, before the additional six-day period had expired, the
applicant was brought before the public prosecutor at the Diyarbakır
State Security Court who ordered his release.
The
criminal proceedings against the applicant for membership of an
illegal organisation are still pending before the Diyarbakır
Assize Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A
description of the relevant domestic law at the material time can be
found in Fatma Tunç v. Turkey, (no. 16608/02,
§ 15, 20 October 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §§ 3, 4 AND 5
OF THE CONVENTION
The
applicant complained about the length of his detention in police
custody, the absence of an effective remedy to challenge the
lawfulness of this detention and the absence of a remedy in domestic
law to obtain compensation for the alleged violation of Article 5 of
the Convention. He relied on Article 5 §§ 3, 4 and 5 of the
Convention, which reads as follows:
“3. 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 and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for 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.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
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 his detention in police
custody pursuant to Article 128 § 4 of Code of Criminal
Procedure, and that he could also have sought compensation pursuant
to Law no. 466 concerning the payment of compensation to persons
unlawfully arrested or detained.
The
applicant maintained his 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,
Ayaz and Others v. Turkey, no. 11804/02,
§§ 23-24, 22 June 2006, Şevk v. Turkey,
no. 4528/02, § 24, 11 April 2006, Hacı Özen
v. Turkey, no. 46286/99, § 71, 12 April 2007,
Keklik and Others v. Turkey, no. 77388/01, §§ 29-30,
3 October 2006, and Ferhat Berk v. Turkey, no. 77366/01,
§§ 21-22 and
26-27, 27 July 2006). It finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned 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
1. The parties' submissions
The
Government maintained, firstly, that the applicant's custody
period was in absolute conformity with the domestic legislation in
force at the time of the incident. They, however, pointed out that
the detention periods laid down under Turkish law had been
subsequently amended in compliance with the case-law of the Court.
Secondly, the Government contended that Article 128 of the Code of
Criminal Procedure provides an effective remedy to challenge the
lawfulness of the detention. Finally, they reiterated that the
applicant could have requested compensation within three months
following the final decision of the trial court under the terms of
Law no. 466 on compensation payable to persons unlawfully
arrested or detained.
The
applicant maintained his allegations.
2. The Court's assessment
a) Article 5 § 3
The
Court observes that the applicant's detention in police custody
lasted nine days. 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 found 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 (see, amongst others,
Keklik and Others, § 41, cited above).
In
the light of the principles enunciated in the Brogan case, the
Court cannot accept that it was necessary to detain the applicant for
nine days without judicial intervention even if the activities of
which the applicant stood accused were serious.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
b) Article 5 §§ 4 and 5
The
Court has examined similar cases on previous occasions and has found
violations of Article 5 §§ 3 and 4 of the Convention in
respect of the lack of an effective remedy under Turkish law whereby
the applicant could have contested the lawfulness of his detention in
police custody and obtain compensation to that effect (see, in
particular, Bazancir and Others v. Turkey, nos. 56002/00
and 7059/02, §§ 30-32, 11 October 2005, Mehmet Mübarek
Küçük v. Turkey, no. 7035/02, § 31, 20
October 2005, Uçar v. Turkey, no. 52392/99, §
122, 11 April 2006, Keklik and Others, §§ 46-48
and 52, and Ferhat Berk, §§ 21 22 and 25-27,
both cited above). It finds no reason to depart from that conclusion
in the present case.
There
has accordingly been a breach of Article 5 §§ 4 and 5
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
applicant claimed 200 euros (EUR) in respect of pecuniary damage and
EUR 7,000 in respect of non-pecuniary damage.
The
Government contested the amounts.
The
Court finds the applicant's pecuniary damage claim unsubstantiated.
It therefore dismisses it. On the other hand, it accepts that the
applicant suffered non-pecuniary damage such as distress resulting
from his detention for nine days without the opportunity to challenge
its lawfulness, which cannot be sufficiently compensated by the
finding of a violation. Having regard to its case-law, and making its
assessment on equitable basis, the Court awards the applicant
EUR 3,500 in respect of non pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 1,645 for the costs and expenses incurred
before the Court. The applicant relied on the Turkish Bar
Association's recommended fees list. He, however, did not submit any
receipts or any other relevant documents.
The
Government contested the amount.
Since the applicant
submitted
no substantiation of his costs
and expenses claim, 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 the remainder of the application
admissible;
Holds that there has been a violation of Article
5 §§ 3, 4 and 5 of the Convention;
Holds
(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 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 8 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
