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INAN AND OTHERS v. TURKEY - 19637/05 [2009] ECHR 1533 (13 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1533.html
Cite as:
[2009] ECHR 1533
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SECOND
SECTION
CASE OF İNAN AND OTHERS v. TURKEY
(Applications
nos. 19637/05, 43197/06 and 39164/07)
JUDGMENT
STRASBOURG
13 October 2009
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 İnan and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in three applications (nos. 19637/05, 43197/06 and
39164/07) 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 three Turkish
nationals, Mr Barış İnan, Mrs Muhabbet Kurt and
Mr Azimet Ceyhan (“the applicants”), on 30 May 2005,
13 October 2006 and 27 August 2007, respectively.
The
first applicant was represented by Mr F.N. Ertekin, Mr K. Öztürk,
Mr T. Ayçık, Mr İ.C. Halavurt and Mrs F.
Kılıçgün, lawyers practising in Istanbul. The
second applicant was represented by Mr E. Kanar, a lawyer practising
in Istanbul. The Turkish Government (“the Government”)
were represented by their Agent.
On
17 June 2008 the Court joined the applications, declared them partly
inadmissible and decided to communicate to the Government the
complaints concerning the applicants’ right to be released
pending trial, the alleged rape of the second applicant while in
police custody, an alleged lack of an effective domestic remedy
whereby the second applicant could challenge the lawfulness of her
detention and the right of the second and third applicants to a
hearing within a reasonable time. It also decided to examine the
merits of these complaints at the same time as their admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Application no. 19637/05 lodged by Mr Barış
İnan
The
applicant, Mr Barış İnan, is a Turkish national who
was born in 1973 and is currently detained in the Kandıra F-type
prison, in Kocaeli.
On
8 September 1998 the applicant was arrested during a police operation
conducted against the MLKP (the Marxist-Leninist Communist Party). On
14 September 1998 a single judge at the Istanbul State Security
Court ordered the applicant’s pre-trial detention.
On
18 September 1998 the public prosecutor at the Istanbul State
Security Court lodged a bill of indictment, charging the applicant
with attempting to undermine the constitutional
order, an offence proscribed by Article 146 § 1 of the former
Criminal Code.
On
4 December 1998 the Istanbul State Security Court held the
first hearing on the merits of the case (no. 1998/259).
According
to the information in the case file last submitted by the parties,
the criminal proceedings against the applicant are still pending at
first instance, which is now the Istanbul Assize Court, and the
applicant is still detained on remand. During
the proceedings, the first-instance courts examined the
applicant’s continued detention at the end of every hearing,
either on their own motion or upon the applicant’s request. On
each occasion the courts ordered the applicant’s continued
remand in custody, given the content of the file and the state of
evidence.
B. Application no. 43197/06 lodged by Mrs Muhabbet Kurt
The
applicant, Mrs Muhabbet Kurt, is a Turkish national who was born in
1978 and is currently detained in the Gebze prison, in Kocaeli.
On
8 September 1998 the applicant was arrested during a police operation
conducted against the MLKP (Marxist-Leninist Communist Party). During
her detention in police custody, the applicant was allegedly
subjected to ill-treatment. In particular, she claimed to have been
raped by police officers.
On
14 September 1998 the applicant, along with eleven other persons, was
examined by a doctor at the Istanbul branch of the Forensic Medicine
Institute who noted that none of them had sustained any injuries.
On
the same day the applicant made statements to the public prosecutor
at the Istanbul State Security Court and stated that she had been
tortured while in police custody. The applicant was subsequently
brought before a single judge at the Istanbul State Security Court
who ordered her pre-trial detention.
On
18 September 1998 the public prosecutor at the Istanbul State
Security Court lodged a bill of indictment, charging the applicant
with attempting to undermine the constitutional
order, an offence proscribed by Article 146 § 1 of the former
Criminal Code.
On
4 December 1998 the Istanbul State Security Court held the
first hearing on the merits of the case (no. 1998/259).
During
the hearing on 8 December 1999, the applicant alleged before the
first-instance court that she had been raped while in police custody.
At the end of the hearing, the State Security Court requested the
public prosecutor’s office to initiate an investigation into
this allegation.
On
20 December 1999 the public prosecutor’s office at the Istanbul
State Security Court issued a decision based on
a lack of jurisdiction and passed the investigation to the Fatih
public prosecutor’s office.
On
3 July 2000 the Fatih public prosecutor issued a decision
not to prosecute anyone in relation to the applicant’s
allegations, holding that there was insufficient evidence to bring
criminal proceedings. The public prosecutor noted that the applicant
did not apply to the national authorities at the end of her detention
in police custody until 8 December 1999. He further noted that the
medical reports issued at the end of her police custody period did
not indicate any sign of violence on her person.
By
Law no. 5190 of 16 June 2004, published in the Official Gazette
on 30 June 2004, State Security Courts were
abolished. The case against the applicant and her co-accused was
transferred to the Istanbul Assize Court.
During
the hearings of 4 July and 24 October 2007, the applicant and her
representatives primarily challenged the
reliability and admissibility in evidence of the statements taken
from her in police custody under duress. In particular, the
applicant repeated her allegations of rape and requested the court to
order the public prosecutor’s office to investigate her
allegations of ill treatment. The assize court heard four
witnesses on behalf of the applicant who testified that, at the end
of her detention in police custody in 1998, the applicant had claimed
to have been raped and that she had been depressed. On both
occasions, noting that there had already been an investigation into
the applicant’s allegations of ill-treatment, the trial court
rejected the applicant’s requests.
According
to the information in the case file last submitted by the parties,
the criminal proceedings against the applicant are still pending
before the Istanbul Assize Court and the applicant is still detained
on remand. During the proceedings, the
first-instance courts examined the applicant’s continued
detention at the end of every hearing, either on their own motion or
upon the applicant’s request. The courts ordered the
applicant’s continued remand in custody, given the content of
the file and the state of evidence on each occasion. On one occasion,
the applicant filed an objection against the first-instance court’s
remand decision, which was subsequently dismissed by another assize
court on 23 August 2006.
C. Application no. 39164/07 lodged by Mr Azimet Ceyhan
The
applicant, Mr Azimet Ceyhan, is a Turkish national who was born in
1970 and is currently detained in the Kandıra F-type prison, in
Kocaeli.
On
an unspecified date in 2000 criminal proceedings were brought against
the applicant before the Istanbul State Security Court on the charge
of attempting to undermine the constitutional
order, an offence proscribed by Article 146 of the former Criminal
Code. The State Security Court ordered the applicant’s
pre-trial detention.
Subsequently,
the case against the applicant (no. 2000/30) was joined to case no.
1998/259 pending before the Istanbul State Security Court.
On
21 February 2000 the applicant was arrested and brought before a
single judge at the Istanbul State Security Court, who ordered the
applicant’s detention pending trial.
According
to the information in the case file last submitted by the parties,
the criminal proceedings against the applicant are still pending at
first instance, which is now the Fourteenth Chamber of the Istanbul
Assize Court, and the applicant is still detained despite his
numerous requests for release. During the
proceedings, the first-instance courts examined the
applicant’s continued detention at the end of every hearing,
either on their own motion or upon the applicant’s request. The
courts ordered the applicant’s continued remand in custody,
given the content of the file and the state of evidence on each
occasion.
II. RELEVANT DOMESTIC LAW
A description of the domestic law at the relevant time
may be found in Barış v.
Turkey, (no. 26170/03, § 14, 31
March 2009) and Çobanoğlu and Budak v. Turkey
(no. 45977/99, §§ 29-30, 30 January 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
second applicant, Mrs Muhabbet Kurt alleged under Article 3 of the
Convention that she had been raped while in police custody.
The
Government submitted that the applicant had failed to exhaust the
domestic remedies available to her, within the
meaning of Article 35 § 1 of the Convention as she did not file
an objection against the decision of Fatih public prosecutor dated 3
July 2000. Alternatively, they maintained that, given that the
aforementioned decision was the final decision regarding the
applicant’s allegations of ill-treatment, the applicant had
failed to lodge her application with the Court within six
months of that decision. The Government further contended that the
applicant’s allegations were baseless since she had failed to
support them by any evidence.
The
applicant replied that the statements of the witnesses who had
testified on 4 July and 24 October 2007 before the Istanbul Assize
Court constituted appropriate evidence in support of her allegations,
and that the national authorities had failed to take them into
consideration or order her psychological examination. She further
noted that she had not lodged her application with the Court out of
time, as she had brought her allegations to the attention of the
Istanbul Assize Court as late as 2007.
The Court reiterates at the outset that an appeal
against decisions of public prosecutors not to prosecute constitutes,
in principle, an effective and accessible remedy within the
meaning of Article 35 § 1 of the Convention (see Nurettin
Aldemir and Others v. Turkey, nos. 32124/02, 32126/02, 32129/02,
32132/02, 32133/02, 32137/02 and 32138/02, § 52, 18 December
2007; Hıdır Durmaz v. Turkey, no. 55913/00, §
29, 5 December 2006; Saraç v. Turkey
(dec.), no. 35841/97, 2 September 2004; Nuray Şen
v. Turkey (dec.), no. 41478/98, 30 April 2002).
The Court observes in the present case that the applicant did not
avail herself of this remedy by lodging an appeal against
the Fatih public prosecutor’s decision of 7 July 2000, and
did not indicate any circumstances which would dispense her from
doing so. Even assuming that the
applicant’s circumstances could have caused her to feel
vulnerable, powerless and apprehensive of the representatives of the
State following her detention in custody (see İlhan v. Turkey
[GC], no. 22227/93, § 61, ECHR 2001-I), the Court
points out that the applicant was represented by a lawyer in the
course of the criminal proceedings against her and that her
representative could have lodged an objection against the decision of
the public prosecutor.
The
Court further notes that in their submissions to the Istanbul Assize
Court in July and October 2007, the applicant and her representatives
primarily challenged the reliability and
admissibility in evidence of the statements taken from her in police
custody and relied on the witness statements according to
which the applicant had been depressed following her remand in
custody (see paragraph 19 above). Moreover, while the
assize court rejected the applicant’s request for a new
investigation as an inquiry had already been held, it also noted that
the applicant could apply to the public prosecutor’s office,
had she had new evidence in her possession. However, the applicant
failed to do so.
This
being so, the Court is of the opinion that, by failing to object to
the decision of 7 July 2000 and to pursue her allegations of
ill-treatment at the domestic level in 2007, the applicant failed to
exhaust the remedies available to her in domestic law. The Court
therefore accepts the Government’s objection. It follows that
this part of the application must be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 5 and 6 OF THE
CONVENTION
All
three applicants complained that their detention during the criminal
proceedings brought against them has exceeded the “reasonable
time” requirement of Article 5 § 3 of the Convention. The
second applicant further complained under Article 5 § 4 of the
Convention that there had been no effective domestic remedy by which
to challenge the lawfulness of the first instance court’s
detention orders. The second and third applicants also complained
under Article 6 § 1 of the Convention of
the length of the criminal proceedings brought against them.
A. Admissibility
The
Government submitted that these complaints should be rejected for
failure to exhaust domestic remedies, as required by Article 35 §
1 of the Convention. The Government argued that the applicants could
have sought compensation pursuant to Law no. 466 on the Payment of
Compensation to Persons Unlawfully Arrested or Detained and Article
141 of the Code of Criminal Procedure (Law no. 5271).
The
applicants contested the availability and effectiveness of these
remedies.
The
Court has already examined and rejected the Government’s
preliminary objection in similar cases (see, for example, Bayam v.
Turkey, no. 26896/02, § 16, 31 July 2007; Barış,
cited above, §§ 17 and 18). The Court finds no particular
circumstances in the instant case which would require it to depart
from this jurisprudence. It therefore rejects the Government’s
objection and finds that these complaints are admissible.
B. Merits
1. Article 5 § 3 of the Convention
The
Government maintained that the length of the applicants’
pre-trial detention has been reasonable. In particular, they
submitted that the seriousness of the crime, the risk of escape,
together with the special circumstances of the case, had justified
their continued detention pending trial.
The
applicants maintained their allegations.
The
Court observes that in the instant case the first and second
applicants’ detention began on 8 September 1998 when they were
taken into police custody and they are still so remanded. Their
pre-trial detention has thus lasted some eleven years. The detention
of the third applicant began on 21 February 2000 when he was arrested
and also continues. He has been detained on remand for over nine
years and seven months.
The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
applications (see, for example, Dereci v. Turkey, no.
77845/01, §§ 34-41, 24 May 2005; Atıcı v.
Turkey (no. 1), no. 19735/02, §§ 48-51, 10 May 2007;
Çarkçı v. Turkey, no. 7940/05, §§
18-21, 26 June 2007). Having examined all the material submitted to
it, the Court considers that the Government have not put forward any
fact or convincing argument capable of persuading it to reach a
different conclusion in the present cases. Having regard to its
case-law on the subject, the Court finds that the length of the
applicants’ detention pending the criminal proceedings against
them was excessive and contravened Article 5 § 3 of the
Convention. There has accordingly been a violation of this
provision.
2. Article 5 § 4 of the Convention
The
Government submitted that the second
applicant’s complaint under this provision was unsubstantiated
as she had a remedy in domestic law whereby she could challenge the
lawfulness of her detention.
The
applicant maintained her allegation.
The Court refers to its constant case-law that the
Turkish legal system did not offer a remedy which was genuinely
adversarial or which could offer reasonable prospects of success
(see, for example, Koşti and Others v. Turkey,
no. 74321/01, § 22, 3 May 2007; Bağrıyanık
v. Turkey, no. 43256/04, §§ 50 and 51, 5
June 2007; Doğan Yalçın v. Turkey,
no. 15041/03, § 43, 19 February 2008). It finds no reason to
depart from that conclusion in the present case. Consequently, the
Court finds that the second applicant has also suffered a violation
of Article 5 § 4 of the Convention.
3. Article 6 § 1 of the Convention
The Government maintained that,
in the circumstances of the present case, the length of the criminal
proceedings could not be considered to have been
unreasonable. In this respect they
referred to the number of defendants who had been on trial for a
terrorism-related offences. The
Government further submitted that the third applicant and his
representative had contributed to the prolongation of the proceedings
by not attending a number of hearingsstatements.
They Ffinally,
they maintained that there was no delay in the proceedings which
could be attributed to the authorities.
The
second and third applicants maintained their allegation.
The periods to be taken
into consideration are some eleven years for the second applicant and
nine years and seven months for the third applicant, before one level
of jurisdiction. The Court has frequently found violations of Article
6 § 1 of the Convention in cases raising issues similar to the
one in the present applications (see, for example, Sertkaya
v. Turkey, no. 77113/01, § 21, 22 June
2006; Hasan Döner v. Turkey, no.
53546/99, § 54, 20 November 2007; Uysal and Osal
v.Turkey, no. 1206/03, § 33, 13 December 2007). In
the present case, the Court observes that neither the complexity of
the case nor the alleged conduct of the third applicant is sufficient
to explain the delays in the conduct of the proceedings. The Court
there finds no reason to depart from the conclusions of the cases
cited above.
There
has therefore been a breach of Article 6 § 1 of the Convention
due to the excessive length of the criminal proceedings against the
second and third applicants.
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
first applicant claimed 34,400 euros (EUR) and 30,000 as to pecuniary
and non-pecuniary damage respectively. The second applicant claimed
90,000 Turkish liras (TRY) (approximately EUR 41,200) and TRY 100,000
(approximately EUR 45,770) for pecuniary and non pecuniary
damage respectively. Finally, the third applicant claimed EUR 20,000
in respect of pecuniary damage and EUR 10,000 in respect of
non-pecuniary damage.
The
Government contested these claims.
The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects these claims.
However, deciding on an equitable basis, it awards the first
applicant EUR 9,000 and the second applicant EUR 13,500 in respect of
non-pecuniary damage. Under the same head, the Court awards the third
applicant his claim in full.
Furthermore, according to the information submitted by
the parties, the criminal proceedings against the applicants are
still pending and the applicants are still detained on remand. In
these circumstances, the Court considers that an appropriate means
for putting an end to the violations found would be to conclude the
criminal proceedings against the applicants as speedily as possible,
while taking into account the requirements of the proper
administration of justice, and/or to release the applicants
pending the outcome of these proceedings (see
Mehmet Ali Çelik v. Turkey,
no. 42296/07, § 26, 27 January 2009; Yakışan
v. Turkey, no. 11339/03, § 49, 6 March 2007;
Batmaz v. Turkey (dec.), no. 34497/06, 1 April
2008).
B. Costs and expenses
The
first applicant claimed EUR 420 for the costs and expenses incurred
before the domestic courts and EUR 8,479 for those incurred before
the Court. In support of his claims, the applicant submitted a
receipt according to which he had paid TRY 2,596 (EUR 1,230) to his
representative for his representation before the Court. He also
submitted a legal fee agreement concluded with his lawyers according
to which the applicant would pay his lawyers 25% of the award made by
the Court. The first applicant finally submitted receipts of postal
and translation costs. The second applicant claimed EUR 12,190 for
the costs and expenses incurred before the domestic courts and EUR
8,000 for those incurred before the Court. The second applicant did
not submit any documents to substantiate her claims. The third
applicant claimed TRY 47 (EUR 24) for the translation expenses and
submitted a receipt in support of his claim.
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
rejects the claims for costs and expenses in the domestic
proceedings. The Court considers it reasonable to award the first
applicant the sum of EUR 1,500 for the proceedings before the Court.
The Court further awards the third applicant EUR 24 for the present
proceedings before the Court. It finally rejects the second
applicant’s claims under this head in the absence of any
documentation.
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 following complaints admissible:
- all applicants’ complaint concerning
their right to be released pending trial,
- the second applicant’s complaint
concerning the alleged lack of an effective domestic remedy whereby
she could challenge the lawfulness of her detention on remand, and
- the second and third applicants’
complaint concerning their right to a fair hearing within a
reasonable time;
2. Declares inadmissible the
remainder of the applications;
Holds that there has been a violation of Article
5 § 3 of the Convention in respect of all three applicants;
Holds that there has been a violation of Article
5 § 4 of the Convention in respect of the second applicant,
Ms Muhabbet Kurt;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the second and third
applicants, Ms Muhabbet Kurt and Mr Azimet Ceyhan;
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
9,000 (nine thousand euros) to Mr Barış İnan in
respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR
13,500 (thirteen thousand five hundred euros) to Mrs Muhabbet
Kurt in respect of non-pecuniary damage, plus any tax that may be
chargeable;
(iii) EUR
10,000 (ten thousand euros) to Mr Azimet Ceyhan in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(iv) EUR
1,500 (one thousand five hundred euros) to Mr Barış İnan
in respect of costs and expenses, plus any tax that may be chargeable
to the applicant;
(v) EUR
24 (twenty-four euros) to Mr Azimet Ceyhan 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 the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
