SECOND SECTION

CASE OF ABA v. TURKEY

(Applications nos. 7638/02 and 24146/04)

JUDGMENT

STRASBOURG

3 March 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 ,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Françoise Tulkens, President,
	Ireneu Cabral Barreto,
	Vladimiro Zagrebelsky,
	Danutė Jočienė,
	Dragoljub Popović,
	András Sajó,
	Işıl Karakaş, judges,
and Françoise Elens-PassosDeputy Section Registrar,
Having deliberated in private on 10 February 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in two applications (nos. 7638/02 and 24146/04) 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, Ms Sakine Aba (“the applicant”), on 12 September 2001 and 5 May 2004 respectively.
2.  The applicant was represented by Mr A.A. Talipoğlu, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 26 September 2006 the Court decided to join the applications, declared them partly inadmissible (the complaints which had been raised in application no. 24146/04) and decided to communicate to the Government complaints concerning the applicant's time in police custody – its length, an alleged absence of a right to compensation and a lack of legal assistance. It also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).
THE FACTS
4.  The applicant was born in 1965 and lives in Istanbul. She was arrested and placed in police custody on suspicion of membership of an illegal organisation. During her custody period, she was interrogated by the police, the public prosecutor and the investigating judge respectively, in the absence of a lawyer. These statements were subsequently used for her conviction by the trial court.
The details of the application are indicated in the table below.

Date of police custody	Date of interrogation by the police	Date of interrogation by the public prosecutor and the investigating judge	Date of final decision by the Court of Cassation	
2 April 2001
(according to the Search, Arrest and Seizure Protocol) -
7 April 2001
(date of detention on remand)	3 April 2001	7 April 2001	15 December 2003	
THE LAW
5.  Relying on Article 5 § 3 of the Convention, the applicant complained that the length of her police custody exceeded the reasonable time requirement. Under Article 5 § 5 of the Convention, she further maintained that she did not have any remedy whereby to seek compensation for the time she had spent in police custody. Finally, invoking Article 6 §§ 3 (c) of the Convention, the applicant complained that she had been denied the assistance of a lawyer during this same period.
6.  The Court notes that these complaints of the applicant are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
7.  As regards the complaint raised under Article 5 § 3 of the Convention, the Court notes that the applicant's police custody lasted five days. It reiterates that in the case of Brogan and Others v. the United Kingdom,   (29 November 1988, § 62, Series A no. 145‑B), 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 if its purpose was to protect the community as a whole against terrorism. In the present case, the Court cannot accept that it was necessary to detain the applicant for five days without being brought before a judge or another officer authorised by law to exercise judicial power. There has accordingly been a violation of Article 5 § 3 of the Convention.
8.  As regards the complaint of an absence of a remedy in compensation Article 5 § 5 of the Convention, the Court has examined the present case and finds no particular circumstances which would require it to depart from its established case-law on the matter, to the effect that, indeed, no such remedy was available to the applicant (see, Saraçoğlu and Others v. Turkey, no. 4489/02, §§ 50-53, 29 November 2007; Sinan Tanrıkulu and Others v. Turkey, no. 50086/99, § 50, 3 May 2007; Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May 2007). There has accordingly been a violation of Article 5 § 5 of the Convention.
9.  Finally, as regards the complaint concerning the lack of legal assistance to the applicant during her police custody, the Court observes that it has already examined the same grievance in the case of Salduz v. Turkey and found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 ([GC], no. 36391/02, §§ 56-62, 27 November 2008). In the present case, it finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.
10.  Concerning just satisfaction, the applicant claimed 423 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. Based on the Istanbul Bar Association's scale of fees, she further requested EUR 4,772 in respect of her lawyer's fees and EUR 583 in respect of costs and expenses.
11.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, in respect of non-pecuniary damage, ruling on an equitable basis, it awards EUR 3,000 to the applicant.
12.  It further considers that the most appropriate form of redress would be the re-trial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis,Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Salduz, cited above, § 72).
13.  According to its relevant case-law, in respect of costs and expenses, and in the light of the documents in its possession, the Court considers it reasonable to award the sum of EUR 1,500 to the applicant less the sum of EUR 850 received in legal aid from the Council of Europe.
14.  The Court further finds 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
1.  Declares the remainder of the applications admissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds that there has been a violation of Article 5 § 5 of the Convention;

4. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while in police custody;

5.  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, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:
(i)  EUR 3,000 (three thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,500 (one thousand five hundred euros), less the EUR 850 (eight hundred and fifty euros) received in legal aid, plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

6.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 3 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

	Françoise Elens-Passos	Françoise Tulkens
	Deputy Registrar	President