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KUTLAR AND OCAKLI v. TURKEY - 41433/06 [2011] ECHR 157 (1 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/157.html
Cite as:
[2011] ECHR 157
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SECOND
SECTION
CASE OF KUTLAR AND OCAKLI v. TURKEY
(Applications
nos. 41433/06 and 47936/08)
JUDGMENT
STRASBOURG
1 February
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 Kutlar and Ocaklı
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 41433/06 and 47936/08)
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 two Turkish nationals, Mr
Taylan Kutlar and Mr Osman Nuri Ocaklı (“the applicants”),
born in 1980 and 1966 respectively. The introduction dates of the
applications and the names of the applicants' representatives are
indicated in the appended table. The Turkish Government (“the
Government”) were represented by their Agent.
On
21 October 2009 the Court decided to give notice of the application
to the Government. It was also decided to rule on the admissibility
and merits of the applications at the same time (former Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants are Turkish nationals, who were arrested and subsequently
detained pending criminal proceedings brought against them on the
charge of membership of the MLKP (the “Marxist
Leninist Communist Party”), an
illegal organisation. They are still in pre-trial detention. The
information concerning the dates of the arrests, the dates of the
orders for the applicants' pre trial detention, the dates of the
bills of indictment, the dates of the domestic court decisions, the
total period of pre-trial detention, and the grounds for continued
detention is set out in the appendix.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A
description of the relevant domestic law and practice prior to the
entry into force of the new Code of Criminal Procedure (the “CCP”;
Law no. 5271) on 1 June 2005 may be found in Çobanoğlu
and Budak v. Turkey (no. 45977/99, §§ 29-31, 30
January 2007). The current practice under the CCP is outlined in
Şayık and Others v. Turkey (nos. 1966/07, 9965/07,
35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§
13-15, 8 December 2009).
THE LAW
I. JOINDER
Having
regard to the similar subject matter of the applications, the Court
finds it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants complained under Article 5 § 3 of the Convention that
the length of their pre-trial detention had been excessive. The
applicant in application no. 47936/08 further complained under
Article 5 § 4 of the Convention that there had been no effective
remedy to challenge the length of his pre-trial detention.
The
Government contested the applicants' arguments.
A. Admissibility
The
Government put forward various preliminary objections concerning
exhaustion of domestic remedies and asked the Court to dismiss the
complaints under Article 5 §§ 3 and 4 of the Convention, as
required by Article 35 § 1 of the Convention.
The
Court notes that it has already examined similar submissions made by
the respondent Government in other cases (see, for example, Koşti
and Others v. Turkey, no. 74321/01, §§ 19-24,
3 May 2007; Şayık and Others v. Turkey, cited
above, §§ 28-32 and Yiğitdoğan v.
Turkey, no. 20827/08, § 19,
16 March 2010).
The
Government have not submitted any arguments which could lead the
Court to reach a different conclusion in the instant case.
Consequently, the Court rejects the Government's preliminary
objection as to non-exhaustion of domestic remedies.
The
Government further argued that the applicants had failed to comply
with the six-month rule under Article 35 of the Convention.
The
Court observes that the applicants are still in pre-trial detention.
The Government's objection must therefore be rejected.
The
Court notes that these complaints are 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. Article 5 § 3 of the Convention
The
Government maintained that the applicants' detention was based on the
existence of reasonable grounds of suspicion of them having committed
an offence, and that their detention had been reviewed periodically
by the competent authority, with special diligence, in accordance
with the requirements laid down by the applicable law. They pointed
out that the offences with which the applicants were charged were of
a serious nature, and that their continued remand in custody was
necessary to prevent crime and to preserve public order.
The
Court notes that, after excluding the period when the applicants were
detained after conviction under Article 5 § 1 (a) of the
Convention from the total time that they have been held in detention,
the period to be taken into consideration is already over eight years
and ten months in application no. 41433/06 and over seven years and
five months in application no. 47936/08. Their pre trial
detention is still continuing (see Solmaz v. Turkey,
no. 27561/02, §§ 36-37, ECHR 2007-II (extracts)).
The
Court 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 applicants' 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
In
respect of application no. 47936/08 the Government submitted that the
applicant did in fact have the possibility of challenging his
continued remand by lodging objections.
The
applicant maintained his allegation.
The
Court has already examined the possibility of challenging the length
of pre-trial detention in Turkey in other cases and concluded that
the Government had failed to show that the remedy they referred to
provided for a procedure that was genuinely adversarial for the
accused (see, for example, Koşti and Others v. Turkey,
cited above, §§ 19-24; Şayık and Others
v. Turkey, cited above, §§ 28-32 and Yiğitdoğan
v. Turkey,
cited above, § 19). The Court notes that the Government
have not put forward any argument or material in the instant case
which would require the Court to depart from its previous findings.
In
the light of the foregoing the Court concludes that there has been a
breach of Article 5 § 4 of the Convention in respect of the
applicant in application no. 47936/08.
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
applicant in application no. 41433/06 claimed 25,000 euros (EUR) in
respect of non-pecuniary damage.
The
applicant in application no. 47936/08 claimed EUR 30,000 for
non-pecuniary damage. He further claimed EUR 24,710 for 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 applicants must have sustained
non-pecuniary damage.
In
the light of the Court's jurisprudence and ruling on an equitable
basis, it awards the applicant in application no. 41433/06 EUR 10,800
for non-pecuniary damage. As for application no. 47936/08 the Court
awards the applicant EUR 9,000 under this head.
Furthermore,
according to the information submitted by the parties, the applicants
are still detained. In these circumstances, the Court considers that
an appropriate means for putting an end to the violation which it has
found would be to release the applicants pending the outcome of these
proceedings (see, mutadis mutandis, Yakışan v.
Turkey, no. 11339/03, § 49, 6 March 2007; Batmaz v.
Turkey (dec.), no. 34997/06, 1 April 2008).
B. Costs and expenses
The
applicant in application no. 41433/06 claimed 260 Turkish Liras (TRY)
(approximately EUR 133) for costs and expenses. He also claimed TRY
4,130 (approximately EUR 2,117) in respect of his lawyer's fee. In
support of his claims he submitted a receipt for legal fees incurred.
The
applicant in application no. 47936/08 claimed EUR 1,017 for costs and
expenses incurred before the domestic courts and EUR 8,675 for those
incurred before the Court. In support of his claims he submitted a
legal fee agreement, İstanbul Bar's scale of minimum fees,
invoices for postal and translation expenses as well as a receipt for
the legal fees incurred.
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
considers it reasonable to award them the sum of EUR 1,000 to the
applicant in application no. 41433/06 and of EUR 1,500 to the
applicant in application no. 47936/08.
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
Decides to join the applications;
Declares the applications admissible;
Holds that there has been a violation of Article
5 § 3 of the Convention in respect of both applicants;
Holds that there has been a violation of Article
5 § 4 of the Convention in respect of Osman Nuri Ocaklı
(application no. 47936/08);
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 on
the date of settlement:
(i) EUR
10,800 (ten thousand eight hundred euros) to the applicant in
application no. 41433/06 and EUR 9,000 (nine thousand euros) to the
applicant in application no. 47936/08 in respect of non-pecuniary
damage, plus any tax that may be chargeable;
(ii) EUR
1,000 (one thousand euros) to the applicant in application no.
41433/06 and EUR 1,500 (one thousand five hundred euros) to the
applicant in application no. 47936/08, in respect of costs and
expenses, plus any tax that may be chargeable to the applicants;
(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 1 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
|
Information
concerning the application
|
Date of arrest
|
Date of the
pre-trial detention order
|
Date of the bill
of indictment
|
Date of the
judgments of the first instance court
|
Date of the
decisions of the Court of Cassation
|
Total period of
pre-trial detention (on the basis of the information in the case
file)
|
Grounds for
continued detention (on the basis of the information in the case
file)
|
|
1- 41433/06
introduced on 29 September 2006 by Taylan
Kutlar represented by M.
Ali Kırdök
|
9 September 2000
|
15 September 2000
|
4 October 2000
|
İstanbul Assize Court - 14
June 2006 (E:200/246, K: 2006/124)
|
3 October 2007 (E:2007/7891,
K:2007/7065) (set aside)
|
8 years and 10 months
|
The state of evidence, nature of
the offence, overall period of the pre-trial detention, the
content of the case file, persistence of the grounds for continued
detention indicated in Article 100 of the CCP, length of the
sentence envisaged for the crime in issue
|
|
2- 47936/08
introduced on 25 September 2008 by Osman
Nuri Ocaklı represented by Keleş
Öztürk
|
8 July 2003
|
12 July 2003
|
15 July 2003
|
Pending before İstanbul
Assize Court (E:1999/328)
|
-
|
7 years and 5 months
|
The state of evidence, nature of
the offence, overall period of the pre-trial detention, the
content of the case file, persistence of the grounds for continued
detention indicated in Article 100 of the CCP, strong suspicion of
having committed the offence in question
|
APPENDIX
