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CATAL v. TURKEY - 26808/08 [2012] ECHR 698 (17 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/698.html
Cite as:
[2012] ECHR 698
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SECOND
SECTION
CASE OF ÇATAL v. TURKEY
(Application
no. 26808/08)
JUDGMENT
STRASBOURG
17
April 2012
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 Çatal v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
Isabelle Berro-Lefèvre,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 26808/08) 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 a
Turkish national, Mr Hasan Çatal (“the applicant”),
on 23 May 2008.
The
applicant was represented by Mr A. Yılmaz and Mrs S. Nur Yılmaz,
lawyers practising in Istanbul. The Turkish Government
(“the Government”) were represented by their Agent.
On
9 February 2010 the
application was declared partly inadmissible and the complaints
concerning the length of pre-trial detention and of the criminal
proceedings and the lack of effective domestic remedies in those
respects were communicated to the Government. Furthermore, by virtue
of Article 29 § 1 of the Convention,
the Court decided to rule on the admissibility
and merits of the application at the same time.
The
Government objected to the examination of the application by a
Committee. Taking into account the issues raised in the application,
the Court finds it appropriate to allocate the case to a Chamber.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1962 and lives in Tokat.
On
27 March 1997 the applicant was arrested by police
officers of the anti terrorist branch of the Istanbul Security
Forces on suspicion of membership of an illegal organisation
and involvement in a bank robbery.
On
1 April 1997 the applicant was taken before the public prosecutor and
the investigating judge, who placed him in pre-trial detention.
On
30 April 1997 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment, charging the applicant with
attempting to overturn the constitutional system by
force under Article 146 § 1 of the former Criminal Code.
Basing
its decision on the evidence before it, on 19 December 2002 the
Istanbul State Security Court convicted the applicant as charged and
sentenced him to life imprisonment.
On
16 September 2003 the Court of Cassation quashed the judgment on
procedural grounds and returned the case to the first-instance court.
Following
the abolition of the State Security Courts by Law no. 5190, the
criminal proceedings were transferred to the Istanbul Assize Court
(2003/291 E.).
During
the proceedings, the Istanbul Assize Court held hearings at two- or
three-month intervals at which the lawfulness of the applicant’s
continued pre-trial detention was reviewed. At those hearings the
applicant made his pleadings orally before the trial court and
requested to be released pending trial. The Istanbul Assize Court
rejected those requests several times in view of the reasonable
grounds of suspicion established against the applicant, the nature of
the criminal charges and the state of the evidence in the case file.
In
between the hearings, the Istanbul Assize Court continued to
scrutinise, by virtue of Article 108 of Law no. 5271,
the necessity of applicant’s continued pre-trial detention
every thirty days on the basis of the case file, without holding an
oral hearing.
At
a hearing on 6 March 2008, the applicant was again brought before the
trial court, where he claimed that his continued detention was
unlawful and consequently requested to be released pending trial.
This request was rejected by the Istanbul
Assize Court on the basis of the reasonable grounds of
suspicion that he had committed the offence with which he was
charged, and the state of the evidence in the case file.
Following
the applicant’s objection against the above-mentioned decision,
the 14th Division of the Istanbul Assize Court reviewed the
lawfulness of the applicant’s continued detention on the basis
of the case file. On 4 April 2008 the court dismissed the objection
lodged by the applicant based on the public prosecutor’s
written opinion, which had not been communicated to the applicant.
On
3 November 2009, having regard to the period he had spent in
detention, the Istanbul Assize Court released the applicant on the
condition that he did not leave the country.
According
to the information in the case file, the proceedings are currently
pending before the Istanbul Assize Court.
II. RELEVANT DOMESTIC LAW
The
relevant section of the Turkish Code of Criminal Procedure (Law no.
5271) of 17 December 2004 reads as
follows;
“Article 108 - Review of detention
(1) During the investigation phase, a review
on whether a suspect’s continued detention is necessary or not
shall be conducted by an investigating judge upon the public
prosecutor’s motion within time limits not exceeding 30 days,
(2) Within the time limit mentioned in the
foregoing paragraph, the suspect may also file a motion requesting
the review of the lawfulness of his continued detention,
(3) During the trial phase, a judge or a
court, on their own motion, shall review an accused person’s
continued detention at each hearing or, if the conditions require, in
between hearings, or within the time limits foreseen in the first
paragraph of the Article.”
A
description of the relevant domestic law and current practice under
the new Code of Criminal Procedure is also outlined in Altınok
v. Turkey (no. 31610/08, §§ 28-31, 29 November
2011).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. Article 5 § 3 of the Convention
The
applicant complained that the length of his pre-trial detention had
been excessive and that the domestic courts had rejected his requests
to be released on the basis of stereotypical grounds. He relied on
Article 5 § 3 of the Convention, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
The
Government contested the applicant’s argument.
The
Court notes that this complaint is admissible, as no ground for
declaring it inadmissible has been established.
As
regards the merits of the complaint, the Government submitted that
the applicant’s detention had been based on the existence of
reasonable grounds of suspicion that he had committed an offence, and
that it had been reviewed periodically by the competent authority in
accordance with the requirements laid down by the domestic law.
The
Court observes that the applicant’s pre-trial detention started
on 27 March 1997 with his arrest and ended on 3 November 2009
with the Istanbul Assize Court’s order for his release. After
deducting the period when the applicant was detained after conviction
in accordance with Article 5 § 1 (a) of the Convention
(namely the period between 19 December 2002 and 16 September
2003) from the total time of the applicant’s detention, the
period that the applicant was held in pre-trial detention lasted for
eleven years and eleven months (see Solmaz v. Turkey,
no. 27561/02, §§ 36-37,
16 January 2007).
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 applicant’s pre-trial detention was
excessive.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
B. Article 5 § 4 of the Convention
The
applicant complained that there had been no effective remedy provided
by the domestic legal system whereby he could effectively challenge
his continued pre-trial detention.
The
Court considers that the complaint should be examined under Article 5
§ 4 of the Convention, which reads as follows:
“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.”
The
Government submitted that the applicant had had the opportunity under
the domestic law to object to the decision extending his pre-trial
detention.
In
his observations submitted to the Court, the applicant contended that
he had been denied adversarial proceedings in the review of his
continued detention as no oral hearing had been held before the
higher court and the public prosecutor’s written opinion
against his release had not been notified to him or his lawyer.
The
Court notes that these complaints are not
inadmissible on any grounds and must therefore be declared
admissible.
The
Court reiterates that Article 5 § 4 entitles an arrested or
detained person to institute proceedings bearing on the procedural
and substantive conditions which are essential for the “lawfulness”,
in Convention terms, of their deprivation of liberty. Although it is
not always necessary that the procedure under Article 5 § 4 be
attended by the same guarantees as those required under Article 6 for
criminal or civil litigation, it must have a judicial character and
provide guarantees appropriate to the kind of deprivation of liberty
in question (see A. and Others v. the United Kingdom [GC], no.
3455/05, § 203, ECHR 2009). In the context of the review of a
detainee person’s continued detention pursuant to Article 5 §
4 of the Convention, the proceedings must be adversarial and must
ensure “equality of arms” between the parties, namely the
prosecutor vis-à-vis the detained person (see Nikolova
v. Bulgaria [GC], no 31195/96, § 58, ECHR 1999 II, and
Altınok, cited above, § 45).
The
first fundamental guarantee which flows naturally from Article 5
§ 4 of the Convention is the right to an effective hearing by a
judge in the review of the lawfulness of a detention. On the other
hand, this provision equally guarantees an expeditious determination
by the authorities of the necessity of a person’s continued
detention. Taking into account these two principles, the Court has
held that Article 5 § 4 of the Convention does not require that
a detained person be heard every time he
lodges an appeal against a decision extending his
detention but that it should be possible to exercise the right to be
heard at reasonable intervals (see Altınok, cited above,
§ 54, and Knebl v. the Czech Republic, no.
20157/05, § 85, 28 October 2010).
The
Court has recognised that the procedural guarantees of Article 5 § 4
of the Convention are respected in circumstances where a detained
person was already present before the first-instance court which
ruled on his request to be released but then did not appear again
before the second-instance court in the appeal proceedings (see
Rahbar-Pagard v. Bulgaria, nos. 45466/99 and 29903/02, §
67, 6 April 2006; Depa v. Poland, no. 62324/00, §§
48-49, 12 December 2006; and Saghinadze and Others v. Georgia,
no. 18768/05, § 150, 27 May 2010). The Court underlines that the
principles of adversarial procedure and equality of arms were not
violated in these three cases, either because neither of the parties
had participated in the proceedings on appeal or because the presence
of the detained person’s lawyer was sufficient to satisfy these
requirements.
In
contrast, in cases where neither the detained person nor his lawyer
had appeared on appeal but the public prosecutor had been present at
the hearings, which is a different situation than the abovementioned,
the Court concluded that the principle of equality of arms was
violated (see Samoilă Cionca v. Romania, no.
33065/03, § 74, 4 March 2008, and Lapusan v. Romania,
no. 9723/03, § 53, 3 June 2008). Similarly, in a case where a
defence lawyer had been ordered to leave the courtroom while the
prosecutor remained and made further submissions in support of a
detention order, the Court held that the principle of equality of
arms had not been respected, despite an oral hearing having been held
before the appeal court (see Włoch v. Poland, no.
27785/95, §§ 129-131, ECHR 2000 XI).
The
Court notes that in the Turkish legal system the lawfulness of a
detainee’s continued detention is subject to automatic review
by the trial court each time a hearing is held. In addition to this,
the domestic courts must conduct a review on their own motion at
least every thirty days in between hearings. Besides, a detained
person may request to the trial court to be released at any time in
the course of the proceedings, without having to wait a certain
period of time. Furthermore, all decisions relating to pre-trial
detention, whether they were taken following a request or
automatically, can be challenged before a court.
Turning
to the facts of the present case, the Court notes that neither of the
parties, namely the public prosecutor or the detained applicant, was
invited to make any oral submissions as regards the lawfulness of the
applicant’s continued detention in the proceedings before the
appeal court. In that respect, the applicant was not put in a
disadvantaged position vis à vis the
prosecution and the principle of the equality of arms was not
disregarded in relation to the appearance of parties in the appeal
proceedings.
The
Court next observes that during the domestic proceedings, the
Istanbul Assize Court examined the lawfulness of the applicant’s
continued detention at the hearings held regularly at two- or
three-month intervals, where the applicant had an opportunity to be
heard by the trial court. In addition, by virtue of Article 108 of
Law no. 5271, the Istanbul Assize Court reviewed the applicant’s
pre-trial detention every thirty days on its own motion, without
holding any hearing.
The
Court further observes that as with the other hearings, the applicant
appeared before the first-instance court at the hearing on 6 March
2008, when he orally presented his arguments against his continued
detention. Following the first-instance court’s refusal, he
lodged an objection against the interlocutory
decision of 6 March 2008 requesting to be released
pending trial. Subsequently, on 4 April 2008 the higher division of
the Istanbul Assize Court dismissed the applicant’s objection
on the basis of the written documents of the parties and without
holding an oral hearing.
Given
the specific nature of the procedure under Article 5 § 4 of the
Convention, involving the authorities’ obligation to conduct a
speedy review of the lawfulness of a person’s continued
detention, the Court reiterates that a requirement of a hearing in
the examination of each objection to a detention order might entail
some paralysis of the criminal proceedings. Consequently, the
procedural requirements inherent in this provision do not oblige the
authorities to hold a hearing every time such an objection is lodged,
unless there are special circumstances requiring a hearing (see
Altınok, cited above, § 54).
In
the present case, the applicant had been given an opportunity to make
his oral submissions before the trial court at the hearing on 6 March
2008, which took place less than a month before his objection was
examined by the appeal court. In these circumstances, the Court does
not consider that a further oral hearing before the appeal court was
required for the purposes of Article 5 § 4. The Court further
notes that the applicant always had the opportunity to introduce a
new objection against his continued detention at any time during a
hearing before the trial court.
The
Court thus finds that there has been no breach of Article 5 § 4
of the Convention in respect of the lack of an oral hearing in the
appeal proceedings concerning his continued detention.
Conversely,
the Court observes that, when considering the objection lodged by the
applicant against the decision of 6 March 2008 extending his
pre-trial detention, the higher division of the Assize Court obtained
the prosecutor’s written opinion, which stated that the
applicant’s detention should be continued. However, these
observations were not communicated to the applicant or his lawyer and
thus they were not given any opportunity to respond to them.
Subsequently, the higher division of the Assize Court decided in
accordance with the public prosecutor’s opinion and dismissed
the applicant’s objection.
Under
these circumstances, the Court considers that the applicant and his
lawyer were denied an adversarial hearing as the domestic authorities
failed to respect the principle of equality of arms in the appeal
proceedings in which the applicant’s continued detention was
reviewed by the higher court. In this regard, the domestic
authorities failed to ensure a fair and effective remedy by which the
applicant could challenge the first instance court’s
decision extending his pre-trial detention.
Accordingly,
the Court finds a violation of Article 5 § 4 of the Convention
in that respect.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
time by a ... tribunal...”
The
Government disputed the argument.
The
Court notes at the outset that the complaint is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds and must therefore be declared admissible.
The
Government argued that the length of the proceedings could not be
considered to be unreasonable in view of the complexity of the case,
the number of the accused involved and the nature of the offence with
which the applicant was charged.
The
Court observes that the proceedings began on 27 March 1997 when the
applicant was taken into police custody, and according to the
information in the case file, they are still pending before the
first-instance court. They have thus already lasted almost fifteen
years at two levels of jurisdiction.
Having
examined all the material submitted to it, the Court considers that
the length of the criminal proceedings has been excessive and failed
to meet the “reasonable time” requirement (see
Daneshpayeh v. Turkey, no. 21086/04, § 28, 16 July
2009).
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant lastly complained that there were no domestic remedies
available under the Turkish law whereby he could challenge the length
of the criminal proceedings in question. He relied on Article 13 of
the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in the Convention are violated shall have an effective remedy before
a national authority...”
The
Government contested the argument, claiming that the applicant could
have availed himself of the remedy provided under administrative law.
As
the complaint under Article 6 § 1 has been declared admissible,
this part of the application must also be declared admissible. The
Court observes that in the Turkish legal system there is no remedy
capable of accelerating proceedings. In this connection, the argument
put forward by the Government that the applicant did not bring a
complaint about the length of the proceedings before the
administrative courts cannot be considered as concerning an
“effective remedy” for the purposes of Article 13
(see Daneshpayeh, cited above, § 24, and Tendik and
Others v. Turkey, no. 23188/02 § 36, 22 December 2005).
The
Court therefore concludes that Turkish law does not provide an
effective remedy whereby the applicant could have contested the
length of the proceedings.
There
has accordingly been a violation of Article 13 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages and costs and expenses
The
applicant claimed 88,905 euros (EUR) in respect of the pecuniary and
non-pecuniary damage he allegedly sustained on account of lost
earnings and his physical and mental suffering.
The
Government contested these claims as unsubstantiated and excessive.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 15,500 in respect of
non-pecuniary damage.
The
applicant also claimed EUR 10,725 for legal fees and the costs and
expenses incurred both before the domestic courts and the Court. In
this connection, he submitted documentation demonstrating the work
done by his legal representative during the proceedings, proof of
payment for legal representation, as well as invoices in connection
with postal, stationery and translation expenses.
The
Government disputed these claims, asserting that private contracts or
the tariff issued by the Bar Association should not have been taken
as the basis for legal fees.
As
regards the cost and expenses, the Court reiterates that an applicant
is entitled to the reimbursement of those only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum (see Sawicka v. Poland, no.
37645/97, § 54, 1 October 2002). In the present case, given
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 covering costs
and expenses under all heads.
B. Default interest
The
Court considers it appropriate that the default interest rate 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 on account of the
length of the applicant’s pre-trial detention;
Holds that there has been no violation of
Article 5 § 4 of the Convention on account of the absence of an
oral hearing in the review of the applicant’s continued
detention before the appeal court;
Holds that there has been a violation of Article
5 § 4 of the Convention on account of the non-communication to
the applicant or his lawyer of the public prosecutor’s opinion
in the review of the applicant’s continued detention;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the
length of criminal proceedings;
Holds that there has been a violation of Article
13 of the Convention in respect of the absence of a domestic remedy
for the excessive length of proceedings;
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
15,500 (fifteen thousand and five hundred euros), plus any tax that
may be chargeable to the applicant, in respect of non-pecuniary
damage;
(ii) EUR
2,000 (two thousand euros), 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
