European Court of Human Rights

Information Note on the Court’s case-law No. 165

July 2013

Dinç and Çakır v. Turkey - 66066/09

Judgment 9.7.2013 See: [2013] ECHR 649 [Section II]

Article 5

Article 5-1

Lawful arrest or detention

Unlawful questioning of minor while in police custody did not constitute serious and manifest irregularity in decision to order pre-trail detention: inadmissible

 

Facts - In 2009 the police received an anonymous phone call informing them that five individuals - including the applicants, who were minors at the time - were making Molotov cocktails. That same day Molotov cocktails were thrown at a shop and a car. Four people - including the applicants - were arrested and taken into custody. According to the record of the questioning by the police to establish the suspects’ identities, the police were unable to take statements from the applicants as they were minors. However, statements were taken from one of the applicants and from another suspect, F.G., in the course of “interviews”. F.G. identified one of the applicants in surveillance camera footage and made statements to the public prosecutor accusing the applicants, who were placed in detention pending trial. In April 2010 they were found guilty of the charges against them and sentenced to seven years, four months and twenty days’ imprisonment each. In view of the time they had already spent in pre-trial detention, they were released. Throughout the time they spent in pre-trial detention - about one year and two months - their detention was automatically reviewed at regular intervals.

Law - Article 5 § 1: The applicants had been arrested on suspicion of throwing Molotov cocktails. The investigating authorities had had material evidence of their guilt. After being taken into police custody, the applicants had been placed in detention pending trial, then prosecuted and found guilty of the charges against them. The applicants could therefore be considered to have been arrested and placed in detention based on reasonable suspicion that they had committed a criminal offence, within the meaning of Article 5 § 1 of the Convention.

Although the first applicant had been questioned while in police custody, which strictly speaking he should not have been under Turkish law, there was no evidence that the police had acted under orders from the public prosecutor. But the police had committed a procedural irregularity. As this had occurred subsequent to the first applicant’s arrest this irregularity had not cast any doubt on the existence of the plausible reasons that had led to the applicant’s arrest and remand in custody. It remained to be seen whether it had marred the lawfulness of the order to place the applicants in pre-trial detention several hours after their arrest. In order to determine whether the detention order was flawed by a “serious and manifest irregularity” that would invalidate it ex facie, thereby making the resulting detention unlawful, all the circumstances of the case had to be taken into account. First, it was to be noted that this case differed from those concerning irregularities directly affecting a decision to place someone in pre-trial detention. In the present case the judge who had ordered the applicants’ detention had had the power to do so. Furthermore, after having heard the applicants, who had been assisted by a lawyer, the judge had decided to place them in detention pending trial in accordance with the Code of Criminal Procedure, and had given reasons for that decision. Based on the facts at his disposal, he had considered that the basic condition pre-trial detention should fulfil - namely, the existence of plausible reasons to suspect that the applicants had thrown the Molotov cocktails concerned - had been met. As to the evidence on the strength of which the judge had ordered the pre-trial detention, the record of the first applicant’s interview had been included in the investigation file. When questioning him, the judge had asked him about the contents of that record. The judge could therefore be considered to have based his decision to order the applicants’ pre-trial detention in part on the interview conducted when they had been in police custody.

The judge also had other evidence, however, which gave him good reason to believe that the applicants had committed the offence with which they were charged. Furthermore, they had not argued that the record of the interview had been decisive in the adoption of the decision to place them in pre-trial detention. Accordingly, the order to have them placed in detention had not been seriously and manifestly flawed and therefore null and void. Lastly, the, applicants’ detention had not been arbitrary. With the exception of the police interview, all the procedural rules relating to their arrest and remand in custody had been respected. The police had been acting on orders from the public prosecutor when they had carried out the searches at the suspects’ homes and arrested them and remanded them in custody. Official records had been made of their arrest and placement in custody, they had been informed of the charges against them and of their rights as suspects, and they had been given a medical check-up. When their police custody had ended - after only a few hours - the applicants had been taken to the prosecutor’s office, then presented before a judge, who had decided to have them placed in pre-trial detention. It followed that this part of the application was manifestly ill-founded.

Conclusion: inadmissible (manifestly ill-founded).

The Court found a violation of Article 5 § 3.

Article 41: EUR 1,200 to each applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage rejected.

 

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