AVCI AND DERELI v. TURKEY - 2553/09 (Judgment : Article 5 - Right to liberty and security : Second Section Committee) [2018] ECHR 884 (23 October 2018)

In the case of Avcı and Dereli v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 2 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 2553/09) 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 Kenan Avcı and Mr Veysi Dereli, on 24 December 2008.

2. The applicants were represented by Mr F. Çelik a lawyer practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.

3. On 11 December 2009 the application was communicated to the Government.

4. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1980 and 1986, respectively, and were detained at the Tekirdağ F-Type prison when the application was lodged.

6. On 28 and 29 October 2005 the applicants were arrested and taken into custody on suspicion of membership of a terrorist organisation.

7. On 31 October 2005 the applicants were brought before a judge at the Istanbul Assize Court which ordered their detention on remand.

8. On 23 December 2005 the Istanbul public prosecutor filed a bill of indictment against the applicants, accusing them, inter alia , of membership of a terrorist organisation and illegal possession of explosives.

9. On 26 December 2005 the Istanbul Assize Court held a preparatory hearing and ordered the continuation of the applicants' detention.

10. Throughout the proceedings the trial court ordered the continuation of the applicants' detention on remand. Between the hearings, with regular intervals of one month, the court ex officio examined the applicants' detentions on the basis of the case-file and decided to extend.

11. At the end of the hearing held on 13 October 2008, the trial court decided once again to prolong the applicants' detention. Although the applicants' lawyer was present at this hearing, the applicants were not brought from prison to the court. Subsequently, their lawyer filed an objection against the decision of 13 October 2008. On 11 November 2008 the 13 th Chamber of the Istanbul Assize Court dismissed the objection, without holding an oral hearing and based on the written opinions of the public prosecutor, which had not been communicated to the applicants or to their representative.

12. On 23 December 2009 the court convicted the applicants and sentenced them to imprisonment. The court also ordered the continuation of the first applicant's detention and the release of the second applicant.

13. On 24 March 2011 the Court of Cassation upheld the judgment of the first instance court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

14. A description of the relevant domestic law and practice can be found in Altınok v. Turkey (no. 31610/08, §§ 28-32, 29 November 2011), and Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

15. Relying on Article 5 § 3 of the Convention, the applicants complained that the length of their detention on remand had been excessive and that the courts had prolonged their detention without providing any relevant and sufficient reasons justifying its continuation. They further complained under Article 6 § 2 of the Convention that their right to be presumed innocent had been violated because they had been detained for an excessive length of time.

16. The Court considers that it is more appropriate to examine the applicants' complaints from the standpoint of Article 5 § 3 alone as they mainly concern the length of the applicants' pre-trial detention (see Can v. Turkey (dec.), no. 6644/08, 14 April 2009).

17. On 11 December 2009 notice of the application was given to the respondent Government under Rule 54 § 2 (b) of the Rules of Court and they were invited to submit written observations on the admissibility and merits of the case.

18. On 14 April 2010, upon the Government's request, the Court decided to extend the time limit for submission of their observations until 21 May 2010. The Government submitted their observations, including a preliminary objection on non-exhaustion of a remedy provided by Article 141 of the Code on Criminal Procedure, outside the time-limit given to them. By a letter of 21 June 2010, the Government were informed that the President of the Section had decided not to include these observations in the file. Accordingly, the Government must be considered estopped from raising the objection on non-exhaustion.

19. The Court therefore notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

20. As regards the merits of the complaint, the Court observes that the applicants' pre-trial detention started on 28 and 29 October 2005, respectively, with their arrest, and ended on 23 December 2009, with their conviction by the Istanbul Assize Court. The applicants' detention on remand thus lasted for four years, one month and twenty five days.

21. The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable 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 the materials in its possession and in view of its well-�established case-law on the subject, the Court finds that in the instant case the length of the applicants' pre-trial detention was excessive.

22. There has accordingly been a violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

23. Relying on Articles 5 § 4 and 13 of the Convention, the applicants complained about not being able to appear before the court when their pre-�trial detention was reviewed. Under the same provisions, they further stated that their objection was dismissed by the appeal court on the basis of the public prosecutor's written opinion, which had not been communicated to them or to their representative.

24. The Court considers that the applicants' complaint under Article 13 should be examined from the standpoint of Article 5 § 4 of the Convention, being the lex specialis in the matter (see Doğan and Kalin v. Turkey , no. 1651/05, § 15, 21 December 2010).

A. Concerning the applicants' inability to appear before the appeal court when their objections were examined

25. Relying on Article 5 § 4 of the Convention, the applicants complained about not being able to appear for an excessive period of time before the court which examined the lawfulness of their detention on remand.

26. The Court notes that it has already examined similar grievances in the cases of Erişen and Others v. Turkey (no. 7067/06, 3 April 2012) and Karaosmanoğlu and Özden v. Turkey (no. 4807/08, 17 June 2014) and found a violation of Article 5 § 4 for lack of appearance before a court during the review of detention. The Court held in these judgements that the lack of appearance before the courts examining the lawfulness of detention for more than two months, namely seventy four days, (see, Erişen and Others , cited above, § 53), and for more than five months (see, Karaosmanoğlu and Özden , cited above, § 76) was incompatible with the requirement to hold a hearing at regular intervals, as required by Article 5 § 4 (see also Koçhan v. Turkey , no. 3512/11, § 28-�32, 30 January 2018).

27. Turning to the particular circumstances of the present case, the Court notes that the applicants were present at the hearing held on 30 April 2008, and afterwards they did not appear before a court for more than six months until the next hearing, which was held on 21 November 2008. The Court observes that although they filed an objection against their detention on remand on 17 October 2008, during this period their objections were examined by the courts without holding a hearing (see paragraph 11 above). Thus, the Court finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgments and considers that the applicants' inability to appear before courts dealing with their requests of release for more than six months is not compatible with the requirement to hold a hearing at regular intervals, as required by Article 5 § 4 of the Convention (see also Koçhan, cited above , § 28-�32).

28. There has therefore been a violation of Article 5 § 4 of the Convention.

B. Concerning the non-communication of the public prosecutor's opinion

29. The applicants complained under Article 5 § 4 the Convention that they did not have an effective remedy to challenge the lawfulness of their detention. They contended that their right to have an effective remedy was breached since their objections were dismissed by the appeal court on the basis of the public prosecutor's written opinion, which was not communicated to them or to their representative.

30. The Court notes that this complaint is 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.

31. Turning to the merits of the applicants' complaint, the Court notes that the present case raises issues similar to the case of Altınok v. Turkey (no. 31610/08, §§ 57-61, 29 November 2011), where it found a violation of Article 5 § 4 of the Convention. There is no reason to depart from those findings.

32. Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 4 of the Convention on account of the non-�communication of the public prosecutor's opinion to the applicants or their representative in the context of the proceedings concerning the review of the lawfulness of the applicants' detention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

33. The applicants complained under Article 5 § 5 of the Convention that they had been denied the right to compensation.

34. The Court notes that this part of the application is 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.

35. The Court reiterates that paragraph 5 of Article 5 requires a remedy in compensation for a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 ( Wassink v. the Netherlands , 27 September 1990, § 38, Series A no. 185-A). This right to compensation presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court.

36. In this connection, the Court notes that it has found that the applicants' rights to release pending trial and to have an effective remedy to challenge the lawfulness of their detention were infringed in the present case on account of lack of appearance before a court to challenge the lawfulness of their detention and non-�communication of the public prosecutor's opinion to them or their representative in the context of the proceedings to review the lawfulness of the applicants' detentions.

37. Accordingly, the Court concludes that there has also been a violation of Article 5 § 5 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

38. The applicants complained that the length of the criminal proceedings against them had been incompatible with the "reasonable time" requirement laid down in Article 6 § 1 of the Convention.

39. In their observations dated 10 April 2018 the Government noted that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning the length of proceedings. They maintained that the applicants had to apply to the Compensation Commission to exhaust the domestic remedies.

40. The Court observes that, as pointed out by the Government, a domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

41. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine applications of this type which had already been communicated to the Government.

42. However, taking account of the Government's preliminary objection with regard to the applicants' failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others .

43. It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

44. The applicants submitted under Article 13 of the Convention that they had no effective remedy in domestic law whereby they could challenge the excessive length of the proceedings.

45. The Court recalls that the Compensation Commission established by Law No. 6384 provides for a remedy to the applicants within the meaning of Article 13 of the Convention to complain about the length of proceedings for the purposes of Article 6 § 1 of the Convention (see Turgut and Others , cited above, §§ 59-60).

46. It follows that this part of the application is manifestly ill-�founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

47. The applicants each claimed 10,000 euros (EUR) in respect of non-�pecuniary damage.

48. The Government contested the claim.

49. The Court considers that the applicants must have sustained non-�pecuniary damage in connection with the above-mentioned violations of their rights. Ruling on an equitable basis, the Court finds it appropriate to award each applicant EUR 4,750 in respect of non-pecuniary damage.

B. Costs and expenses

50. The applicants also claimed 7,080 Turkish liras (TRY) (approximately EUR 1,300) in respect of lawyer's fees and TRY 1,000 (approximately EUR 190) for other costs and expenses incurred before the Court and the domestic authorities, such as stationery, photocopying and translations. In that connection, they submitted a receipt concerning their lawyer's fee.

51. The Government contested the claim.

52. 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 are reasonable as to quantum. In the present case, the applicants' lawyer submitted two receipts concerning the payment of fees to their lawyer, a legal fee agreement in support of that claim. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applicants' complaints under Article 5 §§ 3, 4 and 5 of the Convention, concerning the length of their detention on remand, non-�appearance of the applicants before a court in the proceedings to challenge the lawfulness of their continued detention, non-�communication of the public prosecutor's opinion to the applicants or their representative, and the lack of compensation in these respects admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the length of the applicants' detention on remand;

3. Holds that there has been a violation of Article 5 § 4 of the Convention on account of non-appearance of the applicants before a court in the proceedings to challenge the lawfulness of their continued detention and non-communication of the public prosecutor's opinion to the applicants or their representative;

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

5. Holds

(a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,750 (four thousand seven hundred fifty euros), to each applicant, plus any tax that may be chargeable, in respect of non-�pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, 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 applicants' claims for just satisfaction.

Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Paul Lemmens
Deputy Registrar President

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