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SECOND SECTION

 

 

 

 

 

 

CASE OF KILIÇASLAN v. TURKEY

 

(Application no. 6593/08)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

15 January 2019

 

 

 

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Kılıçaslan v. Turkey,

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

Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated in private on 4 December 2018,

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

PROCEDURE

1. The case originated in an application (no. 6593/08) 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 Bekir Kılıçaslan ("the applicant"), on 25 January 2008.

2. The applicant was represented by Mr İ. Akmeşe, a lawyer practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.

3. On 17 January 2012 the application was declared partly inadmissible and the complaints concerning the length of the applicant's pre-trial detention and the criminal proceedings brought against him, the effectiveness of the procedure by which the applicant could challenge the lawfulness of his detention as well as the absence of effective domestic remedies in those respects were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant, who was born in 1972, lives in İzmir.

5. On 29 November 2004 the applicant was taken into police custody on suspicion of membership of a terrorist organisation.

6. On 3 December 2004 the applicant was brought before the judge at the Istanbul Assize Court who placed him in detention on remand taking into consideration the nature of the offence, the state of evidence and the risk of absconding.

7. On 7 December 2004 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with membership of a terrorist organisation.

8. On 14 March 2006 the Istanbul Assize Court convicted the applicant as charged and sentenced him to six years and three months' imprisonment. The court ordered the continuation of his detention.

9. On 24 January 2007 the Court of Cassation quashed the judgment on procedural grounds. The case was accordingly remitted to the Istanbul Assize Court.

10. On 19 July 2007 the 10 th Chamber of the Istanbul Assize Court held a further hearing, in which both the applicant and his lawyer were present. At the end of that hearing, the court ordered the continuation of the applicant's detention.

11. On 25 July 2007 the applicant's lawyer filed an objection against the decision of 19 July 2007. On 7 August 2007 the 11 th Chamber of the Istanbul Assize Court dismissed this objection without holding a hearing. In delivering its decision, the court took into consideration the written opinion of the public prosecutor, which had not been communicated to the applicant or his representative.

12. On 6 November 2007 the Istanbul Assize Court once more convicted the applicant and sentenced him to six years and three months' imprisonment and ordered his release.

13. On 30 January 2012 the Court of Cassation upheld this decision.

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; Şefik Demir v. Turkey (dec.), no. 51770/07, §§ 29-33, 16 October 2012; 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 applicant complained that the length of his detention on remand had been excessive.

16. The Government submitted that the applicant had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 § 1 (d) of the Code on Criminal Procedure ("CCP").

17. The Court observes that the domestic remedy provided by Article 141 of the CCP with regard to length of detention on remand was examined in the case of Şefik Demir v. Turkey ((dec.), no. 51770/07, §§ 17-35, 16 October 2012), and it was held that that remedy had to be exhausted by the applicants whose convictions became final.

18. In the instant case, the Court notes that the applicant's detention on remand ended on 6 November 2007 with his conviction by the Istanbul Assize Court. On 30 January 2012 this decision became final with the decision of the Court of Cassation. From that date onwards, the applicant was entitled to seek compensation under Article 141 of the CCP (see Şefik Demir, cited above, § 35), but he failed to do so.

19. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006-I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey (dec.), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.

20. As a result, taking into account the Government's objection, the Court 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.

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

A. Concerning the applicant's inability to be present before the appeal court examining the objections to his detention

21. Relying on Article 5 § 4 of the Convention, the applicant complained about not being able to appear before the court when his pre-trial detention was reviewed.

22. The Government contested those arguments.

23. In the present case, the applicant was placed in detention on remand on 3 December 2004. At the end of the hearing held on 19 July 2007, the trial court decided on the continuation of the applicant's detention. Both the applicant and his lawyer were present at that hearing. The applicant subsequently filed an objection against this decision.

24. The Court notes that the applicant's objection was dismissed on 7 August 2007 by the appeal court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court nineteen days 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.

25. The Court thus concludes that the lack of an oral hearing during the proceedings did not jeopardise the principle of equality of arms (see Altınok v. Turkey , no. 31610/08, §§ 54-55, 29 November 2011, and Adem Serkan Gündoğdu v. Turkey , no. 67696/11, §§ 35-48, 16 January 2018).

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

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

27. The applicant complained under Article 5 § 4 the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He contended that his right to have an effective remedy was breached since his objection was dismissed by the appeal court on the basis of the public prosecutor's written opinion, which was not communicated to him or to his representative.

28. The Government contested that argument.

29. 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.

30. Turning to the merits of the applicant's complaint, the Court notes that the present case raises issues similar to the case of Altınok (cited above, §§ 57-61), where it found a violation of Article 5 § 4 of the Convention. There is no reason to depart from those findings.

31. 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 public prosecutor's opinion to the applicant or his representative in the context of review proceedings of lawfulness of the applicant's detention.

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

32. The applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation.

33. The Government contested that argument. They maintained in this regard that the applicant could have sought compensation under Article 141 of the Code on Criminal Procedure ("CCP").

34. The Court reiterates that it has already examined and rejected a similar objection of the Government's objections on the same issue (see Karaosmanoğlu and Özden v. Turkey , no. 4807/08, § 82-85, 17 June 2014). It finds no particular circumstances in the instant case which would require it to depart from its findings concerning the above-mentioned application.

35. 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.

36. As to the merits of the case, 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.

37. In this connection, the Court notes that it has found that the applicant's right to have an effective remedy to challenge the lawfulness of his detention was infringed in the present case on account of non-communication of public prosecutor's opinion (see paragraphs 30-31 above). It also recalls that it has examined a similar issue in the case of Altınok (cited above, §§ 66-69), and found a violation of Article 5 § 5 of the Convention. There is no reason to depart from those findings.

38. Accordingly, it follows that there has been a violation of Article 5 § 5 of the Convention in the present case.

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

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

40. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that this part of the application should be declared inadmissible for non-exhaustion of domestic remedies as the applicant should apply to the Compensation Commission.

41. The Court observes that, a new 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.

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

43. However, taking account of the Government's preliminary objection with regard to the applicant's failure to make use of the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above).

44. 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

45. The applicant submitted under Article 13 of the Convention that he had no effective remedy in domestic law whereby he could challenge the excessive length of the proceedings.

46. The Court recalls that the Compensation Commission established by Law No. 6384 provides for a remedy to the applicant 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).

47. 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

48. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage.

49. The Government contested the claim.

50. The Court, having regard to all the elements before it, considers that the finding of a violation of Article 5 §§ 4 and 5 constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant (see Ceviz v. Turkey , no. 8140/08, § 64, 17 July 2012).

B. Costs and expenses

51. The applicant also claimed 4,248 Turkish liras (TRY) (approximately EUR 800) in respect of lawyer's fees and TRY 800 (approximately EUR 155) for other costs and expenses incurred before the Court and the domestic authorities, such as stationery, photocopying and translations. In that connection, he submitted a receipt concerning the lawyer's fee.

52. The Government contested the claim.

53. 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, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 750 covering costs under all heads.

C. Default interest

54. 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,

1. Declares the complaints under Article 5 §§ 4 and 5 of the Convention, concerning the non-communication of the public prosecutor's opinion to the applicant or his representative, and the lack of compensation in this respect admissible, and the remainder of the application inadmissible;

 

2. Holds that 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 applicant or his representative;

 

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

 

4. Holds that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;

 

5. Holds

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

(i) EUR 750 (seven hundred fifty 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 amount 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 15 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Julia Laffranque
Deputy Registrar President