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THIRD
SECTION
CASE OF TANGÜN AND OTHERS v. TURKEY
(Application
no. 38128/02)
JUDGMENT
STRASBOURG
12
April 2007
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 Tangün and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mrs I.
Berro-Lefèvre, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38128/02) 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 twelve Turkish nationals, Mr Tekin Tangün,
Mr Metin Yavuz, Mr Ali Ercan Gökoğlu, Mr Egemen
Seyfettin Kuşçu, Ms Hatice Ruken Kılıç,
Ms Naciye Barbaros, Ms Duygu Eygi, Ms Yeter Gönül,
Mr İsmail Özmen, Mr Murat Bargu, Mr Feridun Yücel Batu
and İbrahim Akın (“the applicants”), on
5 October 2001.
- The
applicants were represented by Mr B. Aşçı, Mr M.
Narin, Ms S. Yılmaz, Ms S. Özer, Mr Ö.M.
Gider, Mr Z. Rüzgar, Mr S Şensoy, Mr A.G. Sevimli and
Mr H.İ. Türkyılmaz, lawyers practising in İstanbul.
The Turkish Government (“the Government”) did not
designate an Agent for the purpose of the proceedings before the
Court.
- On
1 June 2006 the Court decided to strike the case out of the list in
so far as it concerned Mr İbrahim Akın. It further decided
to communicate the remaining applicants’ complaint concerning
the length of their detention in police custody to the Government.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1969, 1964, 1968, 1979, 1978, 1976, 1981,
1975, 1974, 1971 and 1969 respectively and live either in Istanbul or
Ankara with the exception of Mr Batu who resides in Antalya.
- On
7 August (Mr Tangün) and 8 August 2001 (the other applicants)
were arrested and taken into custody on suspicion of their
involvement in the activities of an illegal armed organisation. Upon
the request of the police, the applicants’ detention period was
extended first by the public prosecutor and later by the İstanbul
State Security Court on 9 and 11 August 2001 respectively.
- On
13 August 2001 İstanbul State Security Court ordered that
Mr Tangün, Mr Yavuz, and Mr Gökoğlu be detained
on remand and that the other applicants be released.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in the Daş v. Turkey judgment (no. 74411/01, §
18, 8 November 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicants alleged that they had not been brought promptly before a
judge, contrary to Article 5 § 3 of the Convention, which
provides as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power.”
A. Admissibility
- The Government asked the Court to dismiss the
application as being inadmissible for failure to comply with the
requirement of exhaustion of domestic remedies under Article 35 §
1 of the Convention. In this respect they maintained that the
applicants could have challenged the length of their detention in
police custody by invoking Article 128 of the Code of Criminal
Procedure. The Government further submitted that the applicants could
also have sought compensation pursuant to Law
no. 466 on the Payment of Compensation to Persons Unlawfully
Arrested or Detained.
- The
Court reiterates that it has already examined and rejected the
Government’s preliminary objections in similar cases (see, in
particular, Daş, cited above, § 21; and Ahmet
Mete v. Turkey, no. 77649/01, § 21, 25 April 2006). The
Court finds no particular circumstances in the instant case which
would require it to depart from its findings in the
above-mentioned
applications.
- Consequently, the Court rejects the Government’s
preliminary objection. It further notes that this complaint is not
inadmissible on any other grounds and must, therefore, be declared
admissible.
B. Merits
- The
Government argued that the length of the applicants’ detention
in police custody had been in conformity with the legislation in
force at the time. They pointed out that the relevant law had since
been amended in accordance with the case-law of the Court.
- The
applicants maintained their allegations.
- The Court notes that the applicants’ detention
in police custody lasted six (Mr Tangün) and five days (the
other applicants) respectively. It reiterates that, in the case of
Brogan and Others v. the United Kingdom (judgment of 29
November 1988, Series A no. 145 B, pp. 33-34, §
62), it held that detention in police custody which had lasted four
days and six hours without judicial control fell outside the strict
time constraints of Article 5 § 3
of the Convention, even though its purpose was to protect the
community as a whole against terrorism (ibid).
- Even
supposing that the activities of which the applicants stood accused
were serious, the Court cannot accept that it was necessary to detain
them for five to six days without bringing them before a judge or
other officer authorised by law to exercise judicial power.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. 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
applicants claimed, in total, 51,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government contested the amount.
- Having
regard to its case law, and making its assessment on an equitable
basis, the Court awards EUR 1,000 to Mr Tangün and EUR 500 to
each of the other applicants in respect of non pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 5,600 for the costs and expenses incurred
before the Court. The applicants submitted a schedule of costs
prepared by their representative Mr Aşçı.
- The
Government contested the amount.
- Deciding
on an equitable basis and having regard to the criteria laid down in
its case-law, the Court considers it reasonable to award the
applicants, jointly, EUR 1,000 for their costs and expenses.
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
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention,
the following amounts to be converted into new Turkish liras at the
rate applicable at the date of settlement:
(i) EUR
1,000 (one thousand euros) to Mr Tangün and EUR 500 (five
hundred euros) to each of the other applicants in respect of
non pecuniary damage;
(ii) EUR
1,000 (one thousand euros), jointly, in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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’
claim for just satisfaction.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
