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SECOND
SECTION
CASE OF AVCI (CABAT) AND OTHERS v. TURKEY
(Application
no. 77191/01)
JUDGMENT
STRASBOURG
16
January 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 Avcı (Cabat) and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mrs E.
Fura-Sandström,
Ms D. Jočienė,
Mr D.
Popović, judges,
and Mrs S. Dollé, Section
Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 77191/01) 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 five Turkish nationals, Ms Cennet Avcı
(Cabat), Ms Fadime Çelik (Kılıç), Ms
Derya Binay, Ms Gülşen Arslan and Ms Tamiş
Akpınar (“the applicants”), on 25 October 2001.
- The
first applicant was represented by Mr Z. Polat and the other
applicants by Ms F. Kalaycı, lawyers practising in Istanbul and
Ankara, respectively. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- The
applicants complained about the length and lawfulness of their
detention in police custody. Moreover, they complained about the lack
of an effective right to compensation for the alleged violations of
Article 5 of the Convention.
- On
22 December 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it also 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, 1976, 1982, 1981 and 1959 respectively.
The first three applicants live in Ankara, whereas the fourth lives
in Istanbul and the fifth in Aydın.
- On
28 April 2001 police officers from the Anti-Terrorism Department of
the Ankara Security Directorate arrested the applicants Gülşen
Arslan, Fadime Çelik and Derya Binay at their house. According
to the arrest report, the police acted upon a complaint filed by the
proprietor of the house, who suspected that the tenants were carrying
out some illegal activities on her property. Subsequently, the police
also searched the Tohum Cultural Centre and took Cennet Cabat and
Tamiş Akpınar into custody. They seized, among other
things, large amounts of bulletins, periodicals and leaflets which
concerned propaganda against F-type prisons.
- On
29 April 2001, upon the request of the Ankara Security Directorate,
the Public Prosecutor at the Ankara State Security Court agreed to
extend the applicants’ detention in police custody until 1 May
2001.
- On
1 May 2001, upon the Public Prosecutor’s request, a judge at
the Ankara State Security Court examined the case file and agreed to
extend the applicants’ detention in police custody for three
more days.
- On
4 May 2001 the applicants were first brought before the Public
Prosecutor and then the investigating magistrate at the Ankara State
Security Court, who ordered their detention on remand.
- On
1 June 2001 the Public Prosecutor filed an indictment against the
applicants on account of aiding and abetting an illegal armed
organisation, namely, the TKP/ML (the Turkish Communist Party/
Marxist Leninist).
- On
9 July 2002, during the first hearing held before the Ankara State
Security Court the applicants were released pending trial. On
11 November 2002 the court acquitted the applicants.
II. RELEVANT DOMESTIC LAW
12. A
description of the relevant domestic law can be found in Öcalan
v. Turkey ([GC], no. 46221/99, 12 May 2005) and Sakık
and Others v. Turkey (26 November 1997, Reports of
Judgments and Decisions 1997 VII).
THE LAW
- The
applicants complained of violations of Article 5 §§ 1, 3
and 5 of the Convention, which read insofar as relevant as follows
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
3. 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 and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
...
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
I. ADMISSIBILITY
A. The Government’s preliminary objections
- The Government argued
that the application should be rejected for failure to exhaust
domestic remedies. They claimed that, pursuant to Article 128 of
the Code of Criminal Procedure, which was then in force, the
applicants could have challenged the length of their detention in
police custody. They also claimed that it was possible for the
applicants to appeal against the judge’s decision to prolong
their detention for three more days, in accordance with Article 13 §
2 of the Law no. 2845.
- The
Court reiterates that it has already examined and rejected the
Government’s preliminary objections in similar cases (see
Öcalan, cited above, §§ 66 71, and Daş
v. Turkey, no. 74411/01, §§ 20-23, 8 November
2005). The Court finds no particular circumstances in the instance
case which would require it to depart from its findings in these
previous applications.
- In
view of the above, the Court rejects the Government’s
preliminary objections.
B. Other grounds of admissibility
- The
applicants complained under Article 5 § 1 that their detention
in police custody was not “in accordance with a procedure
prescribed by law”. The Court observes that at the material
time the relevant domestic law provided that, with regard to offences
within the jurisdiction of the State Security Courts, any arrested
person had to be brought before a judge within forty-eight hours at
the latest, or, in the case of offences committed by more than one
person, within fifteen days. It follows that the detention in issue
was in accordance with Turkish law.
- In
the light of the foregoing, the Court finds that the applicants’
complaint under Article 5 § 1 should be rejected as being
manifestly ill-founded.
- The
Court notes that the other complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The Government argued that the length of the
applicants’ detention in police custody was in conformity with
the legislation in force at the time. Given that the relevant law has
since been amended in accordance with the case-law of the Court, the
applicants’ allegation was groundless.
- The Court notes that the applicants’ detention
in police custody lasted six days. It reiterates that, in the case of
Brogan and Others v. the United Kingdom, 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 (judgment of
29 November 1988, Series A no. 145 B, pp. 33 34, §
62).
- Even
though the investigation of terrorist offences, as supposed in this
case, presents the authorities with special problems, the Court
cannot accept that it was necessary to detain the applicants for six
days without judicial intervention.
- There has, accordingly, been a violation of Article 5
§ 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
- The
applicants complained under Article 5 § 5 of the Convention that
they had no right to compensation for the alleged violations of
Article 5 of the Convention.
- The
Government submitted that, in cases of illegal detention, a request
for compensation could be submitted within three months following the
final decision of the trial court under the terms of Law no. 466 on
compensation payable to persons unlawfully arrested or detained.
However, as the applicants’ detention in police custody was in
conformity with the domestic law prevailing at the time, their
allegation under this head was groundless.
- The Court notes that an action for compensation under
Law no. 466 could only be brought for damage suffered as a
result of an unlawful deprivation of liberty. It observes that the
applicants’ detention in police custody was in conformity with
the domestic law. Consequently, the applicants did not have a right
to compensation under the provisions of Law no. 466 (see Sakık
and Others, cited above, § 60).
- The
Court therefore concludes that there has been a violation of
Article 5 § 5 of the Convention.
IV. 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 5,000 euros (EUR) each in respect of non-pecuniary
damage.
- The
Government contested the amount requested by the applicants.
- Having
regard to its case-law, and making its assessment on equitable basis,
the Court awards each applicant EUR 1,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
first applicant claimed EUR 3,500 for costs and expenses incurred
before the Court, whereas the other four applicants claimed in total
EUR 2,300. In support of their claim, the applicants submitted
the Istanbul Bar Association’s recommended minimum fee list for
2006.
- The
Government disputed their claims.
- Considering
the information in its possession and the case-law on the matter, the
Court awards the first applicant the sum of EUR 1,000 for her costs
and expenses for the proceedings before the Court. It awards the
other applicants, jointly, EUR 1,000 for 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 complaint concerning the length of
detention in police custody and the right to compensation for alleged
violations of Article 5 of the Convention admissible, and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 5 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following sums, to be converted into new
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
1,000 (one thousand euros) to each applicant for non-pecuniary
damage,
(ii) EUR
1,000 (one thousand euros) for the costs and expenses of the first
applicant,
(iii)
EUR 1,000 (one thousand euros) for the costs and expenses of the
other applicants, jointly,
(iv) plus
any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
