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FOURTH
SECTION
CASE OF MEHMET ŞAH ÇELİK v. TURKEY
(Application
no. 48545/99)
JUDGMENT
STRASBOURG
24
July 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 Mehmet Şah Çelik v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr R. Türmen,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mrs F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 3 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48545/99) 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 Mr Mehmet Şah Çelik (“the
applicant”). The applicant was represented by Mr S. Çınar,
a lawyer practising in Diyarbakır.
- On
26 February 2002 the Court decided to give notice of the application
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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979. At the time of his application to the
Court, he was incarcerated in the Batman E-type Prison.
- On 16 December 1994 police officers from the Batman
Security Directorate arrested the applicant on suspicion of
membership of an illegal organisation, namely the PKK (the Kurdish
Workers’ Party), and placed him in custody.
- During his detention, the applicant signed statements
and confessed to being a member of the PKK and to collecting money
for that organisation.
- On 30 December 1994 the applicant was questioned by the
public prosecutor attached to the Batman Magistrates’ Court.
During his questioning, he repeated his statement made to the police.
On the same day the Batman Magistrates’ Court ordered his
detention on remand.
- On 11 January 1995 the prosecutor filed an indictment
with the Diyarbakır State Security Court charging the applicant
and thirteen co accused with membership of an illegal armed
organisation.
- On 17 January 1995 the applicant was brought before
that court, which ordered that his detention on remand be continued.
- At the first hearing held on 16 March 1995, the
applicant denied all the charges made against him. He submitted that
his statements to the police had been taken under duress, and that he
had been forced to repeat the same statements before the Batman
Magistrates’ Court and the Batman Public Prosecutor’s
Office. The court rejected his request for release pending trial.
- His requests for release pending trial were rejected
by the Diyarbakır State Security Court at each of the hearings.
The court examined the applicant’s continued detention on its
own motion every one and a half months or two months. In ordering his
continued detention, the court relied on the nature of the offences
charged, the content of the case file, the state of the evidence, and
the stage reached in the proceedings, without giving detailed
reasoning.
- At the first hearing, the court requested the
following: (i) oral statements of the police officers who had
interrogated one of the accused, (ii) a forensic examination of one
of the accused, Mr Ferhan Arasan, in order to establish his real
age, (iii) defence statements of the accused who were on conditional
release, to be taken by a criminal court in the area where they
resided, and finally (iv) witness statements and police records on
certain allegations made by one of the accused, Mr Mehmet Emin
Güngör, regarding the bombing of his house by unknown
perpetrators.
- At the following two hearings, the court heard some of
the accused and adjourned the proceedings pending a forensic report
on Mr Ferhan Arasan’s age.
- During the following ten hearings, held between 7
September 1995 and 7 November 1996, the court repeatedly ordered
the taking of statements of two of the accused who were on
conditional release and the preparation of a forensic report.
- At the fourteenth hearing, held on 19 December 1996,
the court ordered the presence of several of the accused (including
the applicant) at the following hearing, and adjourned the
proceedings pending submission of the forensic report.
- Over the course of the following twenty-four months
the court held thirteen hearings without obtaining new evidence in
respect of the applicant, except for one hearing, held on 8 July
1997, at which the applicant and the other accused were questioned as
to whether they had any information about the bombing of Mr Mehmet
Emin Güngör’s house. During that period, the court
obtained only the final observations of the prosecutor and the
defendants, and continued to adjourn the proceedings pending
submission of the forensic report.
- On 18 December 1998, noting that the forensic report
was still pending, the court severed the proceedings against Mr
Ferhan Arasan and issued judgments in respect of the remaining
accused. It found the applicant guilty of all charges and sentenced
him to eight years and four months’ imprisonment. The applicant
appealed.
- On
15 November 1999 the Court of Cassation upheld the judgment of the
Diyarbakır State Security Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his detention on remand exceeded the
“reasonable time” requirement as provided for in Article
5 § 3 of the Convention, which reads, insofar as relevant, as
follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
- The
Government raised a preliminary objection, arguing that the applicant
had failed to exhaust two separate domestic remedies.
- They
first submitted that the applicant should have appealed the
first-instance court’s judgment to the Court of Cassation,
prior to applying to the Court. Secondly, they submitted that the
applicant should have tried to have the decisions ordering his
continued detention in remand set aside, using the provisions of
Articles 298 and 299 of the – now repealed – Code of
Criminal Procedure (“the CCP”).
- As
to the first limb of the objections, the Court notes that the extent
to which an applicant must exhaust domestic remedies is determined by
the nature of his or her particular complaint under the Convention.
In the present case, the applicant’s complaint relates to the
length of his detention in remand. Thus, a cassation
appeal – a remedy designed in Turkish law to challenge a
first-instance court’s final ruling – would have afforded
the applicant no practical remedy in respect of his “length of
detention” complaint. Accordingly, the Court dismisses this
part of the Government’s objections.
- Under
the second limb, the Government maintained that the applicant had not
availed himself of the “objection” procedure under
Articles 298 and 299 of the CCP. The Articles provided, where
relevant, as follows:
“Article 298: Objections may not be filed against
court orders.
Orders relating to detention ... are exempt from the
foregoing paragraph.”
“Article 299: [...]
Objections filed against an order of a [criminal court]
shall be reviewed by the [criminal court] whose number immediately
follows that of the former.”
- The
applicant admitted that he had been aware of the remedy in question
but had not availed himself of it, since he assumed that it was
ineffective.
24. The Court reiterates that under the terms of Article 35 §
1 of the Convention it can only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law. However, only available
and adequate remedies must be tried under Article 35 § 1
of the Convention. The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing
which they lack the requisite accessibility and effectiveness. There
is no obligation to have recourse to remedies which are inadequate or
ineffective (see, among others, Cennet Ayhan
and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64,
27 June 2006).
- The Court reiterates that in the area of exhaustion
of domestic remedies the burden of proof is on the Government
claiming non exhaustion to indicate to the Court with sufficient
clarity the remedy to which the applicant has not had recourse and to
satisfy the Court that this remedy was effective and available in
theory and in practice at the relevant time, that is to say that it
was accessible, was capable of providing redress in respect of the
applicants’ complaints and offered reasonable prospects of
success (see Cennet Ayhan and Mehmet
Salih Ayhan, cited above, § 65). Furthermore, the
Court notes that the application of the rule of exhaustion
must make due allowance for the fact that it is being applied
in the context of machinery for the protection of human rights that
the Contracting Parties have agreed to establish. Accordingly, the
Court has recognised that Article 35 § 1 must be applied
with some degree of flexibility and without excessive formalism
(see Acunbay v. Turkey, nos. 61442/00 and
61445/00, § 45, 31 May 2005).
- In the instant case the Court notes that the trial
court examined the applicant’s detention on remand at the end
of each hearing, either on its own motion or upon the request of the
applicant. It therefore had the opportunity to end the applicant’s
alleged lengthy detention and to avoid or to
redress an alleged breach of the Convention (see Acunbay,
cited above, § 48 and Tamer and Others v.
Turkey, no. 235/02, § 28, 22 June 2006).
- The
Court further notes that, pursuant to Article 298 of the CCP, the
applicant could have objected to his continued remand in custody as
indicated by the Government. However, the Court cannot agree with the
Government that this remedy was effective and offered reasonable
prospects of success in practice for the following reasons.
- The Court has examined several cases against Turkey in
which it has found a violation of Article 5 § 3 of the
Convention based on the fact that, inter alia, the State
Security Courts used the same formal reasons for the applicants’
continued detention without explaining their specific application in
each case (see for example Hasan Ceylan v. Turkey,
no. 58398/00, 23 May 2006, Pakkan v. Turkey,
no. 13017/02, 31 October 2006, Gıyasettin Altun v.
Turkey, no. 73038/01, 24 May 2005, Tutar v. Turkey,
no. 11798/03, 10 October 2006, Mehmet Güneş v.
Turkey, no. 61908/00, 21 September 2006, Acunbay, cited
above, and Tamer and Others v. Turkey, cited above). It
considers that, in these circumstances, an objection against such
stereotyped reasoning would have had little prospect of success
before another instance. Moreover, as a rule, the objection
proceedings in question are not adversarial and are decided in the
absence of an oral hearing (Article 302 § 1 CCP). They
therefore lack guarantees appropriate to the kind of deprivation of
liberty in question (see, for example, Nikolova v. Bulgaria
[GC], no. 31195/96, § 58, ECHR 1999-II and Assenov and
Others v. Bulgaria, judgment of 28 October 1998, Reports
of Judgments and Decisions 1998 VIII, p. 3302, § 162).
- The Court notes that there is a distinction between
the requirement of exhaustion of domestic
remedies under Article 35 § 1 and the requirements of
Article 5 § 3 of the Convention aimed at providing
safeguards against arbitrary deprivation of liberty. However, where a
consistent case-law shows that such safeguards fail or are deficient,
it would be contrary to the very principle of the Convention and
would lead to excessive formalism under Article 35 § 1 to demand
of the applicant that he exhaust the inadequate safeguards.
- Furthermore,
the Court notes the Government’s submissions, in the instant
case, are very general, merely stating the relevant provision in the
law without giving any concrete examples of its application. It
reiterates that it is not for the Convention bodies to cure of their
own motion any shortcomings or lack of precision in the respondent
Government’s arguments (see, in particular, Stran Greek
Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, Series A no. 301-B, p. 77, § 35). In
the light of the above, the Court rejects the Government’s
objections under this head.
- The
Court considers that this complaint raises serious issues of fact and
law under the Convention, the determination of which requires an
examination of the merits. It concludes therefore that this complaint
is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. No other ground for declaring it inadmissible
has been established.
B. Merits
- The
Government maintained that the applicant’s detention was based
on the existence of reasonable grounds of suspicion of him having
committed an offence, and that the custodial measure had been
reviewed periodically by the competent authority, with special
diligence, in accordance with the requirements laid down by the
applicable law at the relevant time. They pointed out that the
offence with which the applicant was charged was of a serious nature,
and that his continued remand in custody was necessary since he had
already failed to attend half the hearings and it was highly likely
that he would abscond.
- The
applicant maintained his allegations.
- The
Court notes from the material in the case file that the Diyarbakır
State Security Court considered the applicant’s detention on
remand at the end of each hearing, either on its own motion or upon
the request of the applicant. On each occasion it prolonged that
detention using identical, stereotyped terms, such as “having
regard to the nature of the offence, the state of evidence and the
content of the file”. Although, in general, the expression “the
state of evidence” may be a relevant factor for the existence
and persistence of serious indications of guilt, in the present case
it nevertheless, alone, cannot justify a length of preventive
detention of almost four years (see, in particular, Selçuk
v. Turkey, no. 21768/02, §§ 34-36, 10 January 2006
Letellier v. France, judgment of 26 June 1991, Series A
no. 207, Tomasi v. France, judgment of 27 August 1992,
Series A no. 241-A, Mansur v. Turkey, judgment of 8
June 1995, Series A no. 319-B, § 55).
- Consequently
there has been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant also complained that the length of the criminal proceedings
brought against him was in breach of the “reasonable time”
requirement of Article 6 § 1 of the Convention, which, insofar
as relevant, provides as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government submitted that the case was rather complex, having regard
to the number of accused and the charges they faced, which also made
it difficult to gather evidence and determine the facts. Moreover, no
negligence or delay could be imputed to the judicial authorities.
They further maintained that, up until the judgment of 18
December 1998, the State Security Court had held twenty-seven
hearings and that the applicant had contributed to the length of the
proceedings by refusing to attend thirteen of them.
A. Admissibility
- 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. The Court
therefore declares it admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the particular circumstances of the
case and having regard to the criteria laid down in the Court’s
case-law, in particular the complexity of the case, the conduct of
the applicant and of the relevant authorities, and the importance of
what was at stake for the applicant in the litigation (see Humen
v. Poland [GC], no. 26614/95, § 60, 15 October
1999).
- As
regards the period to be taken into account, the Court notes that the
proceedings commenced on 16 December 1994, the date of the
applicant’s arrest, and ended on 15 November 1999, when the
Court of Cassation upheld the conviction. They therefore lasted four
years and eleven months before two levels of jurisdiction.
- The
Court observes that the proceedings involved fourteen accused and the
charges concerned membership of or aiding and abetting a terrorist
organisation. However, it considers that the complexity of the
proceedings does not in itself suffice to justify their duration.
- As
to the applicant’s conduct, the Court finds no causal link
between his failure to attend some of the hearings and the protracted
nature of the trial. The case file indicates that the applicant was
present at the first six hearings, which were held up until 25
January 1996. By that date, the court had already completed the
taking of statements.
- Moreover,
the records do not indicate any hearing which had been specifically
postponed due to the applicant’s absence. On the majority of
occasions, the court had adjourned the proceedings pending a response
or a report from a government office and/or the Forensic Institute of
Istanbul.
- The Court finds it striking that, from the first
hearing until the submission of the parties’ final observations
in 1998 (see paragraphs 12-16 above), the State Security Court did
not order the production of any document, hear any witness or collect
any other evidence with respect to the applicant. The main reason for
prolonging the proceedings until 18 December 1998 appears to be
the missing forensic report concerning another accused whose age had
yet to be established. The court finally ran out of patience and
severed the proceedings in respect of that accused, handing down
judgments against the remaining accused.
- Similarly, during ten consecutive hearings between
7 September 1995 and 7 November 1996, the court continued
to order, to no avail, the taking of statements of the two accused
who were on conditional release and the preparation of the forensic
report. During the fourteen months’ period, the hearing records
indicate that virtually no progress was made in reaching a verdict.
- The
submissions of the Government contain no explanation about these
periods of inactivity. Thus, the material at hand leads the Court to
conclude that the proceedings were not conducted with the necessary
diligence.
- It
follows that the proceedings against the applicant were not conducted
within a “reasonable time”. There has, accordingly, been
a violation of Article 6 § 1 of the Convention.
III. 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
applicant sought reparation for the damage he had sustained but left
the amount to the discretion of the Court.
- The
Government expressed no opinion on the award of just satisfaction.
- The
Court notes that there is no evidence before it of any pecuniary
damage sustained by the applicant. However, the applicant may be
taken to have suffered distress in light of its above-mentioned
findings of a violation of Article 5 § 3 and Article 6 § 1
of the Convention. Ruling on an equitable basis, it consequently
awards him 4,500 euros (EUR) in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant did not claim any amount for the costs and expenses
incurred before the domestic courts or in the Convention proceedings.
- Accordingly,
the Court makes no award under this head (Rule 60 § 2 of the
Rules of Court).
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 application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 4,500 (four thousand five hundred euros) in respect
of non-pecuniary damage, plus any tax that may be chargeable, to be
converted into new Turkish liras at the rate applicable at the date
of settlement;
(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.
Done in English, and notified in writing on 24 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas Bratza
Deputy Registrar President
