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THIRD
SECTION
CASE OF TANDOĞAN v. TURKEY
(Application
no. 9244/02)
JUDGMENT
STRASBOURG
20
September 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 Tandoğan 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,
Mr David Thór
Björgvinsson, judges,
and Mr S. Quesada, Section
Registrar,
Having
deliberated in private on 30 August 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9244/02) 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 a Turkish national, Mr Kenan Tandoğan
(“the applicant”), on 31 July 2001.
- The
applicant was represented by Mr and Mrs Kırdök, lawyers
practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
17 November 2006 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Istanbul.
- On
31 March 1994 the applicant was taken into custody by police officers
from the anti-terror branch of the Istanbul Security Directorate on
suspicion of membership of an illegal organisation, the Dev-Sol
(Revolutionary Left).
- On
9 April 1994 the applicant was brought before the Istanbul State
Security Court and remanded in custody. He was placed in Ümraniye
Prison.
- On
2 May 1994 the public prosecutor at the Istanbul State Security Court
filed a bill of indictment against the applicant and nine other
persons. The public prosecutor charged the applicant with attempting
to undermine the constitutional order, an offence defined under
Article 146 of the Criminal Code.
- Subsequently,
the case brought against the applicant was joined with another case
pending before the Istanbul State Security Court.
- Following
the riots in the Ümraniye Prison to protest against F-Type
prisons, in December 2000 the applicant was sent to Kandıra
F-type Prison.
- On
25 December 2000 in connection with the incidents that took place in
the Ümraniye Prison, the judge at the Üsküdar
Magistrate's Court ordered the applicant's detention on remand in
absentia. In the detention order, it was stated that the
applicant was accused of homicide, armed riot against prison
administration and damaging prison property.
11. On
12 January 2001 the applicant was brought before the Kandıra
Magistrate's Court and the detention order dated 25 December 2000 was
read out to him. He was also reminded that he could
appeal against this decision before the Üsküdar Assize
Court.
- On
23 March 2001 the Üsküdar public prosecutor filed a bill of
indictment with the Üsküdar
Assize Court against the applicant and 398 other
persons on account of the
incidents in Ümraniye Prison. The prosecutor requested the court
to convict the accused persons under Articles 264, 304, 450, 456 and
457 of the Criminal Code of homicide, of having started a riot in the
prison and of damage to public property.
13. In
the meantime, on 9 February 2001, the Istanbul State
Security Court ordered the applicant's release pending trial within
the context of the proceedings brought against him with the charge
under Article 146 of the Criminal Code. However,
he was not released as his detention on remand had been ordered on 25
December 2000 in connection with the incidents in the Ümraniye
Prison.
14. On
14 February 2001 the applicant filed a petition with the Üsküdar
Magistrates' Court. In his petition, he maintained that, although his
release had been ordered by the state security court, he was not
released and that he assumed that the reason for his continued
detention was the Üsküdar Magistrate's Court's detention
order. The applicant contended that he was not aware of the reasons
for this order and requested to be brought before a court and to be
released.
- On
6 July 2001 the Üsküdar Assize Court held its first hearing
and ordered the release of the applicant –together with twelve
other accused- pending trial.
- On
7 July 2001 at around 8.30 p.m. the applicant was released from
prison.
- In
2004 the State Security Courts were abolished following a
constitutional amendment and the applicant's case before the Istanbul
State Security Court was transferred to the Istanbul Assize Court.
- On
27 October 2004 the Istanbul Assize Court held that, since the
applicant was a minor when the crimes in question had been committed,
the case should be examined by the Istanbul Juvenile Court. It
accordingly declared non-jurisdiction.
- On
14 November 2006 the Istanbul Juvenile Court held its first hearing
and decided that it lacked jurisdiction to examine the case. The case
was accordingly remitted before the Court of Cassation to determine
which court had jurisdiction to examine the case.
- According
to the information in the case file based on the latest submissions
by the parties, the case is apparently still pending before the Court
of Cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
In
respect of the applicant's first detention on remand
- The
applicant complained that his detention on remand exceeded the
“reasonable time” requirement of Article 5 § 3 of
the Convention, which in so far as relevant reads 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.”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicant has not exhausted the domestic
remedies as he had not awaited the outcome of the proceedings before
the domestic courts before lodging his application with the Court. In
their view, if the applicant were to be acquitted at the end of the
proceedings, he could request compensation pursuant to Law No. 466 on
the Payment of Compensation to Persons Unlawfully Arrested or
Detained.
- In the instant case, the applicant complained under
Article 5 § 3 of the Convention that the length of his detention
on remand had been excessive.
- The
Court has already held that Law No. 466, which provides for an action
for damages taken against the State in respect of the detention of a
person who is subsequently acquitted, concerns Article 5 § 5
only (see, among many others, Yağcı and Sargın v.
Turkey, judgment of 8 June 1995, Series A no. 319-A, § 44).
Therefore, the compensation which could be awarded to the applicant,
if he were to be acquitted at the end of the proceedings, cannot be
considered to constitute recognition of or a redress for the specific
violation alleged by the applicant, namely the excessive length of
his detention on remand (see Duyum v. Turkey, no.
57963/00, § 58, 27 March 2007).
- The
Court accordingly dismisses the Government's objection.
- The Court notes 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.
B. Merits
- The
Court notes that, in the instant case, the period to be taken into
consideration began on 31 March 1994 with the applicant's arrest and
ended on 9 February 2001, when the Istanbul State Security Court
ordered his release. It thus lasted approximately 6 years and 10
months. During this period, the domestic courts prolonged the
applicant's detention on remand using identical, stereotyped terms,
such as “having regard to the nature of the offence, the state
of evidence and the duration of detention”.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, Atıcı v. Turkey, no.
19735/02, 10 May 2007; Solmaz, cited above; Dereci v.
Turkey, no. 77845/01, 24 May 2005; Taciroğlu v. Turkey,
no. 25324/02, 2 February 2006).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, it considers that in
the instant case the length of the applicant's pre-trial detention
was excessive and contravened Article 5 § 3 of the Convention.
- There
has accordingly been a violation of this provision.
In respect of the applicant's second detention on remand
A. As regards the applicant's complaint raised under
Article 5 § 2
- The
applicant complained that he was not informed of the reasons of his
second detention on remand and of the charges against him.
-
The Government maintained that the applicant's allegation that he had
not been informed of the reasons of his detention on remand and of
the charges against him was unsubstantiated. They stated that the
applicant was informed of the reasons of his detention on remand and
the charges against him on 12 January 2001 when the Kandıra
Magistrate's Court judge read out to him the content of the detention
order dated 25 December 2000.
- The
Court recalls that, by virtue of Article 5 § 2, any person
arrested must be told, in simple, non-technical language that he can
understand, the essential legal and factual grounds for his arrest,
so as to be able, if he sees fit, to apply to a court to challenge
its lawfulness in accordance with paragraph 4. Whilst this
information must be conveyed “promptly”, it need not be
related in its entirety by the arresting officer at the very moment
of the arrest. Whether the content and promptness of the information
conveyed were sufficient is to be assessed in each case according to
its special features (see, for instance, H.B. v. Switzerland,
no. 26899/95, § 44, 5 April 2001).
- In
the present case, following the incidents that took place in the
Ümraniye Prison in December 2000, the applicant was accused of
homicide, of participating in a riot and of damaging prison property.
On 25 December 2000 the Üsküdar Magistrate's Court ordered
his detention on remand in abstentia. In the meantime, the
applicant was transferred from Ümraniye Prison to Kandıra
Prison. On 12 January 2001 when the applicant was brought before the
Kandıra Magistrate's Court, the detention order dated
25 December 2000 was read out to him. This detention order
indicated that he was accused of homicide, armed riot against prison
administration and damaging prison property.
- The
Court notes that when the Üsküdar Magistrate's Court
delivered the detention order on 25 December 2000, the applicant was
already detained on remand in the Ümraniye Prison. In the
Court's view, the authorities therefore had the possibility of
providing his presence before the domestic court when delivering the
detention order. However, in the context of this case, the Court
finds that the detention order was read out to the applicant on 12
January 2001 and it indicated the essential ground for his detention.
As a result, the information furnished to the applicant by the
Kandıra Magistrate's Court satisfied the requirements of Article
5 § 2.
- 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. As regards the applicant's release following the
release order dated 6 July 2001
- The
applicant complained under Article 5 § 1 that he had been
unlawfully and arbitrarily kept in detention for twenty eight hours
between the end of the trial on 6 July 2001 at about 4 p.m. and his
release on 7 July 2001 at about 8.30 p.m. Article 5 § 1, in so
far as relevant, reads 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:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...”
- The
Government argued that the period of time in question had been
normal, in view of the fact that there were several administrative
formalities that had to be carried out before the applicant's
release. Before releasing the applicant, the authorities had to
verify whether he was wanted for another crime or whether there was
another detention order against him. They further maintained that the
authorities had not acted arbitrarily or deliberately delayed the
applicant's release.
- The
Court reiterates that the list of exceptions to the right to liberty
secured in Article 5 § 1 is an exhaustive one and only a narrow
interpretation of those exceptions is consistent with the aim of that
provision, namely to ensure that no one is arbitrarily deprived of
his or her liberty (see, among other authorities, the Giulia
Manzoni v. Italy judgment of 1 July 1997, Reports 1997-IV,
p. 1191, § 25).
- While
it is true that for the purposes of Article 5 § 1 (c) detention
ceases to be justified “on the day on which the charge is
determined” and that, consequently, detention after acquittal
is no longer covered by that provision, “some delay in carrying
out a decision to release a detainee is often inevitable, although it
must be kept to a minimum” (see the Giulia Manzoni,
cited above, § 25 in fine). However, the Court must,
scrutinise complaints of delays in release of detainees with
particular vigilance. It is incumbent on the respondent Government to
provide a detailed account of the relevant facts (see, Labita v.
Italy ([GC], no. 26772/95, ECHR 2000-IV, § 170 and
Bojinov v. Bulgaria, no. 47799/99, § 36,
28 October 2004).
- The
Government stated that the delay in the applicant's release had been
caused due to administrative formalities. The Court reiterates that
administrative formalities connected with release cannot justify a
delay of more than several hours (see, Nikolov v. Bulgaria,
no. 38884/97, § 82, 30 January 2003). In the
present case, the applicant was released nearly twenty eight hours
after the Üsküdar Assize Court's release order. In the
absence of a strict account of the relevant events, hour by hour, the
Government's contention that the delay in the applicant's release had
been justified cannot be upheld (Bojinov, cited above, §
39).
- In
these circumstances, the applicant's continued detention following
the release order did not amount to a first step in the execution of
the order for his release and therefore did not come within
sub paragraph 1 (c), or any other sub-paragraph, of Article 5.
- Accordingly,
there has been a violation of Article 5 § 1 on that account.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention about
the length of the criminal proceedings brought against him. Article 6
§ 1 provides as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that allegation.
- The
Court notes that the period to be taken into consideration began on
31 March 1994 when the applicant was taken into police custody and,
according to the information in the case file, the proceedings are
still pending before the Court of Cassation on the date of adoption
of the present judgment. They have thus lasted over thirteen years.
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. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
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 claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- Ruling
on an equitable basis, the Court awards the applicant EUR 13,500
in respect of non-pecuniary compensation.
B. Costs and expenses
- The
applicant also claimed 250 New Turkish liras (YTL)
- approximately EUR 140 - in respect of costs and expenses, and
YTL 10,200 - approximately EUR 5,700 - in respect of lawyers'
fees.
- The
Government contested these claims.
- Making
its own estimate based on the information available, the Court
considers it equitable to award the applicant EUR 1,000 for the costs
and expenses incurred before the 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 complaints raised under Article 5
§§ 3 and 1, and Article 6 § 1 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 § 1 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, the following
amounts to be converted into New Turkish liras at the rate applicable
at the date of settlement and free of any taxes or charges that may
be payable:
(i) EUR
13,500 (thirteen thousand five hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič Registrar President
