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SECOND
SECTION
CASE OF ELĞAY v. TURKEY
(Application
no. 18992/03)
JUDGMENT
STRASBOURG
20 January 2009
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 Elğay v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18992/03) 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 Turgay Elğay (“the
applicant”), on 22 April 2003.
- The
applicant was represented by Mrs M. Avcı, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
11 September 2007 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaints concerning the applicant's right to
take proceedings to challenge the lawfulness of his detention and
to have an enforceable right to compensation.
It also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1983 and lives in Istanbul.
- On
10 July 2002 the applicant was arrested and placed in the
anti terrorist branch of the Istanbul police headquarters after,
during a road check, police officers saw a
photograph of Abdullah Öcalan and the slogans “Biji Serok
Apo” (“Long live President Apo”) and
“Biji Kurdistan” (“Long live Kurdistan”)
on the screen of the applicant's mobile telephone.
- On the same day, the applicant made statements to the
police and, subsequently, to the Gebze Magistrates' Court, which
ordered his detention on remand, having regard to the state of the
evidence, the applicant's statements to the police and the nature of
the alleged offence, namely, membership of the PKK (the Kurdistan
Workers' Party), an illegal organisation.
- On
11 July 2002 the applicant lodged an objection to the remand order.
No decision has been taken regarding the applicant's objection.
- On
the same day, the Gebze public prosecutor issued a decision finding
that he lacked jurisdiction. The investigation file was subsequently
transferred to the public prosecutor's office at the Istanbul State
Security Court.
- On
1 August 2002 the public prosecutor at the Istanbul State Security
Court charged the applicant with membership of an illegal
organisation, under Article 168 § 2 of the former Criminal
Code.
- On
12 August 2002 the Istanbul State Security Court ordered the
applicant's continued detention, having regard to the nature of the
alleged offence, the state of the evidence and the date of the
initial order for the applicant's detention.
- On
25 October 2002 the State Security Court held the first hearing in
the case. The applicant's representative requested the first instance
court to release the applicant. The court accepted the request and
ordered the applicant's release pending trial.
- On
5 September 2003 the Istanbul State Security Court acquitted the
applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the domestic law and practice at the relevant time may
be found in Bağrıyanık v. Turkey
(no. 43256/04, § 19, 5 June 2007) and Saraçoğlu
and Others v. Turkey (no. 4489/02, § 19,
29 November 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained under Article 5 § 4 of the Convention that
there had been no effective domestic remedy by which to challenge the
lawfulness of the first-instance court's detention orders. Article 5
§ 4 of the Convention reads as follows:
“ Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
A. Admissibility
- The Government argued that the application should be
declared inadmissible for non-compliance with the six-month rule laid
down in Article 35 § 1 of the Convention. They submitted in this
connection that the applicant should have lodged his application
within six months of his objection to the detention order of 10 July
2002.
- The
Court considers that the applicant's alleged inability to have access
to an effective remedy whereby he could challenge the lawfulness of
his detention should be considered to continue throughout his
detention on remand. Therefore, the six-month period should start
running only from the day of release. The Court observes in this
connection that the applicant's detention ended on 25 October
2002, when the trial court ordered his release pending trial, and
that he lodged his application with the Court in time, on 22 April
2003. The Court therefore rejects the Government's objection.
- 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
applicant complained that there had been no
effective remedy by which to challenge the first-instance court's
orders to extend his remand in custody.
- The
Government did not make any submission on the merits of this
complaint.
- The Court observes at the outset that the applicant
unsuccessfully requested to be released pending trial before the
State Security Court. The trial court therefore had the opportunity
to end the applicant's detention on remand and to avoid or redress
the alleged breach of the Convention (see Acunbay v. Turkey,
nos. 61442/00 and 61445/00, § 48, 31 May 2005;
Mehmet Şah Çelik v. Turkey, no.
48545/99, § 26, 24 July 2007).
- Moreover,
on 11 July 2002 the applicant filed an objection against the order of
10 July 2002 for his continued detention, in respect of which no
decision was taken by the domestic courts. The Court notes that, in
any event, it has already found that the remedy provided for by
Articles 297-304 of the former Code of Criminal Procedure, whereby
applicants could object to decisions ordering their continued
detention, offered little prospect of success in practice, and that
it did not provide for a procedure which was genuinely adversarial
for the accused (see Koşti and Others v. Turkey,
no. 74321/01, § 22, 3 May 2007; Bağrıyanık,
cited above, §§ 50 and 51; Doğan Yalçın
v. Turkey, no. 15041/03, § 43, 19 February 2008).
- In
the present case, there is no element which would require the Court
to depart from its previous findings. The Court therefore concludes
that there was no remedy in domestic law, within the meaning of
Article 5 § 4, by which the applicant could have
challenged the lawfulness of his detention.
- The
Court accordingly concludes that there has been a violation of
Article 5 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
- The
applicant complained under Article 5 § 5 of the Convention that
he had had no right to compensation in domestic law for the alleged
violation of his right guaranteed by Article 5 § 4 of the
Convention. Article 5 § 5 reads as follows:
“ 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.”
A. Admissibility
- The
Government maintained that this complaint should be rejected for
failure to exhaust domestic remedies, as required by Article 35 §
1 of the Convention. They submitted that the applicant should have
brought a case under Law no. 466 on the Payment of Compensation to
Persons Unlawfully Arrested or Detained.
- The
Court considers that the Government's objection is
inextricably linked to the substance of the applicant's complaint
under this head. It follows that this issue should be joined to the
merits of the case.
- The Court further notes
that this complaint is not manifestly ill founded within the
meaning of Article 35 § 3 of the Convention. It is also not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
applicant submitted that he did not have any remedy in domestic law
whereby he could seek compensation for the violation of his right
under Article 5 § 4 of the Convention. He submitted that the
remedy provided for by Law no. 466 was not an effective one in this
respect.
- The
Government contended that the applicant could
have sought compensation pursuant to section 1(6) of Law no. 466,
which stated that compensation would be paid to a person who,
after being arrested or detained in accordance with the law, had
been, inter alia, acquitted.
- The
Court reiterates that Article 5 § 5 is complied with where it is
possible to apply for compensation in respect of a deprivation of
liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4
(Wassink v. the Netherlands, judgment of 27
September 1990, Series A no. 185 A, p.14, §38).
The right to compensation set forth in paragraph 5 therefore
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 (Saraçoğlu and Others, cited above,
§ 50).
- The
Court notes that in the present case it has found that the
applicant's right to challenge the lawfulness of his detention in
police custody were infringed (see paragraph 23 above). It follows
that Article 5 § 5 of the Convention is applicable. The Court
must therefore establish whether or not Turkish law afforded the
applicants an enforceable right to compensation for the breaches of
Article 5 in this case.
- In
this connection, the Court observes that the
applicant had the possibility of bringing a claim for
compensation, relying on Section 1(6) of Law no. 466, as the criminal
proceedings against him had ended with his acquittal. However, it
notes that, in awarding compensation under the terms of Law no. 466,
the national courts based their assessment solely on the fact that
there had been an acquittal. The national courts' assessment was an
automatic consequence of the acquittal and did not amount to the
establishment of any violation of paragraphs 1 to 4 of Article 5 (see
Sinan Tanrıkulu and Others v. Turkey, no.
50086/99, § 50, 3 May 2007; Medeni Kavak v.
Turkey, no. 13723/02, § 34, 3 May 2007; Saraçoğlu
and Others, cited above, § 52).
- It
follows that, in the applicant's case, Law No. 466 does not provide
an enforceable right to compensation for the breach of his right
under Article 5 § 4 of the Convention, as required by Article 5
§ 5.
- The
Court accordingly dismisses the Government's preliminary objection
(see paragraph 26 above) and concludes that there has been a
violation of Article 5 § 5 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds that there has been a violation of Article
5 § 5 of the Convention.
Done in English, and notified in writing on 20 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
