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SECOND SECTION

Application no. 6670/10
Özgür ÇELIK
against Turkey
lodged on 12 January 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Özgür Çelik, is a Turkish national who was born in 1993 and lives in Istanbul. His application was lodged on 12 January 2010. He was represented before the Court by Mr I. Akmese, a lawyer practising in Istanbul. The facts of the case, as submitted by the applicant, may be summarised as follows.

On 23 October 2009 the applicant was arrested in connection with a theft based on his fingerprints found at the crime scene. Following his arrest, an identity check was conducted on the premises of the Juvenile Police Unit. At this stage of the investigation, despite the request made by the Juvenile Police Unit, the Istanbul Bar Association did not assign a lawyer to the applicant. The applicant’s case was then referred to the public prosecutor. The latter, without questioning the applicant, requested his detention.

On the same day, the Bakirköy Magistrates’ Court took a statement from the applicant in the absence of a lawyer since its request for the appointment of a lawyer for the applicant had been rejected by the Istanbul Bar Association on account of the non-payment of due fees for compulsory legal services. The Magistrates’ Court decided to detain the applicant pending trial on the basis of the nature of the offence, the state of evidence and the strong suspicion that the applicant had committed the offence.

On 30 October 2009 the public prosecutor filed an indictment with the Bakirköy Juvenile Court, accusing the applicant of theft, damaging property and invading the privacy of home.

On 5 November 2009 the Bakirköy Juvenile Court decided to keep him in detention, considering, among other things, the date of his detention, the way in which the offence had been committed, the value of the property stolen, the necessity to prevent the suspect from fleeing in view of the sentence faced and the inadequacy of alternative measures. The Juvenile Court also took into account that the suspect’s defence had not yet been heard. It further decided to apply to the Istanbul Bar Association for the appointment of a lawyer.

On 6 November 2009 the applicant’s lawyer filed an objection with the Bakirköy Juvenile Assize Court against the decision to continue the detention. Reiterating the Court’s case-law under Article 5 § 3 of the Convention and the international conventions on the subject, he claimed in particular that a hearing should be held, that the observations of the public prosecutor should be communicated to the defendant party and that alternative control measures should be applied.

On 9 November 2009 the Bakirköy Juvenile Assize Court dismissed the objection on the basis of the case file in accordance with the observations of the public prosecutor.

At the hearing held on 3 December 2009 the Bakirköy Juvenile Court convicted the applicant of all charges and sentenced him to fourteen months and twenty days’ imprisonment, commuted to a fine of 8,800 Turkish liras. The Court also ordered the applicant’s release taking into account the period for which he had already spent in detention.

At the date of introduction of the application an appeal was still pending before the Court of Cassation.

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention that his detention for forty-two days constituted a violation of his right to trial within a reasonable time. In respect of this complaint, the applicant notes in particular that the pre-trial detention of minors should be used only as a measure of last resort. In addition, he submits that the domestic courts dismissed his objection against his detention on the basis of repetitive and simplified reasoning.

Relying on Article 5 § 4, the applicant calls into question the effectiveness of the remedy provided in domestic law to challenge the lawfulness of his pre-trial detention. Referring to the principle of equality of arms the applicant points out that upon his objection to his pre-trial detention, the Bakirköy Juvenile Assize Court decided on the basis of the case file, without holding a hearing and without communicating the observations of the public prosecutor to the defendant party. He also alleges that in the decision to continue the applicant’s detention, the domestic courts did not provide any reasoning specific to the circumstances of the case.

The applicant complains of a violation of Article 5 § 5 of the Convention in conjunction with Article 5 § 3 and 5 § 4.

QUESTIONS TO THE PARTIES

1.  Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

2.  Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?

3.  Did the applicant have an effective and enforceable right to compensation for his unlawful detention in contravention of Article 5 § 3 and 4, as required by Article 5 § 5 of the Convention?