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SECOND
SECTION
CASE OF HATİCE DUMAN v. TURKEY
(Application
no. 43918/08)
JUDGMENT
STRASBOURG
22
May 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Duman v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Isabelle Berro-Lefèvre,
President,
Guido Raimondi,
Helen Keller,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43918/08) 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, Ms Hatice Duman (“the
applicant”), on 12 September 2008.
- The
applicant was represented by Mr F. Ertekin, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
8 February 2010 the application was communicated to the Government.
- The
Government objected to the examination of the application by a
Committee. After having considered the Government’s objection,
the Court rejects it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and is currently serving her sentence in
Gebze Prison.
- On
9 April 2003 the applicant was arrested on suspicion of membership to
MLKP (Marxist-Leninist Communist Party),
an illegal organisation.
- On
13 April 2003 she was taken before the public prosecutor and the
investigating judge who subsequently ordered her pre-trial detention.
- On
23 July 2003 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant and eight
other persons charging them with attempting to undermine the
constitutional order of the State, membership of, or aiding and
abetting to an illegal organisation.
- Following
the abolition of the State Security Courts by Law no. 5190, the
criminal proceedings were resumed by the Istanbul Assize Court.
- During
the proceedings, the Istanbul Assize Court decided to prolong the
applicants’ pre-trial detention and rejected her request to be
released pending trial a number of times on the basis of the
reasonable grounds of suspicion that she had committed the offence,
the severity of the criminal charge against her and the state of the
evidence in the case file.
- At
the hearing of 1 April 2009, the Istanbul Assize Court, once more,
rejected the applicant’s claim that her detention had been
unreasonably lengthy and that she should be released pending trial.
- The
applicant challenged the above-mentioned decision by lodging an
objection with the higher division of the Assize Court.
- In
the course of the proceedings for the review of her detention, the
applicant alleges that neither she nor her lawyer was given an
opportunity to make any oral submissions against the lawfulness of
her continued detention in a hearing and that they were not notified
of the observations submitted by the public prosecutor.
14. On
17 April 2009 the 13th
Chamber of the Istanbul Assize Court rejected the applicant’s
objection against the prolongation of her detention, taking into
account the nature of the criminal charge and the establishment of
reasonable suspicion that she had
committed the alleged crime.
- On
the basis of the evidence before it, on 4 May 2011 the Istanbul
Assize Court convicted the applicant of attempting
to undermine the constitutional order,
pursuant to Article 146 § 1
of the former Criminal Code, and sentenced her to life imprisonment.
- According
to the latest information provided in
the case file, the applicant has lodged
an appeal against the judgment with the Court of Cassation, before
which the proceedings are currently
pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §
3 OF THE CONVENTION
- Relying
on Article 5 § 3 of the Convention, the
applicant complained that the length of her pre-trial detention had
been excessive.
- The
Government submitted a preliminary objection that the applicant had
failed to exhaust domestic remedies within the meaning of Article 35
§ 1 of the Convention. They maintained in this connection that
she could have sought compensation for her allegedly unlawful
detention pursuant to Law no. 466 which
was replaced by Article 141 of the new Code of Criminal Procedure
(Law no. 5271) entered into force on 1 June 2005.
- The
applicant disputed the Government’s argument.
- As
regards the Government’s preliminary objection concerning
non exhaustion of the domestic remedies provided under Law no.
466 or Law no. 5271, the Court observes that lodging a claim
for compensation as indicated by the Government under these laws
would not make it possible to end detention of excessive length while
the criminal proceedings are pending, therefore, they may not be
considered an effective remedy within the meaning of Article 5 §
3 of the Convention in these circumstances (see Barış v.
Turkey, no. 26170/03, § 17, 31 March 2009, and Tunce and
Others v. Turkey, nos. 2422/06, 3712/08, 3714/08, 3715/08,
3717/08, 3718/08, 3719/08, 3724/08, 3725/08, 3728/08, 3730/08,
3731/08, 3733/08, 3734/08, 3735/08, 3737/08, 3739/08, 3740/08,
3745/08 and 3746/08, §15, 13 October 2009). Accordingly, the
Court rejects the Government’s preliminary objection.
- The
Court notes that this complaint is not manifestly ill-founded nor it
is inadmissible on any other grounds. It must therefore be declared
admissible.
-
As regards the merits of the complaint,
the Government maintained that the applicant’s continued
detention had been reasonable, having regard to the severity of
charges brought against her, the existence of reasonable grounds of
suspicion of her having committed the alleged offences, the
protection of evidence and the risk of absconding. The Government
further argued that the number of accused persons and criminal
charges involved in the proceedings resulted in complexities in the
collection of evidence.
- The
Court notes that the applicant was detained on
9 April 2003 and was convicted by the Istanbul Assize Court on 4 May
2011. Thus, the period that she was held in
pre-trial detention lasted over eight years.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issue to that in the present
application (see, for example, Dereci v. Turkey, no. 77845/01,
§ 39, 24 May 2005, and Cahit Demirel v. Turkey, no.
18623/03, § 25, 7 July 2009).
- 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 established case-law on the subject, the Court
finds that in the instant case the length of the applicant’s
pre-trial detention was excessive.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 §
4 OF THE CONVENTION
- The
applicant complained that there had been no effective remedy provided
by the domestic legal system whereby she could effectively challenge
her continued pre-trial detention. In that respect, the applicant
argued that she had not been afforded a fair and adversarial hearing
in the review of her continued
detention by the 13th
Chamber of the Istanbul Assize Court as
no oral hearing had been held in the proceedings and the public
prosecutor’s written opinion against her release had not been
notified to her or her lawyer.
- The
Government contested that argument, submitting
that the applicant had had effective avenues under the domestic law
to challenge the decision extending her pre-trial detention.
- The
Court notes that the complaint is not
inadmissible on any grounds and must therefore be declared
admissible.
- The
Court reiterates that the proceedings conducted for the review of a
detainee person’s continued detention pursuant to
Article 5 § 4 of the Convention must be adversarial and must
ensure “equality of arms” between the parties, namely the
prosecutor vis-à-vis the detained person (see Nikolova
v. Bulgaria [GC], no 31195/96, § 58, ECHR 1999 II).
- Turning
to the facts of the present case, the Court observes that the 13th
Chamber of the Istanbul Assize Court ruled on the applicant’s
objection to the decision of 1 April 2009 prolonging her pre-trial
detention after having received the public prosecutor’s
opinion. However, these observations, which stated that the
applicant’s pre-trial detention should be continued, were not
communicated to the applicant or her lawyer during the proceedings,
thus they were not given any opportunity to respond them.
Subsequently, on 17 April 2009 the higher division of the Assize
Court decided in accordance with the public prosecutor’s
opinion and dismissed the applicant’s objection.
- Under
these circumstances, the Court considers that the applicant and her
lawyer were denied an adversarial hearing in the appeal proceedings
as the domestic authorities failed to respect the principle of
equality of arms. This element is sufficient to
conclude that the procedure in which the applicant’s
continued detention was reviewed by the higher court
did not meet the requirements of Article 5 § 4 of the
Convention.
- Accordingly,
the Court finds a violation of Article 5 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages and costs and expenses
- The applicant claimed 25,672 euros (EUR) and EUR
30,000 for pecuniary and non-pecuniary damage
respectively, on the basis of loss of her earning and the alleged
anguish and distress she had suffered.
- The
Government contested these claims as
unsubstantiated and excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have suffered
non pecuniary damage which cannot be compensated solely by the
finding of violations. Having regard to the gravity of the violations
and to equitable considerations, it awards the applicant EUR 8,800
for non-pecuniary damage.
- The
applicant also claimed EUR 8,764 for the costs and expenses incurred
during the domestic proceedings and before the Court. In
this respect, the applicant submitted an invoice for legal fees and
expenses incurred in the proceedings before the domestic courts, the
Bar Association’s tariff for legal fees, as well as invoices in
connection with translations, postal service and stationery expenses.
- The
Government contested these claims.
- Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the sum of EUR 2,000 covering
costs under all heads.
B. Default interest
- The
Court considers it appropriate that the default interest rate 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;
2. Holds
that there has been a violation of Article 5 § 3 of the
Convention on account of the length of the applicant’s
pre-trial detention;
3. Holds
that there has been a violation of Article 5 § 4 of the
Convention on account of the lack of an effective domestic remedy by
which to challenge the lawfulness of the applicant’s pre-trial
detention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts to be converted into Turkish lira at the rate
applicable at the date of settlement:
(i) EUR
8,800 (eight thousand and eight hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant;
(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 22 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle
Berro-Lefèvre
Deputy
Registrar President
