TALU v. TURKEY - 2118/10 (Judgment : Article 5 - Right to liberty and security : Second Section Committee) [2018] ECHR 521 (19 June 2018)

In the case of Talu v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated in private on 29 May 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 2118/10) 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 Mahfuz Talu ("the applicant"), on 15 December 2009.

2. The applicant was represented by Ms M. Danış Beştaş and Mr M. Beştaş, lawyers practising in Diyarbakır. The Turkish Government ("the Government") were represented by their Agent.

3. On 4 December 2012 the application was declared partly inadmissible and the complaints concerning the effectiveness of the procedure by which the applicant could challenge the lawfulness of his detention, and his right to compensation in this respect were communicated to the Government.

THE FACTS

4. The applicant was born in 1959 and lives in Siirt.

5. On 9 January 2009 the applicant was taken into custody on suspicion of membership of a terrorist organisation and disseminating its propaganda.

6. On 13 January 2009 the applicant was brought before the Siirt Magistrates' Court, who ordered his detention on remand taking into account the strong suspicion that he had committed the alleged offences.

7. On 3 August 2009 the applicant's lawyer filed an objection against the above decision on the applicant's detention and requested his release.

8. On 6 August 2009 the Diyarbakır public prosecutor filed a bill of indictment, charging the applicant with disseminating terrorist propaganda, and aiding and abetting a terrorist organisation.

9. On 10 August 2009, at the end of the preparatory hearing, the Diyarbakır Assize Court decided to prolong the applicant's detention on the basis of the case-file.

10. On 8 September 2009 the Diyarbakır Assize Court ex officio examined the applicant's detention on remand on the basis of the case-file and decided to extend it.

11. On 1 October 2009, at the end of the first hearing before the Diyarbakır Assize Court, the applicant was released pending trial.

12. On 31 December 2009 the Diyarbakır Assize Court acquitted the applicant of the charges against him. No appeal was filed and the judgment became final on 8 January 2010.

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

13. The Government argued that, when the application was initially lodged on 15 December 2009, the applicant's representatives had failed to submit a letter of authority. They claimed that the duly completed and signed letter of authority was submitted subsequently on 20 December 2010, and that therefore, in their view, the applicant failed to lodge his application within the six-�month time-limit.

14. The Court observes that on 15 December 2009 the applicant's representatives signed and submitted a complete application form on behalf of the applicant along with a valid power of attorney from the notary public. By a letter of 19 November 2010 the Registry instructed the applicant to submit the duly completed and signed letter of authority. The applicant submitted the requested document without delay, and it was received by the Registry on 20 December 2010. Consequently, the Court confirms that the introduction date of the present application is 15 December 2009, namely the date on which the applicant submitted his duly signed application form (see Kozlitin v. Russia, no. 17092/04, § 43, 14 November 2013).

15. It follows that the application was submitted within the six-month time-limit and, accordingly, the Court dismisses the Government's preliminary objection.

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

16. The applicant complained under Article 5 § 4 of the Convention about his inability to appear before the courts when his pre-�trial detention was reviewed.

17. The Government contested that argument.

18. 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.

19. In the present case, the applicant was placed in pre-trial detention on 13 January 2009 and was released on 1 October 2009. During this period, he was not able to appear before a judge.

20. The Court notes that it has already examined a similar grievance in the case of Erişen and Others v. Turkey (no. 7067/06, § 53, 3 April 2012), and the case of Karaosmanoğlu and Özden (no. 4807/08, § 76, 17 June 2014 and found a violation of Article 5 § 4 in both cases. It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgments.

21. There has therefore been a violation of Article 5 § 4 of the Convention under this head.

III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

22. The applicant complained under Article 5 § 5 of the Convention that he had been denied the right to compensation for the violation of his right under Article 5 § 4 of the Convention.

23. The Government contested that argument.

24. 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.

25. The Court reiterates that paragraph 5 of Article 5 requires a remedy in compensation for a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-�A). This right to compensation 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.

26. In this connection, the Court notes that it has found a breach of Article 5 § 4 in the present case on account of lack of the applicant's appearance before a court to challenge the lawfulness of his pre-trial detention (see paragraphs 20 and 21 above). It also recalls that it has examined a similar issue in the case of Karaosmanoğlu and Özden (cited above, § 72), and found a violation of Article 5 § 5 of the Convention. There is no reason to depart from those findings.

27. Accordingly, the Court concludes that in the present case there has been a violation of Article 5 § 5 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

28. The applicant claimed 50,000 Turkish liras (TRY) (approximately 9,900 Euros (EUR)) in respect of non-pecuniary damage.

29. The Government contested that claim.

30. The Court considers that the applicant must have sustained non-�pecuniary damage in connection with the violation of the Convention found in his case. Ruling on equitable basis, it awards EUR 750 to the applicant in respect of non-pecuniary damage.

B. Costs and expenses

31. The applicant also claimed a total of TRY 12,000 (approximately EUR 2,400) for legal fees and costs and expenses. In that connection, the representatives submitted a time-sheet showing that they had carried out thirteen and a half hours' legal work.

32. The Government contested the claim.

33. The Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant failed to submit any invoice in respect of his claims for costs and expenses, but submitted a time-sheet, showing the hours of work done by his legal representatives. The Court thus considers it reasonable to award the applicant EUR 1000 in respect of his costs and expenses

C. Default interest

34. 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,

1. Declares the remainder of the application admissible;

2. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the lack of opportunity to appear before a court to challenge the lawfulness of detention;

3. Holds that there has been a violation of Article 5 § 5 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1000 (one thousand euros), plus any tax that may be chargeable to the applicant, 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;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 19 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> TALU v. TURKEY - 2118/10 (Judgment : Article 5 - Right to liberty and security : Second Section Committee) [2018] ECHR 521 (19 June 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/521.html Cite as: CE:ECHR:2018:0619JUD000211810, ECLI:CE:ECHR:2018:0619JUD000211810, [2018] ECHR 521