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THIRD
SECTION
CASE OF KARATAY AND OTHERS v. TURKEY
(Application
no. 11468/02)
JUDGMENT
STRASBOURG
15
February 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 Karatay and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C.
Bîrsan,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mr David Thór Björgvinsson,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11468/02) 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 three Turkish nationals, Mr Fırat Karatay,
Fesih Karatay and Mr Şeyhmus Karatay (“the applicants”),
on 16 January 2002.
- The
applicants were represented by Mr A. Terece, a lawyer practising in
İzmir. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- The
applicants complained under Article 5 § 3 of the Convention
about the length and the lawfulness of their detention on remand.
They complained that during their detention they were never brought
before a judge, which deprived them of the possibility of effectively
arguing for their release pending trial.
- On
3 November 2005 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
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1975, 1973 and 1949 respectively and live in
Mardin.
- On
5 December 2000, a textile company in Çukurova filed a
petition with the office of the Bornova Public Prosecutor,
complaining about the fraudulent acts of Fırat Karatay, the
first applicant.
- On
4 February 2001 the Bornova Public Prosecutor requested the Bornova
Criminal Court of First Instance to issue an arrest warrant, for all
three applicants, on suspicion of having committed fraud. On
8 February 2001 the public prosecutor filed an indictment with
the same court, charging the applicants and four others with
embezzlement under Articles 510 of the Criminal Code.
1. The applicants' arrest and detention
- On
25 April 2001 the third applicant was arrested and placed in
detention at the Kızıltepe Prison, by the judge at the
Kızıltepe Criminal Court. The judge did not take his
statements, but merely informed the applicant of the charges against
him and noted his personal data.
- On
14 May 2001, considering the state of the
evidence and the nature of the offence, the Bornova Criminal
Court ordered the continuation of the third applicant's detention on
remand in his absence and demanded his presence for the following
hearing.
- In
a letter dated 28 May 2001, addressed to the Bornova Criminal Court
the third applicant requested to be released pending trial.
- At
the hearings of 11 June 2001 and 9 July 2001 the applicant was not
brought before the court. The court ordered the third applicant's
continued detention on remand reiterating the same reasoning. It
further requested his transfer from the Kızıltepe Prison to
Buca Prison in order to facilitate his presence before the court. In
the meantime, the Kızıltepe Public Prosecutor informed the
Bornova Criminal Court that the first and second applicants had been
arrested and detained on remand on 7 July 2001 and 1 May
2001, respectively.
- In
a letter dated 9 July 2001, addressed to the Bornova Criminal Court
the first applicant confessed to his guilt.
- On
25 July 2001 the applicants' lawyer, who was present before the
Bornova Criminal Court for the first time, requested the applicants'
release pending trial. Taking into consideration the state
of the evidence and the nature of the offence, the Bornova
Criminal Court dismissed the lawyer's request, and requested the
applicants' transfer to Buca Prison.
- At
the same hearing the applicants' lawyer requested the court not to
transfer the third applicant from one prison to another due to his
health problems. Subsequently, the court sent a letter rogatory to
the Kızıltepe Criminal Court of First Instance in order to
take the third applicant's statements.
- At
the hearings of 22 August 2001 and 21 September 2001 the court
repeated its previous requests concerning the first and second
applicants' transfer to the court and ordered, once again, the
continuation of all three applicants' detention on remand.
- On
19 October 2001 the applicants' lawyer complained before the court
that although the applicants had been detained on remand for quite
some time their statements had still not been taken by the court. He
argued that this situation was in breach of the applicants' rights
guaranteed under the Convention. Furthermore, in view of the length
of their detention and the health problems of the third applicant, he
requested the applicants' release pending trial. The court dismissed
the lawyer's request in view of the state of
the evidence and the nature of the offence. It also reiterated
its order to transfer all three applicants to Buca Prison.
- At
the hearing of 21 November 2001 the applicants' lawyer maintained
that the reason the prison authorities were not transferring the
applicants to the Buca prison was because fuel expenses were not
covered by the budget. He maintained that if the applicants are
released, he would personally ensure the applicants' presence before
the court. The court decided to send a letter rogatory to Kızıltepe
Criminal Court to take the applicants' statements and then to release
them.
- On
6 December 2001 the applicants gave their statements before the
Kızıltepe Criminal Court. The first applicant confessed to
his guilt, while the others refuted the allegations. The court
ordered their release pending trial as requested by the Bornova
Criminal Court, in its decision dated 21 November 2001.
2. The proceedings against the first and third
applicants, before the Karşıyaka Criminal Court of First
Instance
- The
textile company filed another complaint with the office of the Izmir
Public Prosecutor, in relation to the first and the third applicants,
regarding the same incident.
- On
11 April 2001 the Izmir Criminal Court of First Instance filed an
indictment against the first and the third applicants for
embezzlement. On 28 June 2001 the court decided that it lacked
jurisdiction to examine the case and sent the case file to the
Karşıyaka Criminal Court of First Instance.
- On
12 November 2001 the Kızıltepe Criminal Court of First
Instance took the applicants' statements by way of rogatory letter
issued by the Karşıyaka Criminal Court. The applicants
alleged that they were not aware of the fact that a second case had
been brought against them, at the time they gave these statements
- At
the hearing of 9 October 2002 the Karşıyaka Criminal Court
of First Instance acquitted the third applicant due to lack of
evidence and found the first applicant guilty as charged and
sentenced him to five years and four months' imprisonment. Both the
applicants and their lawyers were informed of the second case when
the decision of 9 October 2002 was notified to them.
- On
31 October 2002 the applicants appealed against the decision of the
Karşıyaka Criminal Court.
- On
24 April 2003 the first applicant was arrested and subsequently
imprisoned in accordance with the decision dated 9 October 2002. On
26 January 2004 the Court of Cassation quashed the decision of
the first instance court.
- When
the case was resumed before the first instance court, the applicants'
lawyer requested to join this case with the one pending before the
Bornova Criminal Court, as they concerned the same subject matter.
Furthermore, he requested the first applicant's release pending
trial. The Karşıyaka Criminal Court refused the lawyer's
request to release the applicant in view of the state
of the evidence and the nature of the offence.
3. Joined cases before the Bornova Criminal Court of
First Instance
- On
1 July 2004 the two cases were joined before the Bornova Criminal
Court of First Instance.
- At
the hearings held on 2 July, 27 July and 27 August 2004 the court
ordered the continuation of the first applicant's detention on remand
on account of the state of evidence and the seriousness of the
charges, and taking into account the date of his arrest.
- On
23 September 2004 the court ordered his release pending trial.
- On
17 January 2005 the Criminal Court decided to acquit the second and
third applicants and convicted the first applicant. It sentenced him
to five years and four months' imprisonment.
- Following
the first applicant's appeal, the case is pending before the Court of
Cassation.
THE LAW
- The
applicants complained under Article 5 § 3 of the Convention
about the length and unlawfulness of their detention on remand. They
complained, in particular, that they were deprived of any possibility
of effectively arguing in support of their release, as they were not
brought promptly before a judge.
- The
Court considers that the wording “brought promptly” in
Article 5 § 3 implies that the right to be brought before
an appropriate officer relates to the time when a person is first
deprived of his liberty under Article 5 § 1 (c). The
obligation on Contracting States under Article 5 § 3 is
therefore limited to bringing the detainee promptly before an
appropriate officer at that initial stage, although Article 5 §
4 of the Convention may in certain cases require that the person be
subsequently brought before a judge for the purpose of effectively
contesting the lawfulness of his detention when it lasts for a long
time (Ječius v. Lithuania, no. 34578/97, § 84,
ECHR 2000 IX). Thus, it is of the opinion that the latter
complaint ought to be considered under Article 5 § 4 of the
Convention.
- Article
5 §§ 3 and 4 reads as follows:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. 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.”
I. ADMISSIBILITY
- The Government submitted that the application should
be rejected for failure to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. The Government argued that the
applicants could have, pursuant to Article 128 of the Code of
Criminal Procedure, challenged the length of their detention in
police custody.
- The
Court notes that the remedy invoked by the Government concerns the
detention in police custody, while the subject matter of the present
application is the length and lawfulness of the applicants' detention
on remand. It therefore rejects the Government's preliminary
objection.
- The
Court further concludes that the application is not inadmissible on
any other grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The applicants complained that their detention pending
trial exceeded the “reasonable time” requirement of
Article 5 § 3 of the Convention.
- The
Government contested that argument.
- The Court reiterates that it falls in the first place
to the national judicial authorities to ensure that, in a given case,
the pre-trial detention of an accused person does not exceed a
reasonable time. To this end they must, paying due regard to the
principle of the presumption of innocence, examine all the facts
arguing for or against the existence of a public interest justifying
a departure from the rule in Article 5 of the Convention, and must
set them out in their decisions on the applications for release. It
is essentially on the basis of the reasons given in these decisions
and of the well-documented facts stated by the applicant in his
appeals that the Court is called upon to decide whether or not there
has been a violation of Article 5 § 3 (see Muller
v. France, judgment of 17 March 1997, Reports of Judgments and
Decisions 1997 II, p. 388, § 35).
- The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. The Court must then establish whether the
other grounds given by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings (ibid.).
- In
the instant case, the Court notes that the applicants were placed in
detention on remand on 7 July 2001, 1 May 2001 and 25 April 2001,
respectively. All three of them were released pending trial on
21 November 2001. The first applicant was also detained on
remand, within the meaning of Article 5 § 3 of the Convention,
between 26 January 2004, the date on which the Court of Cassation
quashed his conviction and 23 September 2004, when he was
released pending trial once again. Consequently, the period to be
taken into consideration for the first applicant lasted approximately
one year, whereas the second and third applicants' detention on
remand lasted almost seven months.
- The
Bornova Criminal Court considered the applicants' continued detention
at the end of each hearing, either of its own motion or at the
request of the applicants' lawyer. However, the Court notes from the
material in the case file that the Bornova Criminal Court ordered the
applicants' continued detention pending trial using identical,
stereotyped terms, such as “having regard to the nature of the
offence and the state of the evidence”. Although, in general,
the expression “the state of the evidence” may be a
relevant factor for the existence and persistence of serious
indications of guilt, in the present case it nevertheless, alone,
cannot justify the length of the detention of which the applicant
complains (see Letellier v. France, judgment of 26 June 1991,
Series A no. 207; Tomasi v. France, judgment of 27 August
1992, Series A no. 241 A; Mansur v. Turkey, judgment
of 8 June 1995, Series A no. 319 B, § 55, and Demirel
v. Turkey, no. 39324/98, § 59, 28 January 2003).
- In the light of these considerations, the Court finds
that the length of the applicants' detention pending trial violated
Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicants argued that the review proceedings were not truly
adversarial. They maintained that as they were not brought before the
court which ordered their continued detention on remand and they had
not been given any access to the investigation files, they could not
properly question the lawfulness of their continued detention on
remand.
- The Government did not submit any observations on the
merits of this complaint.
- In
the Court's view, the applicants' complaint under this heading
concerns their detention which lasted until 21 November 2001, when
they were released pending trial and the proceedings before the
Bornova Criminal Court. It observes that after that date the first
and second applicants were already released pending trial and the
third applicant, who was the only one detained at the time, was
present before the court to challenge the lawfulness of his arrest.
The Court will therefore be dealing only with this period of
detention on remand.
- The Court recalls that Article 5 § 4 of the
Convention entitles arrested or detained persons to take proceedings
bearing upon the procedural and substantive conditions which are
essential for the “lawfulness”, in Convention terms, of
their deprivation of liberty (Brogan and Others v. the United
Kingdom, judgment of 29 November 1988, Series A no. 145 B,
pp. 34 35, § 65). The domestic court dealing with such
matters must provide the “guarantees of a judicial procedure”.
The proceedings must be adversarial and must always ensure equality
of arms between the parties - the prosecutor and the detainee
(Grauzinis v. Lithuania, no. 37975/97, § 31, 10
October 2000).
- These
requirements are derived from the right to an adversarial trial as
laid down in Article 6 of the Convention, which means, in a criminal
case, that both the prosecution and the defence must be given the
opportunity to have knowledge of and comment on the observations
filed and the evidence adduced by the other party. According to the
Court's case-law, it follows from the wording of Article 6 –
and particularly from the autonomous meaning to be given to the
notion of “criminal charge” – that this provision
has some application to pre-trial proceedings (see Imbrioscia
v. Switzerland, judgment of 24 November 1993, Series A no.
275, p. 13, § 36). It thus follows that, in view of
the dramatic impact of deprivation of liberty on the fundamental
rights of the person concerned, proceedings conducted under Article 5
§ 4 of the Convention should in principle also meet, to the
largest extent possible under the circumstances of an ongoing
investigation, the basic requirements of a fair trial, such as the
right to an adversarial procedure. While national law may satisfy
this requirement in various ways, whatever method is chosen should
ensure that the other party is aware that observations have been
filed and is given an opportunity to comment thereon (see, mutatis
mutandis, Brandstetter v. Austria, judgment of 28 August
1991, Series A no. 211, pp. 27 28, § 67).
- In
the instant case, the Bornova Criminal Court had jurisdiction to
examine the applicants' case. However, following their arrest the
applicants were brought before the Kızıltepe Criminal Court
which subsequently ordered their detention on remand. The Court
observes that, until they were released pending trial, this was the
only occasion that the applicants were brought before a judicial
authority. Yet, even on that occasion the Kızıltepe
Criminal Court merely informed the applicants of the charges against
them and noted their personal data (paragraph 8 above).
- The
Court notes that the Bornova Criminal Court ordered the prolongation
of their detention in the applicants' absence, by examining the case
file which did not contain their statements. It further notes that
the Government did not explain why the applicants were not
transported from the Kızıltepe Prison to the court house
where the proceedings were pending.
- The
Court observes that even at the hearing of 21 November 2001, when the
Bornova Criminal Court ordered the Kızıltepe Criminal Court
to take the applicants' statements and subsequently release them, it
did not specify any reason for their release. Therefore, although the
applicants' lawyer was present during some of the hearings where the
court reviewed the applicants' detention on remand, in the absence of
any reasoning he did not have any possibility to effectively
challenge its lawfulness.
- In
view of the above, the Court concludes that the applicants were not
given the guarantees appropriate to the kind of deprivation of
liberty in question. Accordingly there has been a breach of Article 5
§ 4 of the Convention.
IV. 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
applicants maintained that their arrest and detention had a negative
effect on their business. Thus, the first applicant claimed
5,000 euros (EUR) in respect of pecuniary damage, while the
second and third applicants claimed EUR 10,000. Furthermore they
claimed EUR 10,000, EUR 15,000 and EUR 20,000 respectively, for
non-pecuniary damage.
- The
Government contended that the claim for pecuniary damages was
unsubstantiated. Moreover, they claimed that the applicants' claim
for non-pecuniary damage were excessive. They submitted that, if the
Court were to find a violation, the judgment would in itself
constitute sufficient just satisfaction for the purposes of Article
41.
- The
Court considers that the applicants' claim for pecuniary damages is
not substantiated; it therefore rejects this claim. On the other
hand, it awards the first applicant EUR 2,000 and the second and
third applicants each EUR 1,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 7,000 for costs and expenses incurred
before the domestic authorities and the Court. In support of their
claim, the applicants submitted the Istanbul Bar Association's
recommended minimum fees list for 2006. However, they did not submit
any receipt or invoice.
- The
Government disputed the applicants' claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and was reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicants, jointly, the global sum of EUR
1,500 covering costs under all heads.
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 application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following sums, to be
converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
2,000 (two thousand euros) to the first applicant for non pecuniary
damage,
(ii) EUR
1,500 (one thousand five hundred euros) each to the second and third
applicants for non-pecuniary damage,
(iii) EUR
1,500 (one thousand five hundred euros) jointly for costs and
expenses,
(iv) plus
any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
