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SECOND
SECTION
CASE OF HACI ZEKİ UZUN v. TURKEY
(Application
no. 11564/02)
JUDGMENT
STRASBOURG
27
March 2008
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 Hacı Zeki Uzun v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Ireneu
Cabral Barreto,
Rıza
Türmen,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria, judges,
and
Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 4 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11564/02) 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 a Turkish national, Mr Hacı Zeki Uzun
(“the applicant”), on 21 March 2000.
- The
applicant was represented by Ms A. Bingöl and Ms G. Kartal,
lawyers practising in Istanbul. The Turkish Government
(“the Government”) were represented by their Agent.
- On
14 September 2006 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, a gynaecologist, was born in 1956 and lives in İzmir.
- In
the course of an investigation into the PKK (the Kurdistan Workers'
Party), an illegal armed organisation, the applicant's name was
mentioned by a few detainees suspected of membership of that
organisation and a convicted confessor (itirafcı)
as having provided assistance to that organisation.
- On
19 October 1999, at around 6.30 p.m., the applicant was arrested and
taken into police custody at his medical practice. The applicant
claims that he was arrested in a humiliating manner, in front of his
staff and patients, and that he was sworn at and beaten in the police
car.
- On
20 October 1999 the applicant's house and medical practice was
searched. The applicant claims that the police officers continued to
swear, threaten and humiliate him on this occasion.
- The
Government submitted that the applicant's detention in police custody
was first prolonged, on 21 October 1999, for an additional two days
by the prosecutor and later prolonged, on 23 October 1999, for an
additional three days by a judge at the State Security Court.
- The
applicant alleges that, while he was in police custody, he was
ill treated. In particular, he complains of having received
electric shocks, of having been suffocated, and of having been beaten
and threatened. He also alleges that, during the first three days of
his detention, he had been deprived of food and medication and
prevented from sleeping.
- On
25 October 1999 the applicant was heard first by the public
prosecutor and later by a judge at the İzmir State Security
Court. The latter ordered his release from custody.
- Following
the applicant's complaint, the İzmir public prosecutor
instigated an investigation into the events. On 26 November 1999 the
İzmir public prosecutor decided not to prosecute the police
officers at the anti terror branch of the İzmir Security
Directorate. In its decision the prosecution noted that none of the
persons put forward as witnesses by the applicant were able to
confirm the applicant's version of events, that the applicant was
unable to identify the alleged perpetrators and that none of the
medical reports, dated 19 October 1999, 23 October 1999 and
25 October 1999 save for one dated 11 November 1999, i.e.
fifteen days after the events, noted any physical findings of
ill-treatment. The applicant did not object to this decision.
- The
criminal proceedings brought against the applicant before the İzmir
State Security Court for aiding and abetting an illegal armed
organisation ended on 23 May 2000 with his acquittal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law can be found in Öcalan
v. Turkey ([GC], no. 46221/99, ECHR 2005-IV) and Sakık
and Others v. Turkey (26 November 1997, Reports of
Judgments and Decisions 1997 VII).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention in police
custody was in breach of Article 5 § 3 of the Convention, which
provides as follows:
“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.”
A. Admissibility
- The
Government asked the Court to dismiss the application for failure to
comply with the requirement of exhaustion of domestic remedies under
Article 35 § 1 of the Convention. In this respect, they argued
that the applicant could have challenged his detention in police
custody pursuant to Article 128 § 4 of the Criminal Code,
Article 13 § 2 of Law no. 2845 and Articles 297-304 of the
Criminal Code of Procedure. They further claimed that he could have
sought compensation for having been unlawfully arrested or detained,
pursuant to Law no. 466.
- The
applicant did not specifically deal with the Government's arguments
under this head.
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objection in similar cases (see, in
particular, Ayaz and Others v. Turkey, no. 11804/02, §§
23-24, 22 June 2006;
Hacı Özen v. Turkey,
no. 46286/99, § 71, 12 April 2007; Keklik and Others
v. Turkey, no. 77388/01, §§ 29-30, 3 October 2006;
and Ferhat Berk v. Turkey, no. 77366/01, §§
21-22 and 26-27, 27 July 2006). The Court finds no particular
circumstances in the instant case which would require it to depart
from its findings in these applications.
- In
view of the above, the Court rejects the Government's preliminary
objection.
- The
Court finds 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
1. The parties' submissions
- The
Government maintained that the applicant's custody period was in full
conformity with the domestic legislation in force at the time of the
incident. They pointed out, however, that the detention periods laid
down under Turkish law had been subsequently amended in compliance
with the case-law of the Court.
- The
applicant maintained his allegations.
2. The Court's assessment
- The
Court observes that the applicant's detention in police custody
lasted a little less than six days. It reiterates that, in the case
of Brogan and Others v. the United Kingdom (judgment of 29
November 1988, Series A no. 145 B, pp. 33-34, §
62), it found that detention in police custody which had lasted four
days and six hours without judicial control fell outside the strict
time constraints of Article 5 § 3 of the Convention, even though
its purpose was to protect the community as a whole against terrorism
(see, amongst others, Keklik and Others, § 41, cited
above).
- In
the light of the principles enunciated in the Brogan case, the Court
cannot accept that it was necessary to detain the applicant for such
a long time without judicial intervention, even if the activities of
which the applicant stood accused were serious.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his application form and later submissions, the applicant further
complained under Articles 3, 5, 6 and 8 of the Convention. In
particular, he complained that he had been ill-treated during his
arrest and detention in police custody, that he had been denied a
fair hearing within a reasonable time by an independent and impartial
tribunal on account of the presence of a military judge on the bench
of the State Security Court which tried him, that his house had been
unlawfully searched and that his telephone lines had been unlawfully
tapped. The applicant also claimed that his arrest was unlawful
because of the manner in which he was arrested and that he was not
informed promptly of the reasons for it. Finally, he submitted that
his right to be presumed innocent had been infringed as a result of
the publication of the preliminary investigation by the press and
that the domestic courts had failed to hear his witnesses.
- The
Government raised a number of objections regarding the admissibility
of these complaints.
- However, the Court does not find it necessary to
examine these objections since, in the light of all the materials in
its possession, the Court finds that the applicant's submissions
outlined at paragraph 25 above do not disclose any
appearance
of a violation
of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 1, 3 and 4 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.”
A. Damage
- The
applicant claimed, in total, 50,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
- The
Government contested the amount.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, deciding on an equitable basis, it awards the applicant
EUR 1,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 10,000 for the costs and expenses incurred
both before the domestic instances and the Court.
- The
Government contested the amount.
- Since
the applicant submitted no justification for this claim, as required
by Rule 60
of the Rules of Court, the Court makes no award.
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 complaint concerning the length of
the applicant's detention in police custody admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into new Turkish liras at the rate applicable at the date of the
settlement and free of any taxes or charges that may be payable;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens Deputy Registrar President
