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SECOND
SECTION
CASE OF İPEK AND OTHERS v. TURKEY
(Applications
nos. 17019/02 and 30070/02)
JUDGMENT
STRASBOURG
3
February 2009
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 İpek and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl Karakaş,
judges,
and Sally Dollé,
Section Registrar,
Having
deliberated in private on 13 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 17019/02 and 30070/02)
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 Çetin İpek, Mr Murat Özpamuk and Mr Seyithan
Demirel (“the applicants”), on 9 February 2002 and
30 April 2002 respectively.
- The
applicants were represented by Mr M.S. Tanrıkulu, a lawyer
practising in Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
- On
17 October 2006 the Court joined the cases, declared them partly
inadmissible and decided to communicate the applicants' complaints
under Article 5 §§ 1, 3, 4 and 5 to the Government. It also
decided to examine the merits of the applications at the same time as
their admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1985 and live in Diyarbakır. At the time
of the events they were sixteen years old.
- According
to the official documents, in connection with an ongoing
investigation against an illegal armed organisation, namely the PKK
(the Workers' Party of Kurdistan), the police received information
that the second applicant, a suspected member of that organisation,
had arrived from the rural area in order to conduct activities in
cities on behalf of the organisation. Having established the second
applicant's address in Diyarbakır, the police conducted a search
of the premises, on 1 December 2001 at 1.20 a.m., and arrested the
second applicant. The other applicants, who were also present during
the house during the search, were similarly arrested and taken into
police custody in order to establish any link they might have had
with the organisation. The police did not find anything illegal or
incriminating during the search.
- On
the same night, at around 2.15 a.m., the applicants were taken for a
medical examination at the Diyarbakır State Hospital.
- According
to the custody records, the police informed the fathers' of first and
the third applicant and the second applicant's mother of their arrest
and detention.
- On
2 December 2001 the police searched the house of the first applicant
but did not find anything illegal or incriminating.
- Upon
the request of the police, the Diyarbakır public prosecutor
(hereinafter the prosecutor) extended the applicants' detention for
two days on 3 December 2001.
- On
the same day, the applicants were questioned by the police. Since
they were accused of offences falling within the jurisdiction of the
State Security Courts, they could not benefit from the assistance of
a lawyer despite their age.
- The
custody records noted the end of the applicants' custody at 10.40
a.m. on 4 December 2001.
- Later
the same day, the applicants were taken for a medical examination at
the Bağlar Medical Clinic.
- Afterwards,
the applicants were first brought before the prosecutor and then to
the Diyarbakır State Security Court (hereinafter the SSC). The
latter, after having heard them, ordered their remand in custody.
- On
5 December 2001 the prosecutor, relying mainly on the basis of the
applicants' statements obtained during the pre-trial investigation,
filed a bill of indictment with the SCC accusing the second applicant
of membership of an illegal organisation and the other applicants of
aiding and abetting that organisation. The charges were brought under
Articles 168 and 169 of the Turkish Criminal Code respectively.
- At
the first hearing held before the SSC, on 5 February 2002, the
applicants were released pending trial.
- No
further documentation has been submitted by the parties regarding
these proceedings before the SSC.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Domestic law and practice
- A
description of the relevant domestic law at the material time can be
found in the Ahmet Mete v. Turkey judgment, no. 77649/01, §§
17-18, 25 April, and the Daş v. Turkey judgment
(no. 74411/01, § 18, 8 November 2005).
B. Relevant international material
- The
recommendation of the Committee of Ministers to Member States of the
Council of Europe concerning new ways of dealing with juvenile
delinquency and the role of juvenile justice (Rec (2003)20),
adopted on 24 September 2003 at the 853rd
meeting of the Ministers' Deputies, in so far as relevant,
reads as follows:
“15. Where juveniles are detained in
police custody, account should be taken of their status as a minor,
their age and their vulnerability and level of maturity. They should
be promptly informed of their rights and safeguards in a manner that
ensures their full understanding. While being questioned by the
police they should, in principle, be accompanied by their
parent/legal guardian or other appropriate adult. They should also
have the right of access to a lawyer and a doctor. They should not be
detained in police custody for longer than forty-eight hours in total
and for younger offenders every effort should be made to reduce this
time further. The detention of juveniles in police custody should be
supervised by the competent authorities. ”
19. Article
37 of the Convention on the Rights of the Child (CRC), in so far as
relevant, reads as follows:
“States Parties shall ensure that: ...
(b) No child shall be deprived of his or her liberty
unlawfully or arbitrarily. The arrest, detention or imprisonment of a
child shall be in conformity with the law and shall be used only as a
measure of last resort and for the shortest appropriate period of
time;
(d) Every child deprived of his or her liberty
shall have the right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of the
deprivation of his or her liberty before a court or other competent,
independent and impartial authority, and to a prompt decision on any
such action.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants complained of violations of Article 5 §§ 1,
3, 4 and 5 of the Convention, which read insofar as relevant as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law: ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
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.
5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
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 connection, they maintained, firstly, that the applicants could
have challenged the legality of their detention in custody pursuant
to Article 19 of the Constitution in conjunction with Article 128
of the Code of Criminal Procedure. Secondly, the Government submitted
that the applicants could also have sought compensation pursuant to
Law no. 466 pertaining to the payment of compensation to persons
unlawfully arrested or detained. In the alternative, the Government
maintained that the applicants had failed to comply with the
six month rule.
- The
applicants rejected the Government's arguments.
- As regards the first limb of the Government's
objections, the Court observes that it has already examined and
rejected it in similar cases (see, for example, Öcalan v.
Turkey [GC], no. 46221/99, §§ 66-71, ECHR
2005-IV, Ayaz and Others v. Turkey, no. 11804/02, §§
23-24, 22 June 2006, and Hacı Özen v. Turkey, no.
46286/99, § 71, 12 April 2007). The Court finds no
particular circumstances in the instant case which would require it
to depart from its findings in those applications. In view of the
above, the Court rejects the Government's objection.
- As
to the second limb of the Government's objections, the Court
reiterates that, according to its established case-law, where no
domestic remedy is available, the six-month period runs from the date
of the act alleged to constitute a violation of the Convention;
however, where it concerns a continuing situation, the period of
six-months runs from the end of the situation concerned (see, for
example, Cengiz Polat v. Turkey, no. 40593/04, §
44, 11 December 2007). In the instant case, the applicants were
remanded in custody on 4 December 2001 and lodged an application with
the Court on 9 February 2002 and 30 April 2002 respectively.
Accordingly, the application was lodged within six months of the date
on which the act complained of ended. In view of the above, the Court
also rejects the Government's objection under this head.
- Moreover, the Court notes that this part of the
application is not manifestly ill founded within the meaning of
Article 35 § 3 of the Convention. No other grounds for declaring
it inadmissible has been established. It must therefore be declared
admissible.
B. Merits
1. Article 5 § 1
- The
applicants submitted that there had been no reasonable suspicion
warranting their arrest.
- The
Government disagreed. They maintained that the applicants were taken
into custody on suspicion of being members of a terrorist
organisation and conducting activities in urban areas on behalf of
that organisation.
- The Court reiterates that, in order for an arrest on
reasonable suspicion to be justified under Article 5
§ 1
(c),
it is not necessary for the police to have obtained sufficient
evidence to bring charges, either at the point of arrest or while the
applicant is in custody (see Brogan and Others v. the United
Kingdom, 29 November 1988, § 53, Series A no. 145 B).
Neither is it necessary that the person detained should ultimately
have been charged or brought before a court. The object of detention
for questioning is to further a criminal investigation by confirming
or dispelling suspicions which were the grounds for detention (see
Murray v. the United Kingdom, 28 October 1994, § 55,
Series A no. 300-A).
- However,
the requirement that the suspicion must be based on reasonable
grounds forms an essential part of the safeguard against arbitrary
arrest and detention. The fact that a suspicion is held in good faith
is insufficient. The words “reasonable suspicion” mean
the existence of facts or information which would satisfy an
objective observer that the person concerned may have committed the
offence (see Fox,
Campbell
and Hartley
v. the United Kingdom, 30 August
1990, § 32, Series A no. 182). The Court stresses in this
connection that, in the absence of a reasonable suspicion, the arrest
or detention of an individual must never be imposed for the purpose
of making him confess, testify against others or elicit facts or
information which may serve to ground a reasonable suspicion (see
Cebotari v. Moldova,
no. 35615/06, § 48, 13 November 2007).
- The
Court notes in this context that the second applicant was arrested in
the course of an investigation into an illegal armed organisation of
which he was suspected of being a member, and of having gone to the
city in order to conduct activities on its behalf. In these
circumstances, the suspicion against him may be considered to have
reached the level required by Article 5 § 1 (c), as the purpose
of the deprivation of liberty was to confirm or dispel the suspicions
about his involvement in this illegal organisation. In the light of
the foregoing, the Court concludes that there has been no violation
of Article 5 § 1 of the Convention in respect of Mr Özpamuk
(see Saraçoğlu and Others v. Turkey, no. 4489/02,
§ 28, 29 November 2007).
- As
regards the other applicants, however, it appears that they were
arrested merely because they were at the second applicant's house at
the time of the search. Against this background and in the absence of
any information or documents demonstrating the contrary, the Court
considers that, at the time of their arrest, these applicants were
not detained on reasonable suspicion of having committed an offence,
or to prevent their committing an offence, within the meaning of
Article 5 § 1 (c) of the Convention (see Tuncer and Durmuş
v. Turkey, no. 30494/96, § 50, 2 November 2004).
There has accordingly been a violation of this provision in respect
of Mr İpek and Mr Demirel.
2. Article 5 § 3
- The
applicants complained that their detention in police custody had
exceeded the reasonable time requirement.
- The
Government argued that the length of the applicants' detention of
about three days and nine hours in police custody was in conformity
with the legislation in force at the time and compatible with the
Convention case- law. In particular, they submitted that the
complexity of the case, their relation with a terrorist organisation
and the state of evidence led to the continuation of the applicants'
custody period and that the necessary due diligence was displayed in
the present case.
- The Court observes that Article 5
§ 3
requires that an arrested individual be brought promptly before a
judge or judicial officer, to allow detection of any ill-treatment
and to keep to a minimum any unjustified interference with individual
liberty. While promptness has to be assessed in each case according
to its special features (see, among others, Aquilina
v. Malta, [GC], no. 25642/94, §
48, ECHR 1999-III), the strict time constraint imposed by this
requirement of Article 5
§ 3 leaves little
flexibility in interpretation, otherwise there would be a serious
weakening of a procedural guarantee to the detriment of the
individual, and the risk of impairing the very essence of the right
protected by this provision (see, for example, McKay v. the United
Kingdom [GC], no. 543/03, § 33, ECHR 2006-...).
- The
Court has accepted on several occasions that the investigation of
terrorist offences undoubtedly presents the authorities with special
problems (see Brogan and Others, cited above, § 61,
Murray, cited above, § 58; Aksoy v. Turkey,
18 December 1996, § 78, Reports of Judgments and Decisions
1996-VI, Demir and Others v. Turkey, 23 September 1998,
§ 41, Reports 1998-VI, and Dikme v. Turkey,
no. 20869/92, § 64, ECHR 2000-VIII). This does not mean,
however, that the investigating authorities have carte blanche
under Article 5 to arrest suspects for questioning, free from
effective control by the domestic courts and, ultimately, by the
Convention supervisory institutions, whenever they choose to assert
that terrorism is involved (see Murray, cited above, § 58).
- The
Court reiterates that it has held, on many occasions, that the strict
time constraint imposed for detention without judicial control is a
maximum of four days (see McKay, cited above, §
47, in fine). In the instant case the applicants were brought
before a judge approximately three days and nine hours after their
arrest. As such, the length of the applicants' detention in police
custody is, prima facie, compatible with the requirements of
Article 5 § 3. However, for the particular reasons stated below,
the Court considers that the delayed presentation of the applicants
to a judge does not appear to have been sufficiently prompt, within
the meaning of that provision. Firstly, the
Court attaches great importance to the fact that the applicants were
minors at the time of their arrest. However, this fact does not
appear to have been taken into consideration by the investigative
authorities, particularly the prosecutor, who extended the
applicants' detention for two additional days. Secondly, these minors
were incarcerated for more than three days in the absence of any
safeguards - such as access to a lawyer – against possible
arbitrary conduct by the State authorities. Finally, during this
time, the only investigative measures taken by the police with regard
to the applicants appears to have been limited to questioning them on
3 December 2001 - some two days after their arrest and a day before
they were brought before a judge. If other investigative measures
were undertaken, the Government have failed to indicate them to the
Court. In such circumstances, the Court, especially in view of the
applicants' young age, finds that none of the arguments put forward,
in general terms, by the Government is sufficient to justify their
detention in police custody for more than three days, even in the
context of terrorist investigations.
- In
these circumstances, the Court finds no special difficulties or
exceptional circumstances which would have prevented the authorities
from bringing the applicants before a judge much sooner (see, mutatis
mutandis, Kandzhov v. Bulgaria, no. 68294/01, § 66, 6
November 2008,
Koster v. the Netherlands, 28 November 1991, § 25, Series
A no. 221, and Rigopoulos v. Spain (dec.), no. 37388/97,
ECHR 1999-II).
- There
has therefore been a violation of Article 5
§ 3 of
the Convention.
3. Article 5 § 4
- The
applicants alleged under Article 5 § 4 that there were no
effective remedies in domestic law to challenge the lawfulness of
their arrest and detention in police custody.
- The Government contended that Article 128 of the Code
of Criminal Procedure, which was in force at the material time,
provided an effective remedy by which to challenge the lawfulness of
detention in police custody.
- The Court points out that, in several cases raising
similar questions to those in the present case, it rejected the
Government's aforementioned submission and found a violation of
Article 5 § 4 of the Convention (see, among others, Öcalan,
cited above, § 76, Özçelik v. Turkey,
no. 56497/00, § 34, 20 February 2007, and Saraçoğlu
and Others, cited above, § 46). The Court finds no
particular circumstances in the instant case which would require it
to depart from such earlier findings.
- In conclusion, the Court holds that there has been a
violation of Article 5 § 4 of the Convention.
4. Article 5 § 5
- The
applicants complained under Article 5 § 5 that they had not had
a right to compensation in respect of the unlawfulness of their
arrest and detention in police custody.
- The
Government repeated that, in cases of illegal detention, a request
for compensation could be submitted within three months of the final
decision of the trial court, pursuant to Law no. 466 on compensation
payable to persons unlawfully arrested or detained.
- The
Court notes that an action for compensation under Law no. 466
could be brought for damage suffered as a result of, inter alia,
an unlawful deprivation of liberty (Section 1 § 1) or a lawful
detention if the person is not subsequently committed for trial, or
is acquitted or discharged after standing trial (Section 1 §
6).
- The
Court observes at the outset that the applicants' detention in police
custody was in conformity with the domestic law. Consequently, they
could not seek compensation for an unlawful deprivation of liberty
using the remedy foreseen by Section 1 § 1 of Law no. 466 (see
Çetinkaya and Çağlayan v. Turkey, nos.
3921/02, 35003/02 and 17261/03, § 46, 23 January 2007). In
the absence of any documents regarding the outcome of the criminal
proceedings against them, the Court cannot speculate whether the
applicants had the possibility of bringing a case for
compensation relying on Section 1 § 6 of Law no. 466.
However, since it has already held that the national courts, when
awarding compensation under the terms of Section 1 §
6, base their assessment solely on the conditions required by that
law and not whether the deprivation of liberty was in contravention
of the first four paragraphs of Article 5 (see Sinan Tanrıkulu
and Others v. Turkey, no. 50086/99, § 50, 3 May
2007, Medeni Kavak v. Turkey, no. 13723/02, § 34,
3 May 2007, and Saraçoğlu and Others, cited above,
§ 52), the Court also finds that the applicants did not
have an enforceable right to compensation, under the provisions of
Section 1 § 6 of Law no. 466, for their deprivation of
liberty in breach of Article 5 §§ 1 (for the first and the
third applicant), 3 and 4 of the Convention, as required by Article 5
§ 5 of the Convention.
- There
has accordingly been a violation of Article 5 § 5 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
their additional observations the first and the second applicant
further complained under Article 6 of the Convention that they
had been denied legal assistance in the initial stages of the
proceedings.
- The
Court observes that these applicants, who are represented by a lawyer
experienced in Convention proceedings, have failed to submit any
documents demonstrating that the requirements of Articles 34 and 35
of the Convention have been met in relation to this complaint.
- 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
applicants Mr İpek and Mr Özpamuk each claimed, in
total, 50,000 euros (EUR) in respect of non-pecuniary damage.
Mr Demirel claimed EUR 35,000 in respect of non-pecuniary
damage.
- The
Government contested the amounts.
- The
Court considers that the applicants should be awarded compensation
for non-pecuniary damage since they undoubtedly suffered considerable
distress on account of the facts of the case. Making an assessment,
on an equitable basis, it awards Mr İpek and Mr Demirel, each,
EUR 1,500, and Mr Özpamuk EUR 1,000 in this respect.
B. Costs and expenses
- The
applicants Mr İpek and Mr Özpamuk claimed EUR 4,788
for legal fees, including those incurred before the domestic courts.
Mr Demirel claimed EUR 2,565 for legal fees. The applicants
further asked to be awarded an amount corresponding to the legal aid
given by the Council of Europe, in respect of costs and expenses. The
applicants submitted legal fees' agreement concluded with their legal
representative, the Diyarbakır Bar Association's scale of fees'
and a time sheet prepared by their legal representative.
- The
Government contested the amount.
- According
to the Court's case-law, 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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the applicants, jointly, the sum
of EUR 2,000 for the proceedings before the Court.
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 applicants' complaints under
Article 5 §§ 1 (c), 3, 4 and 5 admissible and the remainder
of the applications inadmissible;
- Holds that there has been no violation of
Article 5 § 1 (c) of the Convention in respect of the applicant
Mr Özpamuk;
- Holds that there has been a violation of Article
5 § 1 (c) of the Convention in respect of the applicants Mr İpek
and Mr Demirel;
- 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 that there has been a violation of Article
5 § 5 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
amounts, to be converted into Turkish liras at the rate applicable at
the date of settlement:
i) EUR
1,500 (one thousand five hundred euros) each to Mr İpek and
Mr Demirel and EUR 1,000 (one thousand euros) to Mr Özpamuk,
plus any tax that may be chargeable, in respect of non pecuniary
damage;
ii) EUR
2,000 (two thousand euros) jointly, plus any tax that may chargeable
to the applicants, for 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 3 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
