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SECOND
SECTION
CASE OF ABA v. TURKEY
(Applications
nos. 7638/02 and 24146/04)
JUDGMENT
STRASBOURG
3
March 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 Aba 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,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 10 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 7638/02 and 24146/04)
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
Sakine Aba (“the applicant”), on 12 September 2001 and 5
May 2004 respectively.
- The
applicant was represented by Mr A.A. Talipoğlu, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
26 September 2006 the Court decided to join the applications,
declared them partly inadmissible (the complaints which had been
raised in application no. 24146/04) and decided to communicate to the
Government complaints concerning the applicant's time in police
custody – its length, an alleged absence of a right to
compensation and a lack of legal assistance. It also decided to
examine the merits of the applications at the same time as their
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1965 and lives in Istanbul. She was arrested
and placed in police custody on suspicion of membership of an illegal
organisation. During her custody period, she was interrogated by the
police, the public prosecutor and the investigating judge
respectively, in the absence of a lawyer. These statements were
subsequently used for her conviction by the trial court.
The
details of the application are indicated in the table below.
|
Date of police custody
|
Date of interrogation by the police
|
Date of interrogation by the public prosecutor
and the investigating judge
|
Date of final decision by the Court of Cassation
|
|
2 April 2001
(according to the
Search, Arrest and Seizure Protocol) -
7 April 2001
(date of detention on remand)
|
3 April 2001
|
7 April 2001
|
15 December 2003
|
THE LAW
- Relying
on Article 5 § 3 of the Convention, the applicant complained
that the length of her police custody exceeded the reasonable time
requirement. Under Article 5 § 5 of the Convention, she further
maintained that she did not have any remedy whereby to seek
compensation for the time she had spent in police custody. Finally,
invoking Article 6 §§ 3 (c) of the Convention, the
applicant complained that she had been denied the assistance of a
lawyer during this same period.
- The
Court notes that these complaints of the applicant are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
- As
regards the complaint raised under Article 5 § 3 of the
Convention, the Court notes that the applicant's police custody
lasted five days. It reiterates that in the case of Brogan and
Others v. the United Kingdom, (29 November 1988, § 62,
Series A no. 145 B), it held 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 if its purpose was to protect the community as a
whole against terrorism. In the present case, the Court cannot accept
that it was necessary to detain the applicant for five days without
being brought before a judge or another officer authorised by law to
exercise judicial power. There has accordingly been a violation of
Article 5 § 3 of the Convention.
- As
regards the complaint of an absence of a remedy in compensation under
Article 5 § 5 of the Convention, the Court has examined the
present case and finds no particular circumstances which would
require it to depart from its established case-law on the matter, to
the effect that, indeed, no such remedy was available to the
applicant (see, Saraçoğlu and Others v. Turkey,
no. 4489/02, §§ 50-53, 29 November 2007; Sinan Tanrıkulu
and Others v. Turkey, no. 50086/99, § 50, 3 May 2007;
Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May 2007).
There has accordingly been a violation of Article 5 § 5 of the
Convention.
- Finally,
as regards the complaint concerning the lack of legal assistance to
the applicant during her police custody, the Court observes that it
has already examined the same grievance in the case of Salduz v.
Turkey and found a violation of Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1 ([GC],
no. 36391/02, §§ 56-62, 27 November 2008). In the present
case, it finds no particular circumstances which would require it to
depart from its findings in the aforementioned Salduz
judgment. There has therefore been a violation of Article 6 §
3 (c) of the Convention in conjunction with Article 6 § 1 in the
present case.
- Concerning
just satisfaction, the applicant claimed 423 euros (EUR) in respect
of pecuniary damage and EUR 50,000 in respect of non-pecuniary
damage. Based on the Istanbul Bar Association's scale of fees, she
further requested EUR 4,772 in respect of her lawyer's fees and EUR
583 in respect of costs and expenses.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, in respect of non-pecuniary damage, ruling on an equitable
basis, it awards EUR 3,000 to the applicant.
- It
further considers that the most appropriate form of redress would be
the re-trial of the applicant in accordance with the requirements of
Article 6 § 1 of the Convention, should the applicant so request
(see, mutatis mutandis, Gençel v. Turkey, no.
53431/99, § 27, 23 October 2003, and Salduz, cited above,
§ 72).
- According
to its relevant case-law, in respect of costs and expenses, and in
the light of the documents in its possession, the Court considers it
reasonable to award the sum of EUR 1,500 to the applicant less the
sum of EUR 850 received in legal aid from the Council of Europe.
- The
Court further finds 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 remainder of the applications
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 § 5 of the Convention;
4. Holds that there has been a violation of Article 6 §
3 (c) of the Convention in conjunction with Article 6 § 1, on
account of the lack of legal assistance to the applicant while in
police custody;
- 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, the following amounts, to
be converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
3,000 (three thousand euros) plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros), less the EUR 850 (eight
hundred and fifty euros) received in legal aid, 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 March 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
