SECOND SECTION

CASE OF HATİCE DUMAN v. TURKEY

(Application no. 43918/08)

JUDGMENT

STRASBOURG

22 May 2012

This judgment is final but it may be subject to editorial revision.

In the case of Duman v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Isabelle Berro-Lefèvre, President,
	Guido Raimondi,
	Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 17 April 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 43918/08) 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 Hatice Duman (“the applicant”), on 12 September 2008.
2.  The applicant was represented by Mr F. Ertekin, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 8 February 2010 the application was communicated to the Government.
4.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1974 and is currently serving her sentence in Gebze Prison.
6.  On 9 April 2003 the applicant was arrested on suspicion of membership to MLKP (Marxist-Leninist Communist Party), an illegal organisation.
7.  On 13 April 2003 she was taken before the public prosecutor and the investigating judge who subsequently ordered her pre-trial detention.
8.  On 23 July 2003 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and eight other persons charging them with attempting to undermine the constitutional order of the State, membership of, or aiding and abetting to an illegal organisation.
9.  Following the abolition of the State Security Courts by Law no. 5190, the criminal proceedings were resumed by the Istanbul Assize Court.
10.  During the proceedings, the Istanbul Assize Court decided to prolong the applicants’ pre-trial detention and rejected her request to be released pending trial a number of times on the basis of the reasonable grounds of suspicion that she had committed the offence, the severity of the criminal charge against her and the state of the evidence in the case file.
11.  At the hearing of 1 April 2009, the Istanbul Assize Court, once more, rejected the applicant’s claim that her detention had been unreasonably lengthy and that she should be released pending trial.
12.  The applicant challenged the above-mentioned decision by lodging an objection with the higher division of the Assize Court.
13.  In the course of the proceedings for the review of her detention, the applicant alleges that neither she nor her lawyer was given an opportunity to make any oral submissions against the lawfulness of her continued detention in a hearing and that they were not notified of the observations submitted by the public prosecutor.
14. On 17 April 2009 the 13th Chamber of the Istanbul Assize Court rejected the applicant’s objection against the prolongation of her detention, taking into account the nature of the criminal charge and the establishment of reasonable suspicion that she had committed the alleged crime.
15.  On the basis of the evidence before it, on 4 May 2011 the Istanbul Assize Court convicted the applicant of attempting to undermine the constitutional order, pursuant to Article 146 § 1 of the former Criminal Code, and sentenced her to life imprisonment.
16.  According to the latest information provided in the case file, the applicant has lodged an appeal against the judgment with the Court of Cassation, before which the proceedings are currently pending.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
17.  Relying on Article 5 § 3 of the Convention, the applicant complained that the length of her pre-trial detention had been excessive.
18.   The Government submitted a preliminary objection that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. They maintained in this connection that she could have sought compensation for her allegedly unlawful detention pursuant to Law no. 466 which was replaced by Article 141 of the new Code of Criminal Procedure (Law no. 5271) entered into force on 1 June 2005.
19.  The applicant disputed the Government’s argument.
20.  As regards the Government’s preliminary objection concerning non‑exhaustion of the domestic remedies provided under Law no. 466 or Law no. 5271, the Court observes that lodging a claim for compensation as indicated by the Government under these laws would not make it possible to end detention of excessive length while the criminal proceedings are pending, therefore, they may not be considered an effective remedy within the meaning of Article 5 § 3 of the Convention in these circumstances (see Barış v. Turkey, no. 26170/03, § 17, 31 March 2009, and Tunce and Others v. Turkey, nos. 2422/06, 3712/08, 3714/08, 3715/08, 3717/08, 3718/08, 3719/08, 3724/08, 3725/08, 3728/08, 3730/08, 3731/08, 3733/08, 3734/08, 3735/08, 3737/08, 3739/08, 3740/08, 3745/08 and 3746/08, §15, 13 October 2009). Accordingly, the Court rejects the Government’s preliminary objection.
21.  The Court notes that this complaint is not manifestly ill-founded nor it is inadmissible on any other grounds. It must therefore be declared admissible.
22.   As regards the merits of the complaint, the Government maintained that the applicant’s continued detention had been reasonable, having regard to the severity of charges brought against her, the existence of reasonable grounds of suspicion of her having committed the alleged offences, the protection of evidence and the risk of absconding. The Government further argued that the number of accused persons and criminal charges involved in the proceedings resulted in complexities in the collection of evidence.
23.  The Court notes that the applicant was detained on 9 April 2003 and was convicted by the Istanbul Assize Court on 4 May 2011. Thus, the period that she was held in pre-trial detention lasted over eight years.
24.  The Court has frequently found violations of Article 5 § 3 of the Convention in cases raising similar issue to that in the present application (see, for example, Dereci v. Turkey, no. 77845/01, § 39, 24 May 2005, and Cahit Demirel v. Turkey, no. 18623/03, § 25, 7 July 2009).
25.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its established case-law on the subject, the Court finds that in the instant case the length of the applicant’s pre-trial detention was excessive.
26.  There has accordingly been a violation of Article 5 § 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
27.  The applicant complained that there had been no effective remedy provided by the domestic legal system whereby she could effectively challenge her continued pre-trial detention. In that respect, the applicant argued that she had not been afforded a fair and adversarial hearing in the review of her continued detention by the 13th Chamber of the Istanbul Assize Court as no oral hearing had been held in the proceedings and the public prosecutor’s written opinion against her release had not been notified to her or her lawyer.
28.  The Government contested that argument, submitting that the applicant had had effective avenues under the domestic law to challenge the decision extending her pre-trial detention.
29.  The Court notes that the complaint is not inadmissible on any grounds and must therefore be declared admissible.
30.  The Court reiterates that the proceedings conducted for the review of a detainee person’s continued detention pursuant to Article 5 § 4 of the Convention must be adversarial and must ensure “equality of arms” between the parties, namely the prosecutor vis-à-vis the detained person (see Nikolova v. Bulgaria [GC], no 31195/96, § 58, ECHR 1999 II).
31.  Turning to the facts of the present case, the Court observes that the 13th Chamber of the Istanbul Assize Court ruled on the applicant’s objection to the decision of 1 April 2009 prolonging her pre-trial detention after having received the public prosecutor’s opinion. However, these observations, which stated that the applicant’s pre-trial detention should be continued, were not communicated to the applicant or her lawyer during the proceedings, thus they were not given any opportunity to respond them. Subsequently, on 17 April 2009 the higher division of the Assize Court decided in accordance with the public prosecutor’s opinion and dismissed the applicant’s objection.
32.  Under these circumstances, the Court considers that the applicant and her lawyer were denied an adversarial hearing in the appeal proceedings as the domestic authorities failed to respect the principle of equality of arms. This element is sufficient to conclude that the procedure in which the applicant’s continued detention was reviewed by the higher court did not meet the requirements of Article 5 § 4 of the Convention.
33.  Accordingly, the Court finds a violation of Article 5 § 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
A.  Damages and costs and expenses

34.  The applicant claimed 25,672 euros (EUR) and EUR 30,000 for pecuniary and non-pecuniary damage respectively, on the basis of loss of her earning and the alleged anguish and distress she had suffered.
35.  The Government contested these claims as unsubstantiated and excessive.
36.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have suffered non‑pecuniary damage which cannot be compensated solely by the finding of violations. Having regard to the gravity of the violations and to equitable considerations, it awards the applicant EUR 8,800 for non-pecuniary damage.
37.  The applicant also claimed EUR 8,764 for the costs and expenses incurred during the domestic proceedings and before the Court. In this respect, the applicant submitted an invoice for legal fees and expenses incurred in the proceedings before the domestic courts, the Bar Association’s tariff for legal fees, as well as invoices in connection with translations, postal service and stationery expenses.
38.  The Government contested these claims.
39.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads.
B.  Default interest
40.  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 application admissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention on account of the length of the applicant’s pre-trial detention;

3.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of the lack of an effective domestic remedy by which to challenge the lawfulness of the applicant’s pre-trial detention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts to be converted into Turkish lira at the rate applicable at the date of settlement:
(i)  EUR 8,800 (eight thousand and eight hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(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 22 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Françoise Elens-Passos	Isabelle Berro-Lefèvre
	Deputy Registrar	President