SECOND
SECTION
CASE OF AVCI (CABAT) AND OTHERS v.
(Application no. 77191/01)
JUDGMENT
16 January 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 Avcı
(Cabat) and Others v.
The European Court of Human Rights (Second
Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé,
Section Registrar,
Having deliberated in private on 12 December
2006,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 77191/01) 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 five Turkish nationals, Ms Cennet
Avcı (Cabat), Ms Fadime Çelik (Kılıç), Ms Derya Binay, Ms
Gülşen Arslan and Ms Tamiş Akpınar (“the applicants”), on
25 October 2001.
2. The first applicant was
represented by Mr Z. Polat and the other applicants by Ms F. Kalaycı,
lawyers practising in
3. The applicants complained about
the length and lawfulness of their detention in police custody. Moreover, they
complained about the lack of an effective right to compensation for the alleged
violations of Article 5 of the Convention.
4. On 22 December 2005 the Court
decided to give notice of the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it also decided to examine the
merits of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born
in 1969, 1976, 1982, 1981 and 1959 respectively. The first three applicants
live in
6. On 28 April 2001 police
officers from the Anti-Terrorism Department of the Ankara Security Directorate
arrested the applicants Gülşen Arslan, Fadime Çelik and Derya Binay at
their house. According to the arrest report, the police acted upon a complaint
filed by the proprietor of the house, who suspected that the tenants were
carrying out some illegal activities on her property. Subsequently, the police
also searched the Tohum Cultural Centre and took Cennet Cabat and Tamiş
Akpınar into custody. They seized, among other things, large amounts of
bulletins, periodicals and leaflets which concerned propaganda against F-type
prisons.
7. On 29 April 2001, upon the
request of the Ankara Security Directorate, the Public Prosecutor at the
8. On 1 May 2001, upon the Public
Prosecutor’s request, a judge at the
9. On 4 May 2001 the
applicants were first brought before the Public Prosecutor and then the
investigating magistrate at the
10. On 1 June 2001 the Public
Prosecutor filed an indictment against the applicants on account of aiding and
abetting an illegal armed organisation, namely, the TKP/ML (the Turkish
Communist Party/ Marxist Leninist).
11. On 9 July 2002, during
the first hearing held before the
II. RELEVANT DOMESTIC LAW
12. A
description of the relevant domestic law can be found in Öcalan v. Turkey ([GC], no. 46221/99, 12 May 2005) and Sakık and Others v. Turkey (26
November 1997, Reports of Judgments and
Decisions 1997‑VII).
THE LAW
13. The applicants complained
of violations of Article 5 §§ 1, 3 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:
...
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.
...
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.”
I. ADMISSIBILITY
A. The Government’s preliminary
objections
14. The
Government argued that the application should be rejected for failure to
exhaust domestic remedies. They claimed that, pursuant to Article 128 of the Code of Criminal Procedure, which was then in
force, the applicants could have challenged the length of their detention in
police custody. They also claimed that it was possible for the applicants to
appeal against the judge’s decision to prolong their detention for three more
days, in accordance with Article 13 § 2 of the Law no. 2845.
15. The Court reiterates that
it has already examined and rejected the Government’s preliminary objections in
similar cases (see Öcalan, cited above, §§ 66‑71,
and Daş v. Turkey, no. 74411/01, §§ 20-23, 8 November
2005). The Court finds no particular circumstances in
the instance case which would require it to depart from its findings in these
previous applications.
16. In view of the above, the
Court rejects the Government’s preliminary objections.
B. Other grounds of admissibility
17. The applicants complained
under Article 5 § 1 that their detention in police custody was not “in
accordance with a procedure prescribed by law”. The Court observes that at the
material time the relevant domestic law provided that, with regard to offences
within the jurisdiction of the State Security Courts, any arrested person had
to be brought before a judge within forty-eight hours at the latest, or, in the
case of offences committed by more than one person, within fifteen days. It
follows that the detention in issue was in accordance with Turkish law.
18. In the light of the
foregoing, the Court finds that the applicants’ complaint under Article 5 § 1
should be rejected as being manifestly ill-founded.
19. The Court notes that the other
complaints 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.
II. ALLEGED VIOLATION OF ARTICLE
5 § 3 OF THE CONVENTION
20. The Government argued
that the length of the applicants’ detention in police custody
was in conformity with the legislation in force at the time. Given that the
relevant law has since been amended in accordance with the case-law of the
Court, the applicants’ allegation was groundless.
21. The Court notes that the
applicants’ detention in police custody lasted
six days. It reiterates that, in the case of Brogan and Others v. the United
Kingdom, 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 though its purpose was to protect
the community as a whole against terrorism (judgment of 29 November 1988,
Series A no. 145 B, pp. 33‑34, § 62).
22. Even though the
investigation of terrorist offences, as supposed in this case, presents the
authorities with special problems, the Court cannot accept that it was
necessary to detain the applicants for six days without judicial intervention.
23. There has, accordingly,
been a violation of Article 5 § 3 of
the Convention.
III. ALLEGED VIOLATION OF
ARTICLE 5 § 5 OF THE CONVENTION
24. The applicants complained
under Article 5 § 5 of the Convention that they had no right to compensation
for the alleged violations of Article 5 of the Convention.
25. The Government submitted
that, in cases of illegal detention, a request for compensation could be
submitted within three months following the final decision of the trial court
under the terms of Law no. 466 on compensation payable to persons unlawfully
arrested or detained. However, as the applicants’ detention in police custody was
in conformity with the domestic law prevailing at the time, their allegation
under this head was groundless.
26. The Court notes that an
action for compensation under Law no. 466 could only be brought for damage
suffered as a result of an unlawful deprivation of liberty. It observes that
the applicants’ detention
in police custody was in
conformity with the domestic law. Consequently, the applicants did not have a
right to compensation under the provisions of Law no. 466 (see Sakık and Others, cited above, §
60).
27. The Court therefore
concludes that there has been a violation of Article 5 § 5 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
28. 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
29. The applicants claimed 5,000
euros (EUR) each in respect of non-pecuniary damage.
30. The Government contested
the amount requested by the applicants.
31. Having regard to its
case-law, and making its assessment on equitable basis, the Court awards each
applicant EUR 1,000 in respect of non-pecuniary damage.
B. Costs and expenses
32. The first applicant claimed
EUR 3,500 for costs and expenses incurred before the Court, whereas the other
four applicants claimed in total EUR 2,300. In support of their claim, the
applicants submitted the Istanbul Bar Association’s recommended minimum fee
list for 2006.
33. The Government disputed their
claims.
34. Considering the
information in its possession and the case-law on the matter, the Court awards
the first applicant the sum of EUR 1,000 for her costs and expenses for the
proceedings before the Court. It awards the other applicants, jointly, EUR
1,000 for costs and expenses.
C. Default interest
35. 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
1. Declares the complaint concerning the length of detention in police
custody and the right to compensation for alleged violations of Article 5 of
the Convention admissible, and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 3 of the
Convention;
3. Holds that there has been a violation of Article 5 § 5 of the
Convention;
4. Holds
(a) that the respondent State is
to pay, 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 new Turkish liras at the rate applicable at the date of
settlement:
(i) EUR 1,000 (one thousand euros)
to each applicant for non-pecuniary damage,
(ii) EUR 1,000 (one thousand
euros) for the costs and expenses of the first applicant,
(iii) EUR 1,000 (one thousand euros) for the costs
and expenses of the other applicants, jointly,
(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;
5. Dismisses the remainder of the applicants’ claim for just
satisfaction.
Done in
English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2
and 3 of the Rules of Court.
S. Dollé J.-P.
Costa
Registrar President