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FOURTH
SECTION
CASE OF ÖZÇELİK v. TURKEY
(Application
no. 56497/00)
JUDGMENT
STRASBOURG
20
February 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 Özçelik v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr R. Türmen,
Mr K.
Traja,
Mr S. Pavlovschi,
Mrs P. Hirvelä, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 30 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56497/00) 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 Osman Özçelik
(“the applicant”), on 19 January 2000.
- The
applicant was represented by Mr M.N. Özmen, a lawyer practising
in Ankara. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
2 September 2005 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 was born in 1952 and lives in Ankara. He was the deputy
chairman of the pro-Kurdish HADEP (Halkın Demokrasi Partisi
– People’s Democracy Party) prior to the events giving
rise to the present application.
- On
21 July 1999 the applicant was taken into custody by police officers
from the anti-terror branch of the Ankara Security Directorate.
According to the arrest protocol (yakalama tutanağı)
signed by four police officers and the applicant, a search warrant
had been issued in respect of the applicant. When the officers saw
the applicant, they asked him to show his identity card. The
applicant however attempted to escape.
- On
23 July 1999 the deputy director of the Ankara Security Directorate
sent a letter to the public prosecutor at the Ankara State Security
Court requesting that the applicant’s custody period be
extended. The deputy director maintained, inter alia, that the
applicant had been taken into custody on 21 July 1999 during the
course of a police operation carried out against the PKK and that the
police had not yet completed the detailed questioning of the
applicant and the gathering of evidence.
- The
public prosecutor referred the security directorate’s request
to the Ankara State Security Court. On the same day, the single judge
of the State Security Court decided to extend the custody period for
three days starting from 24 July 1999, including 26 July 1999. The
applicant did not appear before the judge.
- On
25 July 1999 two police officers from the anti-terror branch of the
Ankara Security Directorate took statements from the applicant. The
applicant was questioned, in particular, about his statements made in
several television programmes, broadcast on MED-TV, a pro-Kurdish
channel, in which he had taken part in his capacity as deputy
chairman of the HADEP.
- On
27 July 1999 the applicant was brought before the public prosecutor
at the Ankara State Security Court, who questioned him about his
statements during the same television programmes. Subsequently, the
public prosecutor requested the Ankara State Security Court to order
the applicant’s detention on remand.
- On
the same day, the single judge at the Ankara State Security Court
ordered the applicant’s release from detention, having regard
to the nature of the alleged offence and the state of the evidence.
- On
9 August 1999 the public prosecutor requested that the Ankara State
Security Court file a bill of indictment, charging the applicant with
aiding and abetting members of the PKK on account of his statements
made during the television programmes shown on MED-TV.
- On
21 December 2000 new legislation (Law no. 4616) on the suspension of
proceedings and the execution of sentences regarding offences
committed before 23 April 1999 came into force.
- On 25 June 2002 the Ankara State Security Court
decided to defer the imposition of a final sentence on the applicant,
pursuant to Law no. 4616. The court held, under Article 1 §
4 of the same law, that the criminal proceedings against him would be
suspended and a final sentence would be imposed should he be
convicted of a similar offence within five years of this decision.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law at the material time can be
found in Daş v. Turkey (no. 74411/01, § 18, 8
November 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 § 1 (c) of the Convention
that he had been unlawfully deprived of his liberty as there had been
no reasonable suspicion for his arrest. Article 5 § 1 (c)
provides 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...”
- The
Government did not comment on this complaint.
- The
Court reiterates that having a “reasonable suspicion”
presupposes the existence of facts or information which would satisfy
an objective observer that the person concerned might have committed
the offence (Fox, Campbell and Hartley v. the United Kingdom,
judgment of 30 August 1990, Series A no. 182, p. 16, § 32).
However, facts which raise a suspicion need not be of the same level
as those necessary to justify a conviction or even the bringing of a
charge, which comes at a later stage of the process of criminal
investigation (Murray v. the United Kingdom, judgment of 28
October 1994, Series A no. 300-A, p. 27 § 55).
- The
Court observes that the applicant was arrested during the course of a
police operation carried out against the PKK. According to the arrest
protocol, which was signed by the applicant, a search warrant had
been issued against him and the applicant had attempted to escape
when the police officers asked him to show his identity card.
- The Court considers that the aforementioned elements
are sufficient to support the conclusion that there was “reasonable
suspicion” for the applicant’s arrest. The fact that the
proceedings against him were subsequently suspended does not of
itself call into question the existence of a reasonable suspicion
within the meaning of Article 5 § 1 (c).
- It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 3 AND 4 OF THE
CONVENTION
- The
applicant complained that he had been held in police custody for
seven days without being brought before a judge or other officer
authorised by law to exercise judicial power. He further complained
under Article 13 of the Convention that he had no remedy in domestic
law to challenge the lawfulness of his detention in police custody.
The
Court considers that the applicant’s complaint under Article 13
should be examined from the standpoint of Article 5 § 4 of the
Convention. Article 5 §§ 3 and 4 of the Convention read as
follows:
“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.”
A. Admissibility
- The
Government submitted that the application should be rejected for
failure to exhaust domestic remedies as required by Article 35 §
1 of the Convention. They argued that the applicant had failed to
invoke Article 5 of the Convention before the domestic authorities
and to challenge the decision to extend his custody period. The
Government further maintained that the applicant could have sought
compensation under Law no. 466 on the Payment of Compensation to
Persons Unlawfully Arrested or Detained.
- The
Court notes that it has already examined and rejected the
Government’s preliminary objections in similar cases (see, for
example, Öcalan v. Turkey
[GC], no. 46221/99, §§ 66-71, ECHR
2005 ... and Daş, cited above, §
18). The Court finds no particular circumstances in the instant case,
which would require it to depart from this jurisprudence.
- Consequently,
the Court rejects the Government’s preliminary objections.
- The
Court notes that the application 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 applicant’s complaint under Article 5 § 3 of the
Convention
- The
Government argued that the length of the applicant’s detention
in police custody was in conformity with the legislation in force at
the material time. They further maintained that the relevant domestic
law had been amended in accordance with the Court’s
jurisprudence.
- The
applicant reiterated his allegations.
- The
Court has already accepted on a number of occasions that the
investigation of terrorist offences undoubtedly presents the
authorities with special problems (see Brogan and Others v. the
United Kingdom, judgment of 29 November 1988, Series A no. 145-B,
pp. 33-34, § 61; Murray, cited above, § 58;
Demir and Others v. Turkey, judgment of 23 September 1998,
Reports of Judgments and Decisions 1998-VI, p. 2653, §
41). This does not mean, however, that the authorities have carte
blanche under Article 5 to arrest suspects and detain them in
police custody, free from effective control by the domestic courts
and, in the final instance, by the Convention’s supervisory
institutions, whenever they consider that there has been a terrorist
offence (see, among others, Murray, cited above, § 58).
- The
Court notes that the applicant was taken into police custody on 21
July 1999 and released on 27 July 1999. His detention in police
custody thus lasted at least six days. It reiterates that in the
Brogan and Others case it held that detention in police
custody which had lasted four days and six hours without judicial
control fell outside the strict constraints as to time laid down by
Article 5 § 3 of the Convention, even though its purpose was to
protect the community as a whole against terrorism (see
Brogan and Others, cited above, p. 33, § 62).
- Even
supposing that the activities of which the applicant stood accused
were linked to a terrorist threat, the Court cannot accept that it
was necessary to detain him for six days without being brought before
a judge.
- There
has, accordingly, been a violation of Article 5 § 3 of the
Convention.
2. The applicant’s complaint under Article 5 § 4 of the
Convention
- The Government contended that Article 128 of the Code
of Criminal Procedure, which was in force at the material time,
provided an effective remedy to challenge the lawfulness of detention
in police custody.
- The
applicant reiterated his allegations.
- The
Court reiterates 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 and, Sakık and Others v. Turkey,
judgment of 26 November 1997, Reports 1997 VII, §
54). The Court finds no particular circumstances in the instant case,
which would require it to depart from its findings in the
aforementioned cases.
- In
conclusion, the Court holds that there has been a violation of
Article 5 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant complained under Article 6 § 2 of the Convention that
his right to the presumption of innocence had been violated since,
subsequent to his arrest, there had been news reports in newspapers,
on radio stations and on television channels, in which he had been
presented as a criminal.
- The
Government did not comment on this complaint.
- The
Court observes that the applicant did not submit any materials in
support of his complaint. Nor did he allege that the authorities had
presented him to the media as a criminal. It therefore considers that
the applicant has failed to substantiate his complaint under this
head.
- It follows that this part of the application is
manifestly ill-founded within the meaning of Article 35 § 3 and
4 of the Convention.
IV. ALLEGED VIOLATIONS OF ARTICLES 14 AND 18 OF THE
CONVENTION
- The
applicant complained under Article 14 of the Convention, in
conjunction with Articles 5 and 6 of the Convention, that he had been
discriminated against on the basis of his ethnic origin. He further
alleged under Article 18 of the Convention that the respondent State
had applied restrictions on the exercise of his rights in violation
of the Convention.
- The
Government did not address these issues.
- The
Court notes that the applicant has not substantiated his complaints
under these provisions.
- It
follows that these complaints are manifestly ill-founded within the
meaning of Article 35 § 3 and 4 of the Convention.
V. 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 3,000 euros (EUR) in respect of pecuniary damage
and EUR 20,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged. It therefore rejects this claim.
- On
the other hand, it accepts that the applicant suffered non pecuniary
damage such as distress resulting from his detention for six days
without the opportunity to challenge its lawfulness, which cannot be
sufficiently compensated by the finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant EUR
1,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,837 for the costs and expenses incurred
before the Court.
- The
Government submitted that these claims were unsubstantiated. They
argued that no documents had been provided by the applicant to prove
his claims.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his 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 (see Sawicka v. Poland, no. 37645/97,
§ 54, 1 October 2002). In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,500 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 complaints concerning the failure
of the authorities to bring the applicant promptly before a judge and
his inability to challenge the lawfulness of his detention admissible
and the remainder of the application inadmissible;
- 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
(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 plus any tax that may be chargeable, to be converted into new
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
1,500 (one thousand five hundred euros) in respect of non pecuniary
damage;
(ii) EUR
1,500 (one thousand five hundred euros) in respect of costs and
expenses;
(b) that
from the expiry of the abovementioned 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 20 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
