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SECOND
SECTION
CASE OF ZEREY AND OTHERS v. TURKEY
(Applications
nos. 33412/02, 30229/02 and 30263/02)
JUDGMENT
STRASBOURG
17
July 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 Zerey and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mrs F.
Tulkens, President,
Mr A.B.
Baka,
Mr I.
Cabral Barreto,
Mr R.
Türmen,
Mr M.
Ugrekhelidze,
Mrs A.
Mularoni,
Mrs D.
Jočienė, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications (nos. 33412/02, 30229/02 and
30263/02) 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 six Turkish
nationals, Mr Ekrem Zerey, Mr Rıfat Demir, Mr Mehmet Garip
Özer, Mr Ahmet Şahin, Mr Ahmet Durmaz and Mr Davut Şahin
(“the applicants”), on 6 June 2002 and 29 July
2002.
- The
first applicant was represented by Mr M. Özbekli, a lawyer
practising in Diyarbakır. The other applicants were represented
by Mr M. Özbekli, Mr I. Sağlam and Mr M. H.
Yılmaz, lawyers practising in Diyarbakır. The Turkish
Government (“the Government”) did not designate an Agent
for the purposes of the proceedings before the Court.
- On
21 March 2006 and 1 June 2006 the Court declared the applications
partly inadmissible and decided to communicate the applicants’
complaints under Article 5 of the Convention to the Government. Under
the provisions of Article 29 § 3 of the Convention, it decided
to examine the merits of the applications at the same time as their
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- The
applicants were born in 1965, 1973, 1967, 1971, 1966 and 1970
respectively. The first applicant was in Mardin prison and the
remaining applicants were in Diyarbakir prison at the time of their
applications to the Court.
- The
applicants were all arrested and taken into custody on suspicion of
membership of Hezbollah. They were subsequently remanded in custody.
- However,
at the request of the Governor of the State of Emergency Region and
the public prosecutor, pursuant to Article 3 (c) of Law-Decree
no. 430, which allowed them to take further measures within the
framework of the state of emergency, a single judge at the State
Security Court authorised the applicants’ return from prison to
the Anti-terror branch of the relevant Security Directorate for
further interrogation for a duration not exceeding ten days.
- All
the applicants save for the first applicant returned to prison before
the ten day period was over. In respect of the first applicant, a
single judge at the State Security Court extended, on 5 August 2002,
his detention at the Security Directorate for another ten days. The
applicant’s lawyer objected. His objection was accepted by the
State Security Court and the first applicant returned to prison.
- The
details are indicated in the table below:
|
APPLICATION
NO.
|
NAME
OF THE APPLICANT
|
DATE
OF REMAND IN CUSTODY
|
DATE
OF TRANSFER TO THE SECURITY DIRECTORATE
|
DATE
OF RETURN TO PRISON
|
|
33412/01
|
Ekrem
Zerey
|
26/07/2002
|
26/07/2002
|
09/08/2002
|
|
30229/02
|
Rıfat
Demir
|
07/12/2001
|
08/12/2001
|
10/12/2001
|
|
30229/02
|
Mehmet Garip
Özer
|
07/12/2001
|
08/12/2001
|
10/12/2001
|
|
30229/02
|
Ahmet
Şahin
|
07/12/2001
|
08/12/2001
|
10/12/2001
|
|
30263/02
|
Ahmet
Durmaz
|
07/12/2001
|
08/12/2001
|
17/12/2001
|
|
30263/02
|
Davut
Şahin
|
07/12/2001
|
08/12/2001
|
17/12/2001
|
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law and practice in force at the
material time can be found in Karagöz v. Turkey (no.
78027/01, §§ 42-47, ECHR 2005 ... (extracts)).
THE LAW
- In
view of the similarity of the three applications, the Court finds it
appropriate to join them.
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants complained under Article 5 §§ 3, 4 and 5 of the
Convention of the length and the unlawfulness of their detention at
the Security Directorate on the basis of Article 3 (c) of Law Decree
no. 430. They further complained about the absence of an
effective remedy whereby they could have challenged that detention
and the lack of a right to compensation in that respect.
- The
Court considers that these complaints should be examined from the
standpoint of 5 §§ 1 (c), 4 and 5, which reads:
“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;
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 applications as being
inadmissible for failure to comply with the requirement of exhaustion
of domestic remedies under Article 35 § 1 of the Convention. In
this respect, the Government argued that the applicants, in
accordance with the provisions of the Code on Criminal Procedure,
could have challenged their detention which had been authorised
pursuant to Article 3 (c) of Law-Decree no. 430.
- The
Court reiterates that it has already examined and rejected, in
previous cases, similar objections of the Government as regards the
alleged failure to exhaust domestic remedies (see, in particular,
Karagöz, cited above, §§ 67-68, and
Balık v. Turkey, no. 6663/02, §§ 24-25,
15 February 2007). No circumstances emerge in the instant cases,
which would require it to depart from its findings in the
above-mentioned applications. It therefore rejects the Government’s
objection under this head.
- The
Court notes that the applications 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.
B. Merits
- The
Government submitted that the applicants’ detention was lawful
and in conformity with Article 5 of the Convention. They further
maintained that the applicants had effective remedies available to
them under domestic law and the possibility to apply for compensation
pursuant to Law no. 466.
- The
applicants maintained their allegations.
- The
Court has examined similar cases on previous occasions and has found
violations of Article 5 §§ 1 (c), 4 and 5 in respect of
detentions authorised on the basis of Law-Decree no. 430 (see, in
particular, Balık v. Turkey, cited above, §§
21, 24-26 and 28-29, Karagöz, cited above, §§ 56 60
and 67-68, and Dağ and Yaşar v. Turkey, no. 4080/02,
§§ 67-68 and 75-76, 8 November 2005). The Court finds
no reason to depart from these conclusions in the present cases.
- Accordingly,
it finds that there has been a violation of Article 5 §§ 1 (c),
4 and 5 of the Convention.
II. 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. Application no. 33412/02
1. Damage, costs and expenses
- The
applicant, Mr Zerey claimed 10,000 euros (EUR) in respect of
pecuniary damage. This sum included costs and expenses incurred both
before the domestic courts and the Court. He further claimed EUR
30,000 in respect of non-pecuniary damage.
- The
Government contested the claims.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court notes that some of his claims disclose no causal link between
the violation found and the pecuniary damage requested. It further
notes that in support of his remaining claims the applicant has
failed to produce any receipt or other relevant documents. The Court
accordingly dismisses them.
- However,
deciding on an equitable basis, it awards this applicant EUR 3,000 in
respect of non pecuniary damage.
2. 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.
B. Applications nos. 30229/02 and 30263/02
- The
Court points out that under Rule 60 of the Rules of Court any
claim for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part.”
- In
the instant case, on 14 September 2006 the Court invited the
applicants to submit their claims for just satisfaction by 26 October
2006. However, they did not submit any such claims within the
specified time limit.
- In
view of the above, the Court makes no award under Article 41 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join the applications;
- Declares the applications admissible;
- Holds that there has been a violation of Article
5 §§ 1 (c), 4 and 5 of the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, Mr Zerey, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 3,000 (three thousand euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable, this amount being
converted into new Turkish liras at the rate applicable at the date
of settlement;
(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;
- Dismisses the remainder of the first applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F.
Tulkens Registrar President
