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THIRD
SECTION
CASE OF MÜNİRE DEMİREL v. TURKEY
(Application
no. 5346/03)
JUDGMENT
STRASBOURG
20
May 2008
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 Münire Demirel v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Rıza
Türmen,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ineta Ziemele,
Ann Power,
judges,
and Stanley Naismith,
Deputy
Section Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5346/03) 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 Münire Demirel
(“the applicant”), on 12 November 2002.
- The
applicant was represented by Mr M.A. Kırdök and
Mrs M. Kırdök, lawyers practising in Istanbul.
The Turkish Government (“the Government”) were
represented by their Agent.
- On
14 May 2007 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 1967 and lives in Istanbul. At the time of her
application to the Court, she was incarcerated in the Kartal Special
Type Prison.
- On 4 February 1995 the
applicant was taken into police custody on suspicion of
membership of an illegal organisation, the Dev-Sol
(Devrimci Sol – Revolutionary Left).
- On
16 February 1995 the applicant was detained on remand.
- On
21 February 1995 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant and charged
her with membership of an illegal organisation under Article 168 §
1 of the Criminal Code.
- On
28 April 1995 the Second Chamber of the Istanbul State Security Court
held the first hearing in the case (case no.1995/76).
- On
31 October 1995 the first-instance court ordered the applicant's
release pending trial. However, the applicant was not released since
on 9 October 1995 the public prosecutor at the Istanbul State
Security Court had filed a new bill of indictment which resulted in a
second case against the applicant before the First Chamber of the
Istanbul State Security Court (case no. 1995/348). The applicant was
charged with attempting to undermine the constitutional order under
Article 146 of the Criminal Code.
- On
3 September 1996 these two cases were joined under case no. 1995/348
before the First Chamber of the Istanbul State Security Court.
- The
applicant requested to be released pending trial at various times
before the trial courts. The courts dismissed her requests either
without giving any reason or having regard to the nature of the
offence, the content of the case file and the state of evidence.
- On
31 October 2002 the First Chamber of the Istanbul State Security
Court once again dismissed the applicant's request for release
pending trial.
- On
4 November 2002 the applicant filed an objection against the decision
of 31 October 2002.
- On
the same day the Second Chamber of the Istanbul State Security Court
dismissed her request.
- On
18 February 2003 the first-instance court ordered the applicant's
release pending trial.
- By Law no. 5190 of 16 June 2004, published in the
Official Gazette on 30 June 2004, state security courts
were abolished. The case against the applicant was thereby
transferred to the Istanbul Assize Court. According to the
information in the case file based on the latest submissions by the
parties, the case is still pending before the Istanbul Assize Court.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time are
outlined in Çobanoğlu and Budak v. Turkey,
(no. 45977/99, §§ 29-30, 30 January 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that her detention on remand exceeded the
“reasonable time” requirement as provided in Article 5 §
3 of the Convention, which reads insofar as relevant as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
- The Government asked the Court to dismiss the
application for failure to exhaust domestic remedies under Article 35
§ 1 of the Convention. Referring to the Court's decision in the
case of Köse v. Turkey ((dec.), no. 50177/99, 2 May
2006), the Government maintained that the applicant failed to object
to her continued remand in detention pursuant to Article 298 of
the former Code of Criminal Procedure (“the CCP”) until
October 2002.
- The applicant stated that she had not availed herself
of this remedy earlier since she considered the remedy to be
ineffective.
- The Court notes that it has already examined and
rejected this objection raised by the Government in similar cases
(see, in particular, Koşti and Others v. Turkey,
no. 74321/01, §§ 19-24, 3 May 2007; Mehmet Şah
Çelik v. Turkey, no. 48545/99, §§ 22-31,
24 July 2007; and Tamamboğa and Gül v. Turkey,
no. 1636/02, §§ 27-29, 29 November 2007). The
Court held, particularly in Koşti and Others (cited
above, §§ 18-19), that only available and adequate remedies
had to be tried under Article 35 § 1 of the Convention
and that the burden of proof was on the Government claiming
non-exhaustion to satisfy the Court that a remedy was effective and
available in theory and in practice at the relevant time, i.e. that
it was accessible, was capable of providing redress in respect of the
applicants' complaints and offered reasonable prospects of success
(see also Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no.
41964/98, § 65, 27 June 2006). In this regard, the Court
referred to certain cases against Turkey where violations of Article
5 § 3 of the Convention were found based on the fact that, inter
alia, the State Security Courts used the same formal reasons for
the applicants' continued detention without explaining their specific
relevance in each case, such as in the present application (see,
among many others, Hasan Ceylan v. Turkey, no. 58398/00,
23 May 2006; Pakkan v. Turkey, no. 13017/02,
31 October 2006; and Acunbay v. Turkey, nos. 61442/00 and
61445/00, 31 May 2005). It considered, accordingly, that an objection
against such stereotype reasoning would have had little prospect of
success before another instance. Moreover, as a rule, the objection
proceedings in question were not adversarial and were decided in the
absence of an oral hearing (see Article 302 § 1 of the CCP).
They therefore lacked the guarantees appropriate to the kind of
deprivation of liberty in question (Koşti and Others,
cited above).
- Having
regard to the foregoing arguments, the Court finds no particular
circumstances in the instant case which would require it to depart
from its findings in the case of Koşti and Others (cited
above).
- The
Court further reiterates that there is a distinction between the
requirement of exhaustion of domestic remedies under Article 35 § 1
and the requirements of Article 5 § 3 of the Convention aimed at
providing safeguards against arbitrary deprivation of liberty.
However, where a consistent case-law shows that such safeguards fail
or are deficient, it would be contrary to the very principle of the
Convention and would lead to excessive formalism under Article 35 §
1 to demand of the applicant that she or he exhaust the inadequate
safeguards (see Estrikh v. Latvia, no. 73819/01, § 97,
18 January 2007).
- In
the light of the above, the Court rejects the Government's objection.
-
The Court finds that the application is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. No other grounds for declaring it inadmissible
have been established. It must therefore be declared admissible.
B. Merits
- The
Government maintained that the length of the applicant's remand in
custody had been reasonable and had been in compliance with the
domestic law. In particular, they submitted that the seriousness of
the crime, the risk of escape or the committal of a further crime,
and the special circumstances of the case had justified her continued
remand in custody. They further submitted that the domestic
authorities had displayed diligence when considering the applicant's
continued detention.
- The
applicant maintained her allegations and contested the Government's
arguments.
- The
Court observes that, in the instant case, the applicant's detention
on remand began on 4 February 1995 when she was taken into police
custody and ended on 18 February 2003 upon her release by an order of
the first-instance court. It thus lasted approximately eight years.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, Dereci v. Turkey, no. 77845/01,
24 May 2005; Taciroğlu v. Turkey, no. 25324/02, 2
February 2006; and Çarkçı v. Turkey,
no. 7940/05, 26 June 2007).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present case. Having regard to its case-law on the subject, the Court
considers that in the instant case the length of the applicant's
detention on remand was excessive and contravened Article 5 § 3
of the Convention.
- There
has accordingly been a violation of Article 5 § 3 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. Damage
- The applicant claimed 12,000 euros (EUR) in respect of
non pecuniary damage.
- The
Government requested the Court not to award any damages.
- The
Court accepts that the applicant must have suffered some
non pecuniary damage which cannot be sufficiently compensated by
the finding of a violation alone. Taking into account the
circumstances of the case, it awards the applicant EUR 6,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 4,600 new Turkish liras (TRY) (approximately
EUR 2,695) for the legal expenses incurred before the Court and TRY
210 (approximately EUR 123) for other expenses, such as stationery,
photocopying and mailing costs. The applicant documented the legal
expenses of TRY 4,600 on the basis of the legal fees agreement
executed with her lawyer. Regarding her other expenses, however, she
submitted an expense report prepared by her lawyers, without
including any invoice.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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. In the present case, regard being had to
the information in its possession and ruling on an equitable basis,
the Court awards the applicant EUR 1,000 under this head.
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 application admissible;
- Holds that there has been a violation of Article
5 § 3 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 to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR 1,000
(one thousand euros), 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 20 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
