SECOND SECTION

CASE OF KUTLAR AND OCAKLI v. TURKEY

(Applications nos. 41433/06 and 47936/08)

JUDGMENT

STRASBOURG

1 February 2011

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 Kutlar and Ocaklı v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Françoise Tulkens, President,
	Ireneu Cabral Barreto,
	Dragoljub Popović,
	Nona Tsotsoria,
	Işıl Karakaş,
	Kristina Pardalos,
	Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 11 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in two applications (nos. 41433/06 and 47936/08) 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 two Turkish nationals, Mr Taylan Kutlar and Mr Osman Nuri Ocaklı (“the applicants”), born in 1980 and 1966 respectively. The introduction dates of the applications and the names of the applicants' representatives are indicated in the appended table. The Turkish Government (“the Government”) were represented by their Agent.
2.  On 21 October 2009 the Court decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (former Article 29 § 3).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
3.  The applicants are Turkish nationals, who were arrested and subsequently detained pending criminal proceedings brought against them on the charge of membership of the MLKP (the “Marxist Leninist Communist Party”), an illegal organisation. They are still in pre-trial detention. The information concerning the dates of the arrests, the dates of the orders for the applicants' pre‑trial detention, the dates of the bills of indictment, the dates of the domestic court decisions, the total period of pre-trial detention, and the grounds for continued detention is set out in the appendix.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
4.  A description of the relevant domestic law and practice prior to the entry into force of the new Code of Criminal Procedure (the “CCP”; Law no. 5271) on 1 June 2005 may be found in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-31, 30 January 2007). The current practice under the CCP is outlined in Şayık and Others v. Turkey (nos. 1966/07, 9965/07, 35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§ 13-15, 8 December 2009).
THE LAW
I.  JOINDER
5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.
II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
6.  The applicants complained under Article 5 § 3 of the Convention that the length of their pre-trial detention had been excessive. The applicant in application no. 47936/08 further complained under Article 5 § 4 of the Convention that there had been no effective remedy to challenge the length of his pre-trial detention.
7.  The Government contested the applicants' arguments.
A.  Admissibility
8.  The Government put forward various preliminary objections concerning exhaustion of domestic remedies and asked the Court to dismiss the complaints under Article 5 §§ 3 and 4 of the Convention, as required by Article 35 § 1 of the Convention.
9.  The Court notes that it has already examined similar submissions made by the respondent Government in other cases (see, for example, Koşti and Others v. Turkey, no. 74321/01, §§ 19-24, 3 May 2007; Şayık and Others v. Turkey, cited above, §§ 28-32 and Yiğitdoğan v. Turkey, no. 20827/08, § 19, 16 March 2010).
10.  The Government have not submitted any arguments which could lead the Court to reach a different conclusion in the instant case. Consequently, the Court rejects the Government's preliminary objection as to non-exhaustion of domestic remedies.
11.  The Government further argued that the applicants had failed to comply with the six-month rule under Article 35 of the Convention.
12.  The Court observes that the applicants are still in pre-trial detention. The Government's objection must therefore be rejected.
13.  The Court notes that these complaints are 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.  Article 5 § 3 of the Convention
14.  The Government maintained that the applicants' detention was based on the existence of reasonable grounds of suspicion of them having committed an offence, and that their detention had been reviewed periodically by the competent authority, with special diligence, in accordance with the requirements laid down by the applicable law. They pointed out that the offences with which the applicants were charged were of a serious nature, and that their continued remand in custody was necessary to prevent crime and to preserve public order.
15.  The Court notes that, after excluding the period when the applicants were detained after conviction under Article 5 § 1 (a) of the Convention from the total time that they have been held in detention, the period to be taken into consideration is already over eight years and ten months in application no. 41433/06 and over seven years and five months in application no. 47936/08. Their pre‑trial detention is still continuing (see Solmaz v. Turkey, no. 27561/02, §§ 36-37, ECHR 2007-II (extracts)).
16.  The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Tutar v. Turkey, no. 11798/03, § 20, 10 October 2006 and Cahit Demirel v. Turkey, no. 18623/03, § 28, 7 July 2009). 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 case-law on the subject, the Court finds that in the instant case the length of the applicants' pre-trial detention was excessive.
17.  There has accordingly been a violation of Article 5 § 3 of the Convention.
2.  Article 5 § 4 of the Convention
18.  In respect of application no. 47936/08 the Government submitted that the applicant did in fact have the possibility of challenging his continued remand by lodging objections.
19.  The applicant maintained his allegation.
20.  The Court has already examined the possibility of challenging the length of pre-trial detention in Turkey in other cases and concluded that the Government had failed to show that the remedy they referred to provided for a procedure that was genuinely adversarial for the accused (see, for example, Koşti and Others v. Turkey, cited above, §§ 19-24; Şayık and Others v. Turkey, cited above, §§ 28-32 and Yiğitdoğan v. Turkey, cited above, § 19). The Court notes that the Government have not put forward any argument or material in the instant case which would require the Court to depart from its previous findings.
21.  In the light of the foregoing the Court concludes that there has been a breach of Article 5 § 4 of the Convention in respect of the applicant in application no. 47936/08.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
22.  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
23.  The applicant in application no. 41433/06 claimed 25,000 euros (EUR) in respect of non-pecuniary damage.
24.  The applicant in application no. 47936/08 claimed EUR 30,000 for non-pecuniary damage. He further claimed EUR 24,710 for pecuniary damage.
25.  The Government contested these claims.
26.  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 applicants must have sustained non-pecuniary damage.
27.  In the light of the Court's jurisprudence and ruling on an equitable basis, it awards the applicant in application no. 41433/06 EUR 10,800 for non-pecuniary damage. As for application no. 47936/08 the Court awards the applicant EUR 9,000 under this head.
28.  Furthermore, according to the information submitted by the parties, the applicants are still detained. In these circumstances, the Court considers that an appropriate means for putting an end to the violation which it has found would be to release the applicants pending the outcome of these proceedings (see, mutadis mutandis, Yakışan v. Turkey, no. 11339/03, § 49, 6 March 2007; Batmaz v. Turkey (dec.), no. 34997/06, 1 April 2008).
B.  Costs and expenses
29.  The applicant in application no. 41433/06 claimed 260 Turkish Liras (TRY) (approximately EUR 133) for costs and expenses. He also claimed TRY 4,130 (approximately EUR 2,117) in respect of his lawyer's fee. In support of his claims he submitted a receipt for legal fees incurred.
30.  The applicant in application no. 47936/08 claimed EUR 1,017 for costs and expenses incurred before the domestic courts and EUR 8,675 for those incurred before the Court. In support of his claims he submitted a legal fee agreement, İstanbul Bar's scale of minimum fees, invoices for postal and translation expenses as well as a receipt for the legal fees incurred.
31.  The Government contested these claims.
32.  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 documents in its possession and the above criteria, the Court considers it reasonable to award them the sum of EUR 1,000 to the applicant in application no. 41433/06 and of EUR 1,500 to the applicant in application no. 47936/08.
C.  Default interest
33.  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.  Decides to join the applications;

2.  Declares the applications admissible;

3.  Holds that there has been a violation of Article 5 § 3 of the Convention in respect of both applicants;
4.  Holds that there has been a violation of Article 5 § 4 of the Convention in respect of Osman Nuri Ocaklı (application no. 47936/08);

5.  Holds
(a)  that the respondent State is to pay the applicants, 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 Turkish liras at the rate applicable on the date of settlement:
(i)  EUR 10,800 (ten thousand eight hundred euros) to the applicant in application no. 41433/06 and EUR 9,000 (nine thousand euros) to the applicant in application no. 47936/08 in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii)  EUR 1,000 (one thousand euros) to the applicant in application no. 41433/06 and EUR 1,500 (one thousand five hundred euros) to the applicant in application no. 47936/08, in respect of costs and expenses, plus any tax that may be chargeable to the applicants;
(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;

6.  Dismisses the remainder of the applicants' claims for just satisfaction.
Done in English, and notified in writing on 1 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

	Stanley Naismith	Françoise Tulkens	Registrar	President

Information concerning the application	Date of arrest	Date of the pre-trial detention order	Date of the bill of indictment	Date of the judgments of the first instance court	Date of the decisions of the Court of Cassation	Total period of pre-trial detention (on the basis of the information in the case file)	Grounds for continued detention (on the basis of the information in the case file)	
1- 41433/06 introduced on 29 September 2006 by Taylan Kutlar represented by M. Ali Kırdök 	9 September 2000	15 September 2000	4 October 2000	İstanbul Assize Court - 14 June 2006 (E:200/246, K: 2006/124)	3 October 2007 (E:2007/7891, K:2007/7065) (set aside)	8 years and 10 months 	The state of evidence, nature of the offence, overall period of the pre-trial detention, the content of the case file, persistence of the grounds for continued detention indicated in Article 100 of the CCP, length of the sentence envisaged for the crime in issue	
2- 47936/08 introduced on 25 September 2008 by Osman Nuri Ocaklı represented by Keleş Öztürk	8 July 2003	12 July 2003	15 July 2003	Pending before İstanbul Assize Court (E:1999/328)	  -	7 years and 5 months 	The state of evidence, nature of the offence, overall period of the pre-trial detention, the content of the case file, persistence of the grounds for continued detention indicated in Article 100 of the CCP, strong suspicion of having committed the offence in question	

APPENDIX