CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juin 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s8C6C4B { width:7.65pt; text-indent:0pt; display:inline-block } .s4CED6078 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:14.75pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s10AB3CA3 { font-family:Arial; color:#222222 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5B12D80C { width:187.62pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }           SECOND SECTION           CASE OF AYBOĞA AND OTHERS v. TURKEY   (Application no. 35302/08)               JUDGMENT         STRASBOURG   21 June 2016     FINAL   21/09/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ayboğa and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Julia Laffranque, President,   Işıl Karakaş,   Nebojša Vučinić,   Paul Lemmens,   Ksenija Turković,   Jon Fridrik Kjølbro,   Stéphanie Mourou-Vikström, judges, and Stanley Naismith, Section Registrar, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated in private on 31 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 35302/08) 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 five Turkish nationals, Mr   Ali   Ayboğa, Mr   Abdurrezzak Ayboğa, Mr Abdülcebbar Ayboğa, Mr Salih Ayboğa and Mr   Dergah Bitkin (“the applicants”), on 23 June 2008. 2.     The applicants were represented by Ms Z. Değirmenci and Ms   E.   Sayın, lawyers practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 16 March 2010 the application was declared partially inadmissible and the complaint concerning the applicants’ right to have effective review proceedings, by which they could challenge the lawfulness of their continued detention, was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicants were born in 1947, 1976, 1973, 1983 and 1987 respectively. At the time of the application they were being held in detention in Buca F ‑ Type prison in İzmir. 5.   On 23 July 2007 the İzmir Assize Court decided to restrict access to the investigation file, under Article 153 § 2 of the Code of Criminal Procedure (the “CCP”), Law   no.   5271. 6.     On 24 July 2007 the applicants were arrested and taken into custody on suspicion of being members of a criminal organisation. 7.     On 27 July 2007 the applicants were questioned by the investigating judge, in the presence of their lawyer. According to their statements to the judge, the applicants denied being involved with the criminal organisation. They did not deny that they had had telephone conversations that had been intercepted, or that they had accepted the transfer of parcels and had possessed firearms, all of which were deemed to be evidence of making threats, of fraud and of smuggling, the offences that they were suspected of having committed. 8.     On 1 August 2007 the applicants’ representative objected to the order for the pre ‑ trial detention in respect of the first four applicants. The representative also applied for their release pending trial on 3   February 2008, 11 February 2008 and 13   February 2008 respectively. Those applications were dismissed by the İzmir Assize Court on 4 February 2008, 11   February 2008 and 14 February 2008 respectively based the nature of the criminal charges and the state of the evidence. No hearing was held. 9.     On 13 March 2008 the public prosecutor at the İzmir Assize Court filed an indictment, charging the first applicant with establishing a criminal organisation and the other applicants with being members of a criminal organisation. The applicants were further charged with committing fraud, making threats, and carrying out raids and smuggling, under Article 220 and other related articles of the Criminal Code. 10.     On 17 March 2008 the trial court held an interlocutory session and, in the absence of the applicants, decided to extend their pre-trial detention. The first hearing was scheduled for 24 June 2008. 11.     On 2 May 2008 the applicants’ representative objected to that decision in respect of the first four applicants and applied for them to be released. On 7 May 2008 the İzmir Assize Court dismissed the objection. The applicants’ representative appealed. On 9   May 2008 the appeal court dismissed the appeal without holding an oral hearing. 12.     On 24 June 2008 İzmir Assize Court held the first hearing as planned and the applicants appeared before the court. The trial court decided to release the applicants from pre-trial detention on the same day. II.     RELEVANT DOMESTIC LAW 13.     Article 153 of the Code of Criminal Procedure (Law no. 5271) reads: “(1). The defence counsel may examine the full content of the investigation file and may take copies of the documents free of charge.   (2). Upon the request of the public prosecutor, the judge may order a restriction on access to the investigation file, should he considers that the outcome of the ongoing investigation could be jeopardised. This decision can only be taken if....   ... 4. the investigation concerns drug trafficking. ...” THE LAW I.     DISJOINDER OF THE APPLICATIONS 14.     On 16 March 2010 the Court decided to join the present application with three other applications, Demirel and Karaman v.   Turkey , (no.   4446/08); Hasan Coşar v. Turkey (no. 47239/08); and Deniz Seki v.   Turkey (no. 44695/09), and, in view of the similarity of the complaints, to declare the applications partially admissible and communicate them to the Government. However, the Court considers that it is necessary to separate them. Accordingly, it decides to disjoin the present application from the other ones. II.     ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION A.     Concerning restriction of access to the investigation file 15.     Relying on Article 5 § 4 of the Convention, the applicants complained that on account of the restriction placed on their access to investigation file they had not been able to challenge the evidence which had been the grounds for their arrest and continued detention until the indictment had been filed with the trial court. 16.     The Court observes that people who have been arrested or detained are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see Ceviz v.   Turkey , no. 8140/08, § 41, 17 July 2012). 17.     In the instant case, the Court notes that on 23 July 2007 the investigating judge decided to restrict access to the investigation file to ensure the proper conduct of the investigation. However, the Court observes that on 27 July 2007, while the applicants were being questioned by the investigating judge in the presence of their lawyer, they were asked about telephone conversations that had been intercepted and which were deemed to be related to the offences of which they were suspected. The applicants did not deny that the intercepted conversations had taken place and that they had accepted the transfer of parcels related to alleged smuggling, nor did they deny the existence of firearms used in an attack on certain victims. Furthermore, when their representative filed his objections to the pre-trial detention order, he referred to the incidents, about which the applicants had been questioned before the investigating judge, on forming a criminal organisation. Their representative also referred to other proceedings related to the same criminal organisation of which the applicants were deemed to be members. With reference to the representative’s objections to the continued detention, the Court considers that both the applicants and their lawyer had sufficient knowledge of the content of the investigation and had the opportunity to challenge the pre-trial detention order (see Ceviz , cited above, §§ 41-44, and Karaosmanoğlu and Özden v. Turkey , no.   4807/08, §   74, 17 June 2014). 18.     The Court concludes that this part of the complaint is manifestly ill ‑ founded and must be rejected, pursuant to Article 35 §§ 3 ( a) and 4 of the Convention. B.     Concerning lack of presence before appeal court examining objections to detention 19.   Relying on Article 5 § 4 of the Convention, the applicants complained about not being able to appear before the courts when their pre ‑ trial detention was reviewed. 20.     The Government contested the claims. 1.     In respect of the fifth applicant, namely Mr Dergah Bitkin 21.     At the outset, the Court observes that although the fifth applicant complained about the alleged shortcomings in the review proceedings regarding his detention on remand, it is clear from the documents in the case file that the lawyer solely filed the objections in respect of the first four applicants and not for the fifth applicant (see paragraph 8 and 11 above). The Court therefore considers that this part of the application is unsubstantiated as the fifth applicant failed to demonstrate that he attempted to object to the courts’ decisions regarding his detention on remand, which is a condition for the application of Article 5 § 4 of the Convention (see, Altınok v. Turkey , no. 31610/08, § 39, 29 November 2011). 2.     Preliminary objections 22.     The Government maintained that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention. They further submitted that the application was incompatible ratione materiae as the applicants had been lawfully released. 23.     As regards the first limb of the objections, the Court observes that it has already examined and rejected a similar objection in Karaosmanoğlu and Özden , cited above, §§ 39-45). It sees no reason to depart from that finding. As to the second objection, the Court notes that the applicants were still in detention when the application was lodged with the Court on 23   June 2008. As a result, it dismisses that part of the objection as well. 24.     The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 3.     Merits 25.     In the present case, the first four applicants were placed in pre-trial detention on 27 July 2007 and their next appearance before a judge was on 24   June 2008 during the first hearing held by the İzmir Assize Court. 26.     The Court reiterates that it has already examined a similar grievance in Erişen and Others v. Turkey (no. 7067/06, § 53, 3 April 2012) and Karaosmanoğlu and Özden (cited above, § 76), and found a violation of Article   5 § 4. It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgments. 27.     There has therefore been a violation of Article 5 § 4 of the Convention under this head in respect of the first four applicants. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION A.     Damage 28.     The applicants’ representative claimed 4,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage for each applicant. 29.     The Government contested those claims. 30.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged and it therefore rejects that claim. However, it considers that the applicants must have sustained non ‑ pecuniary damage in connection with the violation of the Convention found in their cases. Ruling on an equitable basis, it awards EUR 750 to each of the first four applicants in respect of non-pecuniary damage. B.     Costs and expenses 31.     The applicants also claimed EUR 3,250 for costs and expenses incurred before the Court. In that connection, the representative submitted a time-sheet showing that he had carried out six hours and thirty minutes of legal work. 32.     The Government submitted that the claims for costs and fees were excessive and unsubstantiated. 33.     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 are reasonable as to quantum. In the present case, the applicants submitted a time-sheet, showing the hours of work done by their legal representative, in support of that claim. The Court considers it reasonable to award the first four applicants a total amount of EUR 1,000 for their costs and expenses. C.     Default interest 34.     The Court considers it appropriate that the default interest rate 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, 1.     Disjoins unanimously the application from the others to which it was joined;   2.     Declares unanimously the complaint concerning the non-appearance before a court in the proceedings to challenge the lawfulness of continued detention under Article 5 § 4 in respect of the first four applicants admissible;   3.     Declares unanimously the complaint concerning the non-appearance before a court in the proceedings to challenge the lawfulness of continued detention under Article 5 § 4 in respect of the fifth applicant inadmissible;   4.     Declares by six votes to one the remainder of the application inadmissible;   5.     Holds unanimously that there has been a violation of Article 5 § 4 of the Convention on account of the non-appearance before a court in the proceedings to challenge the lawfulness of continued detention in respect of the first four applicants;   6.     Holds unanimously (a)     that the respondent State is to pay the first four 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 the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR   750 (seven hundred and fifty euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     a total amount of EUR 1,000 (one thousand euros) jointly, plus any tax that may be chargeable to the applicants, 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;   7.     Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 21 June 2016, pursuant to Rule   77 §§ 2 and 3 of the Rules of Court. Stanley Naismith   Julia Laffranque   Registrar   President