CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 22 octobre 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s6F88BEDC { margin-top:14pt; margin-left:17pt; margin-bottom:3pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD8BF637E { margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sAB51C47C { margin-top:14pt; margin-left:27.94pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.26pt; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE330DFD7 { margin-top:14pt; margin-left:17pt; margin-bottom:3pt } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s2DED9654 { width:26.12pt; display:inline-block } .s45C8AC8B { width:146.42pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Applications nos. 21495/10 and 46471/13 Selma IRMAK against Turkey and Kemal AKTAŞ against Turkey   The European Court of Human Rights (Second Section), sitting on 22   October 2019 as a Committee composed of:   Julia Laffranque, President,   Ivana Jelić,   Arnfinn Bårdsen, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above applications lodged on 19 March 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     The applicant in the first case, Ms Selma Irmak, is a Turkish national, who was born in 1971 and detained in Kocaeli at the time she introduced her application. The applicant in the second case, Mr Kemal Aktaş, is a Turkish national, who was born in 1958 and lives in Şanlıurfa. They were represented before the Court by Ms R. Yalçındağ Baydemir and Mr   C.   Aydın, lawyers practising in Diyarbakır. 2.     The Turkish Government (“the Government”) were represented by their Agent. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 14 April 2009 the applicants were arrested on suspicion of membership of a terrorist organisation. 5.     On 18 April 2009 the applicants were brought before the Diyarbakır Assize Court, who ordered that they be held on remand. Subsequently, the applicants’ lawyers objected to the decision to detain them pending trial. On 22   April 2009, the Diyarbakır Assize Court dismissed the applicants’ objections. 6.     On 9 June 2010, the Diyarbakır public prosecutor filed a bill of indictment with the Diyarbakır Assize Court in respect of the applicants. He charged the first applicant with membership of an armed terrorist organisation and the second applicant with forming or leading such an organisation. In support of his claims, the public prosecutor presented to the Diyarbakır Assize Court the statements of certain witnesses and some other defendants, digital materials and documents seized during the searches carried out in the context of the investigation. 7.     Following the parliamentary elections on 12 June 2011, the applicants were elected as members of the Grand National Assembly of Turkey. 8.     On 31 December 2013, the applicants lodged respectively an individual application with the Constitutional Court. They complained of a violation of their right to liberty and security and their right to engage in political activities. Moreover, they complained of a violation of their rights to a fair trial. 9.     On 3 January 2014 the Constitutional Court gave a judgment (no.   2014/85) in which it held that there had been a violation of the right to liberty and security and right to be elected in that the judicial authorities extended the applicants’ pre-trial detention on grounds that cannot be regarded as relevant and sufficient to justify its duration. It declared however the complaint regarding the fairness of the trial inadmissible because of the fact that the criminal proceedings against the applicants were pending before the first instance court. The Constitutional Court also awarded to each applicant 5,000 Turkish liras (TRY - approximately 1,725   euros (EUR)) in respect of non-pecuniary damage and TRY   1,698.35 (approximately EUR 585) for costs and expenses. As the applicants were still in pre-trial detention on the date of delivery of its judgment, the Constitutional Court decided to transmit the judgment to the Diyarbakır Assize Court so that it could take “the necessary action”. 10.     On 4 January 2014 the applicants were released pending trial. 11.     According to the information in the case file, the criminal proceedings against the applicants are currently pending before the domestic courts. Relevant domestic law and practice 12.     Article 141 § 1 (a) and (d) of the Code of Criminal Procedure (“CCP”) provides: “Compensation for damage ... may be claimed from the State by anyone ...: (a)     who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law; ... (d)     who, even if he or she was detained lawfully during the investigation or trial, has not been brought before a judicial authority within a reasonable time and has not obtained a judgment on the merits within a reasonable time; ...” COMPLAINTS 13.     The applicants complain under Article 5 § 1 of the Convention that they were deprived of their liberty unlawfully and in the absence of any tangible evidence showing that they had been involved in illegal activities. They also complain under Article 5 § 3 of the Convention that the length of their detention was excessive. 14.     The applicants complain under Article 5 §§ 2 and 4 of the Convention that the decision rendered upon their objections to detain them was rendered in the absence of adversarial proceedings and without a hearing. They submit that they were unable effectively to challenge the detention order as they were denied access to the investigation file. For the same reason, they claim also that they were not informed of the reasons for their arrest and detention. 15.     Under Article 5 § 4 of the Convention, the applicants complain that they were unable to challenge effectively the detention order as they were denied access to the investigation file. They also complain about not being able to appear before the court when their petitions were reviewed. THE LAW Joinder of the applications 16.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. As regards the complaint under Article 5 § 3 of the Convention 17.     The applicants contended that the duration of their pre-trial detention was excessive. On that account they alleged a violation of Article 5 § 3 of the Convention. 18.     The Government claimed that the complaint was inadmissible ratione personae . In this regard, the Government submitted that the applicants had lodged an individual application with the Constitutional Court, which held that there had been a violation of the right to liberty and security and right to be elected on account of the excessive duration of the applicants’ pre-trial detention. 19.     The applicants submitted, in a general manner, that the remedy of individual application before the Constitutional Court suggested by the Government is not effective. 20.     The Court notes that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application ( Rooman v. Belgium [GC], no. 18052/11, § 129, 31   January 2019). 21.     The Court observes that it has already examined the remedy of an individual application to the Constitutional Court under Article 5 of the Convention, in particular in the case of Koçintar v. Turkey ((dec.), no.   77429/12, 1 July 2014). In that case, after examining the remedy in question, it found that none of the material in its possession suggested that an individual application to the Constitutional Court was not capable of affording appropriate redress for the applicant’s complaint under Article   5 of the Convention, or that it did not offer reasonable prospects of success. In reaching that finding, it noted in particular that the Constitutional Court had jurisdiction to find violations of Convention provisions and was vested with appropriate powers to secure redress for violations, by granting compensation and/or indicating the means of redress; on that account the Constitutional Court could and should be able, if necessary, to prohibit the authority concerned from continuing to breach the right in question and to order it to restore, as far as possible, the status quo ante (see Koçintar , cited above, § 41). The Court observed that where the Constitutional Court found a violation of the right to liberty as guaranteed by Article 19 of the Constitution and the applicant remained in detention, it decided to transmit its judgment containing that finding to the appropriate court so that it could take “the necessary action”. 22.     In the present case, the Court observes that it has not been disputed that the domestic courts have explicitly recognised that there had been a violation of Article 5 § 3 of the Convention. As to whether there has been “appropriate” and “sufficient” redress, the Court notes that, the Constitutional Court has rendered its decision in a speedy manner, this is to say only three days after the applicants have lodged their individual applications. Furthermore, one day after the Constitutional Court’s judgment, the applicants were released pending trial. Moreover, the Constitutional Court awarded to each applicant TRY 5,000 in respect of non ‑ pecuniary damage and TRY 1,698.35 for costs and expenses. The Court considers that the sums granted to the applicants cannot be regarded as manifestly insufficient ( Hebat Aslan and Firas Aslan v.   Turkey , no.   15048/09, § 50, 28 October 2014). 23.     As the redress provided in domestic law appeared sufficient and appropriate, the applicants could no longer claim to be “victims” of a violation of Article 5 § 3 of the Convention. In view of the foregoing, the Court upholds the preliminary objection of the Government and considers that this part of the applications must be declared inadmissible for being incompatible ratione personae within the meaning of Article 35 §§ 3 and 4   of the Convention. As regards the complaint under Article 5 § 1 of the Convention 24.     Under Article 5 § 1 of the Convention, the applicants submitted that there were no facts or information that could satisfy an objective observer that he had committed the offences of which they were accused. 25.     The Government claimed that the Constitutional Court’s conclusion according to which there had been a violation of the right to liberty and security should be considered as a sufficient redress regarding the applicants’ complaint under Article 5 § 1 of the Convention. They also stated that a compensation claim had been available to the applicants under Article   141 § 1 (a) of the CCP. They contended that the applicants could and should have brought a compensation claim on the basis of this provision. Furthermore, they submitted that the applicants’ pre-trial detention had complied with domestic legislation and that they had been arrested and placed in pre-trial detention during a criminal investigation initiated in connection with the fight against terrorism. They claimed that from the evidence gathered during the criminal investigation and included in the case file, it was objectively possible to conclude that there had been a reasonable suspicion that the applicants had committed the offence of which they were accused. On the strength of the evidence obtained during the investigation, criminal proceedings had been brought against the applicants and were still ongoing in the domestic courts. 26.     As regards the Government’s preliminary objection concerning the “victim status” of the applicants, the Court notes that the Constitutional Court has not found a violation of Article 5 § 1. In view of the foregoing, the Court rejects the preliminary objection of the Government. 27.     The Court further observes that the domestic remedy in application of Article   141 § 1 (a) of the CCP with regard to the complaints under Article   5 §   1 was examined in the case of Lütfiye Zengin and Others v.   Turkey (no. 36443/06, §§ 61-65, 14 April 2015). In that case, the Court has concluded that where an applicant claims that he or she has been detained in breach of domestic law and where the deprivation of liberty has ended, an action for compensation capable of leading to recognition of the alleged violation and awarding a sufficient compensation was in principle an effective remedy which had to be exercised. In this respect, the Court has indicated however that the irregularity or illegality of such deprivation of liberty had to be previously recognised by domestic authorities. Otherwise, the Court held that an action for compensation under Article 141 § 1 (a) of the CCP would have been doomed to failure. The Court observes that in the present applications, the domestic authorities have never, explicitly or implicitly, acknowledged that the deprivation of liberty suffered by the applicants was unlawful. In that connection, the Court also notes that the Government has not provided any domestic decision indicating that in circumstances similar to those of the present applications, an appeal under Article   141 § 1 (a) of the CPP has been successful. The Court therefore concludes that the objection raised by the Government on this account must also be dismissed. 28.     The Court reiterates that a person may be detained under Article   5 §   1   (c) of the Convention only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence (see Jėčius v.   Lithuania , no. 34578/97, §   50, ECHR 2000 ‑ IX; Włoch v.   Poland , no.   27785/95, § 108, ECHR 2000 ‑ XI; and Poyraz v. Turkey (dec.), no.   21235/11, § 53, 17 February 2015). The “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard laid down in Article 5 § 1 (c). Having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will, however, depend upon all the circumstances (see Fox, Campbell and Hartley v.   the   United   Kingdom , 30 August 1990, § 32, Series   A no. 182; O’Hara v.   the   United   Kingdom , no. 37555/97, § 34, ECHR   2001 ‑ X; Korkmaz and Others v. Turkey , no. 35979/97, § 24, 21 March 2006; Süleyman Erdem v.   Turkey , no. 49574/99, § 37, 19 September 2006; and Çiçek v.   Turkey (dec.), no. 72774/10, § 62, 3 March 2015). The Court’s task is to determine whether the conditions laid down in Article 5 § 1 (c) of the Convention, including the pursuit of the prescribed legitimate purpose, have been fulfilled in the case brought before it. In this context it is not normally for the Court to substitute its own assessment of the facts for that of the domestic courts, which are better placed to assess the evidence adduced before them (see Ersöz v. Turkey (dec.), no. 45746/11, §   50, 17   February 2015, and Mergen and Others v. Turkey , nos. 44062/09 and 4   others, §   48, 31   May 2016). 29.     In the present applications, the Court observes that the applicants were taken into police custody on 14 April 2009 on suspicion of being a member of a terrorist organisation and were placed in pre-trial detention on 18   April 2009. It further notes that in a bill of indictment filed on 9   June 2010 the public prosecutor sought the first applicant’s conviction for being a member of an armed terrorist organisation and the second applicant’s conviction for forming or leading such an organisation. In this regard, the public prosecutor relied as evidence mainly on statements of certain witnesses and some other defendants, digital materials and documents seized during the searches carried out in the context of the investigation. In these circumstances, the Court considers that the suspicion against the applicants may be considered to have reached the level required by Article 5 § 1 (c). In fact, the interpretation and application of the legal provisions invoked by the domestic authorities does not seem to be arbitrary or unreasonable to the extent that the applicant’s pre-trial detention was irregular or unlawful. 30.     It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. As regards the complaint under Article 5 § 2 of the Convention 31.     The applicants complain under Article 5 § 2 of the Convention that they were not informed of the reasons for their arrest and detention in police custody. 32.     The Government submitted that the applicants had failed to comply with the six-month time-limit referred to in Article 35 § 1 of the Convention. 33.     The Court observes that the applicants’ police custody ended on 18   April 2009. However, the applications were lodged with the Court on 19   March 2010, which is more than six months from the date of the facts giving rise to the alleged violation. 34.     It follows that this part of the applications has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. As regards the complaint under Article 5 § 4 of the Convention 35.     The applicants complained that on account of the restriction placed on their access to the investigation file, they had not been able to challenge the evidence which had been the grounds for the decision to detain them on remand. They also complain about not being able to appear before the court when their petitions were reviewed. 36.     The Government contested these arguments. 37.     The Court notes that the applicants were placed in pre-trial detention on 18 April 2009. They subsequently filed an objection against this decision, which was eventually dismissed on 22 April 2009 by the Diyarbakır Assize Court. Considering that the applications were lodged with the Court on 19   March 2010, this is to say more than six months from the date of the facts giving rise to the alleged violation, these complaints should also be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 21 November 2019.   Hasan Bakırcı   Julia Laffranque   Deputy Registrar   President