CEDH · CASELAW;CLIN;ENG — 28 octobre 2014

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Turkey - 15048/09 Judgment 28.10.2014 [Section II] Article 35 Article 35-3-b No significant disadvantage Crucial importance to applicants of proceedings opposing continued detention: preliminary objection dismissed Article 34 Victim Constitutional remedy affording appropriate and sufficient redress: loss of victim status Facts – In 2008 the applicants were arrested and remanded in custody before being charged with a number of offences. Their detention was extended by the Assize Court at successive hearings held between June 2009 and April 2012, in spite of various appeals lodged by their lawyer. In December 2012 the applicants appealed to the Constitutional Court. In November 2013 that court found a violation of the Constitution on account of the length of their detention on remand (Article   19 §   7 of the Constitution) and the failure to transmit the public prosecutor’s opinion to the applicants or their lawyer, thus preventing them from commenting on that opinion (Article   19 §   8). Lastly, in the light of the particular circumstances of the case, and ruling on an equitable basis, it made an award in respect of the non-pecuniary damage sustained by the applicants. Law – Article 34 ( complaint under Article   5 §   3 of the Convention ): The domestic authorities had found that the total duration of the applicants’ detention on remand had been excessive, and the Constitutional Court had awarded sums equivalent to EUR   1,470 and EUR   1,550 to the first and second applicants in respect of non-pecuniary damage. The general right of individual petition before the Turkish Constitutional Court entered into force on 23   September 2012. In principle this remedy afforded to complainants the prospect of having the contested deprivation of liberty terminated.* Taking account particularly of the characteristics of this remedy and the speed with which the Constitutional Court had provided redress for the complaint in question, the sums awarded to the applicants could not be regarded as manifestly insufficient. 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. The Court thus upheld the Government’s objection on that point. Conclusion : preliminary objection upheld (unanimously). Article 35 § 3 (b): The applicants complained that their right to adversarial proceedings and to equality of arms had been breached as the public prosecutor’s opinion on their appeals against detention had not been transmitted to them. The nature of the right allegedly breached and the subject matter and outcome of the domestic proceedings differed considerably from the cases where the Court had found that the applicants had not suffered a “significant disadvantage” in the exercise of their right.** In previous cases the applicants had complained of a breach of the principle of adversarial proceedings under Article   6 of the Convention, in the context of the determination of their civil rights or of criminal proceedings where there was no impact on the applicant’s liberty. In the present case the subject matter and outcome of the appeals had been of crucial importance for the applicants, as they sought a court decision on the lawfulness of their detention and in particular the termination of that detention if it were to be found unlawful. Thus, in the light of the foregoing and in view of the importance of the right to liberty in a democratic society, the Court could not conclude that the applicants had not suffered a “significant disadvantage” in the exercise of their right to participate appropriately in the proceedings concerning the examination of their appeals. Conclusion : preliminary objection dismissed (unanimously). The Court also found, unanimously, that there had been a violation of Article   5 §   4 of the Convention on account of the failure to transmit the public prosecutor’s opinion when the applicants’ appeals were examined and a violation of Article   5 §   5 of the Convention on account of the lack of an effective remedy by which to seek compensation. Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage. * Koçintar v. Turkey (dec.), 77429/12, 1   July 2014, Information Note   176 . ** See, among others, Holub v.   the Czech Republic (dec.), 24880/05, 14   December 2010, Information Note   138 ; and Liga Portuguesa de Futebol Profissional v.   Portugal (dec.), 49639/09, 3   April 2012, Information Note   151 .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes