Communicated on 22 May 2015
SECOND SECTION
Application no. 65126/09
Ahmet ADIGÜZEL and others
against Turkey
lodged on 22 November 2009
STATEMENT OF FACTS
The applicants, whose names appear in the appendix, are Turkish nationals who live in Kars. They are represented by Mr O. Gündoğdu, a lawyer practising in Kars.
All of the applicants, except for Mr Abdulkadir Dağ, Mr Hüseyin Boçnak, Mr Hikmet Kurun, Mr Nesimi Karaağaç and Mr Mikail Ağaç, are members of Tes-İş, Tüm-Bel-Sen, Yapı-Yol-Sen and Eğitim-Sen, trade unions formed by public employees. All of the said trade unions are members of the Confederation of Public Employees’ Trade Unions (Kamu Emekçileri Sendikaları Konfederasyonu – hereinafter referred to as “KESK”).
On 14 November 2009 at around 12.30 p.m. all of the applicants, apart from the aforementioned five, gathered in Atatürk Street in Kars, along with several other persons, within the context of a nationwide campaign initiated by KESK to protest against the arrest of thirty five union members. The participants intended to read out a press declaration.
Shortly after, police officers arrived in the area and gave a verbal warning to disperse the group. After approximately seven minutes, the police officers intervened and started taking the participants into custody along with the five aforementioned applicants who were coincidentally passing by the area at the time. According to the information in the case-file, the applicants’ arrests were conducted between 12.30 p.m. and 3 p.m.
On the same day at around 3 p.m. the applicants were taken to the police station to give their statements. Subsequently, some of the applicants were placed in custody in the custody cells of the Kars Central Police Station and the rest were placed in custody at the Kars Security Directorate (Asayiş Şube Müdürlüğü).
As it transpires from the existing documents in the case-file, on 15 November 2009 the applicants were heard by the Kars public prosecutor, who extended the applicants’ custody for an unknown duration.
On the same day the applicants’ objected to the decision of the public prosecutor. The Kars Magistrates’ Court dismissed their objection on the ground that the extension of the applicants’ custody period was compatible with domestic legislation.
Again on the same day the applicants’ were brought before the investigating judge, who questioned them between 5 p.m. and 7 p.m. and subsequently decided on their release. According to the applicants’ submissions, they were released at around 7 p.m. on 15 November 2009.
On 17 November 2009 criminal proceedings were initiated against the applicants for violating the Meetings and Demonstration Marches Act (Law no. 2911), in particular disrupting individuals’ movement on the pavement.
On 20 January 2011 the Kars Criminal Court, on the basis of the video footage of the incident and the scene of incident report, acquitted the applicants of the charges against them. In its judgment, the court referred to Article 11 of the Convention as well as the relevant provisions of the Turkish Constitution and stated that everyone had the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. According to the court, the meeting fell within the scope of freedom of expression as the video footage revealed that the participants’ aim was peaceful, it did not upset public order and lasted for merely seven minutes. The court further emphasized that the police had intervened without giving the applicants enough time to disperse after the initial warning.
The judgment became final without being appealed.
COMPLAINTS
The applicants complain under Article 3 of the Convention about the allegedly poor conditions at the Kars Central Police Station and the Kars Security Directorate, in particular, overcrowding and inadequate sleeping arrangements.
The applicants complain under Article 5 § 1 of the Convention about their arrest and detention, alleging that it was arbitrary and was not based on a reasonable suspicion of them having committed an offence. They further contend, under Article 5 § 2, that they were not informed of the reasons for their arrest.
Finally, the applicants allege a breach of Articles 10 and 11 of the Convention, stating that the interference by the police in the meeting constituted a violation of their right to freedom of expression and freedom of assembly.
QUESTIONS TO THE PARTIES
1. Were the applicants detained in custody in the custody cells of the Kars Central Police Station and the Kars Security Directorate as alleged? If so, were the conditions of the applicants’ detention in the aforementioned facilities compatible with Article 3 of the Convention? In particular:
(a) What was the size of the custody cells in which the applicants were detained? How many detainees were placed in each cell?
(b) Were the applicants provided with a sleeping place and bedding?
2. Is there an effective domestic remedy under Turkish law whereby the applicants could have complained about the conditions of detention in police custody? If so, have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
3. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, at the time of their arrest, was there a reasonable suspicion of them having committed an offence, as required by subparagraph (c) of that Article?
4. Were the applicants informed promptly of the reasons for their arrest as required by Article 5 § 2 of the Convention?
5. Do the facts of the present case disclose an unjustified interference with the applicants’ right to freedom of assembly under Article 11 of the Convention?
The Government are requested to submit a copy of the complete case-file before the Kars Criminal Court, including the scene of incident and arrest reports, the official statements of the applicants before the police and the public prosecutor, the decision of the Kars public prosecutor ordering the extension of the applicants’ custody period as well as a copy of the CD containing the video footage of the incident.
The Government are further invited to submit information and supporting materials (photographs, video footage, etc.) on the conditions in Kars Central Police Station and the Kars Security Directorate, in particular as to the size of the custody cells in which the applicants were held and the number of occupants in the said facilities at the relevant time.
Appendix
Ahmet ADIGÜZEL born on 05/03/1966 is a Turkish national who was born in 1966, lives in Kars and represented by O.GÜNDOĞDU Mikail AĞAÇ born on 15/05/1981 is a Turkish national who was born in 1981, lives in Kars and represented by O.GÜNDOĞDU Ahmet AĞDEVE born on 14/01/1974 is a Turkish national who was born in 1974, lives in Kars and represented by O.GÜNDOĞDU Serdar ALADAĞ born on 01/06/1981 is a Turkish national who was born in 1981, lives in Kars and represented by O.GÜNDOĞDU Ali ALTUN born on 18/12/1978 is a Turkish national who was born in 1978, lives in Kars and represented by O.GÜNDOĞDU Deniz ATMACA born on 10/05/1978 is a Turkish national who was born in 1978, lives in Kars and represented by O.GÜNDOĞDU Şehmus AVCI born on 01/01/1980 is a Turkish national who was born in 1980, lives in Kars and represented by O.GÜNDOĞDU Osman AYDIN born on 01/04/1979 is a Turkish national who was born in 1979, lives in Kars and represented by O.GÜNDOĞDU Turgay AYDIN born on 17/11/1983 is a Turkish national who was born in 1983, lives in Kars and represented by O.GÜNDOĞDUHüseyin BOÇNAK born on 04/04/1962 is a Turkish national who was born in 1962, lives in Kars and represented by O.GÜNDOĞDUAbdulkadir DAĞ born on 01/06/1979 is a Turkish national who was born in 1979, lives in Kars and represented by O.GÜNDOĞDUVedat DOĞANAY born on 04/08/1963 is a Turkish national who was born in 1963, lives in Kars and represented by O.GÜNDOĞDUHayrettin İLKHAN born on 01/07/1972 is a Turkish national who was born in 1972, lives in Kars and represented by O.GÜNDOĞDUYılmaz İNCE born on 10/03/1974 is a Turkish national who was born in 1974, lives in Kars and represented by O.GÜNDOĞDUNesimi KARAAĞAÇ born on 06/07/1965 is a Turkish national who was born in 1965, lives in Kars and represented by O.GÜNDOĞDUNadir KARAŞAL born on 15/10/1979 is a Turkish national who was born in 1979, lives in Kars and represented by O.GÜNDOĞDUAyhan KURTULAN born on 03/02/1971 is a Turkish national who was born in 1971, lives in Kars and represented by O.GÜNDOĞDUHikmet KURUN born on 01/01/1958 is a Turkish national who was born in 1958, lives in Kars and represented by O.GÜNDOĞDUMusa MİNGSAR born on 08/05/1974 is a Turkish national who was born in 1974, lives in Kars and represented by O.GÜNDOĞDUMuhammet OKULMUŞ born on 10/11/1979 is a Turkish national who was born in 1979, lives in Kars and represented by O.GÜNDOĞDUHalis ÖZEN born on 11/07/1958 is a Turkish national who was born in 1958, lives in Kars and represented by O.GÜNDOĞDUYavuz ÖZIŞIK born on 01/02/1970 is a Turkish national who was born in 1970, lives in Kars and represented by O.GÜNDOĞDUSelahattin ÖZŞAHİN born on 01/03/1963 is a Turkish national who was born in 1963, lives in Kars and represented by O.GÜNDOĞDUYener TANRIVERDİ born on 23/03/1970 is a Turkish national who was born in 1970, lives in Kars and represented by O.GÜNDOĞDUMustafa TAŞTAN born on 23/01/1965 is a Turkish national who was born in 1965, lives in Kars and represented by O.GÜNDOĞDUEkrem URALÇİN born on 10/06/1957 is a Turkish national who was born in 1957, lives in Kars and represented by O.GÜNDOĞDUOğuz YANTEMUR born on 02/08/1972 is a Turkish national who was born in 1972, lives in Kars and represented by O.GÜNDOĞDUZekai YILMAZ born on 20/03/1970 is a Turkish national who was born in 1970, lives in Kars and represented by O.GÜNDOĞDUAbubekir ZARİÇ born on 25/11/1973 is a Turkish national who was born in 1973, lives in Kars and represented by O.GÜNDOĞDU
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