SECOND SECTION
CASE OF ÇEKİ v. TURKEY
(Application no. 50070/10)
JUDGMENT
STRASBOURG
10 July 2018
This judgment is final but it may be subject to editorial revision.
In the case of Çeki v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 19 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 50070/10) 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 a Turkish national, Mr Mesut Çeki (“the applicant”), on 25 June 2010.
2. The applicant was represented by Mr C. Tombul, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3. On 4 September 2012 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1977 and was detained at the Kırıkkale F‑type prison when the application was lodged.
5. On 1 October 2004 the applicant was taken into police custody on suspicion of being member of a terrorist organisation.
6. On 5 October 2004 the applicant was brought before the judge at the Ankara Assize Court who placed him in detention on remand taking into consideration the nature of the offence, the state of evidence and the severity of the envisaged penalty.
7. On 15 March 2005 the Ankara public prosecutor filed an indictment with the Ankara Assize Court, charging the applicant with membership of a terrorist organisation.
8. On 31 January 2008 the Ankara Assize Court convicted the applicant as charged and sentenced him to 15 years’ imprisonment. The court ordered the continuation of his detention.
9. On 6 May 2009 the Court of Cassation quashed the judgment. The case was accordingly remitted to the Ankara Assize Court for further examination.
10. On 10 November 2009 the 11th Chamber of the Ankara Assize Court held a further hearing, in which both the applicant and his lawyer were present. At the end of that hearing, the court ordered the continuation of the applicant’s detention.
11. On 10 December 2009 the applicant’s lawyer filed an objection against the decision of 10 November 2009. On 21 December 2009 the 12th Chamber of the Ankara Assize Court dismissed this objection without holding a hearing. In delivering its decision, the court took into consideration the written opinion of the public prosecutor, which had not been communicated to the applicant or his representative.
12. On 28 August 2012 the Ankara Assize Court once more convicted the applicant and sentenced him to fifteen years’ imprisonment.
13. On 8 July 2013 the Court of Cassation upheld the judgment of the first instance court.
II. RELEVANT DOMESTIC LAW
14. A description of the relevant domestic law and practice can be found in Altınok v. Turkey, no. 31610/08, §§ 28-32, 29 November 2011; Demir v. Turkey (dec.), no. 51770/07, §§ 29-33, 16 October 2012; and A.Ş. v. Turkey no. 58271/10, §§ 34-35, 13 September 2016.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
15. Relying on Article 5 § 3 of the Convention, the applicant complained that the length of his detention on remand had been excessive.
16. The Government rejected the allegation, submitting that the applicant had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 § 1 (d) of the Code on Criminal Procedure (“CCP”).
17. The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of Demir v. Turkey, ((dec.), no. 51770/07, §§ 17‑35, 16 October 2012), and A.Ş. v. Turkey (no. 58271/10, §§ 85‑95, 13 September 2016).
18. In the case of Demir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015, the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.
19. In the instant case, the Court notes that the applicant’s detention ended on 8 July 2013, when his conviction was upheld by the Court of Cassation. The Court therefore observes that the applicant was entitled to seek compensation under Article 141 § 1 (d) of the CCP and that he must do so.
20. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006‑I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey (dec.), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.
21. As a result, taking into account the Government’s objection, the Court concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
A. Concerning the applicant’s inability to be present before the appeal court examining the objections to his detention
22. Relying on Article 5 § 4 of the Convention, the applicant complained about not being able to appear before the court when his pre‑trial detention was reviewed. In this connection, he firstly argued that he had not appeared before a court between 5 October 2004 and 28 April 2005, namely during his pre-trial detention. He also stated that he had not been able to appear before the court when his objection was examined by the Ankara Assize Court on 21 December 2009.
23. The Government contested those arguments.
24. As to the complaint regarding the period between 5 October 2004 and 28 April 2005, the Court notes that the present application was lodged with the Court on 25 June 2010. Consequently, this part of the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
25. The Court further observes that at the end of the hearing held on 10 November 2009, the Ankara Assize Court decided on the continuation of the applicant’s detention. Both the applicant and his lawyer were present in that hearing. The applicant subsequently filed an objection against this decision.
26. The Court notes that this objection was dismissed on 21 December 2009 by the appeal court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court forty-one days before his objection was examined. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4.
27. The Court thus concludes that the lack of an oral hearing during the proceedings did not jeopardise the principle of equality of arms (see Altınok v. Turkey, no. 31610/08, §§ 54-55, 29 November 2011; Adem Serkan Gündoğdu v. Turkey, no. 67696/11, §§ 35-48, 16 January 2018).
28. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Concerning the non-communication of the public prosecutor’s opinion
29. The applicant complained under Article 5 § 4 the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He contended that his right to have an effective remedy was breached since his objection was dismissed by the appeal court on the basis of the public prosecutor’s written opinion, which was not communicated to him or to his representative.
30. The Government contested that argument, submitting that the public prosecutor’s opinions were very brief and identical and did not have any bearing on the decisions of the appeal courts. They further submitted that Law no. 6459, which entered into force on 30 April 2013, made the communication of the public prosecutor’s opinion to the accused or his lawyer obligatory. They therefore argued that the applicant did not suffer any significant disadvantage and that this complaint must be declared inadmissible.
31. The Court reiterates that it has already examined and rejected a similar objection of the Government’s objections on the same issue (see, in particular, Hebat Aslan and Firas Aslan v. Turkey, no. 15048/09, §§ 68‑83, 28 October 2014). The Court finds no particular circumstances in the instant case which would require it to depart from its findings concerning the above-mentioned application.
32. The Court notes that this part of the application is 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.
33. Turning to the merits of the applicant’s complaint, the Court notes that the present case raises issues similar to the case of Altınok (cited above, §§ 57-61), where it found a violation of Article 5 § 4 of the Convention. There is no reason to depart from those findings.
34. Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 4 of the Convention on account of the non‑communication of public prosecutor’s opinion to the applicant or his representative in the context of review proceedings of lawfulness of the applicant’s detention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
35. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
36. The Government contested the claim.
37. The Court, having regard to all the elements before it, considers that the finding of a violation of Article 5 § 4 constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant (see Ceviz v. Turkey, no. 8140/08, § 64, 17 July 2012).
B. Costs and expenses
38. The applicant also claimed 4,000 Turkish liras (TRY) (approximately EUR 800) in respect of lawyer’s fees and TRY 480 (approximately EUR 95) for other costs and expenses incurred before the Court, such as stationery, photocopying and translations. In that connection, he submitted a cost-sheet drafted by his representative, and a receipt concerning the lawyer’s fee.
39. The Government contested the claim.
40. 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, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 750 covering costs under all heads.
C. Default interest
41. 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, UNANIMOUSLY,
1. Declares the complaint raised under Article 5 § 4 of the Convention, concerning the non-communication of the public prosecutor’s opinion to the applicant or his representative admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article Article 5 § 4 of the Convention on account of the non-communication of the public prosecutor’s opinion to the applicant or his representative;
3. Holds that that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;
4. Holds
(a) that the respondent State is to pay the applicant, within three months the EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses to be converted into the currency of the respondent state at the rate applicable at the date of settlement
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy