SECOND SECTION
CASE OF ERBEK v. TURKEY
(Application no. 49232/12)
JUDGMENT
STRASBOURG
19 June 2018
This judgment is final but it may be subject to editorial revision.
In the case of Erbek 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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated in private on 29 May 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 49232/12) 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 Mutasam Erbek (“the applicant”), on 30 May 2012.
2. The applicant was represented by Ms Ç. Altuntaş, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent.
3. On 7 June 2017 the applicant’s complaint concerning the effectiveness of the procedure by which he could challenge the lawfulness of his detention was communicated to the Government and the remainder of the application was declared inadmissible.
THE FACTS
4. The applicant was born in 1991 and lives in Mersin.
5. On 30 December 2011 the applicant was taken into custody on suspicion of membership of a terrorist organisation and of making propaganda for that organisation.
6. On the same day, the applicant was brought before the investigating judge who ordered his detention on remand taking into account the nature of the offences, and the strong suspicion that he had committed the alleged offences, and the risk of absconding.
7. On 28 March 2012 the applicant’s lawyer lodged an objection against the decision dated 30 December 2011 ordering the applicant’s detention and requested his release. On 29 March 2012 the Mersin Magistrates’ Court dismissed the objection on the basis of the case file, without holding a hearing. On 16 April 2012 the applicant’s lawyer filed a further objection against that decision. On 17 April 2012 the Mersin Criminal Court with General Jurisdiction dismissed the objection on the basis of the case file, without holding a hearing.
8. On 5 September 2012 the applicant was released from detention on remand.
9. On 10 September 2012 the Adana Public Prosecutor filed a bill of indictment against the applicant, accusing him of being a member of a terrorist organisation and of making propaganda in its favour.
10. According to the latest information in the case file, the proceedings against the applicant are still pending before an assize court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
11. The applicant complained under Article 5 § 4 of the Convention about not being able to appear before the courts when his pre‑trial detention was reviewed.
12. The Government contested that argument.
13. The Court notes that this complaint 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.
14. In the present case, the applicant was placed in pre-trial detention on 30 December 2011 and was released on 5 September 2012. During this period, he was not able to appear before a judge.
15. The Court reiterates that it has already examined a similar grievance in the cases of Erişen and Others v. Turkey (no. 7067/06, § 53, 3 April 2012), and Karaosmanoğlu and Özden (no. 4807/08, § 76, 17 June 2014), 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.
16. There has therefore been a violation of Article 5 § 4 of the Convention under this head.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
17. The applicant requested 10,000 euros (EUR) in respect of non‑pecuniary damage and EUR 10,000 in respect of pecuniary damage covering also his costs and expenses incurred before the domestic courts and the Court.
18. The Government contested those claims.
19. 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 applicant must have sustained non‑pecuniary damage in connection with the violation of the Convention found in his case. Ruling on an equitable basis, it awards EUR 750 to the applicant in respect of non-pecuniary damage.
20. Lastly, as regards costs and expenses the Court reiterates that according to its 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 applicant has not substantiated his claim for costs and expenses. Accordingly, the Court makes no award under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the remainder of the application admissible;
2. Holds that there has been a violation of Article 5 § 4 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy