SECOND SECTION
CASE OF GARİPOĞLU v. TURKEY
(Application no. 58764/09)
JUDGMENT
STRASBOURG
15 October 2019
This judgment is final but it may be subject to editorial revision.
In the case of Garipoğlu v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Julia Laffranque, President,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 24 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 58764/09) 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 Mehmet Nida Garipoğlu (“the applicant”), on 14 October 2009.
2. The applicant was represented by Mr M. Feyzioğlu, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3. On 22 November 2018 the Government were given notice of the complaint concerning Article 5 § 4 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1959 and lives in Istanbul.
5. On 27 April 2009 the applicant was placed under detention on remand by the Istanbul Magistrates’ Court in Criminal Matters (“the Magistrates’ Court”) after being heard in the presence of his lawyer, on suspicion of committing murder.
6. On 31 August 2009 the Magistrates’ Court ordered the continued detention of the applicant on the basis of the case-file and without holding a hearing.
7. On various dates between 18 May 2009 and 12 November 2009 the applicant requested his release pending trial. The Magistrates’ Court rejected the applicant’s requests each time on the basis of the case file, without hearing the applicant.
8. On 17 November 2009 the Public Prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with complicity to premeditated murder.
9. In its first hearing on 26 February 2010, the Istanbul Assize Court heard the applicant in the presence of his lawyer, and dismissed his request for release and ordered the continuation of his detention.
10. On 30 April 2010 the Istanbul Assize Court ordered the applicant’s release.
11. On 18 November 2011 the applicant was acquitted by a decision of the Istanbul Assize Court. RELEVANT DOMESTIC LAW AND PRACTICE
12. A description of the relevant domestic law and practice can be found in Altınok v. Turkey (no. 31610/08, §§ 28-32, 29 November 2011).
THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
13. Relying on Article 5 § 4 of the Convention, the applicant complained about not being able to appear for an excessive period of time before the court which examined the lawfulness of his pre-trial detention.
14. The Government submitted that the applicant had had effective domestic remedies at his disposal: he could have lodged a case for compensation for unlawful detention under Article 141 § 1 (d) of the Code on Criminal Procedure (“CCP”) in respect of his grievances about not being able to appear before the courts when he challenged his pre-trial detention. As an example, they submitted a judgment of 29 January 2019 of the Constitutional Court concerning an individual application with a subject matter similar to the present application. In that case that applicant had lodged his application with the Constitutional Court after an unsuccessful attempt to claim compensation under Article 141 § 1 (d) of the CCP before the domestic courts. According to the Government, the fact that the Constitutional Court found the case admissible was an additional indication that the remedy afforded under Article 141 § 1 (d) of the CCP was capable of providing redress.
15. The Court observes that it has already examined this objection and rejected it in similar cases (see, among others, Karaosmanoğlu and Özden v. Turkey, no. 4807/08, §§ 39-45, 17 June 2014; Seki v. Turkey, no. 44695/09, § 15, 21 June 2016; Özcan v. Turkey [Committee], no. 4728/07, § 25, 10 July 2018) with respect to Article 141 § 1 (d) of the CCP.
As regards the Constitutional Court’s case-law example provided by the Government, the Court notes that that decision was adopted on 29 January 2019, almost ten years after the applicant’s release from detention and eight years after his acquittal. Hence, it cannot be invoked to conclude that the existence of this particular domestic remedy had been sufficiently certain not only in theory but also in practice at the time the lawfulness of the applicant’s detention were being reviewed by domestic courts. Therefore, the Court rejects the Government’s objection without further assessing the effectiveness of the domestic remedy invoked.
16. 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.
17. As regards the merits of the application, the Court notes that it has already examined similar grievances in the cases of Erişen and Others v. Turkey (no. 7067/06, 3 April 2012) and Karaosmanoğlu and Özden (cited above) and found a violation of Article 5 § 4 for lack of appearance before a court during the review of detention. The Court held in these judgments that the lack of appearance before the courts examining the lawfulness of detention for more than two months, namely seventy four days, (see, Erişen and Others, cited above, § 53), and for more than five months (see, Karaosmanoğlu and Özden, cited above, § 76) was incompatible with the requirement to hold a hearing at regular intervals, as required by Article 5 § 4 (see also Koçhan v. Turkey [Committee], no. 3512/11, §§ 28‑32, 30 January 2018).
18. In the present case, the Court notes that the applicant was present at the hearing held on 27 April 2009, and afterwards he did not appear before a court for more than ten months until the first hearing, which was held on 26 February 2010. The Court observes that during this period the applicant’s several objections were examined by the courts without holding a hearing. Thus, the Court finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgments and considers that the applicant’s inability to appear before courts dealing with his requests of release for more than ten months is not compatible with the requirement to hold a hearing at regular intervals, as required by Article 5 § 4 of the Convention.
19. There has therefore been a violation of Article 5 § 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
20. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.
21. The Government contested the claims.
22. The Court 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.
B. Costs and expenses
23. The applicant did not claim costs and expenses; the Court therefore makes no award.
C. Default interest
24. 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, Declares the application admissible;Holds that there has been a violation of Article 5 § 4 of the Convention;Holds
(a) that the respondent State is to pay the applicant, within three months EUR 750 (seven hundred 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;Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Julia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy