CASE OF ONAT v. TURKEY

SECOND SECTION

CASE OF ONAT v. TURKEY

(Application no. 26826/10)

JUDGMENT

STRASBOURG

25 September 2018

This judgment is final but it may be subject to editorial revision.

In the case of Onat 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 4 September 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 26826/10) 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 Şafi Onat (“the applicant”), on 20 April 2010.

2. The applicant was represented by Mr İ. Akmeşe, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 16 January 2012 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1988 and lives in Istanbul.

5. On 12 May 2009 the judge at the Istanbul Assize Court decided to restrict access to the investigation file relating to an investigation against the applicant and others pursuant to Section 10 of the Prevention of Terrorism Act (Law no. 3713), which was in force at the material time.

6. On 31 October 2009 the applicant was arrested and taken into custody on suspicion of membership of a terrorist organisation.

7. On 1 November 2009 the applicant’s police statement was taken at the Anti-Terror Branch of the Istanbul Security Directorate, in the presence of his lawyer. He was questioned at length about his telephone conversations that had been intercepted. The police read out the transcripts of the said telephone conversations and asked the applicant to comment on them. He was further questioned in relation to allegations about aiding and abetting a terrorist organisation as well as his participation in several illegal demonstrations on behalf of this terrorist organisation and several incidents of assault and battery. He was further asked questions about a co‑accused’s incriminating statements.

8. On 2 November 2009 the public prosecutor questioned the applicant in the presence of his lawyer. The prosecutor read out the transcripts of the intercepted conversations to the applicant. The applicant did not deny that he had had these conversations but claimed that they were not made with the intention to plan a terrorist action.

9. On the same day the judge at the Istanbul Assize Court ordered his pre-trial detention.

10. On 2 November 2009 the applicant’s lawyer asked the court to lift the restriction of access to the investigation file. On 10 November 2009 the Istanbul Assize Court rejected this objection.

11. On 4 November 2009 the applicant’s lawyer filed an objection against the decision on the applicant’s detention, and requested his release. On 12 November 2009 the Istanbul Assize Court, relying on the public prosecutor’s written opinion, which had not been communicated to the applicant or his representative, dismissed the objection without holding a hearing.

12. On 25 November 2009 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with aiding and abetting of a terrorist organisation, and looting.

13. On 4 December 2009 the Istanbul Assize Court accepted the indictment. On the same date the restriction on the file was lifted.

14. On 26 February 2010 the applicant was released.

15. According to the latest information in the case file, the criminal proceedings against the applicant are still pending.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

16. Relying on Articles 5 § 4, 6 § 3 and 13 of the Convention, the applicant complained about not being able to appear before the courts when his pre‑trial detention was reviewed and lack of an effective remedy to challenge the unlawfulness of his detention on account of the restriction placed on his access to the investigation file. Under the same Articles, he further stated that his objection was dismissed by the appeal court on the basis of the public prosecutor’s written opinion, which had not been communicated to him or to his representative.

17. The Court considers that the applicant’s complaints under Articles 6 § 3 and 13 should be examined from the standpoint of Article 5 § 4 of the Convention, being the lex specialis in the matter (see Doğan and Kalın v. Turkey, no. 1651/05, § 15, 21 December 2010).

A. Concerning the applicant’s inability to be present before the appeal court examining the objections to his detention

18. 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.

19. The Government contested that argument.

20. In the present case, the applicant was placed in pre-trial detention on 2 November 2009. The applicant subsequently filed an objection against this decision.

21. The Court notes that the applicant’s objection was dismissed on 12 November 2009 by the appeal court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court ten 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 of the Convention (see Çelik v. Turkey, no. 6670/10, § 18, 17 March 2015).

22. The Court concludes that this part of the complaint is manifestly ill‑founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Concerning the restriction of access to the investigation file

23. The applicant complained that on account of the restriction placed on his access to the investigation file, he had not been able to challenge the evidence which had been the grounds for the decision to detain him on remand.

24. The Government contested that argument.

25. The Court observes that people who have been arrested or detained are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see Ceviz v. Turkey, no. 8140/08, § 41, 17 July 2012).

26. In the instant case, the Court notes that on 12 May 2009 the judge at the Istanbul Assize Court decided to restrict access to the investigation file to ensure proper conduct of the investigation. However, on 1 and 2 November 2009, the applicant was questioned, in the presence of his lawyer, by the police and later by both the public prosecutor and investigating judge about his telephone conversations intercepted by the authorities and which were considered as part of the evidence of the offence of which the applicant was a suspect. Although the applicant did not remember some of the intercepted conversations, he did not deny the rest of them. Furthermore, when his representative was asked about the applicant’s statements before the investigating judge, he referred to the incidents in question and the transcripts of the applicant’s telephone conversations contained in the investigation file.

27. In the light of the foregoing, the Court considers that both the applicant and his lawyer had sufficient knowledge of the content of the investigation file and that they had the opportunity to challenge the pre-trial detention order (see Ceviz, cited above, §§ 41-44; Karaosmanoğlu and Özden, no. 4807/08, § 74, 17 June 2014; and Ayboğa and Others v. Turkey, no. 35302/08, § 17, 21 June 2016).

28. The Court concludes that this part of the application is manifestly ill‑founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Concerning the non-communication of the public prosecutor’s opinion

29. The applicant complained under Article 5 § 4 of 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.

31. 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.

32. Turning to the merits of the applicant’s complaint, the Court notes that the present case raises issues similar to the case of Altınok v. Turkey (no. 31610/08. §§ 57-61, 29 November 2011), where it found a violation of Article 5 § 4 of the Convention. There is no reason to depart from those findings.

33. Accordingly, the Court finds 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.

II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

34. The applicant complained under Article 5 § 5 of the Convention that he had been denied the right to compensation for the violation of his right under Article 5 § 4 of the Convention.

35. The Government contested that argument.

36. 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.

37. The Court reiterates that paragraph 5 of Article 5 requires a remedy in compensation for a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185‑A). This right to compensation presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court.

38. In this connection, the Court notes that it has found that the applicant’s right to have an effective remedy to challenge the lawfulness of his detention was infringed in the present case on account of non‑communication of the public prosecutor’s opinion in the proceedings relating to the objection to his pre-trial detention (see paragraphs 32-33 above). It also recalls that it examined a similar issue in the case of Altınok (cited above, §§ 66-69), where it found a violation of Article 5 § 5 of the Convention. There is no reason to depart from those findings.

39. Accordingly, the Court concludes that in the present case there has also been a violation of Article 5 § 5 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

40. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.

41. The Government contested the claim.

42. The Court, having regard to all the elements before it, considers that the finding of a violation of Article 5 §§ 4 and 5 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

43. The applicant also claimed 4,248 Turkish liras (TRY) (approximately EUR 800) in respect of lawyer’s fees and TRY 800 (approximately EUR 155) for other costs and expenses incurred before the Court and the domestic authorities, such as stationery, photocopying and translations. In that connection, he submitted a receipt concerning the lawyer’s fee and the Turkish Bar Association’s list of recommended minimum fees.

44. The Government contested the claim.

45. 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

46. 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 complaints under Article 5 §§ 4 and 5 of the Convention, concerning the non-communication of the public prosecutor’s opinion to the applicant or his representative, and the lack of compensation in this respect admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of 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 there has been a violation of Article 5 § 5 of the Convention;

4. Holds that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;

5. Holds

(a) that the respondent State is to pay the applicant, within three months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 750 (seven hundred fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident

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