Information Note on the Court’s case-law No. 80
November 2005
Emrullah Karagöz v. Turkey - 78027/01
Judgment 8.11.2005 [Section II]
Article 5
Article 5-1
Lawful arrest or detention
Person detained on remand taken from prison to police station for questioning in application of the regulations on the state of emergency: violation
Facts: The applicant was arrested by gendarmes in the region where a state of emergency was in force on suspicion of lending assistance to the PKK. He spent four days in police custody before being brought before a prosecutor and then a judge, who ordered his detention in prison pending trial. Under Legislative Decree no. 430 on additional measures to be taken in view of the state of emergency, the applicant was taken from prison back to the gendarmerie for questioning. He remained there for 20 days before being returned to prison. He was subsequently taken again to the gendarmerie for questioning for a further 20 days. The applicant was acquitted. Legislative Decree no. 430 provides that, on a proposal from the regional governor, at the request of the public prosecutor and on a judge’s order, persons in pre-trial detention may be taken out of prison for questioning for a period not exceeding ten days.
Law: Article 5(1)(c) – After being placed in pre-trial detention in prison, the applicant had been handed over to the gendarmes again, thus finding himself in a situation equivalent to police custody which, moreover, had lasted for over 40 days. His transfer to the gendarmerie headquarters after being placed in pre-trial detention had denied him proper judicial supervision. Furthermore, handing a remand prisoner over to gendarmes for questioning was a means of circumventing the legislation regulating the length of time spent in police custody. That was the position in which the applicant had found himself when he had been subjected to further questioning a few hours after being remanded in custody. Moreover, the duration of his stay in police custody had been extended for no apparent reason. That in itself had to be regarded as a breach of the requirement of lawfulness under Article 5(1)(c), a breach that took away all the safeguards, especially access to legal advice, to which persons were entitled when they were questioned.
Conclusion: violation (unanimously).
Article 5(4) – Article 8 of Legislative Decree no. 430 made any effective judicial supervision of decisions taken under its provisions impossible.
Conclusion: violation (unanimously).
The Court did not consider it necessary to examine separately the complaint under Article 5(3). It held that there had been no violation of Article 3.
Article 41 – The Court made an award in respect of non-pecuniary damage and costs and expenses.
(See the similar case Dağ and Yaşar v. Turkey, no. 4080/02, judgment of 8 November 2005)
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This summary by the Registry does not bind the Court.
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