SECOND SECTION
DECISION
Application no. 47118/10
Nesim KARİP
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 June 2018 as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 14 June 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Nesim Karip, is a Turkish national, who was born in 1963 and was detained in İzmir Buca Prison when the application was lodged. He was represented before the Court by Ms Y. Kavak Kılınç, a lawyer practising in Strasbourg.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 25 February 2009 the İzmir public prosecutor lodged a bill of indictment against the applicant and charged him with armed extortion and the criminal proceedings commenced before the 4th İzmir Assize Court.
5. On 8 March 2010 the applicant was arrested by the police. On the same day, he was brought before the 4th İzmir Assize Court and gave a statement. The court ordered his detention on remand, having regard to the nature of the offence, the severity of the envisaged penalty and the risk of absconding.
6. On 11 March 2010 the applicant’s lawyer lodged an objection against the decision of 8 March 2010 and requested his release.
7. On 23 March 2010 the 5th İzmir Assize Court dismissed the objection on the basis of the case file, without holding a hearing.
8. According to the latest information in the case file, the criminal proceedings against the applicant are still pending.
B. Relevant domestic law and practice
9. A description of the relevant domestic law which was in force at the material time can be found Altınok v. Turkey, no. 31610/08, §§ 28‑32, 29 November 2011.
COMPLAINT
10. The applicant complained under Article 5 § 4 of the Convention that there had been no effective remedy whereby he could effectively challenge his detention on remand.
THE LAW
11. 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. In particular, he stated that he had not appeared before the appeal court when it decided on his objection regarding his detention on remand.
12. The Government contested that argument.
13. In the present case, the applicant was placed in detention on remand on 8 March 2010. The applicant filed an objection against this decision on 11 March 2010.
14. The Court notes that in the Turkish system, the question of prolonging detention is examined ex proprio motu at regular intervals (every month during the pre-trial stage and at each hearing on the merits or more frequently at the trial stage). Furthermore, a detainee may lodge a request for release at any time during both the trial and the pre-trial stage and repeat that request without having to wait for any particular period. In addition, against every decision concerning detention on remand, whether taken at the detainee’s request or ex proprio motu, an objection can be lodged (see Altınok v. Turkey, no. 31610/08, § 53, 29 November 2011, and Erişen and Others v. Turkey, no. 7067/06, § 52, 3 April 2012). The Court accepts that in such a system, the requirement to hold a hearing each time an objection is lodged could lead to a certain paralysis of the criminal proceedings (Knebl v. the Czech Republic, no. 20157/05, § 85, 28 October 2010). In the light of these considerations and taking into account the specific nature of the proceedings under Article 5 § 4, in particular the requirement of speed, the Court considers that it is not necessary for a hearing to be held in respect of each objection, unless there are exceptional circumstances (see Altınok, cited above, § 54). In that respect, it recalls that domestic courts dealing with requests of release during pre-trial detention must provide the “guarantees of a judicial procedure”, so that the proceedings must be adversarial and must always ensure equality of arms between the parties ‑the prosecutor and the detainee.
15. In the present case, the Court observes that the applicant appeared before the 4th İzmir Assize Court on 8 March 2005 and at the end of that hearing the court decided that the applicant should remain in detention on remand. The applicant’s objection to that decision was further examined by the 5th İzmir Assize Court on 23 March 2010, without an oral hearing. However, the applicant had appeared before the trial court fifteen days earlier. 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.
16. 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, cited above, §§ 54-55; Çatal v. Turkey, no. 26808/08, § 40, 17 April 2012; Ali Rıza Kaplan v. Turkey, no. 24597/08, §§ 28-32, 13 November 2014; and Adem Serkan Gündoğdu v. Turkey, no. 67696/11, §§ 41-45).
17. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 July 2018.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy