SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20817/04
by Tolga NART
against Turkey
The European Court of Human Rights (Second Section), sitting on 10 July 2007 as a Chamber composed of:
MrsF. Tulkens, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrR. Türmen,
MrM. Ugrekhelidze,
MrV. Zagrebelsky,
MrsA. Mularoni, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 29 May 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Tolga Nart, is a Turkish national who was born in 1986 and lives in Izmir. He is represented before the Court by Mrs B. Duran, a lawyer practising in Izmir.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 November 2003, around 11 p.m. at night, the applicant, who was 17 years of age at the time, was arrested by police officers on suspicion of involvement in the robbery of a small grocery shop.
On 29 November 2003, at 1 a.m., he was examined by a doctor at Urla State Hospital. His medical report recorded no signs of physical violence on his body. It also noted that, because of tablets he had taken, the applicant was drugged and sleepy. The report further noted that there was nothing to prevent the applicant being taken into custody.
On the same day, at 9 a.m., the applicant was taken into custody at the Güzelbahçe Juvenile Police Unit. At 10 a.m. he was again examined. The medical report drafted on that occasion described the applicant as sleepy, unresponsive and physically weak. The same day at around 1.30 p.m., the police requested the presence of a duty lawyer from the Izmir Bar Association for the applicant, who was to be brought before a public prosecutor.
The applicant and his lawyer were both present before the public prosecutor. However, the prosecutor could not take a statement from the applicant as he was asleep. His lawyer maintained that she was unable to communicate with the applicant and requested that he be put under medical control in order to determine his mental state. She also requested his release because he was a minor. She signed a statement.
The applicant was then brought before the investigating judge, but he could only stand up with the help of his co-accused. His lawyer maintained that, in the circumstances, it would not be appropriate or lawful to take a statement from the applicant. However, the judge rejected this objection and continued with the interrogation. The judge noted that there were no previous statements made by the applicant to the police or the prosecutor. The applicant occasionally woke up and answered the questions; he denied that he had committed the robbery. The lawyer repeated that the applicant was not in a fit state to understand the charges against him and that the taking of his statement would violate the law. However, the applicant’s co-accused accepted the charges. He admitted that he and the applicant had drunk beer and had taken tablets before the incident. They had stolen some chocolates, cigarettes, coco-cola, sausages and biscuits from the shop. The investigating judge then remanded the applicant and his co-accused in custody. The applicant was admitted to the Izmir Buca Prison.
On 2 December 2003 the applicant’s lawyer challenged the detention before the Izmir Criminal Court. In her petition, referring to Articles 5 § 2 and 6 § 3 (b) of the Convention, she submitted that the applicant was incapable of understanding the charges against him and that he had not been given adequate time and facilities to prepare his defence as she was unable to communicate with him. She further stated that the applicant was a minor and, according to Article 37 (b) of the United Nations Convention on the Rights of the Child, the detention of a minor should be a preventive measure of last resort. She also maintained that Article 10 § 5 of the Law on the Establishment, Duties and Procedures of Juvenile Courts (Law no. 2253), required that the applicant be placed in a hospital or in residential social care, instead of being detained in prison.
On 3 December 2003, the Izmir Assize Court rejected these objections, having regard to the content of the case file, the nature of the offence attributed to the applicant and the state of the evidence.
On an unspecified date, the public prosecutor filed an indictment with the Izmir 3rd Juvenile Court accusing the applicant and his co-accused of armed robbery under Article 495 of the Criminal Code, for which the minimum sentence was ten years’ imprisonment.
On 16 January 2004 the Izmir 3rd Juvenile Court commenced the applicant’s trial. The applicant was reminded of the statement made to the investigating judge. He accepted its contents, but added that he did not recall anything about the time when it was taken. An eyewitness heard by the court identified the applicant’s co-accused as the perpetrator. The witness stated that he was living in one of the flats above the shop and that the shopkeeper was his tenant. At 10.30 p.m. on the night of the incident, he heard noises downstairs and went to check. He saw that the window of the shop’s door had been broken, and that the applicant’s collaborator was putting things in bags. Then, the latter pulled a gun on him but the witness grabbed it immediately, whereupon the applicant and his accomplice ran away. The applicant was released pending trial the same day.
On 12 April 2004 the Juvenile Court convicted the applicant of ordinary robbery under Article 493 § 1 of the Criminal Code, instead of armed robbery, noting that the gun used during the incident was fake. Accordingly, it sentenced the applicant to one year and eight months’ imprisonment.
On 13 April 2004 the applicant’s lawyer appealed against this judgment, which was upheld on 27 September 2004 by the Court of Cassation.
B. Relevant international and domestic law
Article 10 § 5 of the Law on the Establishment, Duties and Procedures of Juvenile Courts (Law no. 2253) provides that one of the preventive measures which can be imposed on a minor is placement in a hospital or in residential social care.
Article 19 of the same law provides that the minor shall not be detained on remand awaiting prosecution for an offence for which the minimum punishment is three years.
Article 37 (b) of the United Nations Convention on the Rights of the Child foresees that the State Parties shall ensure that no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate time.
COMPLAINTS
1. The applicant complains under Article 5 § 1 (c) of the Convention that the decision to detain him on remand was unlawful. He submits that he was a minor at the time of the alleged offence. In this connection he maintains that Turkey is a party to the United Nations Convention on the Rights of the Child, which forms part of the domestic law since 1995 and provides that a child can only be detained as a last resort. He alleges that he was under the influence of drugs when he was arrested and, instead of being medically treated and put under medical observation, he was remanded in prison.
2. The applicant contends, under Article 5 § 2 of the Convention, that he was not informed of the reasons for his arrest or of any charges against him because, at the time of the arrest, he was incapable of understanding such matters.
3. He further alleges a violation of Article 5 § 3 of the Convention. He submits that the domestic law (the Regulations on Apprehension, Detention and Interrogation) required that minors be brought promptly before a public prosecutor after arrest. However, he was kept in police custody for about 16 hours without being brought before the prosecutor. Under the same head, he also maintains that the period of his detention on remand, which lasted for 48 days, was excessive.
4. The applicant complains under Article 6 § 3 (a) and (b) of the Convention that a statement was taken from him by the investigating judge while he was drugged, although his lawyer persistently maintained that the taking of a statement in such conditions was unlawful. His lawyer was unable to communicate with him before the interrogation for the same reason and, therefore, he did not have adequate time and facilities to prepare his defence. Nor was he informed in detail of the charges against him during the hearing before the Izmir Juvenile Court on 16 January 2004.
5. Finally, he maintains that his lawyer challenged the decision to detain him on remand before the Izmir Criminal Court. However, that challenge was rejected in very general terms - “the state of the evidence” and “the nature of the offence”, without any detailed reasoning. Therefore, the proceedings were contrary to the requirement of a fair hearing under Article 6 § 1, as well as a denial of an effective remedy guaranteed by Article 13 of the Convention.
THE LAW
1. The applicant complained under Article 5 § 3 of the Convention that his detention on remand, which lasted for 48 days, had exceeded the reasonable time requirement of the Convention.
He further maintained under Articles 6 § 1 and 13 of the Convention that the Izmir Assize Court had rejected his objection to detention in very general terms – “the state of the evidence” and “the nature of the offence” – without giving any detailed reasoning, contrary to the requirements of a fair hearing and an effective remedy. The Court finds, however, that this complaint should be examined from the standpoint of Article 5 § 4 of the Convention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant alleged under Article 5 §§ 1 (c), 2 and 3 of the Convention that his detention on remand had been unlawful, that he had not been informed of the reasons for his arrest or of the charges against him and that he had been kept in police custody for an excessive period.
a) As regards the lawfulness of the detention on remand, the Court notes that the applicant was arrested in the course of an investigation concerning an armed robbery which had taken place on 28 November 2003 in a grocery shop. The Court finds that there was a reasonable suspicion that he had committed this offence, as understood by Article 5 § 1 (c), since the purpose of the deprivation of liberty was to confirm or dispel the suspicion concerning his involvement in the robbery (see, mutatis mutandis, Selçuk v. Turkey, no. 21768/02, §§ 20‑25, 10 January 2006).
It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
b) As to the complaint under Article 5 § 2 of the Convention, the Court recalls that this provision contains the elementary safeguard that any person arrested should be informed of the reasons and alleged charges. This information must be conveyed in simple, non-technical language so that the suspect can understand the essential legal and factual grounds for the arrest, and if necessary challenge it, pursuant to Article 5 § 4. Whilst this information must be conveyed promptly, it need not be related in its entirety by the arresting officer at the very moment of arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 19, § 40)
In the instant case, the Court notes that the applicant was arrested on suspicion of involvement in a robbery. On arrest, the applicant was found to be drugged due to the tablets he had taken. The police did not take a statement from him and he was brought before the public prosecutor a couple of hours later. In the meantime, a lawyer was appointed to represent him. The prosecutor could not take a statement from the applicant and sent him to the investigating judge. The applicant regained semi-consciousness during his questioning by the latter and denied the allegations against him, in the presence of his lawyer. Thus, the applicant could have had some idea of the suspicions against him. As for the promptness of the information conveyed, the Court observes that a material impossibility arose initially due to the applicant’s self-inflicted physical and mental condition, which was the primary cause for the delay. In these circumstances, the Court does not find any appearance of a violation of Article 5 § 2 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
c) As to the length of detention in police custody, the Court observes that the applicant was detained by the police for some 16 hours. It recalls the four-day limit implicitly accepted in the Brogan and Others v. the United Kingdom case, in which four days and six hours of police custody was deemed to breach Article 5 § 3 of the Convention (judgment of 29 November 1988, Series A no. 145‑B, pp. 17‑20, §§ 57‑62). The Court concludes therefore that the 16 hours spent by the present applicant in police custody was prompt enough for the purposes of Article 5 § 3.
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant further complained under Article 6 § 3 (a) and (b) of the Convention that the investigating judge had taken a statement from him while he was under the influence of drugs, and that he had been denied adequate time and facilities for the preparation of his defence, as he was unfit and unable to communicate with his lawyer in the circumstances.
The Court notes that the applicant’s complaint is related to the fairness of the proceedings. In this connection, it reiterates that the fairness of a trial must be considered in its entirety, including the way in which the evidence was taken, in order to ensure that the decision reached was not arbitrary or manifestly unreasonable (see Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247‑B, pp. 34‑35, § 34, and Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no.166, p. 19, § 39).
In the present case, the Court notes that during the preliminary investigation the applicant only made a statement to the investigating judge when he had gained consciousness, at which point he denied the charges against him. Moreover, he was represented by a lawyer throughout the proceedings. Therefore, even assuming that, initially, the applicant’s condition may have affected his full understanding of the case, his defence was afforded adequate guarantees.
The Court therefore concludes that the applicant’s complaint is unsubstantiated and must be rejected as being manifestly-ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of his detention on remand and his right to an effective remedy in this respect;
Declares the remainder of the application inadmissible.
F. Elens-PassosF. Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy