FOURTH
SECTION
CASE OF RESUL SADAK AND OTHERS v.
(Application no. 74318/01)
JUDGMENT
This version was rectified on
under Rule 81 of the Rules of the Court
FINAL
This judgment will become final in the
circumstances set out in Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Resul Sadak and Others v.
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr R. Türmen,
Mr M. Pellonpää,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Šikuta,
judges,
and Mr T.L. Early,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 74318/01) 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 twelve Turkish nationals, Mr Resul
Sadak, Mr Nihat Osal,
Mr Mehmet Çakar, Mr Rustem Bayar[1],
Mr Tahir Kutlu, Mr Cengiz Balık,
Mr İzzet Belge, Mr Abdurrazak İnan[2],
Mr Mehmet Temelkuran, Mr Mehmet Nezir
Ayan, Mr Yakup Uyar and Mr Erdal Güler (“the applicants”), on 1 April 2001.
2. The applicants were
represented by Mr T. Elçi, a lawyer practising in
3. On 3 November 2005 the
Court declared the application partly inadmissible and decided to communicate to
the Government the complaint concerning the applicants' right to be brought promptly before a judge. Under
the provisions of Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. At the time of the events giving rise to the application, Mr Resul Sadak was the provincial leader and the other applicants were members of the Peoples' Democracy Party (Halkın Demokrasi Partisi, hereinafter “HADEP”) in Şırnak, which was a province in the State of Emergency region.
5. On 23 September 2000 Resul Sadak, Nihat Osal, Mehmet Çakar, Rustem Bayar[3], Tahir Kutlu, Cengiz Balık, İzzet Belge, Abdurrazak İnan[4], Mehmet Temelkuran, Mehmet Nezir Ayan and Yakup Uyar went to Batman in order to participate in the Batman Provincial Congress of HADEP in two cars belonging to Yakup Uyar and Erdal Güler. On their way back to Şırnak from Batman, they were stopped in Düzova village, in Cizre, and arrested by gendarmerie officers. The applicants were then taken to the Şırnak provincial gendarmerie command.
6. On
7. On
8. Subsequently, criminal proceedings
were brought against the applicants on charges of aiding and abetting the PKK contrary
to Article 169 of the Criminal Code and Article 5 of Law no. 3713, and
illegal possession of firearms and explosives contrary to Article 264 § 5
of the Criminal Code and Article 13 § 2 of Law no. 6136.
9. On
10. In 2002 and 2003 the applicants were acquitted of the charges against them.
II. RELEVANT DOMESTIC LAW
11. At the material time
Article 16 of Law no. 2845 on the Establishment and Rules of Procedures of
State Security Courts provided:
“Any person arrested in connection with an
offence within the jurisdiction of State Security Courts shall be brought
before a judge and questioned within forty-eight hours at the latest, not
including the time needed to convey the detainee to the judge.
If the offence is a joint one committed by
three or more persons, this period can be prolonged for up to four days by a
written order of the public prosecutor owing to the difficulties in collecting
evidence or to the number of perpetrators, or for similar causes. If the
investigation is not concluded within this period, it can be prolonged for up
to seven days upon the request of the public prosecutor and the decision of the
judge.
The period of seven days referred to in the
second paragraph can be prolonged for up to ten days upon the request of the
public prosecutor and by decision of the judge in respect of persons arrested
in regions where a state of emergency has been declared in accordance with Article 120 of the
Constitution.
...”
12. At the material time,
according to Article 128 of the Code of Criminal Procedure, any person who was
arrested and/or in respect of whom a prosecutor made an order for his or her
continued detention, could challenge that measure before the appropriate
district judge and, if successful, be released.
13. Article 1 of Law no. 466
on the Payment of Compensation to Persons Unlawfully Arrested or Detained
provides:
“Compensation shall be paid by the State in
respect of all damage sustained by persons:
(1) who
have been arrested, or detained under conditions or in circumstances
incompatible with the Constitution or statute;
(2) who
have not been immediately informed of the reasons for their arrest or
detention;
(3) who have not been brought
before a judicial officer after being arrested or detained within the time
allowed by statute for that purpose;
(4) who
have been deprived of their liberty without a court order after the statutory
time allowed for being brought before a judicial officer has expired;
(5) whose
close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial;
(7) who
have been sentenced to a term of imprisonment shorter than the period spent in
detention or ordered to pay a pecuniary penalty only...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5
§ 3 OF THE CONVENTION
14. The applicants complained
under Article 5 § 3 of the Convention that the length of their detention in
custody was excessive.
A. Admissibility
1. The parties' submissions
15. The Government submitted
that the application should be rejected for failure to exhaust domestic remedies
as required by Article 35 § 1 of the Convention. The Government argued that, pursuant
to Article 128 of the Code of Criminal Procedure, the applicants could have
challenged the length of their detention in custody. They further maintained
that the applicants could have sought compensation pursuant to Law no. 466 on
the Payment of Compensation to Persons Unlawfully Arrested or Detained.
16. The applicants argued
that the remedies suggested by the Government were ineffective. They submitted
that, since the length of their detention in custody had been in conformity
with the domestic law applicable at the time of their arrest, any application
under Article 128 of the Code of Criminal Procedure or the provisions of Law
no. 466 would have been useless.
2. The Court's assessment
a. As
regards the applicant Erdal
Güler
17. The Court does not
consider it necessary to determine whether Erdal Güler has exhausted
domestic remedies, as his complaint is manifestly ill-founded for the following
reason.
18. The Court notes that, according
to the documents submitted to the Court, Erdal Güler was taken into custody at
2 p.m. on 27 September 2000 by officers from the Şırnak
provincial gendarmerie command and left the gendarmerie command at 11 a.m. on 1
October 2000. The Court observes that the period in question is less than
ninety-six hours.
19. Having regard to its jurisprudence in similar cases, and bearing in mind the context in which he was detained, the Court considers that the length of Erdal Güler's detention in custody does not contravene the requirements of Article 5 § 3 of the Convention since he was brought before a judge less than four days after his arrest (see Çelik and İmret v. Turkey (dec.), no. 44093/98, 26 September 2000).
20. 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.
b. As regards the applicants Resul
Sadak, Nihat Osal, Mehmet
Çakar, Rustem Bayar[5], Tahir Kutlu, Cengiz Balık, İzzet Belge, Abdurrazak İnan[6], Mehmet Temelkuran, Mehmet Nezir Ayan and Yakup Uyar
21. The Court reiterates that
it has already examined and rejected the Government's preliminary objections in
similar cases (see, for example, Öcalan v. Turkey [GC], no. 46221/99, §§ 66-71, ECHR
2005‑..., and Bulduş v. Turkey, no.
64741/01, §§ 10-14, 22 December 2005). The Court finds
no particular circumstances in the instant case which would require it to
depart from this jurisprudence.
22. Consequently, the Court
rejects the Government's preliminary objection. It further notes that this part
of the application is not inadmissible on any other grounds and must,
therefore, be declared admissible.
B. Merits
23. The applicants complained
that they had been held in custody for an excessive length of time without
being brought before a judge or other officer authorised by law to exercise
judicial power as provided in Article 5 § 3 of the Convention, which reads as
follows:
“Everyone arrested or detained in accordance
with the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.”
24. The Government argued
that the length of the applicants' detention in custody was in conformity with
the legislation in force at the time. Given that the relevant law has since
been amended in accordance with the Court's jurisprudence, the applicants'
allegation was groundless.
25. The Court notes that the
applicants' detention
in Şırnak provincial gendarmerie command
lasted eight days. It reiterates that, in the case of Brogan and Others v. the United Kingdom,
it held that detention
in police custody which had
lasted four days and six hours without judicial control fell outside the strict
time constraints of Article 5 § 3
of the Convention, even though its purpose was to protect the community as a
whole against terrorism (judgment of 29 November 1988, Series A no. 145 B, pp.
33-34, § 62).
26. Even though the investigation
of terrorist offences, as was relied on by the Government in this case,
presents the authorities with special problems, the Court cannot accept that it
was necessary to detain the applicants for eight days without judicial
intervention.
27. There has, accordingly,
been a violation of Article 5 § 3 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
28. Article 41 of the
Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the injured
party.”
A. Damage
29. The applicants claimed 10,000
euros (EUR) and EUR 5,000 in respect of non‑pecuniary and pecuniary damage
respectively.
30. The Government contested
the amounts requested by the applicants and proposed that the finding of a
violation would constitute in itself sufficient compensation.
31. As regards the alleged
pecuniary damage sustained by the applicants, the Court observes that they have
not produced any document in support of their claim, which the Court,
accordingly, dismisses.
32. With regard to
non-pecuniary damage, the Court considers that the applicants have sustained
non-pecuniary damage which is not sufficiently compensated by the finding of a
violation of the Convention. Making its assessment on an equitable basis, the
Court awards Resul Sadak, Nihat Osal,
Mehmet Çakar, Rustem Bayar[7],
Tahir Kutlu, Cengiz Balık,
İzzet Belge, Abdurrazak İnan[8],
Mehmet Temelkuran, Mehmet Nezir Ayan and Yakup Uyar EUR 1,800 each.
B. Costs and expenses
33. The applicants also
claimed EUR 5,300 for the costs and expenses incurred before the domestic
courts and for those incurred before the Court.
34. The Government contested
this claim. They maintained that only expenses actually incurred can be
reimbursed.
35. According to the Court's
case-law, an applicant is entitled to reimbursement of his or her costs and
expenses only in so far as it has been shown that these have been actually and
necessarily incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above criteria,
the Court considers it reasonable to award Resul Sadak, Nihat
Osal, Mehmet Çakar, Rustem
Bayar[9],
Tahir Kutlu, Cengiz Balık,
İzzet Belge, Abdurrazak İnan[10],
Mehmet Temelkuran, Mehmet Nezir Ayan and Yakup Uyar, jointly, the sum of
EUR 1,000 for costs and expenses for the proceedings before the Court.
C. Default interest
36. The Court considers it
appropriate that the default interest 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 part of the application
concerning Erdal Güler inadmissible;
2. Declares the remainder of the application admissible in respect of
the applicants Resul Sadak, Nihat Osal,
Mehmet Çakar, Rustem Bayar1, Tahir Kutlu, Cengiz Balık,
İzzet Belge, Abdurrazak İnan2,
Mehmet Temelkuran, Mehmet
Nezir Ayan and Yakup Uyar;
3. Holds that there has been a violation of Article 5 § 3 of the
Convention;
4. Holds
(a) that the respondent State is to pay Resul Sadak, Nihat Osal, Mehmet Çakar, Rustem Bayar[11],
Tahir Kutlu, Cengiz Balık,
İzzet Belge, Abdurrazak İnan[12],
Mehmet Temelkuran, Mehmet Nezir Ayan and Yakup Uyar, within three
months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into new Turkish liras at the rate applicable at the date of
settlement:
(i) EUR 1,800 (one thousand eight hundred euros)
each in respect of non‑pecuniary damage;
(ii) EUR
1,000 (one thousand euros), jointly, in respect of costs and expenses;
(iii) any taxes that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three
percentage points;
5. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in English, and notified in writing
on
T.L. Early Nicolas
Bratza
Registrar President
[1] Rectified on : The applicant’s name read “Rüstem Bayar” in the former version of the judgment.
[2] Rectified on : The applicant’s name read “Abdurrezak İnan” in the
former version of the judgment.
[3] Rectified on : The applicant’s name read “Rüstem Bayar” in the former version of the judgment.
[4] Rectified on : The applicant’s name read “Abdurrezak İnan” in the
former version of the judgment.
[5] Rectified on : The applicant’s name read “Rüstem Bayar” in the former version of the judgment.
[6] Rectified on : The applicant’s name read “Abdurrezak İnan” in the
former version of the judgment.
[7] Rectified on : The applicant’s name read “Rüstem Bayar” in the former version of the judgment.
[8] Rectified on : The applicant’s name read “Abdurrezak İnan” in the
former version of the judgment.
[9] Rectified on : The applicant’s name read “Rüstem Bayar” in the former version of the judgment.
[10] Rectified on : The applicant’s name read “Abdurrezak İnan” in the
former version of the judgment.
[11] Rectified on : The applicant’s name read “Rüstem Bayar” in the former version of the judgment.
[12] Rectified on : The applicant’s name read “Abdurrezak İnan” in the
former version of the judgment.