SAKIK AND OTHERS v. TURKEY - 23878/94;23879/94;23880/94;... [1997] ECHR 95 (26 November 1997)

judgment [4] . FINAL SUBMISSIONS TO THE COURT 31. In their memorial the Government “respectfully [asked] the Court, primarily, to declare that the Turkish derogation [was] applicable to the facts of the case and that, pursuant to that derogation, there [had] been no violation of Article 5 of the Convention; and in the alternative, to declare that the applicants [had] failed to exhaust all domestic remedies [in connection with] Article 5; to declare that there [had] been no violation of Article 5 §§ 1, 3, 4 and 5”. 32. The applicants asked the Court “to deliver a decision … consistent with the Commission’s conclusions” and claimed just satisfaction under Article 50 of the Convention. AS TO THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 33. The applicants complained of breaches of Article 5 §§ 1, 3, 4 and 5 of the Convention (see paragraphs 40, 41, 49 and 58 below), the relevant parts of which provide: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; … 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” The Government maintained that, as Turkey had exercised the right of derogation under Article 15 of the Convention (see paragraph 25 above), it had not breached these provisions. The Court must accordingly first determine whether the derogation concerned applies to the facts of the case. A. Applicability of the derogation notified by Turkey under Article 15 of the Convention 34. Article 15 of the Convention provides: “1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogations from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.” 35. The applicants submitted that the derogation in question did not apply to the measures imposed on them. The Commission agreed. 36. The Court notes that Legislative Decrees nos. 424, 425 and 430, which are referred to in the derogation of 6 August 1990 and the letter of 3 January 1991, apply, according to the descriptive summary of their content, only to the region where a state of emergency has been proclaimed, which, according to the derogation, does not include the city of Ankara (see paragraphs 25 and 28 above). However, the applicants’ arrest and detention took place in Ankara on the orders first of the public prosecutor attached to the Ankara National Security Court and later of the judges of that court (see paragraphs 7–14 above). 37. The Government submitted that this was no bar to the derogation’s applicability. The facts of the case constituted only the prolongation of a terrorist campaign being conducted from inside the area where the state of emergency had been proclaimed, in south-east Turkey. The terrorist threat was not confined to any particular part of Turkish territory. That had to be taken into account if the Turkish derogation was to be interpreted in the light of its object and purpose, namely to enable “normality for the purposes of the Convention” to be restored throughout the country as quickly as possible. 38. In its Aksoy v. Turkey judgment the Court has already noted the unquestionably serious problem of terrorism in south-east Turkey and the difficulties faced by the State in taking effective measures against it. It held in that connection that the particular extent and impact of Kurdish Workers’ Party (PKK) activity in south-east Turkey had undoubtedly created, in the region concerned, a “public emergency threatening the life of the nation” (see the judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI , pp. 2281 and 2284, §§ 70 and 84). 39. It should be noted, however, that Article 15 authorises derogations from the obligations arising from the Convention only “to the extent strictly required by the exigencies of the situation”. In the present case the Court would be working against the object and purpose of that provision if, when assessing the territorial scope of the derogation concerned, it were to extend its effects to a part of Turkish territory not explicitly named in the notice of derogation. It follows that the derogation in question is inapplicable ratione loci to the facts of the case. Consequently, it is not necessary to determine whether it satisfies the requirements of Article 15. B. Article 5 § 1 of the Convention 40. Before the Commission the applicants maintained that their arrest had been in breach of Article 5 § 1 of the Convention. In their memorial to the Court, however, they accepted the Commission’s conclusion that this provision had not been breached (see paragraph 30 above). Consequently, they presented no argument regarding this complaint. The Court likewise considers that no breach of Article 5 § 1 has been established. C. Article 5 § 3 of the Convention 41. The applicants alleged that, contrary to Article 5 § 3 of the Convention, they had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power. The Commission accepted this argument in substance. 42. The Government pleaded the nature and scale of the terrorist threat in Turkey and the particular difficulties encountered in taking action to ward off that threat, which was incomparably more serious and more imminent than the threat posed by other examples of terrorism in Europe. In the instant case the public prosecutor had for some considerable time been in possession of information confirming the suspicions of collusion between the applicants and the PKK, but the evidence – twenty-two ring-binders’ full in all – still had to be obtained. That was why it had been necessary to hold the applicants in police custody. Moreover, if they had not chosen to remain silent, thus deliberately adding obstacles to those already encountered by the investigators, they might have been able to cut their detention short. 43. The applicants submitted that the conduct held against them, namely dissemination of what were deemed to be separatist views, did not constitute “terrorism”. Furthermore, since the authorities had originally applied for the lifting of their parliamentary immunity in November 1992, they must already have been in possession at that time of the evidence necessary to prosecute them. 44. The Court has already accepted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 33, § 61, the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, § 58, and the above-mentioned Aksoy judgment, p. 2282, § 78). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see, mutatis mutandis , the above-mentioned Murray judgment, p. 27, § 58). What is at stake here is the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty. Judicial control of interferences by the executive is an essential feature of the guarantee embodied in Article 5 § 3, which is intended to minimise the risk of arbitrariness and to secure the rule of law, “one of the fundamental principles of a democratic society …, which is expressly referred to in the Preamble to the Convention” (see the above-mentioned Brogan and Others judgment, p. 32, § 58, and the above-mentioned Aksoy judgment, p. 2282, § 76). 45. The Court notes that the applicants’ detention in police custody lasted twelve days in the case of Mr Sakık, Mr Türk, Mr Alınak and Mrs Zana, and fourteen days in the case of Mr Dicle and Mr Doğan. It recalls that in the Brogan case it held that detention in police custody which had lasted four days and six hours without judicial control fell outside the strict constraints as to time laid down by Article 5 § 3, even though its purpose was to protect the community as a whole against terrorism (see the above-mentioned Brogan and Others judgment, p. 33, § 62). Even supposing that the activities of which the applicants stood accused were linked to a terrorist threat, the Court cannot accept that it was necessary to detain them for twelve or fourteen days without judicial intervention. 46. Accordingly, there has been a breach of Article 5 § 3. D. Article 5 § 4 of the Convention 1. The Government’s preliminary objection 47. The Government raised a preliminary objection on the ground of non-exhaustion of domestic remedies. They contended that the applicants had failed to invoke in the national courts, in addition to Article 19 § 8 of the Constitution (see paragraph 18 above), Article 5 § 4 of the Convention itself, which, pursuant to Article 90 § 5 of the Constitution (see paragraph 19 above), has the force of law in Turkey. 48. The Court notes that this preliminary objection was not raised before the Commission. It is therefore inadmissible on grounds of estoppel (see, among other authorities, the Ceteroni v. Italy judgment of 15 November 1996, Reports 1996-V, pp. 1755–56, § 19). 2. Merits of the complaint 49. The applicants complained that they had not been able to take proceedings to have the lawfulness of the public prosecutor’s decisions ordering their detention in police custody decided by a judge. The Commission accepted this argument. 50. The Government submitted that the review required by Article 5 § 4 of the Convention was carried out by the single judge who ordered the applicants’ detention pending trial (see paragraph 12 above). 51. The Court notes that, irrespective of whether, when ordering the applicants’ detention pending trial, the single judge also ruled on the lawfulness of their detention in police custody, that judge did not intervene until the end of the latter, that is to say twelve days, or fourteen days in some cases, after their arrest. Having regard to the conclusion it reached with regard to Article 5 § 3 (see paragraph 46 above), the Court considers that such a lengthy period sits ill with the notion of “speedily” (see, mutatis mutandis , the Van Droogenbroeck v. Belgium judgment of 24 June 1982, Series A no. 50, p. 29, § 53) . 52. The Government further maintained that Article 19 § 8 of the Constitution (see paragraph 18 above) provided a remedy which was also available before national security courts. Its wording was almost identical to that of Article 5 § 4 of the Convention, which was itself directly applicable in Turkish law, pursuant to Article 90 § 5 of the Constitution (see paragraph 19 above). 53. The Court reiterates that the existence of a remedy must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for the purposes of Article 5 § 4 (see, among other authorities, mutatis mutandis , the above-mentioned Van Droogenbroeck judgment, p. 30, § 54, the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 19, § 39, and the Yağcı and Sargın v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 17, § 42). However, the file supplied to the Court contains no example of any person detained in police custody having successfully invoked Article 19 § 8 of the Constitution or Article 5 § 4 of the Convention when applying to a judge for a ruling on the lawfulness of his detention or for his release. The Court does not consider itself to be required to determine this question of Turkish law. However, the lack of precedents indicates the uncertainty of this remedy in practice (see, mutatis mutandis , the above-mentioned Van Droogenbroeck judgment, p. 31, § 55, and the above-mentioned De Jong, Baljet and Van den Brink judgment, p. 19, § 39). 54. In conclusion, there has been a breach of Article 5 § 4. E. Article 5 § 5 of the Convention 1. The Government’s preliminary objection 55. The Government raised a preliminary objection in which they pleaded non-exhaustion of domestic remedies on two grounds. Firstly, the applicants had omitted to rely in the domestic courts on Articles 19 § 9 and 90 § 5 of the Constitution read in conjunction with each other (see paragraphs 18 and 19 above). Secondly, they should have sought a remedy under Law no. 466 of 7 May 1964, which guarantees the possibility of an award of damages to any person who has been unlawfully deprived of his liberty, or who, after being lawfully detained, is not subsequently committed for trial or is acquitted or discharged after standing trial (see paragraph 24 above). 56. The Court notes that the first limb of this preliminary objection was not raised before the Commission. It is therefore inadmissible on grounds of estoppel (see paragraph 48 above). 57. It also considers that the second limb is closely linked to consideration of the complaint under Article 5 § 5. It therefore joins it to the merits (see paragraphs 60 and 61 below). 2. Merits of the complaint 58. Lastly, the applicants alleged that, in breach of Article 5 § 5, under Turkish law it was not possible for them to claim compensation for a violation of Article 5 in the domestic courts. 59. The Government asserted that this would indeed have been possible if there had been any such violation, which was not the case. The applicants could have relied on the last paragraph of Article 19 of the Constitution, whose wording had been modelled on Article 5 § 5 of the Convention, which was itself directly applicable in the Turkish legal system, pursuant to Article 90 § 5 of the Constitution (see paragraph 19 above). Furthermore, they could have relied, as a lex specialis , on section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained (see paragraph 24 above). As they had not availed themselves of either of these possibilities, the applicants were not entitled to complain of a breach of paragraph 5. 60. As in connection with Article 5 § 4 (see paragraph 53 above), the Court notes that there is no example in the case file of any litigant obtaining the compensation referred to in Article 5 § 5 by relying on one of the provisions mentioned by the Government. With particular reference to section 1 of Law no. 466, the Court notes, like the Commission and the applicants, that with the exception of the situation – which did not obtain in the instant case – where a person is not committed for trial, or is acquitted or discharged after standing trial (subsection 6), all the cases in which compensation is payable under the provision concerned require the deprivation of liberty to have been unlawful. But the detention in issue was in accordance with Turkish law, as the Government conceded. In conclusion, effective enjoyment of the right guaranteed by Article 5 § 5 of the Convention is not ensured with a sufficient degree of certainty (see, mutatis mutandis , the Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, p. 18, § 44). 61. Consequently, the Court dismisses the second limb of the Government’s preliminary objection and concludes that there has been a breach of Article 5 § 5. II. APPLICATION OF ARTICLE 50 OF THE CONVENTION 62. Under Article 50 of the Convention: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 63. The applicants claimed compensation for the non-pecuniary damage resulting from the deprivation of their liberty, which, they asserted, had been aggravated by the damage to their “reputations as members of parliament”. They each claimed 600,000 French francs (FRF) for prejudice suffered in their “private capacity” and the same amount for “damage to their reputations as members of parliament”. 64. The Government submitted that, if the Court were to find a violation, the judgment would in itself constitute sufficient just satisfaction for the purposes of Article 50. They argued that the applicants’ claims were based on concepts which had nothing to do with the Court’s case-law and were neither justified nor founded, since there was no proof of any causal connection between the length of their detention in police custody and the non-pecuniary damage they had alleged. If there had been any damage to the applicants’ “reputations as members of parliament”, this had been caused not by their detention in police custody but by the lifting of their parliamentary immunity by the Turkish National Assembly. 65. The Delegate of the Commission submitted that compensation should be awarded, but considered the sum claimed excessive. 66. The Court notes that the applicants were detained in police custody for twelve days (Mr Sakık, Mr Türk, Mr Alınak and Mrs Zana) or fourteen days (Mr Dicle and Mr Doğan) without judicial intervention. It is in no doubt that the circumstances in which they were deprived of their liberty must have caused them non-pecuniary damage for which the domestic courts have not awarded them any compensation. Taking into account the various aspects of the case and making an assessment on an equitable basis, as required by Article 50, the Court awards FRF 25,000 each to Mr Sakık, Mr Türk, Mr Alınak and Mrs Zana and FRF 30,000 each to Mr Dicle and Mr Doğan. These sums are to be converted into Turkish liras at the rate applicable on the date of settlement. B. Costs and expenses 67. In respect of their costs and expenses for representation before the Turkish authorities and later before the Convention institutions, the applicants claimed FRF 344,546. 68. The Government considered that sum exorbitant and unjustified, in particular because it included the cost of numerous group journeys between Paris and Ankara and was based on an hourly rate which bore no comparison with the normal rate in Turkey. 69. The Delegate of the Commission left the matter to the Court’s discretion. 70. Making an assessment on an equitable basis and according to the criteria laid down in its case-law (see, among other authorities, the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 110, § 40), the Court awards the applicants FRF 120,000 under this head. C. Default interest 71. The Court deems it appropriate to adopt the statutory rate applicable in France on the date of adoption of the present judgment, that is 3.87% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that the derogation made by Turkey under Article 15 of the Convention is not applicable in the case; 2. Holds that there has been no breach of Article 5 § 1 of the Convention; 3. Holds that there has been a breach of Article 5 § 3 of the Convention; 4. Dismisses the Government’s preliminary objection relating to Article 5 § 4 of the Convention; 5. Holds that there has been a breach of Article 5 § 4 of the Convention; 6. Dismisses both limbs of the Government’s preliminary objection relating to Article 5 § 5 of the Convention, the second of which it joined to and considered with the merits; 7. Holds that there has been a breach of Article 5 § 5 of the Convention; 8. Holds (a) that the respondent State is to pay, within three months, the following sums: (i) for non-pecuniary damage, 25,000 (twenty-five thousand) French francs each to Mr Sakık, Mr Türk, Mr Alınak and Mrs Zana and 30,000 (thirty thousand) French francs each to Mr Dicle and Mr Doğan, which sums are to be converted into Turkish liras at the rate applicable on the date of settlement; (ii) for costs and expenses, 120,000 (one hundred and twenty thousand) French francs to the applicants; (b) that simple interest at an annual rate of 3.87% shall be payable on these amounts from the expiry of the above-mentioned three months until settlement; 9. Dismisses the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 November 1997. Signed : Rudolf BERNHARDT President Signed : Herbert PETZOLD Registrar [1] . This summary by the registry does not bind the Court. Notes by the Registrar 2. The case is numbered 87/1996/706/898-903. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The third number indicates the case’s position on the list of cases referred to the Court since its creation and the last two numbers indicate its position on the list of the corresponding originating applications to the Commission. [3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. [4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is available from the registry. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII