SECOND SECTION

DECISION

Application no . 2118/10 Mahfuz TALU against Turkey

The European Court of Human Rights (Second Section), sitting on 4 Dece mber 2012 as a Chamber composed of:

Guido Raimondi , President, Danutė Jočienė , Peer Lorenzen , Dragoljub Popović , Işıl Karakaş , Paulo Pinto de Albuquerque , Helen Keller , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 15 December 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mahfuz Talu , is a Turkish national who was born in 1959 and lives in Siirt . He is represented before the Court by Ms M. Danış Beştaş and Mr M. Beştaş , lawyers practising in Diyarbakır .

2. The facts of the case, as submitted by the applicant and as they emerge from the case file, may be summarised as follows.

3. At the material time the applicant was the president of an association called “SIYDER”, the Siirt Association for Aid to the Poor and Solidarity. The main office of the association was on the second floor of an office building. The offices of a newspaper called “ Azadiya Welat ”, the news agency “DIHA”, and the Democratic Society Party “DTP” were also located on the same floor.

4. Following a phone call to the police from an unidentified man, a search of the association ’ s office and the neighbouring offices was carried out on 9 January 2009.

5. The applicant, together with a number of others, was arrested thereafter on suspicion of membership of a terrorist organisation and of disseminating terrorist propaganda.

6. On 13 January 2009 the applicant gave a statement, first before the public prosecutor and then before the Siirt Magistrates ’ Court for Criminal Matters. A list obtained in the search was said to suggest that the purpose of the association was to help the families of PKK members actively involved in armed conflict. The applicant submitted that two newspapers and a CD had been found in the association ’ s offices and that the association was helping people according to whether they had a “green card” or not. He stated that they had rented two offices on the second floor of the office building; that they had not started their activities yet; and that the newspaper Azadiya Welat might have been read by the officers of the association. He further submitted that he had filled in the relevant forms for standing as a DTP candidate in the local elections and that the reason behind all the accusations was his former conviction for membership of the PKK.

7. He was remanded in custody on the same day on charges of membership of a terrorist organisation and disseminating terrorist propaganda. The court based its decision, primarily, on the strong suspicion that the applicant had committed the offences attributed to him. It further noted that the offences attributed to the applicant were among those enumerated in Article 100 of the Code of Criminal Procedure and that the application of alternative measures to detention was not possible given the maximum sentence imposable for the offence.

8. On 21 May 2009 the applicant ’ s case was referred to the public prosecutor of Diyarbakir having jurisdiction by virtue of Article 250 of the Code of Criminal Procedure. In referring the case, the Siirt public prosecutor noted the following in the summary of the investigation: the documents obtained from the search carried out in the offices of the association contained statements praising Abdullah Öcalan and the PKK; one of the association ’ s offices was used by the Siirt local DTP organisation; among the documents were found application forms for standing as a DTP candidate in local and general elections and records of the interviews held for electoral nominations, some of which had been filled in by the suspects; the material in the newspaper articles and/or stories found at the office had a criminal content; and one of the suspects was the distributor of the newspaper Azadiya Welat .

9. On 3 August 2009 the applicant requested release.

10. On 7 August 2009 an indictment was filed with the Diyarbakır Assize Court charging the applicant with disseminating terrorist propaganda and aiding and abetting a terrorist organisation. The pertinent parts of the indictment read as follows:

“ ... the persons receiving help from the association are classified under the heading General ‘ Family Condition and General Situation ’ as ‘ very poor, poor, good, normal ’ ... Notes such as ‘ former convict ’ , ‘ the family member who lost his/her life ’ , ‘ the son of the deceased ’ , ‘ the wife of the deceased ’ , ‘ one disappeared person in the family ’ or ‘ two disappeared persons in the family ’ were written on the list. The 4 th , 13 th and 16 th persons on the list were being sought by the police in connection with a crime.

The basic purpose of helping the people on the list/granting the aid was to help the relatives of those who are involved in the armed conflict between the PKK and the security forces; those who died in it and those who are currently being detained for membership of the terrorist organisation; the sole purpose of the aid was to serve the activities of the terrorist organisation.

Documents that do not correspond to the activities of an aid organisation, for example, a circular by the free elections platform, Edi bese , Ora basta , the policy of the coalition, interview questions for the nomination of candidates for the general election, interview questions for assembly members, and petitions concerning ‘ Sayin (Mr / Esteemed) Ocalan ’ were obtained in the search carried out in the building.

The suspects, the directors of the association, let the DTP, the DIHA news agency and Azadiya Welat use their offices, where a number of documents ... pertaining to the terrorist organisation were found.

The suspect Mahfuz Talu had been convicted of membership of the terrorist organisation and sentenced to 12 years and 6 months ’ imprisonment by a decision of the Diyarbakir 1 st State Security Court dated 10 March 1995 ... ”

11. According to the case file, the applicant ’ s detention was extended on 10 August 2009.

12. The Diyarbakır Assize Court extended the applicant ’ s pre-trial detention for the last time on 8 September 2009 on the basis of the case file, following an examination proprio motu . It referred to the nature of the offences, the state of the evidence and Article 100 (3) of the Code of Criminal Procedure.

13. At the first hearing, held on 1 October 2009, the court released the applicant pending trial, having regard to the state of the evidence and the fact that he had submitted his defence.

14. In a letter dated 5 September 2012, the applicant informed the Court that the criminal proceedings initiated again st him had come to an end on 31 December 2009 with his acquittal by the first-instance court. That judgment found that there was no conclusive evidence substantiating the allegations beyond reasonable doubt. It was held that the activities of the association could not be identified with certainty and that the evidence collected, in itself, did not suggest that its activities were aimed at aiding a terrorist organisation.

15. The applicant did not appeal and the decision became final on 8 January 2010.

COMPLAINTS

16. The applicant contended under Article 5 § 1 that the facts attributed to him could not be construed as aiding or abetting a terrorist organisation or as any other terrorist offence and that therefore his detention could not be considered to have been necessary to prevent his committing an offence or fleeing after having done so. According to the applicant, there was no reasonable suspicion that he had committed an offence within the meaning of Article 5 § 1.

17. The applicant complained under Article 5 § 3 of the Convention that his continued pre-trial detention had ceased to be justified with the passage of time and in view of the state of the evidence, and that its length had been excessive in the circumstances.

18. The applicant further complaine d of a violation of Article 5 § 4, stating that the judicial review of the lawfulness of his detention had been carried out to keep up appearances and that he had not appeared before a court for a period of nine months.

19. The applicant complained of a violation of Article 5 § 5 taken in conjunction with Article 5 §§ 1, 3 and 4.

20. Under Article 6 of the Convention the applicant argued that when a public prosecutor filed an indictment, the accused person should be able to challenge it and that the judges who admitted the indictment in the first place should not adjudicate on the case. In addition, he disputed the evidence before the court and maintained that he had faced a disproportionately severe sentence.

THE LAW

Article 5 § 1

21. The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been justified.

22. The Court is of the view that the first question to be determined in the present case is whether the applicant ’ s detention was “ lawful ” within the meaning of Article 5 § 1, including whether it was “ in accordance with a procedure prescribed by law ” . The Court reiterates that the Convention here refers essentially to national law, but it also requires that any measure depriving the individual of his liberty be compati ble with the purpose of Article 5, namely to protect the individual from arbitrariness.

23. Where the Convention refers directly back to domestic law, as in Article 5, compliance with such law is an integral part of the obligations of the Contracting States and the Court is accordingly competent to satisfy itself of such compliance where relevant; the scope of its task in this connection, however, is subject to limits inherent in the logic of the European system of protection, since it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Lukanov v. Bulgaria , 20 March 1997, §§ 41-46, Reports of Judgments and Decisions 1997 ‑ II) .

24. The Court reiterates that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty, which must be interpreted strictly. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on suspicion of his or her having committed an offence (see, among others, Jėčius v. Lithuania , no. 34578/97, § 50, ECHR 2000 ‑ IX ). A “reasonable suspic ion”, as referred to in Article 5 § 1 (c) of the Convention, that a criminal offence has been committed presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence (see Fox , Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A no. 182 ).

25. With regard to the level of “ suspicion ” , the Court would note firstly that sub-paragraph (c) of Article 5 § 1 does not presuppose that the investigating authorities should have obtained sufficient evidence to bring charges, either at the point of arrest or while the arrested person is in custody. The object of questioning during detention under sub-paragraph (c) of Article 5 § 1 is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see, among other authorities, Murray v. the United Kingdom , 28 O ctober 1994, § 55, Series A no. 300 ‑ A ).

26. The Court ’ s task is to determine whether the conditions laid down by paragraph (c) of Article 5 § 1, including the pursuit of the prescribed legitimate purpose, have been fulfilled in the circumstances of the particular case. However, in this context it is not normally within the province of the Court to substitute its own finding of fact for that of the domestic courts, which are better placed to assess the evidence adduced before them (see, M urray , cited above, § 66 ).

27. Turning to the particular circumstances of the case, the Court notes that the applicant was one of the directors of the association concerned and that the principal accusation was that the sole purpose of the association was to grant aid to the relatives of members of a terrorist organisation, which, if proved, might have been characterised as indirect assistance to terrorist activities. In this regard, the Court observes that aiding and abetting a terrorist organisation constituted a criminal offence under both the Criminal Code and Law No. 3713 on the fight against terrorism as relied on by the domestic authorities to justify the applicant ’ s pre-trial detention. Therefore, the Court is not persuaded that the conduct which the applicant was accused of did not constitute a criminal offence.

28. As regards the existence of reasonable suspicion, the Court reiterates that the applicant was kept in pre-trial detention on suspicion of providing assistance to terrorist activities, on the basis of the evidence collected at the initial stage of the investigation following the search carried out in the main office of the association after a phone call from an unidentified person. The main piece of evidence which gave rise to the charges against the applicant was the list of people to be helped by the association. In this connection, the Court cannot rule out the possibility that the impugned list of people in need, and other documents that were not consistent with the activities of an aid organisation, irrespective of their being illegal, might have cast doubt on the activities and purpose of the association concerned. Bearing in mind that the purpose of the deprivation of liberty was to confirm or dispel suspicions about the involvement of the association and the applicant in terrorist activities, t he Court takes the view that the applicant ’ s detention was not devoid of valid grounds. Having regard to the level of factual justification required at the stage of suspicion and to the special exigencies of investigating terrorist crime, the Court finds, in the light of all the above considerations, that there did exist sufficient facts or information to provide a plausible and objective basis for a suspicion that the applicant may have committed the offence of aiding a terrorist organisation. On the particular facts of the present case, therefore, the Court is satisfied that the applicant can be said to have been detained on “ reasonable suspicion ” of the commission of a criminal offence with in the meaning of sub-paragraph (c) of Article 5 § 1.

29. In conclusion, the Court finds no element of arbitrariness in respect of the applicant ’ s detention and comes to the view that the applicant ’ s detention was justified under Article 5 § 1 (c). Therefore, this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

Article 5 § 3

30. The applicant complained under Article 5 § 3 of the Convention that his continued pre-trial detention had ceased to be justified with the passage of time, regard being had to the formulaic reasoning provided, and that its length had been excessive in the particular circumstances.

31. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were relevant and sufficient, the Court must also be satisfied that the national authorities displayed special diligence in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this regard (see, for example, Solmaz v. Turkey , no. 27561/02, § 40, 16 January 2007 ).

32. In the present case, the applicant ’ s detention lasted approximately eight and a half months, from 13 January 2009 to 1 October 2009. In the course of this time, as far as understood from the applicant ’ s submissions, his pre-trial detention was extended at regular intervals, on the grounds of the nature of the offences and the state of the evidence, through examinations held by the Diyarbakır Assize Court proprio motu . In this regard, the Court takes into account the nature of the charges, the number of persons accused and the necessity to carry out a scrutiny of a complex network of relationships in this context. The Court further takes note of the fact that the length of time the applicant spent in detention was relatively short, and that he was released at the commencement of the trial, at the first hearing.

33. It should be pointed out that the material in the case file does not lend support to the argument that “ the state of the evidence ” was not a relevant factor for the existence and persistence of serious indications of guilt justifying the applicant ’ s continued detention.

34. T he Court moreover considers that there is no element in the case file that might suggest a lack of diligence on the part of the authorities in the conduct of the investigation.

35. 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.

Article 5 § 4

36. The applicant complained of a violation of Article 5 § 4, alleging that the judicial review of the lawfulness of his detention had not been effective. He also alleged a violation of Article 5 in that he had not appeared before a court or a judge for more than nine months.

37. The Court observes that the applicant ’ s specific submission that he had not appeared before a court or a judge for more than nine months falls to be examined under Article 5 § 4. However, the Court considers that it cannot determine the admissibility of these complaints on the basis of the case file, and that it is, therefore, necessa ry in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of them to the respondent Government.

Article 5 § 5

38. The applicant complained of a violation of Article 5 § 5.

39. In so far as paragraphs 1 and 3 of Article 5 are concerned, the Court holds that, regard being had to its findings above under Article 5 §§ 1 and 3 of the Convention, the applicant ’ s allegations are manifestly ill–founded.

40. With regard to the allegation of a violation of Article 5 § 5 taken together with Article 5 § 4, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint at this stage and that it is, therefore, necessary in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of it to the respondent Government.

Article 6

41. Under Article 6 of the Convention the applicant called into question the fairness of the proceedings. He specifically argued that when a public prosecutor filed an indictment, the accused person should be able to challenge it, and that the judges who admitted the indictment in the first place should not adjudicate on the case. In addition, he disputed the evidence before the Court and maintained that he had faced a disproportionately severe sentence.

42. The Court reiterates that the acquittal of an accused, in general, precludes that person from claiming to be a victim of a violation of the procedural guarantees of Article 6. It observes that this latter principle has been refined in certain circumstances (see, for example, Heaney and McGuinness v. Ireland , no. 34720/97, §§ 43-44, ECHR 2000 ‑ XII ), but none of them are relevant to the present case.

43. It follows that these complaints are incompatible ratione personae and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning Article 5 § 4 and 5 § 5 in so far as Article 5 § 4 is concerned;

Declares the remainder of the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President