SECOND SECTION

DECISION

Applications nos. 46519/13 and 46548/13 Hatice BOZKURT against Turkey and Sultan Güneş ÜNSAL against Turkey

The European Court of Human Rights (Second Section), sitting on 18 May 2021 as a Committee composed of:

Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above applications lodged on 29 March 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Ms Hatice Bozkurt, is a Turkish national, who was born in 1979 and lives in Istanbul. The applicant in the second case, Ms Sultan Güneş Ünsal, is a Turkish national, who was born in 1965 and lives in Istanbul. They were represented before the Court by Mr Ö. Kılıç and Ms A. Taşdemir , lawyers practising in Istanbul.

2. The Turkish Government (“the Government”) were represented by their Agent.

3. The facts of the cases, as submitted by the parties, may be summarised as follows.

4. Between 2009 and 2011, a number of criminal investigations were initiated against alleged members of an illegal organisation called the KCK ( Koma Civakên Kurdistan – the Union of Communities in Kurdistan).

5. On 20 December 2011 a judge at the Ninth Division of the Istanbul Assize Court ordered that the applicants and the other suspects be prevented from having access to their legal representatives for twenty-four hours and that the latter be denied access to the investigation file to ensure proper conduct of the investigation.

6 . On the same day the applicants, an editor working for Özgür Gündem and a translator working for Dicle News Agency, along with approximately fifty other people, were arrested. The police officers told that they were being arrested on suspicion of carrying out activities on behalf of the KCK Media Committee.

7 . On 22 December 2011 one of the applicants’ lawyers lodged petitions with the Ninth Division of the Istanbul Assize Court on behalf of the second applicant, requesting, inter alia , access to the investigation file and release of his client. On 23 December 2011 the Ninth Division of the Istanbul Assize Court dismissed those requests.

8. Between 20 and 23 December 2011 the applicants were kept in police custody. During their detention in police custody, the applicants did not make any statement about the charges against them.

9. On 23 December 2011 the applicants were brought before the Istanbul public prosecutor. In her statements to the public prosecutor, the first applicant stated that she was an editor at the Özgür Gündem newspaper. She contended that she did not know what the KCK Media Committee was. The second applicant stated before the public prosecutor that she was a translator working for Dicle News Agency. She said that she translated articles from English to Turkish and that those articles were published on the agency’s website. She stated that she did not have any involvement with the KCK Media Committee. The second applicant was asked whether she knew a number of other people. She replied that she knew some of them as they had professional relations.

10. After their questioning by the public prosecutor, the first applicant was released. The second applicant was sent before a judge at the Istanbul Assize Court, where she repeated her previous statement. On 24 December 2011 the judge ordered the second applicant’s release.

11. On 27 April 2012 the Istanbul public prosecutor filed a bill of indictment against forty-four people, including the second applicant, and charged them with membership of a terrorist organisation.

12. On 3 May 2012, the Istanbul public prosecutor rendered a decision of non-prosecution in respect of the first applicant.

13. According to the information in the case file, the criminal proceedings against the second applicant are currently pending before the Istanbul Assize Court.

14. The relevant domestic law and practice is summarised in the Court’s judgment in the case of Mustafa Avci v. Turkey (no. 39322/12, §§ 30-43, 23 May 2017).

COMPLAINTS

15. The applicants complained that the prosecuting authorities had not followed the procedure set out in Article 98 of the Code of Criminal Procedure, according to which they should have been asked to make statements to the public prosecutor and that their arrest could have been ordered if they had failed to appear before the public prosecutor. They further complained under Article 5 § 1 of the Convention that they had been arrested and detained in police custody without any tangible evidence and reasonable grounds to suspect that they had been involved in illegal activities.

16. The applicants complained under Article 5 § 2 of the Convention that they had not been informed of the reasons for their arrest and detention in police custody.

17. The applicants complained under Article 5 § 3 of the Convention that the length of their detention in police custody was excessive.

18. Relying on Article 10 of the Convention, the applicants complained that they had been charged with membership of a terrorist organisation on the basis of their journalistic activities and that as a result their right to freedom of expression had been breached.

19. The applicants complained under Article 13, in conjunction with Article 5 §§ 1 and 2 and Article 10 of the Convention, that the remedies provided in domestic law were not effective.

THE LAW

20. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

21. The applicants complain that their arrest was not in conformity with domestic legislation inasmuch as the national authorities did not follow the procedure laid down in Article 98 of the Code of Criminal Procedure (“CCP”). They invoked Article 5 § 1 of the Convention on that account.

22. The Government submitted that a compensation claim had been available to them under Article 141 § 1 of the CCP. They contended that the applicants could and should have brought a compensation claim on the basis of that provision. Moreover, the Government argued that the first applicant should have lodged an appeal against his arrest under Article 91 § 5 of the CCP. According to the Government, an appeal was likely to put an end to the deprivation of liberty contested by that applicant.

23. The Court observes that the Turkish legal system provides applicants with two remedies in this respect, namely an objection aimed at securing release from custody (Article 91 § 5 of the CCP) and a compensation claim against the State (Article 141 § 1 of the CCP) (see Mustafa Avci v. Turkey , no. 39322/12, § 63, 23 May 2017). The Court notes that on 22 December 2011, the second applicant did lodge an objection seeking his release from police custody, which was dismissed by the Ninth Division of the Istanbul Assize Court on 23 December 2011, whereas the first applicant failed to lodge a similar objection (see paragraph 7 above). Moreover, as regards the possibility of bringing a compensation claim under Article 141 § 1 of the CCP, the Court notes that it has already held in its judgment Mustafa Avci (cited above, §§ 58-67), that the applicant was required to bring a compensation claim in connection with a similar complaint. In the absence of any strong reasons to depart from its assessment concerning this issue, the Court considers that these conclusions are also valid in the context of the present case (see, mutatis mutandis , Mehmet Hasan Altan v. Turkey , no. 13237/17, § 101, 20 March 2018).

24. In light of the foregoing, the Court considers that, as regards their complaint concerning the lawfulness of their arrest, the applicants were required to bring a claim under Article 141 § 1 of the CCP before the domestic courts, but did not do so. It therefore allows the Government’s objection and rejects this complaint for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

25. Under Article 5 § 1 of the Convention, the applicants submitted that there had been no reasonable suspicion warranting their arrest and police custody.

26. The Government disagreed. They submitted that a compensation claim had been available to the applicants under Article 141 § 1 of the CCP. They contended that the applicants could and should have brought a compensation claim on the basis of this provision. Furthermore, they maintained that the applicants were taken into custody on suspicion of membership of a terrorist organisation and conducting activities on behalf of that organisation.

27. As regards the Government’s preliminary objection, the Court observes that the domestic remedy in application of Article 141 § 1 of the CCP with regard to the complaints under Article 5 § 1 was examined in the case of Lütfiye Zengin and Others v. Turkey (no. 36443/06, §§ 61-65, 14 April 2015). In that case, the Court has concluded that where an applicant claims that he or she has been detained in breach of domestic law and where the deprivation of liberty has ended, an action for compensation capable of leading to recognition of the alleged violation and awarding a sufficient compensation was in principle an effective remedy which had to be exercised. In this respect, the Court has indicated however that the irregularity or illegality of such deprivation of liberty had to be previously recognised by domestic authorities. Otherwise, the Court held that an action for compensation under Article 141 § 1 of the CCP would have been doomed to failure. The Court observes that in the present applications, the domestic authorities have never, explicitly or implicitly, acknowledged that the deprivation of liberty suffered by the applicants was unlawful. In that connection, the Court also notes that the Government have not provided any domestic decision indicating that in circumstances similar to those of the present applications, an appeal under Article 141 § 1 of the CCP has been successful. The Court therefore concludes that the objection raised by the Government on this account must be dismissed.

28 . The Court reiterates that, in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom , 29 November 1988, § 53, Series A no. 145‑B). Neither is it necessary that the person detained should ultimately have been charged or brought before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling suspicions which were the grounds for detention (see Murray v. the United Kingdom , 28 October 1994, § 55, Series A no. 300-A).

29 . The Court notes in this context that the applicants were arrested in the course of an investigation into an illegal armed organisation of which they were suspected of being a member, and of conducting activities on its behalf. In these circumstances, the suspicion against them may be considered to have reached the level required by Article 5 § 1 (c), as the purpose of the deprivation of liberty was to confirm or dispel the suspicions about their involvement in this illegal organisation. In this regard, the Court observes that after their questioning by competent legal authorities, the applicants were released. In fact, the interpretation and application of the legal provisions invoked by the domestic authorities does not seem to be arbitrary or unreasonable to the extent that the applicants’ arrest and custody were irregular or unlawful.

30 . It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

31. The applicants complained under Article 5 § 2 of the Convention that they had not been informed of the reasons for their arrest and detention in police custody.

32. The Court observes that it is apparent even from the application form submitted by the applicants to the Court that the police officers informed them at the beginning of their police custody that they was suspected of being a member of an illegal organisation (see paragraph 6 above).

33. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

34. The applicants contended that the duration of their detention in police custody was excessive. On that account they alleged a violation of Article 5 § 3 of the Convention.

35. The Court reiterates that any period of detention in police custody in excess of four days is prima facie too long ( Oral and Atabay v. Turkey , no. 39686/02, § 43, 23 June 2009, and McKay v. the United Kingdom [GC], no. 543/03, § 47, ECHR 2006 ‑ X). Shorter periods can also breach the promptness requirement if there are no special difficulties or exceptional circumstances preventing the authorities from bringing the arrested person before a judge sooner ( Ä°pek and Others v. Turkey , nos. 17019/02 and 30070/02, §§ 36-37, 3 February 2009).

36. The Court observes that, on 20 December 2011, the applicants were arrested along with approximately fifty other people on the suspicion of being a member of a terrorist organisation. They were released, respectively, within three and four days after their arrest. As such, the length of the applicants’ detention in police custody is, prima facie , compatible with the requirements of Article 5 § 3. Considering the complexity of the criminal investigation in question, and in particular the number of suspects arrested on the same day, the Court finds that the duration of the applicants’ detention in police custody appears to have been sufficiently prompt within the meaning of Article 5 § 3 of the Convention.

37. As a result, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

38. Under Article 10 of the Convention, the applicants complained that they had been charged with membership of a terrorist organisation on the basis of their journalistic activities.

39. As regards, the complaint of the first applicant, the Government indicated that she was released by the public prosecutor following her custody period of three days and a decision of non-prosecution was rendered on 3 May 2012. In this respect, the Government argued that the first applicant could not be considered as a victim anymore.

40. As regards the complaint of the second applicant, the Government asserted that the criminal proceedings were still pending before the domestic courts. In this respect, the Government argued that she could bring an individual application before the Constitutional Court. Therefore, the Government requested the Court to declare this complaint inadmissible for non-exhaustion of domestic remedies insofar as it concerned the second applicant.

41. With respect to the second applicant’s complaint, the Court observes that it had examined the main aspects of the remedy before the Turkish Constitutional Court and found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Uzun v. Turkey , (dec.), no. 10755/13, §§ 68-71, 30 April 2013).

42. The Court further notes that the Constitutional Court’s jurisdiction ratione temporis had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had commenced before the introduction of the right of individual application and had carried on after that date.

43. In the present case, the criminal proceedings against the second applicant are pending before the domestic courts. As a result, taking into account the Government’s preliminary objection, and without prejudice to the possibility that the applicant may bring new proceedings before this Court after exhausting the individual application before the Constitutional Court, the Court finds this part of the application to be premature. Consequently, it must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

44. As regards the first applicant, the Court has held that certain circumstances which have a chilling effect on freedom of expression confer on the persons concerned – even if they have not yet been convicted with final effect – the status of victims of interference with the exercise of their right to that freedom: for example, being threatened with prosecution for any work in a field regarded as sensitive by the State or part of the population (see Altuğ Taner Akçam v. Turkey , no. 27520/07, §§ 70-75, 25 October 2011). In this respect, the Court considers that the first applicant’s detention in police custody constituted an interference with the exercise of her right to freedom of expression under Article 10 of the Convention. It therefore dismisses the objection of lack of victim status raised by the Government.

45. Such interference must be “prescribed by law”, pursue one or more of the legitimate aims listed in paragraph 2 of Article 10, and be “necessary in a democratic society” (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 121, 17 May 2016).

46. In the present case, none of the parties disputed that the applicant’s pre-trial detention had had a legal basis, namely the relevant provisions of the CCP. As regards the “legitimate aim” pursued by the interference, the Court is prepared to accept that it was intended to prevent disorder and crime. It thus remains to be determined whether the interference was “necessary” to achieve those aims.

47. The Court observes that, although the first applicant was initially arrested on the same grounds as the second applicant, no criminal charges were subsequently brought against her. In fact, after her questioning, she was released by the public prosecutor, who rendered, on 3 May 2012, a decision of non-prosecution. In this respect, the Court has found that her deprivation of liberty between 20 and 23 December 2011 was based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (see paragraphs 28-30 above). In accordance with this conclusion, the Court considers that the interference with the first applicant’s freedom of expression was “necessary in a democratic society”, and thus met the requirements of Article 10 § 2 of the Convention (see, a contrario , Ragıp Zarakolu v. Turkey , no. 15064/12, §§ 77-80, 15 September 2020).

48. It follows that this part of the application, as far as it concerns the first applicant, must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

49. Relying on Article 13 of the Convention in conjunction with Article 5 §§ 1 and 2 and Article 10, the applicants complained that there was no effective remedy by which they could have challenged the measures imposed on them.

50. The Government contested the applicants’ arguments.

51. The Court has examined this complaint. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

52. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 17 June 2021.

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President