SECOND SECTION

DECISION

Application no. 46428/13 Nejdet ATALAY against Turkey

The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Committee composed of:

Julia Laffranque, President, Ivana Jelić, Arnfinn Bårdsen, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 5 June 2010,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Nejdet Atalay, is a Turkish national, who was born in 1978 and lives in Batman. He was represented before the Court by Ms R. Yalçındağ Baydemir and Mr C. Ayd ı n, lawyers practising in Diyarbakır.

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

The circumstances of the case

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

4 . On 24 December 2009 the applicant was arrested on suspicion of membership of a terrorist organisation. On 25 December 2009 he was brought before the Diyarbakır Assize Court, who ordered that he be held on remand.

5 . On 9 June 2010, the Diyarbakır public prosecutor filed a bill of indictment with the Diyarbakır Assize Court in respect of the applicant and charged him with forming or leading a terrorist organisation, disseminating propaganda in favour of a terrorist organisation and non-compliance with the Meetings and Demonstrations Act. According to the public prosecutor, the applicant was receiving orders and instructions from the leaders of a terrorist organisation. In this connection, the public prosecutor claimed that he had undertaken an active role within the organisation. In support of his claims, the public prosecutor presented to the Diyarbakır Assize Court statements of certain witnesses and some other defendants, digital materials and documents seized during the searches carried out in the context of the investigation.

6 . On 6 January 2014, the applicant lodged an individual application with the Constitutional Court. He mainly complained of a violation of his right to liberty and security.

7 . On 1 July 2014, the applicant was released pending trial.

8 . On 16 July 2014 the Constitutional Court gave a judgment (no. 2014/85) in which it held that there were sufficient grounds for a strong suspicion that the applicant had committed an offence. In this regard, the Constitutional Court relied mainly on the indictment. Nevertheless, as regards the reasons given by the first instance courts for keeping the applicant in pre-trial detention, the Constitutional Court observed that they entailed a formulistic enumeration of the grounds of general scope. In this context, having regard to the grounds provided by the judges, the Constitutional Court considered that the judicial authorities extended the applicant ’ s detention on grounds that cannot be regarded as relevant and sufficient to justify its duration and awarded to the applica nt 5,000 Turkish liras (TRY ) ( approximately 1,750 euros (EUR) ) in respect of non-pecuniary damage and TRY 1,709.90 (approximately EUR 600) for costs and expenses.

9 . According to the information in the case file, the criminal proceedings against the applicant are currently pending before the domestic courts.

COMPLAINTS

10 . The applicant complains under Article 5 § 1 of the Convention that he was deprived of his liberty in the absence of any tangible evidence and reasonable grounds for suspicion that he had been involved in illegal activities.

11 . The applicant complains under Article 5 §§ 2 and 4 of the Convention that the decision rendered upon his objections to detain him was rendered in the absence of adversarial proceedings and without a hearing. He submits that he was unable effectively to challenge the detention order as he was denied access to the investigation file. For the same reason, he claims also that he was not informed of the reasons for his arrest and detention.

12 . The applicant complains under Article 5 § 3 of the Convention that the length of his detention was excessive.

Relevant domestic law and practice

13 . Article 141 § 1 (a) and (d) of the Code of Criminal Procedure (“CCP”) provides:

“Compensation for damage ... may be claimed from the State by anyone ...:

(a) who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law;

...

(d) who, even if he or she was detained lawfully during the investigation or trial, has not been brought before a judicial authority within a reasonable time and has not obtained a judgment on the merits within a reasonable time;

...”

THE LAW

14 . The applicant contended that the duration of his pre-trial detention was excessive. On that account he a lleged a violation of Article 5 § 3 of the Convention.

15 . The Government claimed that the complaint was inadmissible ratione personae . In this regard, the Government submitted that the applicant had lodged an individual application with the Constitutional Court, which held that there had been a violation of the right to liberty and security on account of the excessive duration of the applicant ’ s pre-trial detention.

16 . The applicant submitted, without giving any specific reasons, that the remedy of individual application before the Constitutional Court suggested by the Government was not effective.

17 . The Court notes that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application ( Rooman v. Belgium [GC], no. 18052/11, § 129, 31 January 2019).

18 . The Court observes that it has already examined the remedy of an individual application to the Constitutional Court under Article 5 of the Convention, in particular in the case of Koçintar v. Turkey ((dec.), no. 77429/12, 1 July 2014). In that case, after examining the remedy in question, it found that none of the material in its possession suggested that an individual application to the Constitutional Court was not capable of affording appropriate redress for the applicant ’ s complaint under Article 5 of the Convention, or that it did not offer reasonable prospects of success. In reaching that finding, it noted in particular that the Constitutional Court had jurisdiction to find violations of Convention provisions and was vested with appropriate powers to secure redress for violations, by granting compensation and/or indicating the means of redress; on that account the Constitutional Court could and should be able, if necessary, to prohibit the authority concerned from continuing to breach the right in question and to order it to restore, as far as possible, the status quo ante (see Koçintar , cited above, § 41). The Court observed that where the Constitutional Court found a violation of the right to liberty as guaranteed by Article 19 of the Constitution and the applicant remained in detention, it decided to transmit its judgment containing that finding to the appropriate court so that it could take “the necessary action”.

19 . In the present case, the Court observes that it has not been disputed that the domestic courts have explicitly recognised that there had been a violation of Article 5 § 3 of the Convention. As to whether there has been “appropriate” and “sufficient” redress, the Court notes that, the Constitutional Court has rendered its decision in a speedy manner, this is to say in less than six months after the applicant had lodged his individual application. Moreover, the Constitutional Court awarded to the applicant TRY 5,000 in respect of non-pecuniary damage and TRY 1,709.90 for costs and expenses. The Court considers that the sums granted to the applicants cannot be regarded as manifestly insufficient ( Hebat Aslan and Firas Aslan v. Turkey , no. 15048/09 , § 50, 28 October 2014).

20 . As the redress provided in domestic law appeared sufficient and appropriate, the applicant could no longer claim to be “victim” of a violation of Article 5 § 3 of the Convention. In view of the foregoing, the Court upholds the preliminary objection of the Government and considers that this part of the application must be declared inadmissible for being incompatible ratione personae within the meaning of Article 35 §§ 3 and 4 of the Convention.

21 . Under Article 5 § 1 of the Convention, the applicant submitted that there were no facts or information that could satisfy an objective observer that he had committed the offences of which he was accused.

22 . The Government claimed that the Constitutional Court ’ s conclusion according to which there had been a violation of the right to liberty and security should be considered as a sufficient redress regarding the complaint of the applicant under Article 5 § 1 of the Convention. They also stated that a compensation claim had been available to the applicant under Article 141 § 1 (a) of the CCP. They contended that the applicant could and should have brought a compensation claim on the basis of this provision. Furthermore, they submitted that the applicant ’ s pre-trial detention had complied with domestic legislation and that he had been arrested and placed in pre-trial detention during a criminal investigation initiated in connection with the fight against terrorism. They claimed that from the evidence gathered during the criminal investigation and included in the case file, it was objectively possible to conclude that there had been a reasonable suspicion that the applicants had committed the offence of which they were accused. On the strength of the evidence obtained during the investigation, criminal proceedings had been brought against the applicants and were still ongoing in the domestic courts.

23 . As regards the Government ’ s preliminary objection concerning the applicant ’ s “victim status”, the Court notes that the applicant ’ s complaint under Article 5 § 1 had been declared inadmissible by the Constitutional Court. In view of the foregoing, the Court rejects the preliminary objection of the Government .

24 . The Court further observes that the domestic remedy in application of Article 141 § 1 (a) 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 (a) of the CCP would have been doomed to failure. The Court observes that in the present case, the domestic authorities have never, explicitly or implicitly, acknowledged that the deprivation of liberty suffered by the applicant was unlawful. In that connection, the Court also notes that the Government has not provided any domestic decision indicating that in circumstances similar to those of the present case, an appeal under Article 141 § 1 (a) of the CPP has been successful. The Court therefore concludes that the objection raised by the Government on this account must also be dismissed.

25 . The Court reiterates that a person may be detained under Article 5 § 1 (c) of the Convention only in the context of criminal proceedings, for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence (see Jėčius v. Lithuania , no. 34578/97, § 50, ECHR 2000 ‑ IX; WÅ‚och v. Poland , no. 27785/95, § 108, ECHR 2000 ‑ XI; and Poyraz v. Turkey (dec.), no. 21235/11, § 53, 17 February 2015). The “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard laid down in Article 5 § 1 (c). Having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will, however, depend upon all the circumstances (see Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A no. 182; O ’ Hara v. the United Kingdom , no. 37555/97, § 34, ECHR 2001 ‑ X; Korkmaz and Others v. Turkey , no. 35979/97, § 24, 21 March 2006; Süleyman Erdem v. Turkey , no. 49574/99, § 37, 19 September 2006; and Çiçek v. Turkey (dec.), no. 72774/10, § 62, 3 March 2015). The Court ’ s task is to determine whether the conditions laid down in Article 5 § 1 (c) of the Convention, including the pursuit of the prescribed legitimate purpose, have been fulfilled in the case brought before it. In this context it is not normally for the Court to substitute its own assessment of the facts for that of the domestic courts, which are better placed to assess the evidence adduced before them (see Ersöz v. Turkey (dec.), no. 45746/11, § 50, 17 February 2015, and Mergen and Others v. Turkey , n os. 44062/09 and 4 others, § 48, 31 May 2016 ).

26 . In the present case, the Court observes that the applicant was taken into police custody on 24 December 2009 on suspicion of being a member of a terrorist organisation and was placed in pre-trial detention on 25 December 2009. It further notes that in a bill of indictment filed on 9 June 2010 the public prosecutor sought the applicant ’ s conviction for forming or leading a terrorist organisation, disseminating propaganda in favour of a terrorist organisation and non-compliance with the Meetings and Demonstrations Act. In this respect, the public prosecutor relied mainly on statements of certain witnesses and some other defendants, digital materials and documents seized during the searches carried out in the context of the investigation as evidence. In these circumstances, the Court considers that the suspicion against the applicant may be considered to have reached the level required by Article 5 § 1 (c). 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 applicant ’ s pre-trial detention was irregular or unlawful.

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

28 . Under Article 5 §§ 2 and 4 of the Convention, the applicant complained that on account of the restriction placed on his access to the investigation file, he had not been able to challenge the evidence which had been the grounds for the decision to detain him on remand. He also complained about not being able to appear before the court when his petitions were reviewed.

29 . The Government contested these arguments.

30 . The Court, being master of the characterisation to be given in law to the facts of the case, finds it appropriate to examine these complaints under Article 5 § 4 of the Convention.

31 . The Court notes that the applicant did not submit any documentary evidence which would enable the Court to conclude that she has filed a petition with the domestic courts or that she has objected to the decisions to hold her pending trial.

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

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 November 2019 .

Hasan Bakırcı Julia Laffranque Deputy Registrar President