SECOND SECTION

DECISION

Applications nos. 49425/10 and 51124/10 Ferit EPÖZDEMİ R against Turkey and Belkıza BEŞTAŞ EPÖZDEM İ R 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 applications lodged on 15 July 2010 and on 26 July 2010 respectively ,

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, Mr Ferit Epözdemir, is a Turkish national, who was born in 1971 and lives in Siirt. He was represented before the Court by Ms S. Karaduman and Ms S.S. Şahin Kılınç, lawyers practising in Ankara. The applicant in the second case, Ms Belkıza Beştaş Epözdemir, is a Turkish national, who was born in 1977 and lives in Siirt. She was represented before the Court by Mr M. Beştaş, a lawyer practising in Diyarbakır.

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

3 . The facts of the case, 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 organisation called the KCK ( Koma Civakên Kurdistan – the Union of Communities in Kurdistan). Within the context of one of those investigations, the Diyarbakır public prosecutor wiretapped and recorded the applicants ’ phone calls in accordance with court orders. As a result of the investigation, the public prosecutor suspected that the applicants were in contact with several members of a terrorist organisation and were part of different structures of the KCK.

5 . On 16 March 2010 the applicants were arrested on suspicion of membership of a terrorist organisation. On the same day, the security forces conducted searches on the domicile of the applicants. Several materials, including technical items, documents, videos and CDs, were found and seized by the police.

6 . On 17 March 2010 the applicants were brought before the Siirt public prosecutor. In their statements, the applicants, assisted by their lawyers, denied the veracity of the charges against them. They contended that they had not carried out any illegal activity.

7 . On 19 March 2010 the applicants were brought before the Siirt Magistrates ’ Court, who ordered that they be held on remand.

8 . On 23 December 2010, the Diyarbakır public prosecutor filed a bill of indictment with the Diyarbakır Assize Court in respect of the applicants. He charged them with being a member of an armed terrorist organisation. The relevant evidence in respect of the applicants was mainly the recordings of the telephone conversations of the applicants and other police reports.

9 . On 1 March 2011 and on 15 March 2011 respectively, the applicants were released pending trial.

10 . After the abolishment of the Diyarbakır Assize Court, the Siirt Assize Court continued to conduct the proceedings, which are still pending before this court.

11 . 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;

...”

12 . Article 142 § 1 of the CCP reads as follows:

“The claim for compensation may be lodged within three months after the person concerned has been informed that the decision or judgment has become final, and in any event within one year after the decision or judgment has become final.”

13 . According to the case-law of the Court of Cassation, it is not necessary to wait for a final decision on the merits of the case before ruling on a compensation claim lodged under Article 141 of the CCP on account of the excessive length of pre-trial detention (decisions of 16 June 2015, E. 2014/21585 – K. 2015/10868 and E. 2014/6167 – K. 2015/10867).

COMPLAINTS

14 . The applicants complained under Article 5 § 1 of the Convention that they were deprived of their liberty in the absence of any tangible evidence and reasonable grounds for suspicion that they had been involved in illegal activities.

15 . The applicants complained under Article 5 § 3 of the Convention that the length of their detention was excessive.

16 . Under Article 5 § 4 of the Convention, the applicant in the second case complain that she was unable challenge effectively the detention orders. In particular, she complained about not being able to appear before the court when her objections were reviewed.

17 . The applicants further complain under Articles 10 and 11 of the Convention that they were charged with membership of a terrorist organisation on the basis of their legal activities.

THE LAW

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

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

20 . The Government stated that a compensation claim had been available to the applicants under Article 141 § 1 (a) of the CCP. They contended that the applicants could and should have brought a compensation claim on the basis of this provision. Furthermore, they submitted that the applicants ’ pre-trial detention had complied with domestic legislation and that they 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.

21 . The Court 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. In this respect, 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 applicants 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 be dismissed.

22 . 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 ).

23 . In the present case, the Court observes that the applicants were taken into police custody on 16 March 2010 on suspicion of being a member of a terrorist organisation and were placed in pre-trial detention on 19 March 2010. It further notes that in a bill of indictment filed on 23 December 2010 the public prosecutor sought the applicants ’ conviction for the same charge. In this respect, the public prosecutor relied mainly on the wiretapping recordings and police reports as evidence. In these circumstances, the Court considers that the suspicion against them 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 applicants ’ pre-trial detention was irregular or unlawful.

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

25 . The applicants complained under Article 5 § 3 of the Convention that the length of their pre-trial detention had been excessive.

26 . The Government asked the Court to reject this complaint due to non-exhaustion of domestic remedies. In this respect, they submitted that the applicants should have requested compensation pursuant to Article 141 § 1 (d) of the CCP.

27 . The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of A.Åž. v. Turkey (no. 58271/10, § § 85 ‑ 95, 13 September 2016) and Demir v. Turkey ((dec.), no. 51770/07, §§ 17 ‑ 35, 16 October 2012).

28 . In the case of Demir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015 the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.

29 . In the instant case, the Court notes that the applicants ’ detentions ended on 1 March 2011 and on 15 March 2011 respectively with their release from detention on remand and the proceedings against them are still pending. Accordingly, the Court observes that the applicants were entitled to seek compensation under Article 141 § 1 (d) of the CCP. However, they failed to do so.

30 . The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006-I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey (dec.), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.

31 . As a result, taking into account the Government ’ s objection, the Court concludes that this part of the applications must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

32 . The applicant in the second case complained that she had not been able to challenge effectively the decisions to detain her on remand in that she was not able to appear before the court which examined her petitions.

33 . The Government contested this argument.

34 . 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.

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

36 . Under Articles 10 and 11 of the Convention, the applicants complain of the criminal proceedings brought against them.

37 . The Government argued that the applicants ’ complaints under Articles 10 and 11 should be declared inadmissible for failure to exhaust domestic remedies, given that the criminal proceedings brought against them were still pending in the domestic courts.

38 . Referring to its observations relating to Article 5 § 1 of the Convention, the Court recalls that the public prosecutor sought the applicants ’ conviction for being a member of a terrorist organisation through a bill of indictment filed on 23 December 2010. The Court further observes that the criminal proceedings against the applicants are still pending before the domestic courts.

39 . It follows that these complaints appear to be premature and that this part of the applications must be rejected pursuant to Article 35 §§ 1 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 21 November 2019 .

Hasan Bakırcı Julia Laffranque Deputy Registrar President