SECOND SECTION

CASE OF ÇETİNKAYA AND ÇAĞLAYAN v. TURKEY

( Applications nos. 3921/02, 35003/02 and 17261/03)

JUDGMENT

STRASBOURG

23 January 2007

FINAL

23/04/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Çetinkaya and Çağlayan v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Mr J.-P. Costa, President, Mr I. Cabral Barreto, Mr R. Türmen, Mr M. Ugrekhelidze, Mrs A. Mularoni, Mrs E. Fura-Sandström, Mr D. Popović , judges,

and Mrs S. Dollé , Section Registrar ,

Having deliberated in private on 4 January 2007 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in three applications (nos. 3921/02, 35003/02, 17261/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals , Ms Fahriye Çetinkaya and Mr Akın Çağlayan (“the applicants”), on 23 October 2001, 13 July 2002 and 6 May 2003 , respectively.

2 . The applicants were represented by Mrs F. Karakaş Doğan , a lawyer practising in Istanbul . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3 . On 5 January 2006 the Court declared the applications partly inadmissible and decided to communicate to the Government the complaint s concerning the applicants ’ alleged ill-treatment in police custody, the right to an effective remedy in this regard, the length of their detention in police custody, the alleged deprivation of their right to challenge the lawfulness of their detention, and their right to compensation in this respect. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicants were born in 1978 and 1980 respectively and live in I stanbul .

A. The events concerning the applicants ’ arrest and detention

5 . On 29 July 2001 the applicants were arrested on suspicion of having participated in an illegal demonstration which took place in Ãœmraniye . They were subsequently taken to the Ãœmraniye Security Directorate.

6 . According to the arrest reports drafted by the police officers and signed by the applicants on the day of the in cident, in Ümraniye a group of fifteen people closed the main street to traffic by blocking the side streets with dustbins, and they initiated a protest rally. They were carrying torches and shouting slogans in support of the PKK [1] . When they noticed that policemen were approaching, they started to run away. The first applicant, who was identified by the police as one of the protesters, was arrested on the spot . The second applicant was arrested following a chase. The police prevented him from being lynched. It was further noted in the arrest report that the seco nd applicant ’ s lip was injured.

7 . Following his examination by a doctor at the HaydarpaÅŸa Numune Hospital , the medical report dated 29 July 2001 concluded that the second applicant had an abrasion on his upper lip and a 5-15 centimetre hyperaemia on the right side of his chest. It was noted that it was necessary to consult cardiothoracic and ear, nose and throat specialists.

8 . Thereafter , the applicants were handed over to the Anti-Terrorism Department of the Istanbul Security Directorate.

9 . On 31 July 2001, upon the request of the Anti-Terrorism Department, the public p rosecutor at the Istanbul State Security Court prolonged the applicants ’ detention in police custody until 2 August 2001.

10 . On 1 August 2001 , the public p rosecutor extended the applicants ’ detention for three more days.

11 . The applicants were taken to the Forensic Medicine Institute for medical examinations both in the evening of 3 Augu st 2001 and in the morning of 4 August 2001. The medical reports drafted on these dates concluded that there were no signs of blows on the applicants ’ bodies.

12 . On 4 August 2001 the ap plicants were taken before the public p rosecutor, where they denied all the allegations made against them. They contended that they had been forced to sign police statements without reading their contents. Later on, the applicants were taken before a judge at the Istanbul State Security Court . The first applicant contended that, although there were no marks on her body, she had been tortured in police custody. The second applicant maintained that police officer s had hit him, pulled his hair and insulted him . He confirmed, however, the outcome of the medical report dated 3 and 4 August 2001. The court ordered their detention on remand.

13 . On 6 August 2001 another doctor at the Forensic Medicine Institute drafted a report concerning the second applicant. The doctor noted that, in view of the findings in the report of 29 July 2001, she could only draft a final report after the applicant had been examined by chest and ear, nose and throat specialists. Subsequently, the p ublic p rosecutor ordered the applicant ’ s transfer to a hospital for a medical check - up. The report dated 8 August 2001, given by the ear, nose and throat clinic of the Sağlamcılar State Hospital , concluded that he was in good health.

B. Criminal Proceedings against the applicants

14 . On 7 August 2001 the p ublic p rosecutor at the Istanbul State Security Court filed an indictment, charging the applicants with aiding and abetting the PKK under Article 169 of t he Criminal Code.

15 . On 1 November 2001 the first hearing was held before the Istanbul State Security Court . The court gave a decision of non-jurisdiction and transferred the case file to the Ãœmraniye Criminal Court of First Instance. Moreover, considering that the applicants had permanent residences, it ordered their release pending trial.

16 . On 16 February 2004 the Ãœmraniye Criminal Court of First Instance acquitted the applicants on account of lack of evidence.

C . The investigation against the police officers

17 . On 22 August 2001 the applicants ’ lawyer filed two separate petitions with the Fatih p ublic p rosecutor, complaining about the applicants ’ ill-treatment during their arrest and detention in police custody. He maintained that the first applicant had been beaten, cursed and threatened with rape in police custody . In the petition regarding t he second applicant the lawyer argued that the police had intentionally remained passive when people had tried to lynch him . Moreover, he complained that the applicant had been blindfolded, insulted and beaten up. His testicles had been squeezed and his nose and mouth had been covered in order to create a fear of suffocation. He had been forced to clean the floors of the Security Directorate. Additionally, t he lawyer noted that both applicants complained that the doctors ha d not properly examine d them, and that they had been unable to complain of their injuries as the police officers were present in the room.

18 . The Fatih p ublic p rosecutor initiated an investigation against the four police officers who were allegedly responsible for the i ll-treatment of the applicants. On 5 March 2002 the public p rosecutor gave a decision of non-prosecution, holding that the second applicant ’ s injuries, noted in the medical report dated 29 July 2001, had been caused by the people who had attempted to lynch him prior to his rescue and arrest by the police. Furthermore , he concluded that there was no evidence in support of the applicant ’ s allegations. On 25 March 2002 the second applicant filed an objection against the decision of non-prosecution. On 6 May 2002 the Beyoğlu Assize Court dismissed his objection.

19 . On 9 August 2002 the p ublic p rosecutor gave a decision of non-prosecution in respect of the police officers who were allegedly responsible for the first applicant ’ s ill-treatment , on account of lack of evidence . On 3 September 2002 she filed an objecti on against this decision. On 17 December 2002 Beyoğlu Assize Court dismissed her objection.

THE LAW

20 . The applicants allege d that they had been subjected to various forms of ill-treatment in police custody, in violation of Article 3 of the Convention. The second applicant also complain ed about the treatment to which he was subjected during his arrest. They contend ed under Article 13 of the Convention that there was no effective investigation into their allegations of ill-treatment . They further complain ed under Article 5 §§ 3, 4 and 5 of the Convention about the length of their detention in police c ustody and their inability to challenge the lawfulness of their detention and to claim compensation in the domestic courts in this respect.

I . ADMISSIBILITY

A. Article 3 of the Convention

21 . The applicants maintain ed that they had been subjected to ill-treatment in violation of Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment

22 . Without submitting any medical reports in support of their allegations, the first applicant maintained that during her custody at the Anti-Terrorism Department of the Istanbul Security Directorate she had been beaten and threatened with rape, while the second applicant complained of having been blindfolded, hit, pulled by the hair, insulted, having his testicles squeezed and his nose and mouth covered in order to create a fear of suffocation. He complained that he was forced to clean the floors of the Security Directorate. Additionally, the second applicant alleged that , during his arrest , private individuals who heard the accusations against him attempted to lynch him. The arrest report and the medical report dated 29 July 2001 confirmed the latter allegation, concluding that he had a bleeding lip and some hyperaemia on his chest. However, t he applicant further alleged that the police failed to protect him from an attempted lynching.

23 . The Government maintained that all medical reports concerning the first applicant concluded that there had been no traces of blows on her body. Moreover, although the medical report dated 29 July 2001 concerning the second applicant concluded that he had an abrasion on his upper lip and a hyperaemia on his chest, the Government argued that this was not sufficient evidence to show that the treatment had attained the level of severity required for there to be a violation of Article 3 of the Convention.

24 . While reiterating that Article 3 enshrines one of the most fundamental values of democratic societies, the Court recalls that in assessing evidence in a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt” ( Avşar v. Turkey , no. 25657/94, § 282, ECHR 2001-VII). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ( Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, p. 65, § 161).

25 . The Court is sensitive to the subsidiary nature of its task and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention, as in the present case, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis , Ribitsch v. Austria , judgment of 4 December 1995, Series A no. 336, § 32, and Avşar , cited above, § 283).

26 . The Court notes that there are a number of elements in the instant case which cast doubt on whether the applicants suffered treatment prohibited by Article 3 when they were arrested and detained in police custody.

27 . Firstly, t he Court notes that the applicants ’ allegations of ill-treatment submitted before the domestic authorities were inconsistent. T he applicants ’ stat ements given before the p ublic p rosecutor and the judge differ ed from their allegations noted in the petitions dated 22 August 2001 and drafted by their lawyer (paragraphs 12 and 17 above ). The Court observes that the petition s included many additional complaints which were not brought to the attention of the judicial authorities in the applicants ’ earlier submissions.

28 . Secondly , excep t for the report dated 29 July 2001 which concerned only the second applicant , none of the medical examinations revealed traces of ill-treatment on the applicants ’ bodies (paragraphs 11 and 13 above). The Court is aware of the lack of details in these reports. Nevertheless, it notes that there is no material in the case file which could call into question the findings in these reports or add probative weight to the applicants ’ allegations (see Sevgin and İnce v. Turkey , no. 46262/99, § 57, 20 September 2005).

29 . Thirdly, it observes that the medical report dated 29 July 2001 concluded that the second applicant had an abrasion on his upper lip and a hyperaemia on his chest. It is not disputed by the parties that these injuries were caused by private individuals who attempted to lynch the applicant during his arrest . Thus , the question in the instant case is whether the police failed to protect the second applicant from the violent acts of private individuals in such a way as to amount to a breach of the respondent State ’ s positive obligations under Article 3 of the Convention. The Court does not wish to speculate on what the applicant ’ s physical condition would have been if the police had remained passive while he was attacked by private individuals , as he alleged. It notes , however , that there is no evidence in the case file which confirms the applicant ’ s version of facts.

30 . In conclusion, the evidence before it does not enable the Court to find beyond all reasonable doubt that the applicants w ere subjected to ill-treatment and that the police failed to protect the second applicant from the risk of being lynched .

31 . It follows that this complaint is manifestly ill-founded and must be reje cted in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Article 13 of the Convention

32 . The applicants complained that there were no effective remedies in domestic law in respect of their allegations of ill-treatment.

33 . The Government disputed the applicants ’ argument.

34 . The Court reiterates that Article 13 of the Convention cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be. The grievance must be an arguable one in terms of the Convention (see, in particular, Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). In view of its conclusions above, the Court considers that the applicant s ha ve no arguable claim of a violation of t he i r rights under Article 3 , which would have required a remedy within the meaning of Article 13. Consequently, this part of the application is manifestly ill-founde d within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

C. T he remainder of the applicants ’ complaints

35 . The Court notes that the remainder of the applicants complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that t hey are not inadm issible on any other grounds. They must therefore be declared admissible.

II . MERITS

36 . The applicants complained under Article 5 §§ 3 , 4 and 5 of the Convention that their detention on remand was unreasonably long, and that their requests for release pending trial received no serious consideration by the court. Moreover, they contended that they were prevented from working whilst on remand, as a result of which they incurred financial loss. Article 5 of the Convention provides as relevant:

“ 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.”

A. Article 5 § 3 of the Convention

37 . The Government argued that the applicants ’ custody period was in conformity with the domestic legislation in force at the time of the incident.

38 . The Court has already accepted on a number of occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others v. the United Kingdom , judgment of 29 November 1988, Series A no. 145-B, pp. 33-34, § 61; Murray v. the United Kingdom , judgment of 28 October 1994, Series A no. 300-A, p. 27, § 58; Demir and Others v. Turkey , judgment of 23 September 1998, Reports 1998 ‑ VI, p. 2653, § 41). This does not mean, however, that the authorities have carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, ultimately, by the Convention ’ s supervisory institutions, whenever they consider that there has been a terrorist offence (see, among others, Murray , cited above, § 58)

39 . The Court notes that the applicant s ’ detention in police custody lasted six days. It reiterates that in the Brogan and Others 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 the time laid down by Article 5 § 3 of the Convention, even though its purpose was to protect the community as a whole against terrorism ( Brogan and Others , cited above, § 62).

40 . Even supposing that the activities of which the applicant s stood accused were linked to a terrorist threat, the Court cannot accept that it was necessary to detain them for six days without judicial intervention .

41 . There has, accordingly, been a violation of Article 5 § 3 of the Convention .

B . Article 5 § 4 of the Convention

42 . The Government maintained that, at the material time, Article 16 of Law no. 2845 on procedure in the S tate S ecurity C ourts provided that any person arrested in connection with an offence within the exclusive jurisdiction of those courts had to be brought before a judge within forty-eight hours at the latest or, if the offence was a joint one committed outside the region under emergency rule, within fifteen days. They contended that the applicants had an effective remedy to challenge the lawfulness of their detention . However, they did not indicate the legal basis of this remedy.

43 . The Court recalls that in its Sakık and Others v. Turkey judgment (26 November 1997, Reports 1997 ‑ VII, § 53), it was not persuaded that at the material time there existed an effective remedy before a State Security Court by which an applicant could challenge the lawfulness of his detention in police custody. It sees no reason to depart from that conclusion in the instant case (see Dalkılıç v. Turkey , no . 25756/94, § 27, 5 December 2002). As to the length of the applicant s ’ custody before being brought before a judge – six days – the Court would add that this period, which was lawful under the relevant domestic law at the time, sits ill with the notion of “speedily” contained in Article 5 § 4 ( see Sakık and Others , cited above, § 51).

44 . In conclusion, the Court finds that there has been a breach of Article 5 § 4 of the Convention

C . Article 5 § 5 of the Convention

45 . The Government asserted that , according to Article 19 of the Constitution , a person deprived of his or her liberty shall have the right to initiate proceedings before a judicial authority which shall give a speedy ruling on the case and order immediate release. T hey argued that , in cases of illegal detention, a request for compensation could be submitted within three months following the final decision of the trial c ourt under the terms of Law no. 466 on compensation payable to persons unlawfully arrested or detained.

47 . The Court therefore concludes that there has been a violation of Article 5 § 5 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

48 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

49 . The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage. Moreover, each applicant claimed EUR 2,000 for their pecuniary damages.

50 . The Government disputed the applicants ’ claims .

51 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However , it accepts that the applicants suffered non-pecuniary damage such as distress resulting from their detention for six days without the opportunity to challenge its lawfulness, which cannot be sufficiently compensated by the finding of a violation. Having regard to its case-law, and making its assessment on equitable basis, the Court awards each of the applicant s EUR 1 ,0 00 in r espect of non-pecuniary damage.

B. Costs and expenses

52 . The applicants also claimed EUR 6,000 for the costs and expenses incurred for the costs and expenses incurred before the domestic authorities and before the Court.

53 . The Government maintained that the applicants ’ claim under this heading was unsubstantiated.

54 . According to the Court ’ s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants , jointly, the sum of EUR 1,500 for costs and expenses .

C. Default interest

55 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints concerning the length of the applicants ’ detention in police custody and lack of remedies in domestic law to challenge the lawfulness of their detention and to obtain compensation for the alleged violations of Article 5 of the Convention admissible and the remainder of the application inadmissible ;

2 . Holds that there has been a violation of Article 5 § 3 of the Convention;

3 . Holds that there has been a violation of Article 5 § 4 of the Convention;

4 . Holds that there has been a violation of Article 5 § 5 of the Convention;

5 . Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes f inal in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into new Turkish liras at the rate applicable at the date of settlement:

( i ) EUR 1,000 (one thousand euros) each for non-pecuniary damage,

(ii) EUR 1,500 (one thousand five hundred euros), jointly, for costs and expenses,

(iii) plus any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6 . Dismisses the remainder of the applicants ’ claim for just satisfaction.

Done in English, and notified in writing on 23 January 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé J.-P. Costa Registrar President

[1] . The Kurdistan Workers’ Party