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Case of Adiguzel & Others v/s Turkey

    Application No. 65126 of 09

    Decided On, 13 February 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT ROBERT SPANO
    By, THE HONOURABLE MR. JUSTICE PAUL LEMMENS
    By, THE HONOURABLE MR. JUSTICE LEDI BIANKU
    By, THE HONOURABLE MR. JUSTICE IŞIL KARAKAŞ
    By, THE HONOURABLE MR. JUSTICE NEBOJ?A VUČINIĆ
    By, THE HONOURABLE MR. JUSTICE VALERIU GRIŢCO & THE HONOURABLE MR. JUSTICE JON FRIDRIK KJØLBRO

    For the Appearing Parties: ----------------



Judgment Text

PROCEDURE

1. the original of-matter in an application (n o 65126/09 ) against the Republic of Turkey and which twenty-nine nationals of that State ( "the applicants") lodged with the Court on 22 November 2009 pursuant to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").

2. The applicants were represented by M e O Gndoğdu, lawyer in Kars. The Turkish Government ("the Government") was represented by its agent.

3. On 22 May 2015, the petition was communicated to the Government.

4. On 26 January 2016, the applicants' lawyer informed the Court of the death of the applicant in the Annex under number 24, which occurred on 27 January 2012. He indicated that the heirs of his client n- had not expressed the wish to continue the proceedings before the Court.

On 16 November 2015, the Government informed the Court of the death of the applicant listed in the Annex No. 23, which occurred on 17 November 2010. No heir to this applicant has indicated his wish to continue the proceedings before the Court. Court.

IN FACT

I. THE CIRCUMSTANCES OF THE SPEECH

5. The applicants' birth years are shown in the appendix. These live in Kars.

6. On 14 November 2009, around noon, about 100 members of unions belonging to the confederation of public sector workers' unions, KESK, met on the Atatrk Avenue in Kars to participate in the reading. a press statement aimed at denouncing the arrest of thirty-five trade unionists. The applicants appearing in the Annex under numbers 25 to 29 claim to have been mere passersby and indicate that they were not part of the demonstrators.

7. According to the case file, the demonstration started at 12.30 pm, the police summoned the protesters to end at 12.34 pm and intervened at 12.37 pm to disperse the demonstration and place the applicants in jail. Ten applicants were taken to the premises of the Kars Security Branch and placed in two cells of approximately 7m 2 each with a bunk. Nineteen other applicants were taken to the Kazımpaşa Police Station, where they were placed in four 7m 2 cells each with a bun

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k. While in police custody, the applicants were questioned about the charges against them.

8. On 15 November 2009, the applicants were brought before the judge of the Kars Criminal Court, who decided to release them.

9. On 17 November 2009 the applicants were charged for acting in violation of Article 28 1 of the Law n o 2911 relating to the conduct of meetings and events.

10. On 20 January 2011 the Kars Criminal Court acquitted the applicants. He concludes that:

"(...) Although, public action was open before our court for breach of Article 28 1 of the Law n o 2911, the charges against n is not defined by law as a offense, [it is appropriate to decide] the release of the accused pursuant to Article 223 2 (a) of the Code of Criminal Procedure. (...)

11. In the absence of an appeal on points of law, that judgment became final.

12. Seven applicants, appearing in the Annex under numbers 4, 5, 7, 11, 14, 15 and 25, relying on the judgment of acquittal, lodged a claim for compensation based on the Article 141 1 e) of the Code of Criminal Procedure (CPC).

13. On 24 April 2012, the Assize Court of Kars granted their claim and granted them 300 Turkish lira (TRY), ie around 150 euros (EUR) each, together with interest at the legal rate since the date their arrest. She noted that the applicants had been held in custody beyond the reasonable time required for their hearing. It considered that the measure to which they had been subjected was in this sense "unfair". This decision was confirmed by the Court of Cassation on December 2, 2013.

II. RELEVANT DOMESTIC LAW AND PRACTICE

14. Article 141 (1) of the CCP is worded in the relevant parts in this case:

"Can ask for compensation of its prejudices (...) to the State, any person (...):

(a) who has been arrested, placed or kept in detention under conditions and circumstances not in accordance with the law;

(...)

e) who, after having been arrested or detained regularly, benefits from a dismissal or acquittal. "

15. Article 142 1 of the CCP reads as follows:

"The claim for compensation may be made within three months after notification to the interested party of the finality of the decision or judgment and, in any event, within one year from the date on which the decision or judgment became final. "

16. Article 223 2 of the CCP provides:

"(2) A decision of acquittal is made where

(a) the imputed fact is not defined by law as an offense;

(b) it is established that the alleged offense was not committed by the Accused;

(c) the perpetrator of the alleged offense did not act intentionally or acted imprudently;

(d) although the alleged offense was committed by the accused, there exists in the circumstances a cause of compliance with the law ( olayda bir hukuka uygunluk nedeninin bulunması );

(e) it is not established that the alleged offense was committed by the Accused. "

IN LAW

I. PRELIMINARY ISSUE

17. The Court notes that the applicants appearing in the appendix under numbers 23 and 24 died after the introduction of the present application, and that no claimant or close relative has manifested his wish to continue the procedure.

18. The Court recalls that it is its practice to strike the applications out of the list when no heir or close relative wants to pursue the case (see, among others, Ltfiye Zengin and Others v. Turkey , n o 36443/06 , 34, April 14, 2015). In accordance with Article 37 1 (c) of the Convention, it considers that it is no longer justified to pursue the examination of such applications. In the present case, respect for the human rights guaranteed by the Convention and its Protocols does not require the Court to continue the examination of the application insofar as it has been lodged by the applicants appearing in the Convention. in the Annex under Nos. 23 and 24, all the more since their complaints were also raised by the other applicants (Article 37 1 in fine ). Accordingly, it decides to strike the application out of the list in so far as it concerns the applicants appearing in the Annex under numbers 23 and 24.

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

19. The applicants appearing in the Annex under numbers 1 to 22 complain of an infringement of their right to freedom of expression and assembly due to the dispersal of the demonstration by the police and the prosecution of criminal proceedings against them. They denounce a violation of Articles 10 and 11 of the Convention. The Court decided to examine these complaints under Article 11 of the Convention, which reads as follows:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association, including the right to found trade unions with others and to join trade unions in the defense of his interests. .

2. The exercise of these rights may not be subject to other restrictions than those which, provided for by law, constitute necessary measures in a democratic society for national security, public security, the defense of order and the prevention of crime, the protection of health or morality, or the protection of the rights and freedoms of others. This article does not prohibit the imposition of legitimate restrictions on the exercise of these rights by members of the armed forces, the police or the State administration. "

20. The Government does not agree with this view.

21. Noting that this complaint is not manifestly ill-founded within the meaning of Article 35 3 of the Convention and that no other ground for inadmissibility arises, the Court declares it admissible.

22. It recalls that it has already examined numerous cases concerning similar facts and complaints and in which it found a violation of Article 11 of the Convention. In these cases, it states that it considered the rapid intervention of the police to disperse peaceful demonstrations which did not present a danger to public order, apart from possible traffic disruptions. and the opening of criminal proceedings against demonstrators were not necessary for the defense of public order and were disproportionate measures (see, among many, others Balık and others v. Turkey , n o 25/02 , 51 and 52, 29 November 2007, Nurettin Aldemir and others v. Turkey , Nos . 32124/02 and 6 others, 45 to 47, 18 December 2007, and Serkan Yılmaz and Others v. Russia , no . Turkey , n o 25499/04 , 34, 13 October 2009).

23. Taking into account all the elements submitted to it and, in particular, the authorities' eagerness to put an end to a perfectly peaceful demonstration which posed no danger to the public order, Apart from possible traffic disruptions, the Court considers that the intervention of the police and the opening of criminal proceedings against the applicants were disproportionate and that these were not necessary for the defense of public order. Accordingly, the Court considers that there has been a violation of Article 11 of the Convention in respect of the applicants listed in the Annex under numbers 1 to 22.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

24. The applicants complained of the irregularity of their arrest and custody. They see it as a violation of Article 5 of the Convention.

25. The Government states firstly that seven of the applicants have obtained compensation for their loss by bringing an action under Article 141 1 (e) of the Code of Criminal Procedure before the domestic courts. According to him, these applicants can not claim to be victims of a violation of Article 5 of the Convention. He adds that those same applicants have not lodged an appeal with the Constitutional Court. With regard to the other applicants, the Government submit that they should have used the compensatory remedy provided for in Article 141 1 (e) of the CCP.

26. The applicants argue that, at the time of their arrest and custody, the provisions establishing the individual petition before the Constitutional Court had not yet entered into force.

1. The victim status of the applicants appearing in the Annex under numbers 4, 5, 7, 11, 14, 15 and 25

27. The Court reiterates that it is for the national authorities first and foremost to correct an alleged violation of the Convention. That being so, a decision or measure favorable to the applicant is in principle only sufficient to deprive him of the status of "victim" if the national authorities have explicitly or substantively acknowledged and then remedied the violation of the Convention (see, for example, Dalban v. Romania [GC], n o 28114/95 , 44, ECHR 1999-VI). It is therefore for the Court to ascertain, first, whether there has been recognition by the national authorities, at least in substance, of a violation of a right protected by the Convention and, -on the other hand, if the adjustment may be considered appropriate and sufficient (see, in particular, Scordino c. Italy (n o 1) [GC], n o 36813/97 , 193, ECHR 2006-V).

28. The Court notes that, at the end of the criminal proceedings against them, the applicants were acquitted on the ground that the facts imputed to them did not constitute an offense. This is a singular situation, to be distinguished from the other forms of acquittal provided for in Article 223 2 of the CPP (see paragraph 16 above). The court openly admitted that the facts alleged against the applicants, namely their participation in a public statement to the press, were not, from the outset, an infringement. For the Court, this finding can be accepted as recognition by the national authorities, at least implicitly, of the irregular nature of the deprivation of liberty suffered by the applicants.

29. The Court further notes that these applicants lodged an application for compensation with the national courts and that they were successful. In ruling on this application, the Assize Court openly declared the lawfulness of the measure complained of and held that the applicants had been held in custody beyond the reasonable time necessary for their hearing.

30. The Court therefore notes that the finding of a violation by the national authorities is not controversial. It remains to be determined whether the applicants obtained an appropriate and sufficient remedy. The Court reiterates in this respect that, where national authorities have awarded compensation to an applicant for redress of the violation found, it is appropriate for it to consider the amount involved (see, among others, Hebat Aslan and Firas Aslan v. Turkey , n o 15048/09 , 44, 28 October 2014).

31. The Assize Court awarded moral damages of 300 TRY to each of the applicants (approximately EUR 150), together with interest at the statutory rate from the date of their arrest. The applicants have in no way alleged the inadequacy of the amounts thus allocated. In view of the circumstances of the case, the Court considers that the sums awarded to the applicants can not be regarded as manifestly inadequate.

32. As the remedy available under domestic law has proved sufficient and appropriate, the applicants listed in the Annex under numbers 4, 5, 7, 11, 14, 15 and 25 can no longer claim to be "victims" of violation of Article 5 of the Convention. The Court therefore accepts the Government's objection on this point.

33. It follows that the complaint under Article 5 of the Convention, in so far as it relates to those applicants, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 3 (a) and that it must be rejected in accordance with Article 35 4.

2. Non-exhaustion of domestic remedies, as to the rest of the applicants

34. With regard to the deprivation of liberty, the Court recalls that in numerous cases it has been found that, where an applicant submits that he was detained in breach of domestic law and the detention in question has ended, an action in respect of remedies capable of giving rise to an acknowledgment of the alleged violation and the award of compensation is in principle an effective remedy which must be exercised if its effectiveness in practice has been duly established ( Kolevi v. Bulgaria ( dec.), n o 1108 to 1102 , 4 December 2007, Rahmani and Dineva v. Bulgaria , n o 20116/08 , 66, 10 May 2012, Gavril Yossifov v. Bulgaria , n o 74012/01 , 41, November 6, 2008, and Dolenec c. Croatia , n o 25282/06 , 184, 26 November 2009). In the abovementioned cases, the Court sought, in particular, to answer the question whether the irregularity or legality of such deprivation of liberty had previously been recognized in domestic law ( Ltfiye Zengin and Others , cited above). 64).

35. The Court also recalls that it has already been found that a person complaining of the irregularity of his deprivation of liberty under Article 5 1 of the Convention was not required to exhaust the compensatory remedy provided for in Article 141 (1) (e) of the CCP, because such an appeal could not lead to recognition of the irregularity of the deprivation of liberty (see, inter alia, Mergen and Others v. Turkey , n os 44062/09 and 4 others, 36, May 31, 2016). In fact, in order to grant a remedy on the basis of Article 141 1 (e) of the CCP, national courts normally base their assessment on the acquittal of the person in question, a circumstance which, under Turkish law, renders detention unfair irrespective of any consideration of its illegality. Nevertheless, in ruling on such a request, it is not excluded that the Assize Court is openly deciding on the legality of the measure complained of, as it did for seven applicants ( paragraph 13 above).

36. In any event, the Court nevertheless considers that the circumstances of the present case differ from the Mergen and Others case (cited above). Unlike the case of Mergen and Others , in the present case the irregularity of the deprivation of liberty suffered by the applicants was previously recognized, at least implicitly, by the judgment of acquittal (see paragraph 10 above). above). As the irregularity of the applicants' deprivation of liberty has been established in this way by the judicial authorities, an action seeking only the award of compensation may constitute an action to be taken.

37. In view of the implicit finding of irregularity in the discharge judgment, the Court considers that the applicants were required, in the particular circumstances of the present case, to bring proceedings before the domestic courts for an application for damages. Indemnification based on Article 141 (1) (e) of the CCP. It notes that the applicants simply did not use the appeal.

38. In addition, the Court notes that the applicants also had at their disposal the compensatory remedy provided for in Article 141 1 (a) of the CCP. It is a remedy that can lead to recognition of the alleged violation and the award of compensation. In the present case, the Court has no evidence to suggest that the proceedings in question were not capable of providing an appropriate remedy to the applicants' complaint concerning their arrest and that they no-not offered reasonable prospects of success ( Mustafa Avcı v. Turkey , n o 39322/12 , 64, May 23, 2017). On the contrary, it observes that the present case is characterized by the fact that the irregularity of the deprivation of liberty suffered by the applicants was previously recognized, at least implicitly, by the judgment of acquittal (see, on the contrary , Ltfiye Zengin and Others , cited above, 65), which would have increased the chances of success of such action.

39. It therefore, with the exception of the Government, rejects the complaint under Article 5 1 of the Convention, for non-exhaustion of domestic remedies, pursuant to Article 35 1 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40. The applicants allege that their conditions of detention on the police premises violated Article 3 of the Convention.

41. In so far as the applicants complained of their conditions of detention in the Kars and Kazımpaşa police stations, the Government asked the Court to dismiss this complaint for failure to exhaust domestic remedies, for lack of makes use of the compensatory remedy. However, the Court considers that it is not necessary to rule on this objection because it finds that this complaint is inadmissible, since in its opinion it is manifestly ill-founded. As the applicants were detained under the conditions described above (see paragraph 6 above) and for only one night, the Court considers that the threshold of gravity required for their detention to be described as inhuman or degrading treatment It has not been achieved (see, inter alia, Ciocan and Others v. Greece (dec.), No 41806/13 , 25, October 6, 2015, Chazaryan and Others v. the United Kingdom, no. Greece (dec.), N o 76951/12 , 55, 16 July 2015, and Preci c. Greece (dec.), N o 9387/15 , 17 November 2015). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 3 and 4 of the Convention.

IV. ON THE APPLICATION OF ARTICLE 41 OF THE CONVENTION

42. The applicants claimed 15,000 euros (EUR) each in respect of their pecuniary and non-pecuniary damage. They also claim EUR 17,720 for the costs and expenses incurred before the Court.

43. The Government disputed these claims, which he described as excessive.

44. The Court notes that the applicants' claim for pecuniary damage is in no way substantiated. Therefore, she rejects it.

On the other hand, ruling on an equitable basis, the Court considers that it should be awarded, for non-pecuniary damage, EUR 1,500 to each of the applicants in respect of whom it found that there had been a violation of Article 11 of the Convention.

Finally, in view of the documents available to it and its case-law, it considers the sum of EUR 500, all costs conferred, to be reasonable and granted to the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to strike the application as MM. Halis zen and Muhammet Okulmuş;

2. Declares the complaint admissible in respect of the complaint under Article 11 of the Convention, insofar as it concerns the applicants appearing in the Annex under numbers 1 to 22, and inadmissible for the remainder;

3. Holds that there has been a violation of Article 11 of the Convention in respect of the applicants appearing in the Annex under numbers 1 to 22;

4. Said ,

(a) that the respondent State is to pay the applicants (appearing in the Annex under numbers 1 to 22) within three months from the date on which the judgment becomes final in accordance with Article 44; 2 of the Convention, the following amounts to be converted into the currency of the respondent State at the rate applicable on the date of settlement):

i. EUR 1,500 (one thousand five hundred euros) each, plus any tax that may be chargeable, for non-pecuniary damage,

ii. 500 EUR (five hundred euros) jointly, plus any tax that may be chargeable to the applicants, for costs and expenses;

(b) that from the expiry of that period and until payment, those amounts shall be increased by one simple interest at a rate equal to that of the marginal lending facility of the applicable European Central Bank. during this period, increased by three percentage points;

5. Rejects the claim for just satisfaction for the remainder.

Done in French, then notified in writing on 13 February 2018, pursuant to Rule 77 2 and 3 of the Rules of Court.

Hasan Bakırcı
O R