COE Monitoring: Execution of the Demirel Judgment

ECtHR Judgement:
 
HRJP Monitoring:

 

Case description: Excessive length of detention on remand, lack of an effective remedy to challenge detention and lack of a right to compensation (Art. 5§§ 3, 4 and 5); length of criminal proceedings (Art. 6§1); lack of independence and impartiality of state security courts (Art. 6§1); failure to communicate the prosecutor's opinion to the applicants (Art. 6§1); ill-treatment and lack of an effective remedy (Arts. 3 and 13).

Status of execution: Individual measures: In a number of cases the applicants are still detained and/or the proceedings against them are still pending. Information is urgently awaited as to whether or not the applicants in these cases are still detained on remand or whether the proceedings have been concluded.
General measures: In its last examination of these cases in December 2009, the Committee highlighted that it is extremely important that the domestic courts, when applying the domestic legislation, give relevant and sufficient reasons to justify continued detention and invited the Turkish authorities to provide information on domestic courts' practice in this respect and in particular examples of decisions of the Court of Cassation. The Committee invited the Turkish authorities to consider issuing a circular to all judges and public prosecutors drawing their attention to the Convention requirements, and also to provide information regarding the existence of an effective remedy, as well as on the application by domestic courts the relevant legislation providing compensation for unlawful detention.
The Turkish authorities informed the Committee on 30/06/2011 that a working group was set up in the Ministry of Justice in order to examine the legislative amendments required to execute these judgments.

Last exam of the Committee of Ministers:

- 121 cases of length of detention on remand and of length of criminal proceedings
(See Appendix for the list of cases in the

Demirel group)
These cases primarily concern the excessive length of the applicants' detention on remand and the absence of sufficient reasons given by domestic courts in their decisions to extend such detention (violations of Article 5§3). The European Court found that the domestic courts' decisions, in only using identical, stereotyped wording, such as “having regard to the nature of the offence, the state of the evidence and the content of the file” did not provide sufficient information as to the reasons justifying the applicants' being kept in detention. In a number of these judgments, the Court also found that the domestic courts had failed to give consideration to the application of preventive measures foreseen by Turkish Code of Criminal Procedure (hereinafter “CCP”) other than detention on remand, such as prohibition on leaving the country or release on bail (see for example, Duyum, §38).

A number of these cases also concern the absence of a domestic remedy whereby the applicants could challenge the lawfulness of their detention on remand (violations of Article 5§4). In particular, the Court observed that Turkish law did not provide a domestic remedy which was genuinely adversarial or which could offer reasonable prospects of success when challenging the lawfulness of detention on remand.

Lastly, a number of these cases concern the absence of a right to compensation for the applicants' unlawful detention on remand (violations of Article 5§5).

The Court's recent judgment in the case of Cahit Demirel (Application No. 18623/03). In this judgment the European Court referred to the number of cases before by the Committee in the context of the Demirel group of cases and noted that there were still more than 140 similar applications pending before it. Having regard to the number of pending cases and in the light of its findings in its previous judgments, the Court considered that the violations of Article 5§§3 and 4 of the Convention in these cases “originated in widespread and systemic problems arising out of the malfunctioning of the Turkish criminal justice system and the state of the Turkish legislation, respectively” (§46). The Court, having regard to the systemic situation, underlined that “general measures at national level must be taken in order to ensure the effective protection of the right to liberty and security in accordance with the guarantees laid down in Article 5§§3 and 4 of the Convention” (§48).
 

Other violations found by the Court: The European Court found the following other violations in a number of these cases: excessive length of judicial proceedings (violations of Article 6§1), lack of an effective remedy in this respect (violation of Article 13); failure to communicate the prosecutor's opinion to the applicants (violations of Article 6§1); lack of independence and impartiality of the state security courts (violations of Article 6§1); ill-treatment and lack of an effective remedy (violations of Articles 3 and 13) and the continued detention of the applicant following a release order (violation of Article 5§1) (see appendix for details).
 

Individual measures: It is observed that in a number of cases the applicants are still detained on remand and/or the proceedings against them are still pending before domestic courts despite the judgments of the European Court (in 22 cases the applicants are still detained on remand and in 51 cases the proceedings against them are still pending - see appendix for these cases). In most of these cases (see for example, Yakisan, Yalçin, Ünay, Garip Özdemir, Demir and Ipek, Kürüm, Abdulkerim Kaya, Ismail and Seyhmus Kinay and Veli Özdemir), the Court particularly noted that an appropriate means for putting an end to the violations found would be to conclude the criminal proceedings against the applicants as speedily as possible, while taking into account the requirements of the proper administration of justice, and/or to release the applicants pending the outcome of these proceedings.
 

Information is urgently awaited:
- as to whether or not the applicants in these cases are still detained on remand or whether the proceedings against them have been concluded, and,
- on the necessary measures taken or envisaged to bring to an end the applicants' continued detention as well as the proceedings against them.
 

General measures:
1) Violations of Article 5§§3, 4 and 5 on account of excessive length of detention on remand:
• Information provided by the Turkish authorities (20/01/2004, 08/11/2006, 11/12/2006, 19/06/2007, and 21/08/2007).
 

a) Legislative amendments: The Code of Criminal Procedure (Law No. 5271) (CCP), which came into force on 01/06/2005, provides the following safeguards to prevent future violations of the same kind:
(i) Reasons for detention on remand: Decisions to detain on remand or to extend such detention, as well as those denying requests for release, must be duly reasoned on both legal and factual grounds. The contents of such decisions must be communicated orally to the accused or suspects. A written copy of the decision must also be forwarded to the accused or suspect (Articles 100 and 101 of CCP).
(ii) Continued detention on remand: A judge or a court shall decide whether or not the conditions for the detention on remand still exist at every hearing or between two consecutive hearings, if necessary, or in any event every 30 days (Article 108 of CCP).
(iii) Maximum length of detention on remand: A maximum length of detention on remand is set (two years in the case of crimes within the jurisdiction of the assize courts, which may be extended for an additional period of three years; one year in the case of crimes that are not within the jurisdiction of the assize courts, with the possibility of extension for six months) (Article 102 of CCP). However, this provision will enter into force with respect to crimes falling under the jurisdiction of assize courts on 31/12/2010 (Article 12 of the Law on the Application of CCP (Law no. 5230)). For this exception, the relevant provisions of the former CCP (Law no. 1412) will continue to apply until the above deadline. Furthermore, Article 252§2 of CPP provides that the maximum time limits set above shall be doubled in judicial proceedings concerning certain crimes.
(iv) Right to compensation: Anyone who claims that he or she has been unlawfully detained on remand or whose detention on remand has been unlawfully extended may claim damages for pecuniary and non-pecuniary damages incurred (Articles 141 to 144 of CCP).
 

b) Examples of domestic court decisions: The Turkish authorities provided 55 examples of decisions, 24 given by assize courts and 31 by other criminal courts since the introduction of the legislative amendments. In most of these decisions, including those related to terrorism, the courts released the detained accused on a number of grounds such as the fact that most of the evidence had already been gathered; that the accused had already been on remand for a certain period of time; that the evidence in the record might indicate a crime less severe than the charges; that mitigating factors might apply in the event of conviction, or deteriorating health of the accused. In some cases, the accused were also released on bail.

In one case dealing with organised crime, the court denied requests for release on the ground that the alleged crimes were of a serious and organised nature, that the evidence was not fully gathered, hence potential evidence suppression attempts and the likelihood of absconding. In another case involving a terrorist organisation, an assize court ordered the defendants' continued detention on the ground of the nature of the charges being organised crime, the risk of absconding, the evidence yet to be gathered, and the fact that the defendants had been in detention for a relatively short period of time.
 

Assessment:
(a) Regarding the legislative amendments: The amendments introduced with the entry into force of CCP appear to indicate a positive development in aligning Turkish legislation with the Convention's requirements. It should be noted in this regard that it is extremely important that domestic courts, when applying Articles 100 to 102 of CCP in practice, give relevant and sufficient reasons to justify continued detention and take into consideration the particular circumstances of each case. Domestic courts are expected to refrain from giving stereotyped decisions and take into account the case-law of the European Court in light of Article 90 of the Turkish Constitution, which allows the direct application of the Convention in Turkish law.

As regards the maximum time-limit set for detention on remand, it should be noted that a rough survey of recent case-law of the European Court may give an impression that the length of detention on remand exceeding two years is likely to violate Article 5§3 of the Convention. However, it has to be underlined that, even the shortest period of detention on remand could be considered as a violation of Article 5§3 if it cannot be convincingly demonstrated that it is justified. Moreover, there are examples of judgments in which very long periods of detention on remand, approximately five years, were not automatically considered as a violation if there were relevant and sufficient reasons (see, for example, W. against Switzerland and Chraidi against Germany). It should therefore be emphasised that the setting of time-limits for the period of detention on remand will not in itself prevent similar violations. In any event, the application of the general time-limits, together with the exceptions provided in CCP, might result in extremely long periods of detention on remand (for certain crimes this period might even reach seven years).
(b) Regarding the examples of court decisions provided: At the outset, it should be recalled that neither the state of evidence nor the gravity of the charges can by themselves justify the length of preventive detention exceeding a certain period. The domestic judge, when deciding to extend detention on remand, should indicate the presence of “relevant and sufficient reasons”, i.e. to what extent the applicant's release would have posed a risk after the passage of time, in particular in the later stages of proceedings (see, for example, Mehmet Yavuz , §§39 and 40).

Bearing in mind the Court's considerations, the decisions provided by the Turkish authorities do not lead to a conclusive assessment as to whether or not the Convention's standards have been reflected in the domestic courts' practice. First, it is not clear at what stage of the proceedings these decisions were given and what the total length of detention was in these cases. Secondly, preventive measures, such as release on bail, were applied only in few cases and there are no examples of other preventative measures, such as prohibition on leaving the country, that had been considered by domestic courts.
 

(c) Regarding the absence of an effective remedy and the right to compensation: The Secretariat notes that the Turkish authorities provided no information on the existence of an effective remedy whereby an applicant might challenge the lawfulness of detention on remand in adversarial proceedings.

As to the right to compensation, it appears that CCP provides such a right but that it is not clear as to whether the grant of compensation requires a finding by domestic courts of a violation of one of the rights enshrined in Article 5 of the Convention. It should be noted in this respect that “the right to compensation set forth in paragraph 5 […] presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court” (see, Elgay, § 30). It is therefore not clear as to whether the provisions of CCP are applied by domestic courts in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 of Article 5.

Conclusion: It appears that, to be able to make a more conclusive assessment, further information is necessary on the application by domestic courts of the relevant provisions of CCP in their decisions extending detention on remand. It is expected that the domestic courts will take into consideration the case-law of the European Court in such decisions. In particular, it would be useful if the Turkish authorities could provide examples of decisions of the Court of Cassation allowing the direct application of the case-law of the European Court. Information is also awaited regarding the existence of an effective remedy providing adversarial proceedings to challenge lawfulness of detention on remand, as well as the application by domestic courts of the relevant provisions of CCP granting compensation for unlawful detention.

Lastly, it should be emphasised that information to judges and prosecutors on the requirements of the Convention and the European Court's judgments is essential for the improvement of judicial practice. In this context, it would be very useful if the Turkish authorities would consider issuing a circular to all judges and public prosecutors drawing their attention to the requirements arising from the case-law of the European Court.

• The information provided by the authorities on 11/05/2010 is currently being assessed by the Secretariat.
 

2) Violations of Article 6§1:
- Excessive length of criminal proceedings: The Committee is examining the measures taken in the Ormanci group (43647/98, Section 4.2). For this group, the Committee is expecting information on the adoption of draft laws which are intended to prevent lengthy proceedings as well as on the introduction of effective domestic remedies in this respect.

It should further be noted that state security courts were abolished by the constitutional amendments of May 2004.
 

- Independence and impartiality of state security courts: See, Çiraklar against Turkey (judgment of 28/10/1998) which was closed by final resolution DH(99)555 following the adoption of general measures by the Turkish authorities.

- Non-communication of the Public Prosecutor's written observation: A new provision was added by Law No. 4778 of January 2003 to Article 316 of the Code of Criminal Procedure requiring notification of written opinions of the Principal Public Prosecutor to parties by the competent chamber of the Court of Cassation. This provision was subsequently included in Article 297 of the new Code of Criminal Procedure adopted on 17/12/2004, which entered into force on 01/06/2005.
3) Violations of Articles 3 and 13 (Ill-treatment and lack of an effective remedy): Measures are being examined in the context of the actions of security forces group against Turkey (see Aksoy group, 21987/93, 1078th meeting, March 2010).
 

4) Dissemination of the judgments of the European Court: The Demirel (399324/98) judgment has been translated into Turkish and circulated to the relevant authorities, including the Ministry of Justice and the Ministry of the Interior.

Information is also awaited on the publication and dissemination of the Cahit Demirel judgment.

The Deputies decided to resume consideration of these cases at their 1108th meeting (March 2011) (DH) in light of further information to be provided on general and individual measures.

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