EHRM, 03-02-2009, nr. 17019/02, nr. 30070/02

The applicants submitted that there had been no reasonable suspicion warranting their arrest.

The Government disagreed. They maintained that the applicants were taken into custody on suspicion of being members of a terrorist organisation and conducting activities in urban areas on behalf of that organisation.

The Court reiterates that, in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145-B). Neither is it necessary that the person detained should ultimately have been charged or brought before a court. The object of detention for questioning is to further a criminal investigation by confirming or dispelling suspicions which were the grounds for detention (see Murray v. the United Kingdom, 28 October 1994, § 55, Series A no. 300-A).

However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words ‘reasonable suspicion’ mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The Court stresses in this connection that, in the absence of a reasonable suspicion, the arrest or detention of an individual must never be imposed for the purpose of making him confess, testify against others or elicit facts or information which may serve to ground a reasonable suspicion (see Cebotari v. Moldova, no. 35615/06, § 48, 13 November 2007).

The Court notes in this context that the second applicant was arrested in the course of an investigation into an illegal armed organisation of which he was suspected of being a member, and of having gone to the city in order to conduct activities on its behalf. In these circumstances, the suspicion against him may be considered to have reached the level required by Article 5 § 1 (c), as the purpose of the deprivation of liberty was to confirm or dispel the suspicions about his involvement in this illegal organisation. In the light of the foregoing, the Court concludes that there has been no violation of Article 5 § 1 of the Convention in respect of Mr Özpamuk (see Saraçoğlu and Others v. Turkey, no. 4489/02, § 28, 29 November 2007).

As regards the other applicants, however, it appears that they were arrested merely because they were at the second applicant's house at the time of the search. Against this background and in the absence of any information or documents demonstrating the contrary, the Court considers that, at the time of their arrest, these applicants were not detained on reasonable suspicion of having committed an offence, or to prevent their committing an offence, within the meaning of Article 5 § 1 (c) of the Convention (see Tuncer and Durmuş v. Turkey, no. 30494/96, § 50, 2 November 2004). There has accordingly been a violation of this provision in respect of Mr İpek and Mr Demirel.

The applicants complained that their detention in police custody had exceeded the reasonable time requirement.

The Government argued that the length of the applicants' detention of about three days and nine hours in police custody was in conformity with the legislation in force at the time and compatible with the Convention case- law. In particular, they submitted that the complexity of the case, their relation with a terrorist organisation and the state of evidence led to the continuation of the applicants' custody period and that the necessary due diligence was displayed in the present case.

The Court observes that Article 5 § 3 requires that an arrested individual be brought promptly before a judge or judicial officer, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. While promptness has to be assessed in each case according to its special features (see, among others, Aquilina v. Malta, [GC], no. 25642/94, § 48, ECHR 1999-III), the strict time constraint imposed by this requirement of Article 5 § 3 leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual, and the risk of impairing the very essence of the right protected by this provision (see, for example, McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006-…).

The Court has accepted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others, cited above, § 61, Murray, cited above, § 58; Aksoy v. Turkey, 18 December 1996, § 78, Reports of Judgments and Decisions 1996-VI, Demir and Others v. Turkey, 23 September 1998, § 41, Reports 1998-VI, and Dikme v. Turkey, no. 20869/92, § 64, ECHR 2000-VIII). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see Murray, cited above, § 58).

The Court reiterates that it has held, on many occasions, that the strict time constraint imposed for detention without judicial control is a maximum of four days (see McKay, cited above, § 47, in fine). In the instant case the applicants were brought before a judge approximately three days and nine hours after their arrest. As such, the length of the applicants' detention in police custody is, prima facie, compatible with the requirements of Article 5 § 3. However, for the particular reasons stated below, the Court considers that the delayed presentation of the applicants to a judge does not appear to have been sufficiently prompt, within the meaning of that provision. Firstly, the Court attaches great importance to the fact that the applicants were minors at the time of their arrest. However, this fact does not appear to have been taken into consideration by the investigative authorities, particularly the prosecutor, who extended the applicants' detention for two additional days. Secondly, these minors were incarcerated for more than three days in the absence of any safeguards — such as access to a lawyer — against possible arbitrary conduct by the State authorities. Finally, during this time, the only investigative measures taken by the police with regard to the applicants appears to have been limited to questioning them on 3 December 2001 — some two days after their arrest and a day before they were brought before a judge. If other investigative measures were undertaken, the Government have failed to indicate them to the Court. In such circumstances, the Court, especially in view of the applicants' young age, finds that none of the arguments put forward, in general terms, by the Government is sufficient to justify their detention in police custody for more than three days, even in the context of terrorist investigations.

In these circumstances, the Court finds no special difficulties or exceptional circumstances which would have prevented the authorities from bringing the applicants before a judge much sooner (see, mutatis mutandis, Kandzhov v. Bulgaria, no. 68294/01, § 66, 6 November 20081., Koster v. the Netherlands, 28 November 1991, § 25, Series A no. 221, and Rigopoulos v. Spain (dec.), no. 37388/97, ECHR 1999-II).

There has therefore been a violation of Article 5 § 3 of the Convention.

The applicants alleged under Article 5 § 4 that there were no effective remedies in domestic law to challenge the lawfulness of their arrest and detention in police custody.

The Government contended that Article 128 of the Code of Criminal Procedure, which was in force at the material time, provided an effective remedy by which to challenge the lawfulness of detention in police custody.

The Court points out that, in several cases raising similar questions to those in the present case, it rejected the Government's aforementioned submission and found a violation of Article 5 § 4 of the Convention (see, among others, Öcalan, cited above, § 76, Özçelik v. Turkey, no. 56497/00, § 34, 20 February 2007, and Saraçoğlu and Others, cited above, § 46). The Court finds no particular circumstances in the instant case which would require it to depart from such earlier findings.

In conclusion, the Court holds that there has been a violation of Article 5 § 4 of the Convention.

The applicants complained under Article 5 § 5 that they had not had a right to compensation in respect of the unlawfulness of their arrest and detention in police custody.

The Government repeated that, in cases of illegal detention, a request for compensation could be submitted within three months of the final decision of the trial court, pursuant to Law no. 466 on compensation payable to persons unlawfully arrested or detained.

The Court notes that an action for compensation under Law no. 466 could be brought for damage suffered as a result of, inter alia, an unlawful deprivation of liberty (Section 1 § 1) or a lawful detention if the person is not subsequently committed for trial, or is acquitted or discharged after standing trial (Section 1 § 6).

The Court observes at the outset that the applicants' detention in police custody was in conformity with the domestic law. Consequently, they could not seek compensation for an unlawful deprivation of liberty using the remedy foreseen by Section 1 § 1 of Law no. 466 (see Çetinkaya and Çağlayan v. Turkey, nos. 3921/02, 35003/02 and 17261/03, § 46, 23 January 2007). In the absence of any documents regarding the outcome of the criminal proceedings against them, the Court cannot speculate whether the applicants had the possibility of bringing a case for compensation relying on Section 1 § 6 of Law no. 466. However, since it has already held that the national courts, when awarding compensation under the terms of Section 1 § 6, base their assessment solely on the conditions required by that law and not whether the deprivation of liberty was in contravention of the first four paragraphs of Article 5 (see Sinan Tanrıkulu and Others v. Turkey, no. 50086/99, § 50, 3 May 2007, Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May 2007, and Saraçoğlu and Others, cited above, § 52), the Court also finds that the applicants did not have an enforceable right to compensation, under the provisions of Section 1 § 6 of Law no. 466, for their deprivation of liberty in breach of Article 5 §§ 1 (for the first and the third applicant), 3 and 4 of the Convention, as required by Article 5 § 5 of the Convention.

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