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UNIVERSITY OF ESSEX
SCHOOL OF LAW
LLM in International Human Rights & Humanitarian Law
2012/2013
Supervisor: Lorna McGregor
DISSERTATION
The right to liberty and security under the European Convention on Human Rightsand Turkish Legal System
Name: Timur DEMIR
Registration Number (optional): 1201123Number of Words: 19314
Date Submitted: 30.08.2013
2
Table of Contents
Abstract................................................................................................................................................3
Introduction......................................................................................................................................... 4
CHAPTER I: The Convention and The Right to Liberty and Security..............................................7
A- The Effect of the Convention within the National Laws.......................................................7
B- The Necessity of the Right to Liberty and Security in a Democratic Society.......................7
C- What Amounts to a Deprivation of Liberty........................................................................... 8
CHAPTER II: Standards on Arrest and Detention............................................................................11
A- The Measure of Arrest..........................................................................................................11
1- The Requirement of Reasonable Suspicion..................................................................11
2- The Legality of the Conduct......................................................................................... 13
a. The Requirement to be Conducted in accordance with a ProcedurePrescribed by
Law............................................................................................................................13
b. The Requirement to be Conducted in accordance with the Convention.............. 16
3- The Legislation and the Practice in Turkey and Existing Gaps................................... 17
B- Duty to Give Reasons Promptly for Deprivation of Liberty............................................... 21
1- Relevant Standards set by the Convention................................................................... 21
2- The Legislation and the Practice in Turkey and Existing Gaps................................... 23
C- Right to be Brought Promptly Before a Judge.....................................................................25
1- Relevant Standards set by the Convention................................................................... 25
2- The Legislation and the Practice in Turkey and Existing Gaps................................... 27
D- Right to Trial within a Reasonable Time or to be Released Pending Trial......................... 29
1- Relevant Standards set by the Convention................................................................... 29
a. Reasoning.............................................................................................................. 32
i. The Risk of Absconding................................................................................ 32
ii. The Risk of Obstructing of the Proceedings.................................................34
iii. The Risk of Repetition of Offences.............................................................34
iv. The Need to Maintain Public Order.............................................................35
b. Special Diligence.................................................................................................. 35
c. Alternative Measures.............................................................................................36
2- The Legislation and the Practice in Turkey and Existing Gaps................................... 39
E- The Right to Have Lawfulness of Detention Examined by a Court.................................... 43
1- Relevant Standards Set by the Convention..................................................................43
a. The Principle of Equality of Arms........................................................................ 44
b. The Right to be Heard by a Judge.........................................................................45
c. The Requirement of Speediness............................................................................45
2- The Legislation and the Practice in Turkey and Existing Gaps................................... 47
a. Request for Release...............................................................................................48
b. Objections to Decisions on Detention.................................................................. 49
c. Review of Continued Detention............................................................................50
d. Access to the Case File......................................................................................... 51
F- The Right to Compensation for Unlawful Detention...........................................................53
2
1- Standards Set by the Convention..................................................................................53
2- The Legislation and the Practice in Turkey and Existing Gaps................................... 54
Conclusion.........................................................................................................................................57
APPENDICES...................................................................................................................................61
BIBLIOGRAPHY............................................................................................................................. 66
3
"The right to liberty and security under the European Convention on Human Rightsand Turkish Legal System"
Abstract
The right to liberty and security is of crucial importance in a democratic society. This
is because any deprivation of liberty can restrict the enjoyment of other rights under
the Convention. Therefore it must be considered as an essential component of all
democratic societies and must be protected effectively by national authorities.
The main aim of this study is to examine the right to liberty and security under Article
5 of the Convention and its place in the Turkish legal system. Turkish law governing
the right to liberty and security in criminal proceedings will be analyzed inorder to
determine whether or not the standards in Turkish laws are above the standards
established by the European Court of Human Rights. In this regard, the place of the
Convention in Turkish laws, especially in the Turkish Constitution, will be shown. I
will also examine the law reforms and amendments made recent years in orderto
bring Turkish laws in line with the Convention. Where deficiencies and loopholes in
Turkish laws governing the right to liberty and security are present, the case law of
the Court of Cassation and its interpretations on the relevant laws will be evaluated.
This study does not cover 'the lawful detention of a person after conviction' under
Article 5(1)(a), 'the lawful arrest or detention of a person for non-compliance with the
lawful order of a court or in order to secure the fulfillment of any obligation
prescribed by law' under Article 5(1)(b), 'the detention of a minor by lawful order for
the purpose of educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority' under Article 5(1)(d), 'the lawful
detention of persons for the prevention of the spreading of infectious diseases, of
persons of unsound mind, alcoholics or drug addicts or vagrants' under Article 5(1)(e)
and 'the lawful arrest or detention of a person to prevent his effecting an unauthorised
4
entry into the country or of a person against whom action is being taken with a view
to deportation or extradition' under Article 5(1)(f). In this sense, this study sets out the
standards and its scope, which is outlined by the European Court of Human Rights, on
the requirements of reasonable suspicion under Article 5(1)(c); the right to be
informed promptly under Article 5(2); the right to be brought before a judge and the
right to trial within a reasonable time or to be released pending trial under Article 5(3);
the right to have lawfulness of detention examined by a court under Article 5(4); lastly
the right to compensation for unlawful deprivation of liberty under Article 5(5) under
the Convention and Turkish laws.
Each chapter contains concluding remarks and comments. Finally, this study
concludes that the requirements of the right to liberty and security under the
Convention are, in many respects, present in Turkish Laws. The new amendmentsto
the relevant laws in the Turkish legal system that have recently been introduced
ensure conformity with the standards of this right. However, regular training and
awareness raising activities for judges and public prosecutors and all other official
actors in the Turkish legal system are necessary in order to overcome those
problematic practices.
Introduction
The right to liberty and security is regarded as one of the most important rights in the
European Convention on Human Rights1. It is designed to protect individuals from
arbitrary or unlawful deprivation of liberty. Where the power of arrest or detention has
been exercised lawfully in accordance with national law and the Convention,
deprivation of liberty will still constitute one of the most serious measures taken by
national authorities.2
1 Hereinafter “Convention”
2 J. Aldereson, Human Rights and the Police, Council of Europe, Strasbourg, 1984, p.39.
5
The right to liberty and security has been recognized in all core international human
rights instruments. Thus, according to Article 9 of the Universal Declaration of
Human Rights, which was adopted in 1948, "No one shall be subjected to arbitrary
arrest, detention or exile". In the same line, the right to liberty and security has been
recognized, with similar words and scopes, by Article 9 of the International Covenant
on Civil and Political Rights, Article 7 of the American Convention on Human Rights,
Article 6 of the African Charter on Human and Peoples' Rights.
Turkey has been a member of the Council of Europe since 9 August 1949. The
Convention was signed on 4 November 1950 and ratified on 18 May 1954 by Turkey.
At the time of ratification, when the 1961 Constitution was in force, no explicit
reference to international treaties in the Turkish Constitution are made. Such
references are, however, explicitly present in the Constitution of 1982. In this context,
Article 90 of the Turkish Constitution enables direct implementation of the provisions
of the Convention. Article 19 of the 1982 Constitution, in parallel with Article 5 ofthe
Convention, explicitly recognizes the right to liberty and security.3 However, since
the Constitution of 1982 is only a framework document, it only sets out some
minimum standards that must be granted to individuals who have been arrested or
detained. Further and better standards for persons deprived of their liberty existin the
Turkish Code of Criminal Procedure4 and other codes and regulations. The former
Turkish Code of Criminal Procedure (Law no: 1412) was abolished on 1 June 2005
and the new CCP (Law no: 5271) entered into force. On 5 July 2012, Law no. 6352
entered into force and thus some amendments regarding the right to liberty and
security have been introduced. On the other hand, apart from codes and other written
regulations, the case law of the Court of Cassation also plays an important rolein the
interpretation of Turkish laws in the Turkish legal system.
3 According to Article 19 “Everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty except in the
following cases where procedure and conditions are prescribed by law:….”
4 Hereinafter “CCP”
6
The main aim of this study is to give an overview of the widely accepted standardsfor
the measures of detention and arrest and then to analyze the Turkish laws governing
the measures of arrest and detention and its conformity with the Conventionstandards.
Within this framework, the relevant provisions in Turkish laws and their deficiencies
in some areas will be explained.
7
CHAPTER I: The Convention and The Right to Liberty and Security
A- The Effect of the Convention within the National Laws
International obligations as set out in the Convention are owed by states to
individuals.5 According to Article 1 of the Convention, the rights specified in the
Convention are the human rights which are created by public international law.6
When a State accepts and ratifies the Convention, it is obliged to incorporate the
standards and provisions of the Convention into their national legal system.7 In this
sense, introducing new amendments on the right to liberty and security, and the
implementation of the judgments of the European Court of Human Rights8
effectively is also of crucial importance for ensuring the long-term effectiveness of
the Convention system at the national stage.9
B- The Necessity of the Right to Liberty and Security in a Democratic Society
Article 5(1) begins with an unqualified and clear sentence of "Everyone has the right
to liberty and security of the person."10 The right to liberty and security 'is of primary
importance in a democratic society within the meaning of the Convention'11, and its
importance has been stressed by the ECtHR in many of its judgments.12 This right is
5 Andrew Z. Drzemczewski, European Human Rights Conventionin Domestic Law, A comparative Study, Clarendon Press, Oxford, p.343.
6 J.A.Frowein, Incorporation of the Convention into Domestic Law; Aspects of Incorporation of the European Convention of Human Rights into
Domestic Law, Edited by J.P. Gardner, The British Instituteof International and Comparative Law/The British Institute of Human Rights, London,
1993, p.4.
7 Françoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law, Rowman&Littlefield, 2007, p.186.
8 Hereinafter “ECtHR”
9 Dia Anagnostou, Politics, Courts and Society in the National Implementation and Practice of European Court of Human Rights Case Law;
European Court of Human Rights Implementing Strasbourg`s Judgments on Domestic Policy, Edited by Dia Anagnostou, Edinburgh University
Press, 2013, p.228.
10 Article 5/1 of the Convention
11 Case of Ladent v. Poland, 11036/03, Fourth Section, 18/03/2008, §45.
12 As pointed out in the Case of Kurt v. Turkey, “the authors of the Convention reinforced the individual’s protection against arbitrary
deprivation…. by guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrarinessby allowing the act of
deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act.... What is
at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of
safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal
protection."
8
regarded as a fundamental condition in a democratic society, which everyone must, in
principal, be able to enjoy.13 This is because any deprivation of liberty may have a
direct effect on the enjoyment of other human rights, as set out in the Convention.14
The key purpose of Article 5 of the Convention is to prevent people from being
deprived of their right to liberty and security in an arbitrary or unjustifiedfashion.15
The notion of arbitrariness does not mean that deprivation of liberty must be in
accordance with only national law. In other words, even if an arrest or detentionis in
accordance with national law, it can be still inconsistent with Article 5.16 Therefore,
national authorities must always taken into account the requirements of this right.
All the guarantees set out in Article 5 must become applicable as soon as the
deprivation of liberty has occurred.17 When this right is not guaranteed effectively,
the person under custody may be in a vulnerable position, exposing him or her to "the
risk of being subjected to torture, inhuman and degrading treatment."18 Therefore, it
requires national authorities to take necessary steps to ensure effective protection of
this right for vulnerable persons.19
C- What Amounts to a Deprivation of Liberty
Deprivation of liberty can appear in numerous forms.20 It cannot be limited to the
classic case of being deprived of liberty.21 In other words, it does not require the
13 Monica Macovei, The right to liberty and security of the person, A guide to the implementation of Article 5 of the European Convention on
Human Rights, Human Rights Handbooks, No: 5, Council of Europe, p.5.
14 Ibid, p.6.
15 Guide on Article 5, Right to Liberty and Security, Article5 of the Convention, Council of Europe/European Court of Human Rights, 2012,
Available Online at: http://www.echr.coe.int/Documents/Guide_Art_5_ENG.pdf , Accessed on: 20.07.2013, p.5; Caseof McKay v. The United
Kingdom, 543/03, Grand Chamber, 03/10/2006, §30.
16 Guide on Article 5, Supra fn.15, p.7; Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39, and A. and Others v. the United Kingdom
[GC], no. 3455/05, §§ 162-164, 19 February 2009.
17 Monica Macovei, Supra fn.13, p.17.
18 Monica Macovei, Supra fn.13, p.6.
19 Guide on Article 5, Supra fn.15, p.6.
20 Guzzardi v. Italy, Application no. 7367/76, Plenary, 6 November 1980, §95.
21 Guzzardi v. Italy, Application no. 7367/76, Plenary, 6 November 1980, §95.
9
existence of a classic case of detention during the trial or following a conviction.22
The measure to be achieved, rather than its classification by domestic law, is the most
important factor for determining whether a deprivation of liberty exist or not.23
The possibility to maintain social contact with the outside world and freedom of
movement24, the intensity of the supervision25 are objective factors which may
indicate the existence of deprivation of the liberty within the meaning of the Article
5(1) of the Convention.26 However, relatively short periods of deprivation of liberty
can also amount to a breach of the right to liberty and security due to the serious
nature of such a breach and its subsequent consequences.27 For example, an element
of coercion such as using force to compel someone to get into the car by the police
can also constitute a deprivation of liberty.28 Due to this, Article 5(3) requires that any
pre-trial detention, even for a short period of time, needs to be justified by national
authorities.29
Concrete situation of the case and several criteria 'such as the type, duration, effects
and manner of implementation of the measure in question' must be taken into account
in determining whether there is a breach of the right to liberty and security.30 The
ECtHR is not bound by the classification of the domestic authorities as to whether
there has been a deprivation of liberty or not.31 In other words, the ECtHR makes its
own assessment on the basis of the submitted evidence.32 In order to be seen as a
deprivation of liberty under the meaning of Article 5(1) of the Convention, both
22 Guide on Article 5, Supra fn.15, p.5.
23 Monica Macovei, Supra fn.13, p.17.
24 H.M. v. Switzerland, 39187/98, Second Section, 26/02/2002, §45.
25 Guzzardi v. Italy, Application no. 7367/76, Plenary, 6 November 1980, §95.
26 Guide on Article 5, Supra fn.15, p.5.
27 Rantsev v. Cyprus And Russia, 25965/04, First Section, 07/01/2010, §317.
28 Foka v. Turkey, 28940/95, Fourth Section, 24/06/2008, §78-79.
29 Osmanović v. Croatia, 67604/10, First Section, 06/11/2012, §38.
30 Engel and others judgment of 8 June 1976, Series A no. 22, p.24, par. 58-59.
31 Guide on Article 5, Supra fn.15, p.5.
32 H.L. v. The United Kingdom, 45508/99, Judgment, ECtHR Fourth Section, 05/10/2004, §90
10
objective and subjective elements must be present.33 The objective element requires
confinement of the person 'in a particular restricted space for a not negligiblelength
of time.'34 However, deprivation of liberty does not occur just in cases where a person
is kept forcibly in a restricted space such as a prison cell. Deprivation ofliberty can
occur in many other forms..35 If someone cannot move from a certain place or is
required to stay for a while in a room, this can lead to Article 5 being applicable.36 On
the other hand, the subjective element requires the absence of consent of the person
to the confinement.37
National authorities who have the power to deprive someone's liberty have a burden
of proof to prove that the deprivation of liberty falls within one of the grounds listed
in Article 5(1) of the Convention.38 Therefore, the limits of deprivation of liberty
imposed by Article 5(1) of the Convention must be taken into consideration by
national authorities.39
33 Guide on Article 5, Supra fn.15, p.5.
34 Storck v. Germany, 61603/00, Third Section, 16/06/2005, §74.; Guide on Article 5, Supra fn.15, p.5.
35 Monica Macovei, Supra fn.13, p.17.
36 Ibid, p.17.
37 Storck v. Germany, 61603/00, Third Section, 16/06/2005,§74.
38 Monica Macovei, Supra fn.13, p.8.
39 Ibid, p.8.
11
CHAPTER II: Standards on Arrest and Detention
A- The Measure of Arrest
1- The Requirement of Reasonable Suspicion
A person may only be subject to deprivation of liberty for the purposes specified in
Article 5(1). In this sense, within the meaning of Article 5(1)(c), a person may be
arrested40 only in the context of criminal proceedings, for the purpose of bringing
him before the competent legal authority on suspicion of having committed an
offence.41 The term 'offence' in Article 5(1)(c) is the same as the term 'criminal
offence' in Article 6 of the Convention.42 In this context, in order to determine
whether or not there is a criminal charge against an individual, three criteriamust be
examined. These are 'the classification of the proceedings under national law, the
nature of the proceedings and the nature and degree of severity of the penalty'.43
Regarding detention orders, the Convention gives a wide margin of appreciation to
domestic authorities in evaluating the existence of reasonable suspicion.44 However,
it must be considered that the ECtHR is “the ultimate interpreter” of the Convention.45
Therefore, national authorities must take into account the case law of the ECtHR
regarding the requirement of reasonable suspicion.
In principle, following the deprivation of liberty, national authorities do not have an
obligation to carry out criminal proceedings. The purpose of a deprivation of liberty is
40 The term “arrest” in Turkish law refers to the moment when aperson is initially deprived of his/her liberty.
41 Jecius v. Lithuania, 34578/97, Third Section, 31/07/2000, §50. ((see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series
A no. 3, pp. 51-52, § 14, and the Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, pp. 16-18, §§ 38-41).)
42 Guide on Article 5, Supra fn.15, p.14.
43 Benham v. The United Kingdom, 19380/92, Grand Chamber, 10/06/1996, §56.
44 Ralph Crawshaw, Human Rights and the Police, Seminar Proceedings, Council of Europe, Strasbourg, 6-8 December 1995,p.24.
45 Howard Charles Yourow, The magrin of Appreciation Doctrinein the Dynamics of European Human Rights Jurisprudance, Martinus Nijhoff
Publishers, 1996, p.3.
12
to dispel or confirm the suspicion to further the investigation of the person.46 At least
a reasonable basis for the suspicion must exist.47 This does not mean that any
suspicion can justify the deprivation of liberty. For example, previous convictions or
the personality cannot justify the deprivation of liberty by itself.48 Previous
convictions may reinforce the suspicion but do not, in itself, constitute a suspicion.49
As stressed in Ikincisoy v. Turkey Case, the facts or information on an offence an
objective observer must be satisfied that the person concerned may have committed
the offence,50 otherwise, the threshold of Article 5(1)(c) is not met. In order to make
an assessment, all circumstances of the case must be taken into account.51 However,
as occurred in Elci and Others v. Turkey Case, if national authorities fail to provide
sufficient evidence to indicate that there is reasonable suspicion of an offenceagainst
the arrested person, it could lead to a breach of Article 5(1)(c).52 'Uncorroborated
hearsay evidence of an anonymous informant' cannot be regarded as reasonable
suspicion unless supported by objective evidences.53 However, as occurred in Talat
Tepe v. Turkey, incriminating statements dating back over 3 years before the
arrestment of the person can constitute a reasonable suspicion.54
Even if the existence of "a reasonable suspicion" is a condition sine qua non for the
validity of the measure of arrest and detention; in some circumstances, the reasonable
suspicion does not justify, by itself, the measure of detention on remand. This is
because arrest or detention are not the only measures which should be applied. On the
contrary, they must be considered as a last resort by domestic authorities. Where
46 Brogan And Others v. The United Kingdom, 11209/84 11234/84 11266/84..., Plenary, 29/11/1988, §53.
47 Monica Macovei, Supra fn.13, p.26.
48 Fox, Campbell and Hartley v. The United Kingdom, 12244/8612245/86 12383/86, Chamber, 30/08/1990, §35.
49 Monica Macovei, Supra fn.13, p.26.
50 Ikincisoy v. Turkey, 26144/95, Fourth Section, 27/07/2004, §95.
51 Fox, Campbell and Hartley v. The United Kingdom, 12244/86 12245/86 12383/86, Chamber, 30/08/1990, §32.
52 Elci and Others v. Turkey, 23145/93 25091/94, Fourth Section, 13/11/2003, §674,
53 Labita v. Italy, 26772/95, Grand Chamber, 06/04/2000, §158.
54 Talat Tepe v. Turkey, 31247/96, Second Section, 21/12/2004, §61.
13
possible, authorities must apply other alternative less stringent measures.55 In this
context, a proportionality test to detention falling under Article 5(1)(c) of the
Convention is applied by the ECtHR.56
2- The Legality of the Conduct
a. The Requirement to be Conducted in accordance with a Procedure Prescribed
by Law
Article 5(1) requires that any deprivation of liberty must be in a procedure prescribed
by law. The term "lawfulness" means that any deprivation of liberty must be in
accordance with both national law and the Convention and also "must not be
arbitrary."57 First of all, in order to be lawful, the arrest and detention must be in
accordance with both the substantive and procedural rules of the national law.58 The
reasonable suspicion does not always provide the foundation necessary to justify an
arrest. For instance, in the Case of Mekiye Demirci v. Turkey, the applicant was
arrested on charges of terrorism and subsequently questioned. As emphasized inthis
judgment, since the existence of search and seizure warrant did not authorize police to
detain or arrest the person in the national law governing arrest, resorting toarresting
the person was in breach of Article 5 of the Convention.59 The ECtHR, in this case,
held that the initial deprivation of the applicant's liberty was not in accordance with
national law.
Initial deprivation of liberty must be lawful and in accordance with the Convention.60
Where national authorities fail to provide any ground of deprivation of liberty as
55 Saadi v. The United Kingdom, 13229/03, Grand Chamber, 29/01/2008, §70.
56 Ladent v. Poland, 11036/03, Fourth Section, 18/03/2008, §55.
57 Monica Macovei, Supra fn.13, p.9.
58 Mark W. Janis, Richard Richard S. Kay, Anthony W. Bradley, European Human Rights Law, Text and Materials, Oxford University Press,
2008, p.690.
59 Mekiye Demirci v. Turkey, 17722/02, Second Section, 23/04/2013, §48.
60 J. Aldereson, Supra fn.2, p.44.
14
specified in Article 5(1), resorting to the measure of arrest might be foundto be in
breach of Article 5(1) of the Convention.61 However, procedural mistakes such as the
failure to notify arrested or detained person of detention order do not make, by itself,
the detention unlawful and unnecessary.62
In addition, an offence must be clearly defined under national law to be invoked as "a
basis for the deprivation of liberty".63 It is not necessary to establish that the offence
has been committed by the individual. Instead, it is required that, at least the
behaviour must be defined as an offence under national law.64 As stated in the Case of
Erdagöz v. Turkey, even if an individual has not been charged or brought before a
competent court, the purpose of his detention can still be in accordance with Article
5(1)(c). It is not required that national authorities obtain sufficient evidence to bring
charges at the time of arrest, instead evidence can be obtained over time.65 As
stressed in the Brogan Case, even if a detained or arrested person is not charged or
brought before a court, the purpose of the detention can still be in accordance with
Article 5(1)(c). In other words, the existence of "such a purpose must be considered
independently of its achievement".66
Deprivation of liberty must have a legal basis for the whole period.67 Even if some
delays in carrying out a decision to release a person from detention is regarded
understandable and sometimes inevitable, the period of delays should be kept by the
national authorities to a minimum.68 Within this scope, the absence of the registration
officer cannot be invoked as a legitimate excuse.69 Similarly even a delay of forty
61 Denizci And Others v. Cyprus, 25316/94 25317/94 25318/94..., Fourth Section, 23/05/2001, §392.
62 Marturana v. Italy, 63154/00, Second Section, 04/03/2008, §79. However, as stated in the Voskuil v. the Netherlands (64752/01, Third Section,
22.02.2008, §83), the Court may find a breach of Article 5/1 in the case of a failure to follow the procedure for notifying adetention order within
the time limit prescribed by law.
63 Monica Macovei, Supra fn.13, p.22.
64 Ibid, p.23.
65 Erdagöz v. Turkey, 22 October 1997, Reports 1997-VI, p.2314, §51, Ikincisoy v. Turkey, 26144/95, Fourth Section, 27/07/2004, §96.
66 Brogan and Others v. The United Kingdom, 11209/84 11234/84 11266/84..., Plenary, 29/11/1988, §53.
67 Monica Macovei, Supra fn.13, p.10.
68 Giulia Manzoni v. Italy, 19218/91, Chamber, 01/07/1997, §25.
69 Labita v. Italy, 26772/95, Grand Chamber, 06/04/2000, §172.
15
minutes in release from custody in order to establish the identity of the detained
person can amount to a breach of Article 5(1) of the Convention, since the
requirement of the legal basis for the deprivation of liberty is not satisfied by the
national authorities.70 In the Turkish legal system, law enforcement officials must
record the proceedings from the very beginning to the registry for detained persons
and it is compulsory to open custody records in every case.71 Moreover, the decisions
of release are conveyed to the relevant institution (such as prison or prosecutor)
without any delay through the UYAP Informatics System72. Thereby the system
provides the immediate release of arrested and detained persons.
At this point, the Convention makes a reference to domestic law and requires national
authorities to set out their laws governing the deprivation of liberty.73 In this sense,
the law governing deprivation of liberty must be adequately accessible. Any
deprivation of liberty based on secret or unpublished provisions does not meet the
requirement of the principle of the accessibility of national law.74 The conditions for
keeping a person in detention under domestic law must be clear, comprehensive and
understandable.75 Lastly, domestic law must contain sufficient guarantees against the
risk of arbitrary deprivation of liberty.76 Therefore judicial authorities have an
obligation to examine whether the requirements of domestic law governing
deprivation of liberty have been satisfied or not.77
70 K.-F. v. Germany, 25629/94, Chamber, 27/11/1997, §73.
71 Article 12 of the Regulation on Apprehension, Custody and Taking of Statements.
72 An integrated data operating system and testing started in 2005, was put into operation in Turkey in the year 2009. It isan e-justice system as
a part of the e-government. It has been developed in order to ensure fast, reliable, soundly operated and accurate judicial system. The system, as a
central network project, includes all of the courts, publicprosecutors services, prisons, other judicial institutions and other government
departments. All these are equipped with computers, case management systems, network and internet connection.
73 M. Bedri Eryılmaz, Arrest and Detention Powers in English and Turkish Law and Practice in the Light of the European Convention on Human
Rights, Marinus Nijhoff Publishers, International Studies in Human Rights Volume 61, 1999, p.212.
74 Monica Macovei, Supra fn.13, p.14.
75 Guide on Article 5, Supra fn.15, p.7.
76 Monica Macovei, Supra fn.13, p.14.
77 Ibid, p.9.
16
b. The Requirement to be Conducted in accordance with the Convention
Even if a deprivation of liberty is in compliance with national law, it can be still
incompatible with Article 5 of the Convention. This is because the Convention and the
case law of the ECtHR may have a wider approach towards the term "lawfulness"
compared to what national authorities may have.78 As stressed in the Kurt v. Turkey
Case "any deprivation of liberty must not only have been effected in conformity with
the substantive and procedural rules of national law but must equally be in keeping
with the very purpose of Article 5, namely to protect the individual from
arbitrariness."79 Any detention or arrest which is legally justified in domestic law
other than those specified in Article 5(1) of the Convention is certainly unlawful
within the meaning of Article 5.80 In this sense, nobody can be arrested or detained on
the grounds that he may commit future crimes.81 Since preventive detention is
prohibited under Article 5(1) of the Convention, any practice that permits preventive
detention whether permitted by domestic law or not, will be incompatible with Article
5(1).82
On the other hand, even if deprivation of liberty is compatible with both national law
and the Convention, the measure of arrest or detention may still be found unlawful
since the use of power is considered "to be arbitrary."83 For example, even if
deprivation of liberty may be justified in order to establish someone's identity; the
arrest of the person who has been already known to police authorities makes the
deprivation of liberty arbitrary and thus unlawful.84
78 Ibid, p.12.
79 Kurt v. Turkey, 24276/94, Chamber, 25/05/1998, §122.
80 Monica Macovei, Supra fn.13, p.12.
81 M. Bedri Eryılmaz, Supra fn.73, p.220.
82 Jecius v. Lithuania, 34578/97, Third Section, 31/07/2000, §51.
83 Monica Macovei, Supra fn.13, p.13.
84 Monica Macovei, Supra fn.13, p.13.
17
3- The Legislation and the Practice in Turkey and Existing Gaps
The law governing deprivation of liberty in the Turkish legal system has been
examined by the ECtHR in many of its judgments. The law governing arrest and
detention has been amended and reformulated many times in order to bring it in line
with the case law of the ECtHR and the Convention.
In the Turkish legal system, Article 90 and following provisions of the CCP deals with
the measure of arrest and pre-trial detention. In the CCP, there are two different
measures that amount to a deprivation of liberty; arrest and pre-trial detention.
Pre-trial detention can only be applied by a court. In other words, the public
prosecutor has no power to issue a decision about the pre-trial detention of the person.
While during the preliminary investigation, the Justice of the Peace is only entitled to
issue a warrant of pre-trial detention85; during the trial stage, the court of competent
jurisdiction is entitled to issue it.86 In addition, there is no provision of compulsory
detention in Turkish legal system.87 Either "Justice of Peace" in the preliminary
investigation or the competent court in the trial stage must analyze the factsand
circumstances of the case.
While a written order of a court is required for a pre-trial detention88, according to
Article 90(1) of the CCP, in some exceptional circumstances89, any individual can
make an arrest of another person temporarily without a written order.90 Similarly, law
85 Article 94 of the CCP.
86 Article 101(1) of the CPP.
87 Ali Kemal Yıldız, Ceza Muhakemesi Hukukunda Tutuklama veAdli Kontrol, Criminal Law of The Global Risk Society, Edited by: Feridun
Yenisey and Ulrich Sieber, Criminal Law in The Global Risk Society, Series of the Max Planck Institute for Foreign and International Criminal
Law and Bahçeşehir University Joint Research Group, 2011, p.631.
88 Nur Centel, Hamide Zafer, Ceza Muhakemesi Hukuku,İstanbul, 7. Bası, Beta, 2010, p.316.
89 According to this provision, any individual can arrest a person during the commission of the crime, or during hot pursuit, if in the meantime
the offender might escape or not be identifiable.
90 Nur Centel, Ceza Muhakemesi Hukukunda Tutuklama ve Yakalama,İstanbul, Beta, 1992, p.17.
18
enforcement officials have a power to arrest the individual without a warrant.91
However, there are three conditions which must be met in order to arrest someone.
Firstly, it is only possible in cases where the judge might have given an order of
pre-trial detention. In other words, the conditions of pre-trial detention must be
present in order to arrest someone without a written order. Secondly, there mustbe a
risk of undue delay in issuing such an order by a judge. Lastly, there must be no
immediate possibility to ask permission from the public prosecutor or his superiors.
Regarding pre-trial detention, Article 101 of the CCP requires the existenceof
reasonable suspicion in order to invoke the power of arrest in a situation. According to
Article 101(2) of the CCP, “strong suspicion of an offence”, “existence of grounds for
detention” and “proportionality of detention measure” with the clear indicationof
evidence based on concrete facts must be manifested in "detention decisions",
"decisions on rejection of the request for release" or "decisions on continuation of
detention".92 Apart from "strong suspicion", a "ground for detention" must exist in
order to detain someone.93 In this sense, if there are concrete facts indicating that the
suspect or accused will flee or hide, the person can be detained. In addition, if the
conduct of the suspect or the accused person constitutes a strong suspicion of
destroying, hiding or changing the evidence, putting an unlawful pressure on
witnesses, the victims or other individuals, then the person concerned can also be
arrested.94
While it was possible that a person who has no domicile or residence, or unable to
identify himself could be detained under Article 104 of the former CCP for the crimes
carrying a sentence of up to six months, such a provision does not exist in the new
CCP. According to the new CCP, if an offence requires an imprisonment of up to two
years or a judicial fine, an arrest warrant cannot be issued and pre-trial detention can
91 Article 90(2) of the CCP.
92 Article 101(2) of the CCP
93 Article 101(2)(b) of the CCP
94 Article 100/2 of the CCP
19
not be applied.95
The measure of arrest, in Turkish legal system, cannot be exercised against a person
where there is a hunch or a faint or remote suspicion that an offence may occur.
Without a reasonable suspicion of criminal activity, nobody can be arrested or taken
into custody for the purpose of questioning.96 However, in practice, there are some
problematic practices leading to violations in respect of the requirement of reasonable
suspicion. In these cases, the detention orders lack adequate reasoning of the legal
grounds for pre-trial detention. As noted in the Case of Ipek and Others, if the person
is arrested mainly because he is at the house of the other suspects at the time itis
searched, the exercise of the power of arrest, unless a reasonable suspicion exists, is
not compatible with the requirements of Article 5(1)(c).97 In this case, the court failed
to specify the connection between the suspect and the crime. This is because, at the
moment of arrest, there must be some questions to be answered by the suspect and
which may amount to a conviction.98 Another important deficiency which exist in
practice is to quote simply to relevant provisions of the CCP in pre-trial detention
orders. Judges must avoid the copy-paste method in pre-trial detention decisions even
if they reflect the reality. However, these problematic practices do not indicate that the
law governing the measures of detention and arrest is not sufficient .
In terms of statistical data, even if the ECtHR has found Turkey to have committed
some violations of the Convention in cases relating to the absence of reasonable
suspicion, it has not held that Turkish laws are inadequate to cover the requirements
of reasonable suspicion. The Turkish laws governing the measures of arrest or
detention comply with the requirements of Article 5(1)(c) of the Convention.
Similarly, Turkish law governing the deprivation of liberty covers all aspects of the
95 Article 100(4) of the CCP (Which is amended with Law No. 6352, entered into force on 5 July 2012, here the upper limit was increased from
one to two years.)
96 M. Bedri Eryılmaz, Supra fn.73, p.73.
97 Ipek and Others v. Turkey, 17019/02 30070/02, Second Section, 03/02/2009.
98 Herbert. L. Packer, The Limits of the Criminal Sanction, Stanford University Press, 1968, p.190.
20
measures of arrest and detention. In other words, the requirement of being prescribed
by law is also met by Turkish law.99 However it does not mean that problematic
practices do not exist. The problematic practices leading to violations in respect of
reasonable suspicion can be overcome through regular training and awareness raising
activities for law enforcement officials. In other words, there is no need to introduce
new law reforms to reach the standards of reasonable suspicion as set out by the
Convention and the settled case law of the ECtHR. Neither the CCP nor other relevant
laws allows law enforcement officials to arrest someone simply for the purpose of
questioning and collecting information.
99 M. Bedri Eryılmaz, Supra fn.73, p.213.
21
Chapter III: Rights Guaranteed to Individuals Deprived of Their Liberty
B- Duty to Give Reasons Promptly for Deprivation of Liberty
1- Relevant Standards set by the Convention
When the requirement of the lawfulness of deprivation of liberty has been met, other
important requirements such as the duty to give reasons promptly for deprivation of
liberty need to be met as well.100 According to Article 5(2) of the Convention,
“Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.” The main
purpose of Article 5(2) is to protect detained or arrested persons from arbitrariness.
Even if the wording refers only to the “arrest”, the words in this provision must be
interpreted in the light of this purpose.101 In terms of the requirement of being
informed promptly for deprivation of liberty, there is not any sensible ground to make
a distinction between a person arrested and a person detained.102 Thus, the scope of
Article 5(2) extends to the deprivation of liberty for different purposes such as
detention for extradition purposes, and detention for medical treatment purposes.103
Unless this safeguard is not provided, the persons deprived of their liberty cannot
prepare a defence against the charges being brought against him.104 Thus, they cannot
challenge the legality of their deprivation.105 Due to this, any person deprived of his
liberty must be informed promptly106 and adequately.107 Moreover the content of the
100 J. Aldereson, Supra fn.2, p.47.
101 Christoph Grabenwarter, Fundamental Judicial and Procedural Rights, edited by Dirk Ehlers, European FundamentalRights and Freedoms,
De Gruyter Recht, 2007, p.157.
102 Van Der Leer v. The Netherlands, 11509/85, Chamber, 21/02/1990, §27.
103 Guide on Article 5, Supra fn.15, p.19.
104 Clare Ovey, Robin C.A. White, TheEuropean Convention on Human Rights, Fourth Edition, Oxford University Press, p.150.
105 Fox, Campbell and Hartley v. The United Kingdom, 12244/86 12245/86 12383/86, Chamber, 30/08/1990, §40.
106 The term promptly is different from immediately. Thus the explanation does not need to be given at the initial monemt of deprivation.
107 Van Der Leer v. The Netherlands, 11509/85, Chamber, 21/02/1990, §28.
22
information conveyed to the arrested person or his representative must be sufficient.108
While the content of the information to be provided must be assessed in each case109,
the bare indication of the legal basis for the deprivation of liberty can not be regarded
as sufficient for the purposes of Article 5(2) of the Convention.110 The important
thing is whether the person has understood or not the essential legal and factual
grounds for the arrest.
The reasons for deprivation of liberty may be given in different forms. Article 5(2)
does not require the reasons for the deprivation of liberty to be given in writing to the
person concerned.111 Similarly, Article 5(2) does not require the complete description
of all the charges to be given at the moment of the deprivation of liberty.112 If a
person is arrested immediately after the commission of an offence, there is no reason
to maintain that is why he is deprived of his liberty.113
The requirement of promptness is satisfied where the person deprived of his liberty is
informed of the reasons within a few hours.114 Any maximum time period for the
interval between initial deprivation of liberty and the moment when a sufficient
explanation of reasons for being deprived of liberty is given has not been defined by
the ECtHR or by the Convention. However, as stressed in Dikme v. Turkey, since the
person concerned can gain some idea of what he or she is suspected of during the
questioning, any interval lasting nineteen hours does not amount to, by itself, a breach
of Article 5.115
108 Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights, David Harris, Michael O'Boyle, Edward Bates, Carla
Buckley, Oxford University Press, Second Edition, p.166.
109 Fox, Campbell and Hartley v. The United Kingdom, 12244/86 12245/86 12383/86, Chamber, 30/08/1990, §40.
110 Murray v. The United Kingdom, 14310/88, Grand Chamber, 28/10/1994, §76.
111 X. v. Federal Republic of Germany, 8098/77, Commission (Plenary), 13/12/1978.
112 X. v. Federal Republic of Germany, 8098/77, Commission (Plenary), 13/12/1978.
113 Dikme v. Turkey, 20869/92, First Section, 11/07/2000, §54.
114 Kerr v. The United Kingdom, 40451/98, Decision, Third Section, 07/12/1999.
115 Dikme v. Turkey, 20869/92, First Section, 11/07/2000, §56.
23
2- The Legislation and the Practice in Turkey and Existing Gaps
According to the Turkish Constitution, arrested or detained persons must be notified
promptly of the grounds for the arrest or detention and the charges against them. Such
a notification must be conducted in all cases in writing, or orally, when the former is
not possible.116 The Police Powers and Duties Act of 1934 contains similar provisions.
According to this Act, the arrested person must be informed in writing of the reason
for his arrest, or where it is not possible, orally.117 In this sense, the Regulation on
Apprehension, Custody and Taking of Statements118 requires that the apprehended
person must be informed in writing of the reason of detention, allegations against him
or her, the rights to remain silence; to access to a lawyer; to appeal against detention
and of any other legal rights. Such information must be provided, regardless of the
offence charged, from the very outset of the deprivation of liberty. When this is not
possible, in some circumstances, oral information on these rights must be given
immediately.119 Moreover, the apprehended person must be given a signed copy of
the “Form on Suspects’ and Accused Persons’ Rights”.120 This form provides a
testimony that the apprehended person has been informed of his/her rights in writing.
All law enforcement officials have to implement this procedure.
However there is a problematic statement in the Constitution, and this is because
according to the last section of Article 19(4) of the Constitution, “in cases of offences
committed collectively, this notification shall be made, at the latest,before the
individual is brought before the judge”. As outlined below, in some circumstances, the
investigation of the offences committed collectively may be extended for up to four
days by the public prosecutor.121 The period of up to four days without judicial
control in these cases clearly violates the requirement of promptness in the meaning
116 Article 19(4) of the Turkish Constitution
117 Article 13(5) of the Police Powers and Duties Act of 1934.
118 Hereinafter “Regulation”
119 Article 6(4) of the Regulation.
120 Article 6(7) of the Regulation.
121 Article 91(3) of the CCP.
24
of Article 5(2) of the Convention. Such a practice does not satisfy the spirit of the
requirement of the duty to give reasons promptly for deprivation of liberty.122 On the
other hand, as stated above, the Constitution is a framework document which sets out
minimum standards. Either The Police Powers and Duties Act of 1934 or the
Regulation on Apprehension, Custody and Taking of Statements requires the police to
inform arrested person as to the reasons for his arrest immediately.
Hence, the requirements to be informed promptly of the reasons for the arrest or
detention in Turkish laws are, to a large extent, in accordance with therequirements
set out in the Convention and the case law of the ECtHR. There have been few cases
against Turkey123 on the right right to be informed promptly of the reasons of arrest
and detention, where the ECtHR has found a breach of Article 5(2). The relevant
Turkish laws, especially the CCP and the Police Powers and Duties Act meet the
requirements of the Convention regarding the right to be informed promptly.
The problematic practices leading to violations in respect of being informed promptly
of the reasons of deprivation of liberty can be overcome through regular training and
awareness raising activities for law enforcement officials.
122 Osman Dogru, “Sanik Öğüten Çarklar": Insan Haklari Açisindan Türkiye'de Ceza Adalet Sistemi, TESEV Demokratikleşme Programı
Siyasal Raporları Serisi, Yargı Reformu 3, 2011, p.23.
123 As of 31.07.2013, there have been fifteen (15) cases on the ECtHR's Website.
25
C- Right to be Brought Promptly Before a Judge
1- Relevant Standards set by the Convention
According to Article 5(3) of the Convention 'Everyone arrested or detained in
accordance with the provision of paragraph 1(c) of this Article shall be brought
promptly before a judge or other officer authorised by law to exercise judicial
power...'. The purpose of this provision is to minimize the risk of arbitrary or
unjustified deprivation of liberty.124 As judicial control of the deprivation of liberty is
one of the essential features of the guarantees in Article 5 of the Convention. Such
judicial control may provide important safeguards against the risk of ill treatment and
abuses by law enforcement authorities, especially in the early stages of detention,125
and because of that, judicial control 'on the first appearance of an arrested individual'
must be prompt and automatic.126
Even if the Convention does not indicate clearly what the time period is for applying
the notion of promptness; as stressed in one of the leading cases, a deprivation of
liberty, spent in custody for four days and six hours, is prima facie too long.127 Thus,
as emphasized in Sakık and Others v. Turkey Case, the delays ranged from twelve to
fourteen days without judicial supervision is incompatible with the requirementsof
Article 5(3) of the Convention.128 However, it does not mean that a period of less
than 4 days 6 hours is completely justified within the meaning of Article 5(3).129 Each
case must be assessed on its own merits and facts. Shorter periods of detention even
less than 4 days may also amount to the breach of the provision, if there is not any
special difficulties or exceptional circumstances which prevent the authorities from
124 Brogan and Others v. The United Kingdom, 11209/84 11234/84 11266/84..., Plenary, 29/11/1988, §58; Aquilina v. Malta, 25642/94, Grand
Chamber, 29/04/1999, §47.
125 Ladent v. Poland, 11036/03, Fourth Section, 18/03/2008, §72.
126 McKay v. The United Kingdom, 543/03 Grand Chamber, 03/10/2006, §33.
127 Brogan and Others v. The United Kingdom, 11209/84 11234/84 11266/84..., Plenary, 29/11/1988, §47.
128 Sakik And Others v. Turkey, 23878/94 23879/94 23880/94...,Chamber, 26/11/1997, §45.
129 Oral, Atabay V. Turkey, 39686/02, Fourth Section, 23/06/2009, §43.
26
bringing the person before a judge or other officer authorised by law to exercise
judicial power.130 These difficulties or factors can include the involvement of several
suspects, the need to recover vital evidence from a suspect or illness of the person
concerned.131
Judicial control, within the meaning of Article 5(3), must not depend on any previous
application of the arrested person.132 The importance of automatic judicial control of
the detention is particularly crucial for a person subjected to ill-treatment or torture
during interrogation. Because the arrested person might be incapable of lodging an
application for judicial review.133
During the hearing, the presence of a lawyer to represent the arrested personis not
obligatory.134 However, it is obvious that the presence of a lawyer may have positive
effects on the person's ability to present the case.135 As emphasized in Oral Atabay v.
Turkey Case, the initial judicial control must be capable of examining whether there is
a reasonable suspicion that an offence has been committed by the arrested person.136
Judicial officers must examine not only the lawfulness of detention but also other
circumstances which can have positive or negative effects on the detention.137 Where
sufficient reasons to justify the arrest are not present, the judicial officer must have the
power to release the arrested person.138 As arrest or detention is not supposed to serve
as a form of punishment, these are protective measures and must have a temporary
nature.139
130 Ipek and Others v. Turkey, 17019/02 30070/02, Second Section, 03/02/2009, §37.
131 Monica Macovei, Supra fn.13, p.55.
132 Case of McKay v. The United Kingdom, 543/03, Grand Chamber, 03/10/2006, §34.
133 Monica Macovei, Supra fn.13, p.6.
134 Schiesser v. Switzerland, 7710/76, Chamber, 04/12/1979, §36.
135 Lebedev v. Russia, 4493/04, First Section, 25/10/2007,§87.
136 Oral, Atabay V. Turkey, 39686/02, Fourth Section, 23/06/2009, §41, Case of McKay v. The United Kingdom, 543/03, Grand Chamber,
03/10/2006, §40.
137 Aquilina v. Malta, 25642/94, Grand Chamber, 29/04/1999, §52.
138 Assenov and Others v. Bulgaria, 24760/94, Chamber, 28/10/1998, §146.
139 Metin Feyzioğlu, Güneş Okuyucu Ergün, Türk Hukukunda Tutuklulukta Azami Süre, (The Upper Limit of Arrest under Turkish Law),
Ankara Üniversitesi Hukuk Fakultesi Dergisi, 59(1), 2010,p.35.
27
2- The Legislation and the Practice in Turkey and Existing Gaps
The Turkish Constitution stipulates that the arrested or detained person mustbe
brought before a judge within forty eight hours and within four days in cases of
offences which have been committed collectively.140 However, the period of forty
eight hours is not applied in practice, because in 2005 it was shortened by the CCP.141
The right to be brought before a competent court is governed in Article 94 of the CCP.
According to this provision, in principle, the person who is arrested upon a court order
during either investigation or prosecution must be brought before the competent judge
or court at the latest within 24 hours.142 However, in respect of terrorist suspects, the
maximum time limit in terms of the length of detention on remand is forty eight
hours.143 In other words, terrorism suspects in Turkey are subjected to different
criminal procedure in terms of length of detention comparing to ordinary suspects.144
However, if the investigation of these crimes have not been completed at the end of
forty eight hours, in some circumstances145, the public prosecutor may order, in
writing, an extension of the custody period for 3 more days, not exceeding one day at
a time.146
The period of detention starts at the moment of arrest as stipulated in Article 13 of the
the Regulation on Apprehension, Custody and Taking of Statements. According to the
Turkish legal system, the arrested person must be interrogated by a judge.When
determined that pre-trial detention is not necessary or where there is not sufficient
reason to justify the arrest, the judge must release the arrested personas soon as
possible. During the interrogation of the arrested person, a defence lawyer mustbe
140 Article 19(6) of the Turkish Constitution.
141 Articles 91 and 94 of the CCP.
142 Article 94 of the CCP.
143 Article 10(3)(ç) of the Anti-Terror Law no. 3713.
144 M. Bedri Eryılmaz, Supra fn.73, p.47.
145 If the crime has been committed collectively and if thereare difficulties in collecting evidence of the crime, or there are a large number of
suspects custody periods can be extended. These restrictions is also valid for crimes punishable under terrorism law and organized crimes.
146 Article 91(3) of the CCP.
28
appointed by the State,147 and both public prosecutor and the defence lawyer can
make arguments before the court.148
Where arrested person cannot be brought before a competent judge or court within the
time given, he must be brought before the nearest court within 24 hours. If he is not
released there, he must be transported to the competent judge or court within the
shortest time.149 However, there is no explicit provision in the CCP defining the term
“the shortest time”. But the Court of Cassation has quashed the decisions of domestic
courts rejecting the requests for compensation related to being brought before the
competent court. The Court of Cassation has held that any delay of 10 days for being
brought before the judge was not compatible with the purpose of Article 94 of the
CCP, in light of the Convention and the case law of the ECtHR. According to the
Court of Cassation, some remedies such as Audio-Visual Information Systemsenables
the courts and public prosecutors to receive from long distance audio-visual
statements of accused, witnesses, complainants without the necessity of their presence
at the competent court.150 For instance, in the case of Salih Salman Kılıç v. Turkey,
the applicant was arrested and placed in a prison in Denizli to be brought before an
investigating judge in Ardahan. The distance between Denizli and Ardahan was about
1600 km. The applicant was taken to Ardahan and brought before the judge in
connection with the accusations against him, 45 days after his arrest.151 Upon the
decisions made by the Court of Cassation152, the ECtHR held that such practices are
not in line with Article 5(3) of the Convention. In this context, the Regulation on the
Audio-Visual Information Systems requires that the system must be resortedto, in
similar cases to Salih Salman Kılıç v. Turkey Case, by the judicialbodies.
147 Article 91(6) of the CCP.
148 Feridun Yenisey, Criminal Procedure in Europe, Atlanta’s John Marshall School of Law, January 2013, available at:
http://www.johnmarshall.edu/wp-content/uploads/2013/01/Yenisey-Comparative-Crim-Procedure-Syllabus-and-Readings.pdf , Accessed on
30.07.2013, p.206.
149 Article 94 of the CCP.
150 Decision of 12. Penal Chamber of the Court of Cassation, 2011/15700E., 2012/9187K. Dated 4 April 2012.
151 Salih Salman Kılıç v. Turkey, 22077/10, Second Section,05/03/2013.
152 As stated above, The Court of Cassation has held that any delay of 10 days for being brought before the judge was not compatible with the
purpose of Article 94 of the CCP.
29
The detention limits on the requirement to be brought before a judge in Turkish laws
seem to be in accordance with the requirements specified by the case law of the
ECtHR. However, as stressed before, a four day detention period is not always
compatible with the Convention. Turkish laws governing the right to be brought
before a competent court, in general, comply with the requirements of Article5(3) of
the Convention. The problematic practices leading to violations in this issue can be
overcome through regular training and awareness raising activities for law
enforcement officials. In other words, there is no need to introduce new law reforms.
D- Right to Trial within a Reasonable Time or to be Released Pending Trial
1- Relevant Standards set by the Convention
According to Article 5(3) of the Convention, “Everyone arrested or detained … shall
be entitled to trial within a reasonable time or to release pending trial.Release may be
conditioned by guarantees to appear for trial.” The length of detention is defined in
Solmaz v. Turkey Case. According to this case, the period between the day when the
accused is taken into custody and the day when the charge against the person
concerned is determined constitutes the length of detention pending trial in the
meaning of Article 5(3).153
The existence of a reasonable suspicion is essential for deprivation of liberty.
However, after a lapse of time, it is not sufficient to justify, by itself, the continued
detention.154 Other relevant and sufficient grounds such as the complexity of the case,
nature of the offence155, the number of suspects involved, to justify the continued
detention are needed and national authorities must act with special diligencein the
conduct of the proceedings.156 For example, referring to the gravity of charges, and
153 Solmaz v. Turkey, 27561/02, Second Section, 16/01/2007, §24; Idalov v. Russia, 5826/03, Grand Chamber, 22/05/2012, §112.
154 Pyatkov v. Russia, 61767/08, First Section, 13/11/2012, §107; Monica Macovei, Supra fn.13, p.27.
155 W. v. SWITZERLAND, 14379/88, Chamber, 26/01/1993.
156 Vayic v. Turkey, 18078/02, Second Section, 20/06/2006,§33.
30
complexity of the case, the ECtHR held that about four years of pre-trial detention
was not a breach of the Article 5(3) of the Convention.157 Similarly, in the judgment
of Pantano v. Italy, the period lasted two years eight months and fourteen daysfor
detention on remand and this was found to be reasonable.158 What is more, the length
of the applicant’s detention on remand, which lasted for five years and six monthshas
been found reasonable by the ECtHR, taking into consideration the complexity and
exceptional circumstances of the case and the severity of the actions leading tothe
investigation against the applicant.159
Even if a detained person is not required to cooperate with national authorities during
the investigation, such a lack of cooperation may justify the continued detention in
some circumstances.160 In this sense, national authorities have a burden to
demonstrate the justification of the detention no matter how short it is.161 National
courts must review the continued detention of the arrested or detained person witha
view to release the person when the circumstances of the case do not justify the
deprivation of liberty.162 National authorities have an obligation to bring a continuing
violation of human rights to an end through the process of cessation.163 As stressed in
many of ECtHR's judgments against Turkey, the extension of the detention periods by
national courts with using identical, stereotyped terms without further elaboration is
not compatible with the purpose of Article 5(3).164 Such an approach or practice is
also incompatible with the principle of exercising an independent critical judgment
and analysis on the review of the deprivation of liberty.165 The grounds of the
decision on continued detention must be sufficient and specific to the circumstances
157 Rossi v. France, 60468/08, 18/10/2012, §86.
158 Pantano v. Italy, 60851/00, 4/10/2003, §§66-75.
159 Chraidi v. Germany, 65655/01, 26/10/2006, §§46-48.
160 W. v. SWITZERLAND, 14379/88, Chamber, 26/01/1993. (In this case the applicant refused to make any statement to thoseinvestigating the
fraud)
161 Tase v. Romania, 29761/02, Third Section, 10/06/2008, §40.
162 Guide on Article 5, Supra fn.15, p.25.
163 Lorna McGregor, Are Declaratory Orders Appropriate for Continuing Human Rights Violations? The Case of Khadr v. Canada, Human
Rights Law Review10:3, (2010), Oxford University Press, p.495.
164 Geçgel and Çelik v. Turkey, 8747/02 34509/03, Second Section, 13/10/2009, §12.
165 Monica Macovei, Supra fn.13, p.9.
31
of the case. In addition, national authorities are obliged to ensure that a judge must be
available to examine the lawfulness of the detention even "during the general closure
of the courts".166
In principle, everyone must be presumed innocent. The deprivation of liberty on
suspicion of having committed a criminal offence must be exceptional and objectively
justified.167 National authorities must always take into account these principles during
the continued detention period.168 Continued detention pending trial can be only
justified where there are clear indications of a "genuine public interest outweighing
the right to liberty."169 If the public interest clearly outweighs the rule of avoiding
deprivation of liberty, continued detention pending trial under Article 5(3) can be
justified.170
In addition, national law must not contain any rule that excludes a person with a
specific criminal record or a person deprived of his or her liberty as a result ofcertain
offences such as rape or murder from being "considered for release pending trial".171
Whether the period of detention is reasonable or not must be assessed on a
case-by-case basis according to its special circumstances.172 In other words, a
maximum length of pre-trial detention which is applicable to each case has not been
adopted by the ECtHR.173 Even short periods of pre-trial detention must be justified
by national authorities.174 The existence of maximum period of pre-trial detention
does not raise any problems of compatibility with Article 5. However, if national
authorities are guided by such a maximum period of time rather than the
166 Ibid, p.56.
167 Guide on Article 5, Supra fn.15, p.24; Monica Macovei, Suprafn.13, p.6.
168 Guide on Article 5, Supra fn.15, p.24.
169 Ahmet Ozkan And Others v. Turkey, 21689/93, Second Section, 06/04/2004, §396.
170 Guide on Article 5, Supra fn.15, p.24.
171 For instance, in the Case of Caballero v. The United Kingdom (32819/96, Grand Chamber, 08/02/2000, §21) the Court held that the
automatic denial of bail because of the offence alleged to commit is incompatible with the Convention.
172 Labita v. Italy, 26772/95, Grand Chamber, 06/04/2000, §152-153.
173 McKay v. The United Kingdom, 543/03, Grand Chamber, 03/10/2006, §45.
174 Monica Macovei, Supra fn.13, p.35.
32
circumstances of the case, that can raise problems of compatibility.175
a. Reasoning
Detention orders must contain sufficient reasoning. When the ECtHR assesses
whether the detention is lawful or not, it takes into account the reasoning.176 In this
sense, laconic detention orders and orders without any reference to legal provision can
lead to arbitrary deprivation of liberty.177 Where an application for release is refused
by national courts on the grounds that there is a risk that the person will abscond prior
to trial, courts must provide information on what risks releasing the detained persons
could cause.
Similarly, alternative measures such as bailing178 or a ban on leaving the country
must be sufficiently considered by the courts. When domestic courts detained
someone, courts must explain the reasons why alternative measures have not been
applied instead of detention. Even if a superior court finds and declares the order tobe
unlawful, it does not change the validity of the previous detention order.179
i. The Risk of Absconding
The severity of the sentence which will possibly be imposed on a detained person
does not indicate, in itself, the risk of absconding. Therefore, solely the gravity of an
offence and the strength of evidence against the detained person cannot justify
175 Ibid, p.35.
176 Guide on Article 5, Supra fn.15, p.9.
177 Khudoyorov v. Russia, 6847/02, Fourth Section, 08/11/2005, §157.
178 In the light of the case-law of the ECtHR (Tamamboga and Gul v. Turkey, 1636/02, Third Section, 29/11/2007, §35; Smirnova v. Russia,
46133/99 48183/99, Third Section, 24/07/2003, §59.), there are four basic acceptable reasons for refusing bail. Theseare as follows:
"a. the risk that the accused will fail to appear for trial;
b. the risk that the accused, if released, would take action to prejudice the administration of justice,
d. commit further offences,
e. cause public disorder"
179 Guide on Article 5, Supra fn.15, p.8
33
continued detention in some cases.180 As stressed in Dereci v. Turkey, even if 'the
state of evidence' may be regarded as a relevant factor for the existence and
persistence of serious indications of guilt, it does not justify the lengthy detentionby
itself.181 Because as stressed in Mansur v. Turkey, the expression "the state of the
evidence", in some circumstances, cannot justify the continuation of deprivation of
liberty.182 Similarly, orders that confirm the deprivation of liberty with nearly
identical, not to say stereotyped, form of words, without sufficient explanation as to
why there is a risk of absconding are not compatible with Article 5(3) of the
Convention.183
All factors regarding to risk of absconding must be taken into account before making
a decision extending the applicant’s detention on remand.184 These factors may also
include "the person’s character, his morals, home, occupation, assets, family ties and
all kinds of links with the country in which he is prosecuted."185 The fact that the
detained person does not have any fixed home does not necessarily mean there is a
risk of absconding.186 The risk of flight, even if it is not possible to diminish
completely, decreases as "the time spent in detention passes by for the probability that
the length of detention on remand will be deducted from the period of imprisonment
which the person concerned may expect if convicted, is likely to make the prospect
seem less awesome to him and reduce his temptation to flee."187 Due to this, all the
factors of the case must be examined in order to make an assessment on whether there
is a risk of flight.188 For example, in W. v. Switzerland Case, indications of a risk of
absconding and collusion and conduct of the proceedings justified the period of 4
180 Mikhail Grishin v. Russia, 14807/08, First Section, 24/07/2012, §142.
181 Dereci v. Turkey, 77845/01, Second Section, 24/05/2005, §38.
182 Mansur v. Turkey, 16026/90, Chamber, 08/06/1995, §56.
183 Yagci And Sargin v. Turkey, 16419/90 16426/90, Chamber,08/06/1995, §52.
184 Panchenko v. Russia, 45100/98, Fourth Section, 08/02/2005, §106.; Yagci and Sargin v. Turkey, 16419/90 16426/90, Chamber, 08/06/1995,
§52.
185 Becciev v. Moldova, 9190/03, Fourth Section, 04/10/2005, §58.
186 Sulaoja v. Estonia, 55939/00, Fourth Section, 15/02/2005, §64.
187 Shteyn (Stein) v. Russia, 23691/06, First Section, 18/06/2009, §112.
188 Monica Macovei, Supra fn.13, p.29.
34
years and three days pre-trial detention.189 Where the risk of absconding is the only
reason for continued detention, other alternatives to detention can also ensurethe
appearance of the person at pending trial.190
ii. The Risk of Obstructing of the Proceedings
The risk of obstructing the proceedings, in some circumstances, can be a legitimate
ground for continued detention. In some situations, accused person may want to put
pressure on witnesses, or destroy some documents or evidences when he or she is
released from prison.191 However, abstract claims on the obstruction of the
proceedings by the detained person cannot, by itself, justify continued detention. In
other words, it must be supported by other factual circumstances.192 While such a risk
of pressure on witnesses or of the obstruction of the proceedings can be possible at the
initial stage of proceedings, with the passing of time, these risks diminish.193 Such a
ground becomes less compelling for the justification of deprivation of liberty.194
Where the statements from the witnesses have been taken or the necessary
verifications have been carried out in a case, there is no need for continued detention
on grounds of risk of obstructing of the proceedings.195 Decisions or orders with
stereotyped words that maintain continued detention do not justify continued
detention within the meaning of Article 5(3) of the Convention.196
iii. The Risk of Repetition of Offences
Serious offences may lead national authorities to take the suspect into custody to
189 W. v. SWITZERLAND, 14379/88, Chamber, 26/01/1993.
190 Wemhoff v. Germany, 2122/64, Chamber, 27/06/1968, §15.
191 Monica Macovei, Supra fn.13, p.30.
192 Becciev v. Moldova, 9190/03, Fourth Section, 04/10/2005, §59.
193 Jarzynski v. Poland, 15479/02, Fourth Section, 04/10/2005, §43.
194 Monica Macovei, Supra fn.13, p.31.
195 Ibid, p.30.
196 Clooth v. Belgium, 12718/87, Chamber, 12/12/1991, §44.
35
prevent any attempts to commit further offences.197 However, all the circumstances of
the case such as the existence of a plausible danger, the implementation of the
appropriate measures, past history and personality of the person concerned must be
taken into account.198 However, the fact that the person concerned does not have a job
or a family cannot be regarded as a reasonable ground for saying that he may commit
further offences.199
iv. The Need to Maintain Public Order
In general, certain offences, as a result of their gravity and public reaction, may lead
to social disturbances. The existence of such a suspicion of these offences mayjustify
the detention of the suspect at least for a lapse of time if the notion of disturbance to
public order is recognized by the domestic law.200 However in the event of a person
being detained for the purpose of preventing social disturbance, specific facts showing
that the release of the detained person would give rise to social disturbance atthat
particular time are needed.201 In addition, it must be under exceptional
circumstances.202 As long as the public order remains threatened by the offence, the
detention of the person can be regarded as lawful within the meaning of Article 5(3)
of the Convention.203
b. Special Diligence
National authorities must display special diligence in the conduct of proceedings for
the cases in which long periods of pre-trial detention needs to be justified. In many of
its judgments against Turkey, the ECtHR have declared that judicial authorities have
197 Selcuk v. Turkey, 21768/02, Fourth Section, 10/01/2006, §34.
198 Clooth v. Belgium, 12718/87, Chamber, 12/12/1991, §40.
199 Sulaoja v. Estonia, 55939/00, Fourth Section, 15/02/2005, §64.
200 Guide on Article 5, Supra fn.15, p.26.
201 Letellier v. France, 12369/86, Chamber, 26/06/1991, §51; Guide on Article 5, Supra fn.15, p.26.
202 Monica Macovei, Supra fn.13, p.32.
203 Letellier v. France, 12369/86, Chamber, 26/06/1991, §51.
36
not displayed special diligence in the proceedings. However, the right of the detained
person to have his case examined with particular expedition must not unduly hinder
"the efforts of the judicial authorities to carry out their tasks with proper care."204 If a
detained or arrested person has a family and stable way of life, national authorities
must not disregard these circumstances when assessing his continued detention.205
National authorities have a duty to prove the grounds for continued pre-trial detention.
Such a duty must not stay with the person deprived of his or her liberty.206
c. Alternative Measures
Judges must consider the applicability of alternative measures prior to imposing
pre-trial detention.207 Moreover, judges imposing pre-trial detention must give the
reasons in their decisions as to why they don't impose the alternatives. As an
important alternative measure to detention or release, the "judicial control
mechanism" was introduced in Turkey with the adoption of a new CCP in 2005. The
judicial control mechanism was designed as a new legal barrier to the deprivation of
liberty.208 According to Article 109 of the CCP, other alternatives instead of detention
on remand or release may be taken.209 While the upper limit of the imprisonment for
the offence was specified as three years or less for being able to be applied ofjudicial
control mechanism in the former CCP, with the amendment of the CCP in 2012, it was
ensured that judicial control mechanism can be applied for all offences irrespective of
any upper limit of sentences.210 Moreover, with the same amendment, the number of
alternatives for judicial control measures has been increased to twelve. In this sense
the measures such as "not abandoning the residence, not abandoning a particular
residential district, and not going to certain determined places or areas" had been
204 Sadegul Ozdemir v. Turkey, 61441/00, Fourth Section, 02/08/2005, §44.
205 Ilijkov v. Bulgaria, 33977/96, Fourth Section, 26/07/2001, §83.
206 Monica Macovei, Supra fn.13, p.35.
207 Idalov v. Russia, 5826/03, Grand Chamber, 22/05/2012, §140.
208 Feridun Yenisey, Supra fn.148, p.202.
209 Article 109(1) of the CCP
210 Article 109(4) of the CCP was abolished with Law No. 6352,entered into force on 5 July 2012.
37
included.211
The judicial control mechanism provides that the measure of detention is
implemented in exceptional circumstances. Currently there are twelve separate
measures including a ban on leaving the country set forth in the provision. These
different measures provide judges the opportunity to implement the principle of
proportionality in terms of the severity of the offence, content of the file and state of
the evidence. Thus, the opportunity of adopting one of the judicial control measures
set forth in Article 109 by national courts has been made easier compared to
detention.
The other important alternative measure to deprivation of liberty in the CCP isthe
security deposit. In order for this measure to be applied, the security must be
deposited by the suspect or accused. Its purpose is to ensure the presence of the
person at all stages of the investigation, prosecution and also execution. In addition, it
must be used to make the payments of the expenditures212, damages213, public
expenses and criminal fines.214 However, it seems that there can be a problematic
area here, and this is because, the measure of bail, within the meaning of Article 5(3)
of the Convention, is designed to ensure the presence of the detained person at trial.
The fundamental purpose of the measure of bail is not to make reparation of loss or
damage.215 Therefore, national authorities must not calculate the amount of bail
solely regarding "the loss imputed to the applicant."216 When deciding the amount set
for bail, certain factors such as the accused's means,217 the accused's capacity to
pay218 must be taken into account by national authorities. Where the risk of the
detained person absconding is diminished by bail or other measures, the detained
211 Article 109(3)(j), (k), (l) were introduced.
212 Expenditures which is made by the intervening party
213 Compensating the damages which is occurred as a result of theoffense
214 Article 113 of the CCP.
215 Guide on Article 5, Supra fn.15, p.27.
216 Monica Macovei, Supra fn.13, p.33.
217 Hristova v. Bulgaria, 60859/00, Fifth Section, 07/12/2006, §111.
218 Toshev v. Bulgaria, 56308/00, Fifth Section, 10/08/2006, §69.
38
person must be released. Automatic rejection of the request for bail by detained
person or his lawyer without any reasonable and lawful reason is not compatible with
the purpose of Article 5(3).219 While judges to examine the continued detention in
Turkey often takes into account social-economic conditions of the accused and his
capacity to pay, the requirement of the payments of the expenditures, damages, public
expenses and criminal fines does not satisfy the spirit of the requirement of Article
5(3).
Statistical data (Appendix 2) regarding the change in the rate of detention in prison by
years shows that there is a steady decrease starting from 2005 to 2012. For example,
in 2001 the rate of detention in prison was 50.4 %, this rate decreased to 23.3 % in
2012.220 In this context, the number of decisions on "judicial control measures" set
forth in Article 109 of the CCP has increased steadily since 2006. (Appendix 4) For
instance, while the number of persons on whom judicial control mechanism imposed
was 21.674 in 2011, after the adoption of new amendments on judicial control
mechanism in 2012 this number has dramatically increased to 39.221 in 2012.221
d. Pre-Trial Detention of Minors
Minors can be subject to pre-trial detention as a measure of last resort. Asstated in
Nart v. Turkey, the pre-trial detention of minors must be as short as possible and,
"where detention is strictly necessary, minors should be kept apart from adults".222
In the Turkish legal system, Juvenile Protection Law no. 5395 defines a child who is
under the age of 18.223 With the adoption of this Law224, special protective provisions
219 Piruzyan v.Armenia, 33376/07, Third Section, 26/06/2012, §105.
220 Execution of the Judgment of European Court of Human Rights in the Case of Demirel v. Turkey (39324/98, 28 January 2003) and the
Judgments Supervised under the Demirel Group of Cases Action Plan, (9 April 2013), Available online at:
https://wcd.coe.int/ViewDoc.jsp?id=2062121&Site=CM,Accessed on 01.08.2013, p.9.
221 Action Plan, p.13.
222 Nart v. Turkey, 20817/04, Second Section, 06/05/2008, §31.
223 Article 3(a) of the Law no.5395.
39
for minors have been introduced.225 Juvenile Protection Law set forth a restriction on
rendering of detention decisions. According to Article 21 of the Juvenile Protection
Law, a detention order cannot be issued for offences that do not require more than five
years imprisonment as an upper limit for juveniles under fifteen years old.226 In
addition minors under the age of twelve227 are exempt from criminal liability under
Article 31(1) of the Turkish Criminal Code. Even if some special measures forminors
under the age of twelve can be imposed, they cannot be prosecuted at all. It seems that
the Turkish laws governing the protective measures for minors are sufficient and, in
general, comply with the requirements set out by the Convention and the case law of
the ECtHR. There is no need to introduce new law reforms on this issue. Problematic
practices can only be overcome through regular training and awareness raising
activities for judges and public prosecutors.
2- The Legislation and the Practice in Turkey and Existing Gaps
In the Turkish legal system, contrary to the former CCP, the new CCP setforth a
maximum time limit in terms of length of detention on remand.228 Where a crime is
under the jurisdiction of the courts of assize, the maximum time limit for detention on
remand is two years.229 This period may be extended by explaining the reasons
necessary. However, the extension must not exceed 3 years.230 On the other hand,
where a crime is not within the jurisdiction of assize courts, the maximum time limit
for detention on remand is one year. The period for these crimes may be extended for
six more months,231 but once again the reasons for extension must be explained by
the court.
224 Law no. 5395 entered into force on 15 July 2005.
225 Articles between 19 and 21 contains special protective measures for minors.
226 Article 21 of the Law no.5395.
227 The age limit in this respect was set out as eleven in the former Turkish Criminal Code.
228 Turkish Criminal Procedure Code has been enacted in 2004 andis in force since June,1 2005.
229 Article 102(2) of the CCP.
230 Article 102(2) of the CCP.
231 Article 102(1) of the CCP.
40
However, according to Anti-Terror Law, the extension in terms of length of detention
on remand may be applied twofold for some offences. These offences include
"disrupting the unity and integrity of the state; destruction of military facilities and
conspiracy which benefits enemy military movements; violation of the constitution;
attempting, by use of force and violence, to abolish the Turkish Grand National
Assembly or to prevent, in part or in full, the fulfillment of the duties of the Turkish
Grand National Assembly; attempting, by the use of force and violence, to abolish the
Government of the Republic of Turkey or to prevent it, in part or in full, from
fulfilling its duties; armed riot against the Government of Turkish Republic; forming
an armed organization in order to commit offences against State securityor
constitutional order, and governing the organization or being a member of it;
providing arms for the armed organizations in question; enlistment of soldiers in
foreign service without the permission of the Government; assassination of the
President; and some crimes of violence committed in the course of the activities of a
terrorist organization."232 In complex cases, in order to justify the continued detention,
national authorities must carry out inquiries with necessary promptness.233 In this
context, the establishment of special units to deal with certain complex cases in
national system can be a good practice.234
In addition, Turkish law does not contain any rule that excludes a person with a
specific criminal record or a person deprived of his or her liberty as a result ofcertain
offences from being considered for release pending a trial. Judge to examine the
lawfulness of detention must be available even during the general closure of the
courts.235
Regarding to detention periods in practice, the statistical data (Appendix 3)shows that
the rate of detainees according to detention periods in prisons for more than 3 years is
232 Article 10(5) of the Anti-Terror Law no. 3713.
233 W. v. SWITZERLAND, 14379/88, Chamber, 26/01/1993, §42.
234 Monica Macovei, Supra fn.13, p.36.
235 Article 331 of the CCP.
41
3.71% as of 31.12.2012. These detainees have been detained within the scope of
organized crimes.236 It seems that the Turkish laws governing the 'right to trial within
a reasonable time or to be released pending trial' are sufficient and, in general, comply
with the requirements set out by the Convention and the case law of the ECtHR. Since
all requirements are met by Turkish law, there is no need to introduce new law
reforms on this issue. However, there are still many problematic practices such as the
use of identical, stereotyped terms without further elaboration in decisions ofnational
courts. Judges in Turkey mostly refer to the state of the evidence and the contentof
the file in order to justify the detention orders.
While the detention decisions in the cases of terrorism and organized crimes, in
general, contain well reasoned grounds; this is not the case always for other crimes.
Instead of sufficient and relevant grounds for continued detention, judges in Turkey,
in several cases, have tended to choose general and abstract reasons that justify the
continued detention. 'The risk of absconding, the risk of obstructing of the
proceedings, the risk of repetition of offences, the need to maintain public order'have
been given by judges as grounds in their decisions. However, most commonly, in
these detention decisions there is no specific reasons why these grounds are applied to
the arrested person. Hence, Turkish authorities have failed to demonstrate
convincingly the justification for continued detention for the applications submitted to
the ECtHR. In this context, serious backlog and heavy workload of judges and
prosecutors are the main reasons for using of identical, stereotyped terms.
Judges commonly refer to 'the state of the evidence and the content of the file' in their
decisions regarding continued detention. The state of the evidence and the content of
the file do not always provide sufficient information on reasons justifying detention.
Even if, as stated above, the CCP clearly states that sufficient reasoning must be
provided in detention decisions, most detention decisions lack specific facts in respect
236 Action Plan, Supra fn.220, p.10.
42
to the reasoning of continued detention. Judges, in some cases, have paid attention to
the form more than the substance in their decisions. The lack of adequate and
sufficient reasoning is the main problem in Turkey in terms of the right to liberty and
security. Such problematic practices can only be overcome through regular training
and awareness raising activities for judges and public prosecutors. All judgesin
Turkey must provide sufficient reasons when issuing orders related to pre-trial
detention. In this context, the Court of Cassation, as a higher court, must have a role
to instruct first instance courts that the decisions on pre-trial detention must contain
sufficient reasoning. Defence attorneys also must pay attention to the reasoning
provided in decisions, and where insufficient reasoning is provided in these decisions,
they must contest them.
43
E- The Right to Have Lawfulness of Detention Examined by a Court
1- Relevant Standards Set by the Convention
Article 5(4) requires that “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.” The right to have lawfulness of detention examined by a court under
Article 5(4) reflects the principle of habeas corpus.237 This provision provides the
detained or arrested person with the right to have his detention examined by a court.238
Such a review must be in accordance with "the substantive and procedural rules of the
national legislation" and also be conducted in accordance with the aim of Article 5(4)
of the Convention. Otherwise, the requirements of Article 5(4) cannot be satisfied.239
It should be noted that Article 5(4) of the Convention does not require a second level
of jurisdiction to be established in order to examine the lawfulness of detention.240
However, when such a system is established within the national system, same
guarantees as at first instance must be provided for at the second level of
jurisdiction.241
In principle, the requirements of a fair trial under Article 6 must also be met in the
review process by national courts.242 Article 5(4) of the Convention does not require
national courts to examine an appeal against detention to address all arguments raised
by the person.243 However, concrete facts raised by the detained person must not be
treated as irrelevant.244 National courts, within the meaning of Article 5(4), must be
capable of examining the lawfulness of detention of the arrested or detained personin
237 Christoph Grabenwarter, Supra fn.101, p.159.
238 Guide on Article 5, Supra fn.15, p.28.
239 Koendjbiharie v. The Netherlands, 11487/85, Chamber, 25/10/1990, §27.
240 Guide on Article 5, Supra fn.15, p.28.
241 Kucera v. Slovakia, 48666/99, Fourth Section, 17/07/2007,§107.
242 Monica Macovei, Supra fn.13, p.60.
243 Guide on Article 5, Supra fn.15, p.29.
244 Sizarev v. Ukraine, 17116/04, Fifth Section, 17/01/2013, §160.
44
light of the evidence.245
The person deprived of liberty must be allowed access to legal assistance in order to
challenge the lawfulness of detention. If the detained person is unable to afford a
lawyer, a lawyer must be provided by national authorities.246 Similarly, some
facilities such as providing legal books, the opportunity to talk to his lawyer in order
to prepare submissions must be provided for the detained person.247
a. The Principle of Equality of Arms
The principle of equality of arms must be respected in the proceedings before first
instance court and also before the appeal court.248 In this sense, if both parties, public
prosecutor and detained person or his lawyer, are not present at the hearings of the
appeal court to examine the lawfulness of detention, the principle of the equality of
arms is not violated.249 However, where a public prosecutor is present at the hearings,
but the detained person or his lawyer is not because of the national laws, the principle
of equality of arms is violated.250 Any procedure that does not allow a detainee to
make a comment on the written or oral opinion of prosecutor is not compatible with
the purpose of Article 5(4).251 Similarly, where the arguments that are submitted by
the prosecutor are not communicated to the detained person, the principle of equality
of arms and adversarial proceedings is violated.252
245 Nikolova v. Bulgaria, 31195/96, Grand Chamber, 25/03/1999, §58.
246 Monica Macovei, Supra fn.13, p.61.
247 Ibid, p.62.
248 Çatal v. Turkey, 26808/08, Second Section, 17/04/2012, §34.
249 Saghinadze and Others v. Georgia, 18768/05, Second Section, 27/05/2010, §150; Depa v. Poland, 62324/00, Fourth Section, 12/12/2006,
§68.
250 Çatal v. Turkey, 26808/08, Second Section, 17/04/2012,§35.
251 Monica Macovei, Supra fn.13, p.62.
252 Ilijkov v. Bulgaria, 33977/96, Fourth Section, 26/07/2001, §103.
45
b. The Right to be Heard by a Judge
Detained persons must have the ability to be heard either in person or, in some
circumstances, 'through some form of representation'. This right is one of the
fundamental guarantees of procedure applied in detention matters.253 During the
examination of the objection to deprivation of liberty, detainee or his lawyers must be
provided with the opinion of the public prosecutor.254
However, as stated in the Case of Çatal v. Turkey, such a requirement does notimpose
on authorities an obligation to hear the detained person every time he lodges an appeal
against a decision extending his detention. However, it should be possible to exercise
the right to be heard at reasonable intervals.255 On the other hand, where a detained
person appeared before the court, the absence of a hearing in the examination of his
objections shortly after these hearings would not constitute a violation of Article 5(4)
of the Convention.256
c. The Requirement of Speediness
Article 5(4) of the Convention requires that detained or arrested persons must be
ensured a right to institute proceedings in order to challenge the lawfulness of
deprivation of liberty within the national judicial system. Whether the detention is
lawful or not must be examined speedily by the judicial authorities.257 However,
neither Convention nor the case law of the ECtHR explicitly defines the limits ofthe
period for the process of review of the deprivation of liberty. In other words, as the
requirement of "reasonable time" in Article 5(3) and Article 6(1) of the Convention,
253 Kampanis v. Greece, 17977/91, Chamber, 13/07/1995, §47.
254 Altinok v. Turkey, 31610/08, Second Section, 29/11/2011, §60.
255 Çatal v. Turkey, 26808/08, Second Section, 17/04/2012, §33; Altinok v. Turkey, 31610/08, Second Section, 29/11/2011,§45; Bezicheri v.
Italy, 11400/85, Chamber, 25/10/1989, §21.
256 Altinok v. Turkey, 31610/08, Second Section, 29/11/2011, §§54-56.
257 Sevk v. Turkey, 4528/02, Second Section, 11/04/2006, §37; Baranowski v. Poland, 28358/95, First Section, 28/03/2000, §68.
46
the notion of speediness must be assessed in light of the circumstances of each case.258
The notion of "speedily", within the meaning of Article 5(4) of the Convention, is not
the same with the notion of promptly within the meaning of Article 5(3) of the
Convention. The former indicates a lesser urgency.259
The nature of detention on remand requires short intervals between reviews of the
lawfulness of detention. In this sense, an interval of one month between reviews was
considered to be unreasonable by the ECtHR.260 For instance, any interval of a week
or two weeks between an application to challenge a detention and its determination by
a court was considered as acceptable.261 Regarding the assessment of whether the
requirement of speediness during the process of the review of detention is respected,
the period between start date and end date must be looked at. The period starts with
the application for release. It ends with the final determination of the lawfulness of
detention including the process of appeal.262 If the proceedings are conducted under
different levels of jurisdiction, the overall length of proceedings must be taken into
account in order to determine whether the requirement of speediness is complied with
or not.263
When assessing the requirement of speediness required by Article 5(4) of the
Convention, comparable factors such as "the diligence shown by the authorities, the
delay attributable to the applicant and any factors causing delay" must be takeninto
consideration.264 In this sense, seventeen days265 and twenty six days266 have been
considered compatible with the “speediness” requirement of Article 5(4) by the
ECtHR. On the other hand, the complexity of the case and the necessity of the
258 Rehbock v. Slovenia, 29462/95, First Section, 28/11/2000,§84.
259 E. v. Norway, 11701/85, Chamber, 29/08/1990, §64.
260 Bezicheri v. Italy, 11400/85, Chamber, 25/10/1989, §21.
261 Monica Macovei, Supra fn.13, p.64.
262 Guide on Article 5, Supra fn.15, p.29; Sanchez-Reisse v.Switzerland, 9862/82, Chamber, 21/10/1986, §54.
263 Navarra v. France, 13190/87, Chamber, 23/11/1993, §28.
264 Savriddin Dzhurayev v. Russia, 71386/10, First Section, 25/04/2013, §225.
265 Kadem v. Malta, 55263/00, First Section, 09/01/2003, §45.
266 Mamedova v. Russia, 7064/05, First Section, 01/06/2006, §96.
47
collection of additional observations and documents are the factors which may be
considered as legitimate excuses when assessing the requirement of speediness.267
As stated in Sevk v. Turkey, states are obliged to organize their "procedures in such a
way that the proceedings can be conducted with the minimum of delay."268 Moreover,
national courts must comply with its various requirements.269 The period of holiday
or excessive workload of the judges does not justify any delay in review of
detention.270
Any procedure requiring a detainee to wait for a specific period of time in order to
challenge the lawfulness of detention may violate Article 5(4) in some
circumstances.271 However, it does not mean that a person deprived of liberty can
bring proceedings at any time since it can affect adversely national "criminal justice
system".272
2- The Legislation and the Practice in Turkey and Existing Gaps
In many cases against Turkey, the ECtHR has declared that Turkish law doesnot
contain any effective remedy providing adversarial proceedings and equality of arms
to challenge lawfulness of detention on remand.273 According to the ECtHR, the
criminal procedure in Turkey offers little prospect of success in practice274 in order to
challenge the lawfulness of detention orders.275 In this sense, before making a
decision on continued detention, the practices such as not to communicate a
prosecutor’s opinion to the detainee or his lawyer, not to hold a hearing during
267 Savriddin Dzhurayev v. Russia, 71386/10, First Section, 25/04/2013, §229.
268 Sevk v. Turkey, 4528/02, Second Section, 11/04/2006, §37.
269 E. v. Norway, 11701/85, Chamber, 29/08/1990, §66.
270 Bezicheri v. Italy, 11400/85, Chamber, 25/10/1989, §25.
271 Monica Macovei, Supra fn.13, p.65.
272 Ibid, p.66.
273 Altinok v. Turkey, 31610/08, Second Section, 29/11/2011, §60.
274 Firat Can v. Turkey, 6644/08, Second Section, 24/05/2011, §65.
275 See, mutatis mutandis, Çatal v. Turkey, 26808/08, Second Section, 17/04/2012, §44.
48
examination concerning objections to detention and continuation of detention has
been found to be in breach of Article 5/4 of the Convention.
However, several amendments to relevant laws have been made in Turkish laws. In
Turkish legal systems "the request for release", "objections to decisions on detention",
"the review of continued detention" are different concepts and they require different
procedures.
a. Request for Release
According to the CCP in Turkey, a suspect, detainee or his lawyer can file amotion of
release at any stage of investigation or prosecution.276 In this sense, the decisions on
continuation of detention or any other decision rendered upon the application for
release may be challenged by parties.277 During the prosecution stage, the judge can
examine the requests for release made by the detainee or his lawyer at the hearing,
there is not any requirement to hold a hearing for examining the merits of the
application for release at the investigation stage.
Before the amendments made on 11 April 2013278, the court to examine the request
for release had to receive the opinion of the public prosecutor.279 However, courts
were not obliged to serve this opinion received from the public prosecutor on detainee
or his lawyer. Such a procedure has been found as incompatible, in many cases
against Turkey, with the purpose of Article 5(4) by the ECtHR.280
After the amendment made to Article 105 of the CCP, the process of receiving opinion
of the public prosecutor on detainee’s off-hearing applications for release was
276 Article 105 of the CCP.
277 Article 271 of the new CCP
278 These amendments have been made with the Law no 6459, The Amendments to the Certain Laws within the context of the Human Rights
and Freedom of Speech” (Fourth Judicial Package), on 11April 2013.
279 Article 105/2 of the new CCP
280 See, mutatis mutandis; Hatice Duman v. Turkey, 43918/08, Second Section, 22/05/2012.
49
repealed. In other words, upon the request for release made by the detainee of his
lawyer as an off-hearing request, the court will not receive the opinions public
prosecutor. Thus, the court must make a decision on such a request by way of not
violating the principle of equality of arms.
b. Objections to Decisions on Detention
The arrested person, his lawyer or some of his relatives may file an objection to the
prolongation of the arrest period or on the legality of the arrest itself.281 Here, the
judge must give his decision immediately or at the latest, within 24 hours. Similarly,
Public Prosecutors have the right to object to a higher court against the order or
decisions rendered upon the requests for release and on the continuation of
detention.282 The decisions made by the higher court are final.283 According to
Article 270 of CCP, the court, which is going to examine the objection in question,
can notify the objection to the public prosecutor. With the amendment made in April
2013 to Article 270 of the CCP, where the opinion of the public prosecutor is taken
upon objection to court decisions on the continuation of detention or any other
decision rendered upon the application for release; the suspect, accused or his lawyer
must be informed of this opinion. Here, the suspect, accused or the lawyer have a
right to submit an opinion within three days.284 Thus, the problem with the
non-service of the prosecutor’s opinion is duly resolved following the adoption of the
Law no. 6459 as the detainee or his lawyer has an opportunity to express his opposing
views against the prosecutor's opinion. In this way, the principle of equality of arms
between parties has been respected during the investigation and prosecution stages in
the line of the standards set out in the ECtHR judgments.
Before introducing new reforms regarding 'the review of continued detention, equality
281 Article 91(4) of the CCP.
282 Article 267 and 270 of the CPP.
283 Article 271 of the CPP.
284 Article 270 of the new CCP
50
of arms, the right to be heard by a judge', the ECtHR has found several violations of
Article 5(4) of the Convention in cases of Turkey. However, recent reforms in Turkish
laws governing this right satisfy the requirements of Article 5. Taking the
requirements of Article 5(4) into account, the problematic practices leading to
violations of Article 5(4) can be overcome through regular training and awareness
raising activities for judges and prosecutors.
c. Review of Continued Detention
According to Article 108 of the CCP, the courts must examine whether the reasons for
continued detention exist or not at the stage of investigation or prosecution within a
certain period of time not exceeding 30 days.285 The review process for investigation
and prosecution stages are a little different.
During the review of continued detention at the 'investigation stage', all factors
which are specific to the case must be examined.286 This examination must be made
by hearing the detainee or his lawyer. Thus, the detainee or his lawyer will findan
opportunity to be heard by a judge. Moreover, the requirement of the principle of
equality of arms or adversarial proceedings is met at the investigation stage.After the
examination and having taken into account all the conditions of the case, the court
may still decide on the continuation of detention.
On the other hand, at the 'prosecution stage', since detention conditions may be
examined during each hearing287, the principle of equality of arms between parties is
respected.
285 Article 108 of the new CCP
286 Article 108/1 of the new CCP
287 Article 108 of the new CCP
51
d. Access to the Case File
Since the persistence of reasonable suspicion on detained person is regarded as a
condition sine qua non for the lawfulness of the continued detention, the detained
person must be capable of challenging "the basis of the allegations against him".288
When examining an appeal against detention, all guarantees of a judicial procedure
must be provided. The principle of equality of arms between prosecutor and detained
person or his lawyer must be ensured at all times during the process of review of
detention.289 For instance, where a lawyer has not been granted access to essential
documents in the file to challenge the lawfulness of detained person's detention, the
principle of equality of arms is not ensured.290 Where the state's lawyer has an
opportunity to access to case file, the detainee must be provided with the same
opportunity.291
According to the CCP, the suspect’s representative’s access to the case file can be
restricted in some circumstances.292 If the review into the contents of the file, or
copies taken, hinder the aim of the ongoing investigation, such a restriction can be
applied upon the decision of the court. However, only a suspect’s representative’s
access to the case file is restricted. The access of the suspect to thedocuments
regarding proceedings at which he/she was present cannot be forbidden. Therefore,
the suspect must have a right to access the documents such as the arrest warrant,
record of statements, record of interrogation, etc at all times.
In some circumstances, the restriction to access to the case file isnecessary. When
such a restriction is not applied, the suspect or his/her representative can access all the
evidence in the case file, without considering whether it is of great importanceto
288 Guide on Article 5, Supra fn.15, p.29.
289 Baksza v. Hungary, 59196/08, Second Section, 23/04/2013, §47.
290 Korneykova v. Ukraine, 39884/05, Fifth Section, 19/01/2012, §68; Baksza v. Hungary, 59196/08, Second Section, 23/04/2013, §47.
291 Lamy v. Belgium, 10444/83, Chamber, 30/03/1989, §29..
292 Article 153/2 of the CCP
52
challenge the extension of detention. That can undermine the principle of the
confidentiality of the investigation. As stressed in the case of Ceviz v. Turkey, despite
the restriction, being informed about the evidence in the case file and the ability to ask
some questions about evidence such as video records, statements of other persons
indicates adequate grounds to object.293
293 Ceviz v. Turkey, 8140/08, Second Section, 17/07/2012, §43.
53
F- The Right to Compensation for Unlawful Detention
1- Standards Set by the Convention
All types of deprivation of liberties, particularly arrest and detention, must be
subjected to specific conditions which is set out by law. In the case of any
incompatibility with national law, State must compensate the relevant parties for all
damages caused. This is a requirement for state of law.294
According to Article 5(5) of the Convention; "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." This right requires that the other paragraphs of
Article 5 must be found to be in breach by the ECtHR.295 Even if the deprivation of
liberty is regarded as lawful under domestic law, the ECtHR can still findthe
violation of Article 5. Thus, the right the compensation for unlawful detention can be
applicable.296
The right to compensation must be enforceable before national courts provided that
the person has been arrested or detained contrary to any of the provisions in Article 5
paragraphs 1 to 4 of the Convention.297 In other words, the remedy of compensation
must be awarded before a court by a "legally binding decision".298 Such a
compensation can be applied, when a deprivation of liberty effected in conditions
contrary to any of the provisions in Article 5 paragraphs 1 to 4 established by a
domestic authority or by the ECtHR.299 Article 5(5) relates to financial compensation.
294 M. Nedim Bekri, Yakalama ve Tutuklama Nedeniyle Tazminat Düzenlemesinin Avrupaİnsan Hakları Sözleşmesi ve Avrupaİnsan Hakları
Mahkemesi Kararları Açısından Değerlendirilmesi, Uyuşmazlık Mahkemesi Dergisi, Cilt: 1, Sayı: 1, p.37.
295 Erkan Aydoğan and Others v. Turkey, 30441/08 35835/08 36481/08..., Second Section, 08/02/2011, §22.
296 Bruczynski v. Poland, 19206/03, Fourth Section, 04/11/2008, §65.
297 Guide on Article 5, Supra fn.15, p.31.
298 Monica Macovei, Supra fn.13, p.67.
299 Korneykova v. Ukraine, 39884/05, Fifth Section, 19/01/2012, §79.
54
It is not designed to ensure the release of the detained person from prison.300 Where
there is not any pecuniary or non-pecuniary damage to compensate, there is not any
right to compensation for deprivation of liberty within the meaning of Article 5(4).301
As stated in the Case of Sahin Cagdas v. Turkey, "Article 5(5) of the Convention does
not entitle the applicant to a particular amount of compensation."302
However, if the amount of money is negligible or disproportionate to the severity of
the violation, such a practice is not compatible with the purpose of Article 5(5) of the
Convention.303 The amount of compensation given by national authorities cannot be
lower than the one given by the ECtHR in similar cases.304
The effective enjoyment of the right to compensation for deprivation of liberty
requires a "sufficient degree of certainty".305 In this sense, the right to compensation
must be available effectively in domestic law in practice and also in theory in order to
satisfy the requirements of Article 5(5) of the Convention.306 If national laws reserve
the right to compensation to cases of unlawful deprivation of liberty or "resultedfrom
an error", such a procedure will not be compatible with Article 5(5).307
2- The Legislation and the Practice in Turkey and Existing Gaps
The compensation for unlawful deprivation of liberty used to be covered by the
provisions of Law no 466. According to this law, a person could claim compensation
for unlawful arrest or detention in some circumstances. With the adoption of the new
CCP, Law no 466 was abolished in 2005. Articles between 141 and 144 in the CCP
300 Guide on Article 5, Supra fn.15, p.32.
301 Wassink v. The Netherlands, 12535/86, Chamber, 27/09/1990, §38.
302 Sahin Cagdas v. Turkey, 28137/02, Second Section, 11/04/2006, §34.
303 Guide on Article 5, Supra fn.15, p.32.
304 Ganea v. Moldova, 2474/06, Third Section, 17/05/2011, §30.
305 Sakik And Others v. Turkey, 23878/94 23879/94 23880/94..., Chamber, 26/11/1997, §60.
306 Guide on Article 5, Supra fn.15, p.31.
307 Monica Macovei, Supra fn.13, p.67.
55
cover the compensation requests for the unlawful deprivation of liberty.308 The new
CCP extended the situations where compensation for unlawful deprivation of liberty
could be claimed. Therefore, the compensation opportunities, covered by the
provisions between 141 and 144 of the CCP, are more comprehensive than the former
Law no. 466. There are eleven separate situations specified in Article 104(1) ofthe
new CCP in which compensation could be requested due to an unlawful deprivation
of liberty.309
According to the CCP, a request for compensation can be demanded within 3 months
from the date of service of the final decisions or judgments to the related parties, or in
any case, within one year following the final decision.310 In other words, that request
may only be made if the relevant criminal proceedings have come to an end. Such a
provision when interpreted strictly by the word meaning will be incompatible with the
Convention and the case law of the ECtHR. In many judgments, the ECtHR has ruled
that Article 141 and the following articles of the CCP are not entirely consistent with
the Convention.311 Therefore, the remedy of compensation for a deprivation of liberty
308 Serdal Baytar, Koruma Tedbirlerinden Doğan Zararın Karşılanması, Türkiye Barolar Birliği Dergisi, Sayı: 61, Kasım/Aralık, 2005, p.359.
309 According to Article 141/1 of the new CCP, in following situations, the person concerned may request compensation due to the arrest or
detention on remand in national courts. “Persons; ...
a) who were unlawfully arrested, detained or held in continued detention,
b) who were not brought before a judge within the period prescribed by law,
c) who were detained without being informed of their rights or without being allowed to exercise these rights against their wishes,
d) who were lawfully detained but not brought before a legal authority within a reasonable time and who were not tried within a reasonable time,
e) who, after being arrested or detained in accordance with the law, were not subsequently committed for trial or were acquitted,
f) who were sentenced to a period of imprisonment shorter than the period spent in police custody and detention or orderedto pay a pecuniary
penalty because it was the only sanction provided for the crime concerned,
g) who were not informed of the reasons for their arrest or detention in writing or where this was not immediately possible, verbally,
h) whose close family were not informed of their arrest or detention,
i) whose arrest warrant was implemented in a disproportionate manner,
j) whose belongings or other property were confiscated in the absence of requisite guarantees or without the necessary measures being taken for
their protection, or whose belongings and other property were used for unauthorised reasons or were not returned on time,
k) were deprived of legal remedies foreseen in the law against detention or arrest warrant
during criminal investigation or prosecution may demand compensation for all pecuniary and non pecuniary damage they sustained from the
State.”
310 Article 142/1 of the new CCP
311 See, mutatis mutandis, Alp And Others v. Turkey, 34396/05 8753/06 37432/06..., Second Section, 07/12/2010, §26; Doganv. Turkey,
29361/07, Second Section, 27/05/2010, §33.
56
in national laws has been found as ineffective in many cases by the ECtHR.312
However, in practice, The Court of Cassation has interpreted the provision in question,
in its recent judgments, in line with the case law of the ECtHR. Because Article 90 of
the Turkish Constitution requires that in the case of a conflict between international
agreements313 in the area of fundamental rights and freedoms duly put into effect and
the domestic laws due to differences in provisions on the same matter, the provisions
of international agreements must prevail.314
Therefore, the national law must be interpreted and applied in the spirit of Article 5(5)
of the Convention. In addition, as emphasized by the ECtHR, national authorities
must refrain from excessively formalistic approaches.315 For instance, the excessive
formalism in the formulation and application of national law about the proof of
non-pecuniary damage caused by an unlawful detention does not comply with the
purpose of Article 5(5).316 In this context, 12. Penal Chamber of the Court of
Cassation317 makes it clear that with regards to the request for compensation in cases
regarding deprivation of liberty, the national courts do not need to decide on the
merits of the case. In addition, contrary to previous interpretations of Article 142(1) of
the CCP, the Chamber held that in situations where a compensation request is not
related to the final judgment of the case, the courts do not need to wait for the final
judgment of the case in order to decide on the compensation request.318 In this sense,
for the complaints about "the excessive length of detention on remand", "being
brought before a judge in due time"319, the main case does not need to be
312 Kürüm v. Turkey, 56493/07, Second Section, 26/01/2010,§20.
313 The Convention is one of the international agreements inthe area of fundamental rights and freedoms adopted by Turkey.
314 Article 90 of Turkish Constitution.
315 Shulgin v. Ukraine, 29912/05, Fifth Section, 08/12/2011, §65.
316 Danev v. Bulgaria, 9411/05, Fifth Section, 02/09/2010, §65.
317 This Chamber is the only Chamber within the Court of Cassation which dealing with compensation requests for deprivation of liberty.
318 Decision of 12. Penal Chamber of the Court of Cassation, 2012/20272E., 2012/27572K. Dated 4 April 2012.
319 Decision of 12. Penal Chamber of the Court of Cassation, 2012/25534E., 2012/22659K. Dated 1 December 2012.
57
concluded.320
In conclusion, even if Turkish laws governing the compensation requests for unlawful
deprivation of liberty contains some problematic elements, the recent judgmentsof
the Court of Cassation can be seen as capable of solving these problems. However,
bringing national laws governing the compensation requests for unlawful deprivation
of liberty in conformity with the standards set out by the Convention and case law of
the ECTHR is the best way.
Conclusion
As emphasized by the ECtHR in its several judgments, the Convention is a living
instrument, and because of that, the scope of the rights covered by the Convention has
been subject to new interpretations by the ECtHR over time.
Within the meaning of Article 90 of the Turkish Constitution, the Convention, as an
international instrument on fundamental rights and freedoms, can be invoked before
domestic courts. The law governing deprivation of liberty in the Turkish legal system
has been examined by the ECtHR in many previous cases against Turkey. Taking
account of the points pointed out by the ECtHR, the deficiencies and loopholes in
Turkish laws governing the right to liberty and security have been identified by
domestic institutions, particularly by the Human Rights Department under the
Ministry of Justice, through working groups and seminars and tried to be brought in
line with the Convention standards.
The right to liberty and security, as one of the fundamental rights set out in the
Convention has an important place in Turkish laws. Article 19 of the Turkish
Constitution lays down minimum standards for arrested or detained persons. However,
320 Action Plan, Supra fn.220, para.55.
58
the legislature can provide better standards through its law making power. In this
sense, particularly the CCP and other relevant laws have been amended severaltimes
in order to ensure compatibility between national laws and the Convention. The
fundamental purpose has been to meet the requirements of the Convention. In this
sense, each amendment shows Turkey's desire to make democratic reforms and
protect human rights.
The existence of "the reasonable suspicion" in a situation is of crucial importance for
the measure of arrest in Turkish law. In Turkish law, any arrest or detention cannot be
justified unless there is a reasonable suspicion based on concrete facts and
circumstances. In this context, the requirement of Article 5(1) of the Conventionare
met by Turkish law.
Regarding the right to be informed promptly of the reasons for arrest and detention,
the Turkish laws, apart from Article 19(4) of the Turkish Constitution, are inline with
the standards and principles set out by the ECtHR and the Convention. However,
since the CCP and Regulation provides more detailed and comprehensive information
and guidelines, and their standards are in accordance with the Convention, law
enforcement officials must apply the standards set out by the CCP and Regulation.
Hence, in accordance with the requirements of the Convention, law enforcement
officials have an obligation to inform suspects about the reasons for arrest at the
moment of the deprivation of liberty.
On the other hand, regarding "the right to be brought before a competent court" and
"the right to trial within a reasonable time or to be released pending trial", the Turkish
laws seems to be sufficient in terms of legal basis. Problematic practices that lead to
violations of Article 5(3), such as use of identical, stereotyped terms withoutfurther
elaboration in the decisions to maintain detention of the person can only be overcome
through regular training and awareness raising activities for judges and public
prosecutors. Reference to concrete facts and circumstances in detention orders rather
59
than abstract references such as the state of the evidence and the content of the file
will affect, in a positive manner, Turkey's human rights record before the ECtHR.
Regarding the right to have lawfulness of detention examined by a court, Turkishlaws
governing this issue have been criticized by the ECtHR in several of its cases. The
ECtHR has held in many judgments that domestic legal system in Turkey did not
satisfy the principle of adversarial proceedings and equality of arms. However,recent
reforms made in Turkish laws covering these principles have complied with the
requirements of Article 5(4) of the Convention.
Lastly, even if the right the compensation for unlawful deprivation of liberty in
Turkish laws is not clearly in accordance with the standards of the Convention in
terms of the necessity to wait the conclusion of the main case; the decisions and
interpretations of the Court of Cassation on this issue has made it clear that thecourts
do not need to wait for the final judgment of the case in order to decide on a
compensation request.
Taking statistical data into account, even if some positive results have already been
observed since the adoption of new CCP in 2005; especially after the amendments
made with the Law no 6459, "The Amendments to the Certain Laws within the
context of the Human Rights and Freedom of Speech”, on 11 April 2013 were aimed
at completely bringing domestic law covering the right to liberty and security in line
with the Convention and the case law of the ECtHR. The majority of the legal
deficiences have been identified and resolved since 2005, with the adoption of the
CCP and through other amendments to the relevant laws. Therefore, radical reforms
concerning the elimination of all kinds of violation of the right to liberty and security
have been introduced in legal matters. However, it should be noted that even if
Turkish law completely satisfies the requirements of Article 5 of the Convention, it is
always possible that some problematic practices can be observed. All judicialactors,
namely judges and public prosecutors and law enforcement officials, must have an
60
understanding of the requirements of the right to liberty and security set forth by the
Convention and the case law of the ECtHR. These problematic practices leading to
violations of Article 5 of the Convention can be overcome through regular training
and awareness raising activities for judges, prosecutors and law enforcement officials
on a regular basis.
61
APPENDICES
Appendix 1:
Applied Rate of Detainee and Convict (%):
(31 December 2012)
Communication from Turkey concerning the case of Demirel against Turkey (Application No. 39324/98),
Available Online at: https://wcd.coe.int/ViewDoc.jsp?Ref=DH-DD(2013)513&Language=lanEnglish&Site=CM ,
Accessed on: 20.07.2013
62
Appendix 2:
Applied Change in the Rate of Detention by Years (%):
Communication from Turkey concerning the case of Demirel against Turkey (Application No. 39324/98),
Available Online at: https://wcd.coe.int/ViewDoc.jsp?Ref=DH-DD(2013)513&Language=lanEnglish&Site=CM ,
Accessed on: 20.07.2013
63
Appendix 3:
Applied Rates of Detainees According to Detention Periods(%):
(31 December 2012)
Communication from Turkey concerning the case of Demirel against Turkey (Application No. 39324/98),
Available Online at: https://wcd.coe.int/ViewDoc.jsp?Ref=DH-DD(2013)513&Language=lanEnglish&Site=CM ,
Accessed on: 20.07.2013
64
Appendix 4:
Number of Persons on Whom the Judicial Control Measures were Applied:
(Between 2006 and 2012)
Communication from Turkey concerning the case of Demirel against Turkey (Application No. 39324/98),
Available Online at: https://wcd.coe.int/ViewDoc.jsp?Ref=DH-DD(2013)513&Language=lanEnglish&Site=CM ,
Accessed on: 20.07.2013
65
Appendix 5:
The Number of Violations of Article 5 of the Convention by Years:
Available Online at: http://inhak.adalet.gov.tr/istatistikler/2012_ist/5_md.pdf , Accessed on: 20.07.2013
66
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69
JUDGMENTS
1. Ahmet Ozkan And Others v. Turkey, 21689/93, Second Section, 06/04/2004.
2. Alp And Others v. Turkey, 34396/05 8753/06 37432/06..., Second Section,
07/12/2010.
3. Altinok v. Turkey, 31610/08, Second Section, 29/11/2011.
4. Aquilina v. Malta, 25642/94, Grand Chamber, 29/04/1999.
5. Assenov and Others v. Bulgaria, 24760/94, Chamber, 28/10/1998.
6. Baksza v. Hungary, 59196/08, Second Section, 23/04/2013
7. Baranowski v. Poland, 28358/95, First Section, 28/03/2000.
8. Becciev v. Moldova, 9190/03, Fourth Section, 04/10/2005.
9. Benham v. The United Kingdom, 19380/92, Grand Chamber, 10/06/1996.
10. Bezicheri v. Italy, 11400/85, Chamber, 25/10/1989.
11. Brogan And Others v. The United Kingdom, 11209/84 11234/84 11266/84...,
Plenary, 29/11/1988.
12. Bruczynski v. Poland, 19206/03, Fourth Section, 04/11/2008.
13. Çatal v. Turkey, 26808/08, Second Section, 17/04/2012.
70
14. Ceviz v. Turkey, 8140/08, Second Section, 17/07/2012.
15. Chraidi v. Germany, 65655/01, 26/10/2006.
16. Clooth v. Belgium, 12718/87, Chamber, 12/12/1991.
17. Danev v. Bulgaria, 9411/05, Fifth Section, 02/09/2010.
18. Denizci And Others v. Cyprus, 25316/94 25317/94 25318/94..., Fourth Section,
23/05/2001.
19. Depa v. Poland, 62324/00, Fourth Section, 12/12/2006.
20. Dereci v. Turkey, 77845/01, Second Section, 24/05/2005.
21. Dikme v. Turkey, 20869/92, First Section, 11/07/2000.
22. Dogan v. Turkey, 29361/07, Second Section, 27/05/2010.
23. E. v. Norway, 11701/85, Chamber, 29/08/1990.
24. Elci and Others v. Turkey, 23145/93 25091/94, Fourth Section, 13/11/2003.
25. Engel and others judgment of 8 June 1976, Series A no. 22, p. 24
26. Erdagöz v. Turkey, 22 October 1997, Reports 1997-VI, p.2314.
27. Erkan Aydoğan and Others v. Turkey, 30441/08 35835/08 36481/08..., Second
Section, 08/02/2011.
71
28. Execution of the Judgment of European Court of Human Rights in the Case of
Demirel v. Turkey (39324/98, 28 January 2003) and the Judgments Supervised under
the Demirel Group of Cases Action Plan, (9 April 2013), Available online at:
https://wcd.coe.int/ViewDoc.jsp?id=2062121&Site=CM, Accessed on 01.08.2013.
29. Firat Can v. Turkey, 6644/08, Second Section, 24/05/2011.
30. Foka v. Turkey, 28940/95, Fourth Section, 24/06/2008.
31. Fox, Campbell and Hartley v. The United Kingdom, 12244/86 12245/86
12383/86, Chamber, 30/08/1990.
32. Ganea v. Moldova, 2474/06, Third Section, 17/05/2011.
33. Geçgel and Çelik v. Turkey, 8747/02 34509/03, Second Section, 13/10/2009.
34. Giulia Manzoni v. Italy, 19218/91, Chamber, 01/07/1997.
35. Guzzardi v. Italy, Application no. 7367/76, Plenary, 6 November 1980, §95.
36. H.L. v. The United Kingdom, 45508/99, Judgment, ECtHR Fourth Section,
05/10/2004.
37. H.M. v. Switzerland, 39187/98, Second Section, 26/02/2002.
38. Hatice Duman v. Turkey, 43918/08, Second Section, 22/05/2012.
39. Hristova v. Bulgaria, 60859/00, Fifth Section, 07/12/2006.
40. Idalov v. Russia, 5826/03, Grand Chamber, 22/05/2012.
72
41. Ikincisoy v. Turkey, 26144/95, Fourth Section, 27/07/2004.
42. Ilijkov v. Bulgaria, 33977/96, Fourth Section, 26/07/2001.
43. Ipek and Others v. Turkey, 17019/02 30070/02, Second Section, 03/02/2009.
44. Jarzynski v. Poland, 15479/02, Fourth Section, 04/10/2005.
45. Jecius v. Lithuania, 34578/97, Third Section, 31/07/2000.
46. K.-F. v. Germany, 25629/94, Chamber, 27/11/1997.
47. Kampanis v. Greece, 17977/91, Chamber, 13/07/1995.
48. Kadem v. Malta, 55263/00, First Section, 09/01/2003.
49. Kerr v. The United Kingdom, 40451/98, Decision, Third Section, 07/12/1999.
50. Khudoyorov v. Russia, 6847/02, Fourth Section, 08/11/2005.
51. Koendjbiharie v. The Netherlands, 11487/85, Chamber, 25/10/1990.
52. Korneykova v. Ukraine, 39884/05, Fifth Section, 19/01/2012.
53. Kucera v. Slovakia, 48666/99, Fourth Section, 17/07/2007.
54. Kurt v. Turkey, 24276/94, Chamber, 25/05/1998.
55. Kürüm v. Turkey, 56493/07, Second Section, 26/01/2010
73
56. Labita v. Italy, 26772/95, Grand Chamber, 06/04/2000.
57. Ladent v. Poland, 11036/03, Fourth Section, 18/03/2008.
58. Lamy v. Belgium, 10444/83, Chamber, 30/03/1989.
59. Lebedev v. Russia, 4493/04, First Section, 25/10/2007.
60. Letellier v. France, 12369/86, Chamber, 26/06/1991.
61. Mamedova v. Russia, 7064/05, First Section, 01/06/2006.
62. Mansur v. Turkey, 16026/90, Chamber, 08/06/1995.
63. Marturana v. Italy, 63154/00, Second Section, 04/03/2008.
64. McKay v. The United Kingdom, 543/03 Grand Chamber, 03/10/2006.
65. Mekiye Demirci v. Turkey, 17722/02, Second Section, 23/04/2013.
66. Mikhail Grishin v. Russia, 14807/08, First Section, 24/07/2012.
67. Murray v. The United Kingdom, 14310/88, Grand Chamber, 28/10/1994.
68. Nart v. Turkey, 20817/04, Second Section, 06/05/2008.
69. Navarra v. France, 13190/87, Chamber, 23/11/1993.
70. Nikolova v. Bulgaria, 31195/96, Grand Chamber, 25/03/1999.
74
71. Oral, Atabay V. Turkey, 39686/02, Fourth Section, 23/06/2009.
72. Osmanović v. Croatia, 67604/10, First Section, 06/11/2012.
73. Panchenko v. Russia, 45100/98, Fourth Section, 08/02/2005.
74. Pantano v. Italy, 60851/00, 4/10/2003.
75. Piruzyan v. Armenia, 33376/07, Third Section, 26/06/2012.
76. Pyatkov v. Russia, 61767/08, First Section, 13/11/2012.
77. Rantsev v. Cyprus And Russia, 25965/04, First Section, 07/01/2010.
78. Rehbock v. Slovenia, 29462/95, First Section, 28/11/2000.
79. Rossi v. France, 60468/08, 18/10/2012.
80. Saadi v. The United Kingdom, 13229/03, Grand Chamber, 29/01/2008.
81. Sadegul Ozdemir v. Turkey, 61441/00, Fourth Section, 02/08/2005.
82. Saghinadze and Others v. Georgia, 18768/05, Second Section, 27/05/2010.
83. Sahin Cagdas v. Turkey, 28137/02, Second Section, 11/04/2006.
84. Sakik And Others v. Turkey, 23878/94 23879/94 23880/94..., Chamber,
26/11/1997.
85. Salih Salman Kılıç v. Turkey, 22077/10, Second Section, 05/03/2013.
75
86. Sanchez-Reisse v. Switzerland, 9862/82, Chamber, 21/10/1986.
87. Savriddin Dzhurayev v. Russia, 71386/10, First Section, 25/04/2013.
88. Schiesser v. Switzerland, 7710/76, Chamber, 04/12/1979.
89. Selcuk v. Turkey, 21768/02, Fourth Section, 10/01/2006.
90. Sevk v. Turkey, 4528/02, Second Section, 11/04/2006.
91. Shteyn (Stein) v. Russia, 23691/06, First Section, 18/06/2009.
92. Shulgin v. Ukraine, 29912/05, Fifth Section, 08/12/2011.
93. Sizarev v. Ukraine, 17116/04, Fifth Section, 17/01/2013.
94. Solmaz v. Turkey, 27561/02, Second Section, 16/01/2007.
95. Storck v. Germany, 61603/00, Third Section, 16/06/2005.
96. Sulaoja v. Estonia, 55939/00, Fourth Section, 15/02/2005.
97. Talat Tepe v. Turkey, 31247/96, Second Section, 21/12/2004.
98. Tase v. Romania, 29761/02, Third Section, 10/06/2008.
99. Toshev v. Bulgaria, 56308/00, Fifth Section, 10/08/2006.
100. Van Der Leer v. The Netherlands, 11509/85, Chamber, 21/02/1990.
76
101. Vayic v. Turkey, 18078/02, Second Section, 20/06/2006.
102. Voskuil v. the Netherlands, 64752/01, Third Section, 22.02.2008.
103. Wassink v. The Netherlands, 12535/86, Chamber, 27/09/1990.
104. Wemhoff v. Germany, 2122/64, Chamber, 27/06/1968.
105. W. v. SWITZERLAND, 14379/88, Chamber, 26/01/1993.
106. X. v. Federal Republic of Germany, 8098/77, Commission (Plenary), 13/12/1978.
107. Yagci And Sargin v. Turkey, 16419/90 16426/90, Chamber, 08/06/1995.