llm in international human rights & humanitarian la · universityofessex schooloflaw llm in...

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

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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


C- Right to be Brought Promptly Before a Judge.....................................................................25



D- Right to Trial within a Reasonable Time or to be Released Pending Trial......................... 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


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


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

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1- Standards Set by the Convention..................................................................................53


Conclusion.........................................................................................................................................57

APPENDICES...................................................................................................................................61

BIBLIOGRAPHY............................................................................................................................. 66

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"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

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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.

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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”

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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.

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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."

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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.


19 Guide on Article 5, Supra fn.15, p.6.

20 Guzzardi v. Italy, Application no. 7367/76, Plenary, 6 November 1980, §95.


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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



24 H.M. v. Switzerland, 39187/98, Second Section, 26/02/2002, §45.



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.


32 H.L. v. The United Kingdom, 45508/99, Judgment, ECtHR Fourth Section, 05/10/2004, §90

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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


34 Storck v. Germany, 61603/00, Third Section, 16/06/2005, §74.; Guide on Article 5, Supra fn.15, p.5.


36 Ibid, p.17.

37 Storck v. Germany, 61603/00, Third Section, 16/06/2005,§74.


39 Ibid, p.8.

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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).)


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.

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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.


48 Fox, Campbell and Hartley v. The United Kingdom, 12244/8612245/86 12383/86, Chamber, 30/08/1990, §35.


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.

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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.


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.

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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.


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.


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.




77 Ibid, p.9.

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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.


81 M. Bedri Eryılmaz, Supra fn.73, p.220.

82 Jecius v. Lithuania, 34578/97, Third Section, 31/07/2000, §51.



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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.)


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.


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.


104 Clare Ovey, Robin C.A. White, TheEuropean Convention on Human Rights, Fourth Edition, Oxford University Press, p.150.


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.


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


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.


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


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.


132 Case of McKay v. The United Kingdom, 543/03, Grand Chamber, 03/10/2006, §34.


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


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.


143 Article 10(3)(ç) of the Anti-Terror Law no. 3713.


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.


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.


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.


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


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.


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.


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.


169 Ahmet Ozkan And Others v. Turkey, 21689/93, Second Section, 06/04/2004, §396.


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.


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.


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.


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.


192 Becciev v. Moldova, 9190/03, Fourth Section, 04/10/2005, §59.

193 Jarzynski v. Poland, 15479/02, Fourth Section, 04/10/2005, §43.


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.


201 Letellier v. France, 12369/86, Chamber, 26/06/1991, §51; Guide on Article 5, Supra fn.15, p.26.


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.


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




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.


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.




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.



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.


239 Koendjbiharie v. The Netherlands, 11487/85, Chamber, 25/10/1990, §27.


241 Kucera v. Slovakia, 48666/99, Fourth Section, 17/07/2007,§107.



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.


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.


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.


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


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.


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


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


282 Article 267 and 270 of the CPP.

283 Article 271 of the CPP.


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.




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


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.



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


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


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.


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.



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.”


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 (%):




63

Appendix 3:

Applied Rates of Detainees According to Detention Periods(%):

(31 December 2012)




64

Appendix 4:

Number of Persons on Whom the Judicial Control Measures were Applied:

(Between 2006 and 2012)




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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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.

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25. Engel and others judgment of 8 June 1976, Series A no. 22, p. 24

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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

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72

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53. Kucera v. Slovakia, 48666/99, Fourth Section, 17/07/2007.

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55. Kürüm v. Turkey, 56493/07, Second Section, 26/01/2010

73

56. Labita v. Italy, 26772/95, Grand Chamber, 06/04/2000.

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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.

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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.