TrustHLT/LaCour huggingface dataset:
GR2 (Government): I will deal with these one by one.
GR2 (Government): But before doing so, let me recall that in terms of the nature of the supervisory body, the procedure it follows, and the effect of its decisions, the committee has many similarities with the Working Group on Arbitrary Retention of the UN Human Rights Council and the Committee on Freedom of Association of the International Labor Organization, which the court has recognized as other procedures of international investigation.
GR2 (Government): Let me turn to the applicant's first objection.
GR2 (Government): The procedure must allegedly be based on an international treaty.
GR2 (Government): Neither the Working Group nor the Committee on Freedom of Association is based on a treaty, but has been established by a decision of the respective institutions.
GR2 (Government): It is membership of the institution rather than a treaty that is the basis of jurisdiction of these bodies.
GR2 (Government): Second, the applicant claims that the procedure must be directly accessible to the applicant.
GR2 (Government): Again, the two other bodies show that this is not the case.
GR2 (Government): The fact that individuals cannot be complainants before the Freedom of Association Committee did not prevent this court in POA and others versus United Kingdom from holding that the matter had been submitted to another procedure of international investigation.
GR2 (Government): Third, the applicant claims that the procedure must make a judicial determination of violation of rights.
GR2 (Government): However, the term another procedure refers to both judicial and quasi-judicial procedures.
GR2 (Government): None of the two other bodies make judicial determinations.
GR2 (Government): Fourth, the applicant maintains that there must be a final decision.
GR2 (Government): Again, the other two bodies do not issue decisions, but non-binding opinions or conclusions.
GR2 (Government): It is also not necessary that the other procedure has been concluded.
GR2 (Government): As the court held in Karisiotis versus Portugal, it cannot deal with any application which has already been investigated or, I emphasize, is being investigated by an international body.
GR2 (Government): Fifth, the applicant argues that the procedure must offer effective remedies that remove the violation in question.
GR2 (Government): In the past, the IPU Human Rights Committee has determined that there were violations of human rights and has issued calls for release from detention and the payment of compensation, measures which could effectively remedy the alleged violations in the present case.
GR2 (Government): Finally, the applicant asserts that the procedure must provide a mechanism monitoring the implementation of the remedies proposed.
GR2 (Government): It is submitted that such a mechanism may be found in Rule 13, paragraph 2 of the IPU Committee's Rules and Decisions.
GR2 (Government): In addition, the committee follows up each case until a satisfactory settlement is reached and the case is closed.
GR2 (Government): as the applicant's case is currently under investigation, I would like to ask you to consider the following questions.
GR2 (Government): As the applicant's case is currently under investigation by the IPU Human Rights Committee, the application, with the sole exception of Article 5, paragraph 4, must be rejected.
GR2 (Government): Mr. President, let me now turn to the government's
GR2 (Government): second objection to the admissibility of the application, the non-exhaustion of domestic remedies.
GR2 (Government): The applicant has neither exhausted the remedy of individual application to the constitutional court, nor has he exhausted the compensation remedy under the Code of Criminal Procedure.
GR2 (Government): I will deal with these two remedies in turn.
GR2 (Government): But before doing so, let me raise a question of general principle.
GR2 (Government): As a consequence of the subsidiarity principle, the applicant must exhaust domestic remedies before lodging an application with the court.
GR2 (Government): The relevant date is the date of filing of the application.
GR2 (Government): Only in special circumstances, a departure from that rule may be justified.
GR2 (Government): The applicant argues that, I quote, if the court started to examine an application made under Article 5, paragraph 1c, only after a final decision, this would render the right to individual petition before this court ineffective.
GR2 (Government): the applicant's argument is flawed for two reasons.
GR2 (Government): First, the applicant does not have to wait for a final decision in the criminal case.
GR2 (Government): He can always challenge the decisions on pretrial detention separately.
GR2 (Government): Second, the argument shows a basic misunderstanding of the domestic remedy requirement.
GR2 (Government): This court is not to act as a domestic court reviewing decisions on pretrial detention.
GR2 (Government): But it is to supervise the implementation of the convention by contracting states and their courts.
GR2 (Government): The present application was submitted to the court on the 20th of February, 2017.
GR2 (Government): At that time, the remedies before the constitutional court had not been exhausted.
GR2 (Government): In fact, the first of three individual applications with regard to pretrial detention had only just be filed.
GR2 (Government): The other two applications were filed with the constitutional court only after the present case was instituted, and both applications are still pending.
GR2 (Government): The applicant has used the present application as an alternative remedy rather than as a substitution as an alternative remedy rather than as a subsidiary one in order to put pressure on the domestic courts.
GR2 (Government): Mr. President, the applicant has not
GR2 (Government): identified any special circumstances justifying a departure from the rule that the domestic remedies had to be exhausted on the 20th of February, 2017.
GR2 (Government): For that reason alone, the application must be considered premature and must be rejected.
GR2 (Government): let me now take a closer look at the domestic remedies available to the applicant.
GR2 (Government): First, there is a right to bring individual applications to the constitutional court.
GR2 (Government): The parties are in agreement that the present application concerns six separate complaints.
GR2 (Government): The applicant has alleged a violation of Articles 5, Paragraph 1C, 3, and 4, Articles 10 and 18, and Article 3 of Protocol Number 1 of the Convention.
GR2 (Government): Domestic remedies must be exhausted with regard to each individual claim and in compliance with the formal requirements and time limits laid down in domestic law.
GR2 (Government): The applicant did not validly raise the complaints with regard to Articles 5, Paragraph 3, and 18 of the Convention in his first individual application to the constitutional court.
GR2 (Government): Contrary to the applicant's assertion, the complaints concerning Article 5, Paragraph 3, and 18, as well as Article 3 of Protocol 1, were validly raised only in November 2017 and May 2018, respectively.
GR2 (Government): The second and third application are still pending before the constitutional court.
GR2 (Government): The complaints under Article 5, Paragraph 3, and 18, as well as Article 3 of Protocol 1, must therefore be rejected for failure to exhaust domestic remedies.
GR2 (Government): let me now turn to the second remedy which has not been exhausted.
GR2 (Government): The claim for compensation under Article 141, Paragraphs 1A and D of the CCP, the Code of Criminal Procedure, which allows anyone who was illegally detained or who was not tried within a reasonable time to claim pecuniary and non-pecuniary damages.
GR2 (Government): This court has held in AS versus Turkey that in case of the deprivation of liberty, the receipt of compensation is an adequate remedy once pretrial detention has ended.
GR2 (Government): The applicant's pretrial detention ended at the latest on 2nd September 2019 when the domestic court ordered his release from pretrial detention.
GR2 (Government): Considering its subsidiary role, the court has held, for example, in the cases of AS, Yildiz, Demir, and Yalcin, all against Turkey, that the compensation remedy must be exhausted even if it becomes available after the application was made to the court.
GR2 (Government): There is ample authority that a compensation claim under Article 141, Paragraph 1D, is an effective remedy in respect of claims concerning the unreasableness of the duration of pretrial detention.
GR2 (Government): The applicant does not call this into question.
GR2 (Government): The applicant, however, claims, and I quote, that Article 141 is not an effective remedy concerning the legality of arrest and asserts that Article 141 of the CCP has never been accepted as an effective remedy for complaints about the legality of arrest under the case law of this court.
GR2 (Government): Mr. President, members of the court, this is not correct.
GR2 (Government): The applicant relies on the case of Lutfi Zengin and others versus Turkey.
GR2 (Government): But this case was concerned with the compensation claim under Article 141, Paragraph 1D.
GR2 (Government): Claims for unlawful deprivation of liberty, including the question of whether there are sufficient reasons to justify detention, can be brought under Article 141, Paragraph 1A, which provides, and I quote, compensation for damage may be claimed from the state by anyone who has been arrested or taken or kept in detention under conditions or in circumstances not complying with the law.
GR2 (Government): The law provides in Article 100, Paragraph 1 of the CCP that any detention requires that there exists a strong suspicion of a crime and a ground for detention.
GR2 (Government): In addition, the detention must be proportionate.
GR2 (Government): The same is true for any continuation of detention.
GR2 (Government): If any of these conditions is not fulfilled, a claim for compensation may be brought under Article 141, Paragraph 1A.
GR2 (Government): This was confirmed by the Constitutional Court, which stated in Paragraphs 99 and 100 of its decision of the 21st of December, 2017, and I quote, the first paragraph of Article 141 envisages that those who were unlawfully arrested or placed in pretrial detention may file an action for compensation.
GR2 (Government): The remedy of claim for compensation envisaged in Article 141 is an effective remedy that must be exhausted.
GR2 (Government): The compensation remedy is thus not limited to claims concerning the duration of detention.
GR2 (Government): But in Article 141, Paragraph 1A, also covers claims concerning a lack of reasonable suspicion or the absence of a ground for detention.
GR2 (Government): the court itself has accepted in Mustafa Avci versus Turkey and in Yalcin versus Turkey that a compensation claim under Article 141, Paragraph 1A, is an effective remedy with regard to the legality of arrest and detention.
GR2 (Government): The 12th Criminal Division of the Court of Cassation, for example, in its decision of 22nd June, 2016, awarded compensation because the deprivation of liberty was found to be grave.
GR2 (Government): And the deprivation of liberty was found to be contrary to the law.
GR2 (Government): In the case of Pasha by Raqqa and Aydin Kaya versus Turkey, the court held that it was apparent from the decisions of the 12th Criminal Division that some of the complainants had obtained compensation which they said was contrary to the law.
GR2 (Government): Mr. President, is this correct that the government cannot
GR2 (Government): produce any example where Article 141, Paragraph 1A, has successfully been invoked in a case identical to that of the applicant?
GR2 (Government): But as the court has held in other cases concerning Article 141, for example, in Demir, Mustafa Avci, Guccez, and Balca, there is no indication that the review that will be exercised by the domestic courts on this occasion will be limited in any way so as to be able to doubt from the outset the effectiveness of such an appeal and affirm that such a remedy would be obviously doomed to failure.
GR2 (Government): There is no ground to depart from this line of reasoning in the present case.
GR2 (Government): The question is not whether there is a precedent, but whether an action for compensation can be brought under the law.
GR2 (Government): Mr. President, let me finally address the applicant's
GR2 (Government): argument that his detention has been reviewed 61 times by the criminal courts, and that, I quote, an Article 141 case, which is a civil case, cannot overrule these consistent criminal court findings.
GR2 (Government): If that were correct, there could never be a successful compensation claim under Article 141, paragraph 1.
GR2 (Government): A successful compensation claim is by definition based on the finding that the criminal courts got it wrong.
GR2 (Government): The applicant's argument is also based on the fact the applicant's argument is also not in line with the law.
GR2 (Government): Both Article 142, paragraph 6 of the CCP, and Article 74 of the Code of Obligations show that in compensation proceedings, judges are not bound by the criminal court findings.
GR2 (Government): the applicant has a remedy by which he can obtain compensation in respect of his complaints under Article 5, paragraph 1 and 3 of the Convention with regard to both the legality and the duration of his pretrial detention.
GR2 (Government): It follows that these complaints are inadmissible and must be rejected.
GR2 (Government): Mr. President, let me now turn briefly
GR2 (Government): to the merits of the application.
GR2 (Government): As I've just demonstrated, the only admissible complaint in the present case concerns the alleged violation of Article 5, paragraph 4.
GR2 (Government): The government has shown in its observations that in light of the constitutional court's exceptional caseload and the complexity of the application, a period of 13 months and four days cannot be considered a violation of Article 5, paragraph 4, especially if that period concerns proceedings before a constitutional court.
GR2 (Government): As Dr. Archigl has shown,
GR2 (Government): the case numbers presented by the applicant have no bearing on reality.
GR2 (Government): The same is true for the assertions that the applicant's case was not a complex one and that the detention of a member of parliament was not a new issue for the constitutional court.
GR2 (Government): the constitutional court, in its decision of the 21st of December 2017, saw this differently, as can be seen in paragraphs 166 to 169 of its judgment.
GR2 (Government): for the government's position on the merits of the other inadmissible complaints, I would respectfully direct you to the written observations.
GR2 (Government): Let me just use this opportunity to address two of the applicant's arguments with regard to Articles 5, paragraph 1, and 10 of the Convention.
GR2 (Government): The applicant asserts that his detention and criminal prosecution were not prescribed by law because they allegedly were not foreseeable because of his immunity as a member of parliament.
GR2 (Government): Mr. President, it suffices to point out
GR2 (Government): that the offenses the applicant has been prosecuted for could always be found in the criminal code.
GR2 (Government): His arrest and detention were always governed by the CCP, and the possibility for lifting of his immunity was always present in Article 83, paragraph 2 of the Turkish Constitution.
GR2 (Government): Immunity does not preclude detention and prosecution.
GR2 (Government): It is only a temporary bar which may be lifted at any time.
GR2 (Government): With regard to the question of foreseeability and the lawfulness of detention and prosecution, it does not make any difference whether immunity is lifted at any one time by an individual or general decision or by a constitutional amendment adopted by parliament.
GR2 (Government): The applicant's other argument with regard to Article 5, paragraph 1C, is also unconvincing.
GR2 (Government): The applicant asserts that the detention decision did not establish any reasonable suspicion of the applicant having committed a crime, and that the constitutional court, at its own initiative, had put forward new reasons as grounds for reasonable suspicion.
GR2 (Government): This argument is based on a misreading of the detention decision.
GR2 (Government): The applicant identifies, I quote, the number of prosecutorial files prepared with respect to the applicant as one of the reasons allegedly put forward by the magistrate's court to establish reasonable suspicion of a crime.
GR2 (Government): Mr. President, it is not the number of these files,
GR2 (Government): but their content which the magistrate's court was referring to.
GR2 (Government): The decision shows that the magistrate's court based its decision on the applicant's acts and statements expressly set out in the decision, and in addition, on the content of 18 individual prosecutorial files which were identified in the decision by file number and content.
GR2 (Government): The constitutional court, like the magistrate's court, relied on the content of these files when reviewing the latter's decision.
GR2 (Government): There is thus no question of the constitutional court putting forward new reasons for reasonable suspicion.
GR2 (Government): All these reasons can be found in the 18 identified prosecutorial files.
GR2 (Government): The government would respectfully invite the court to examine the decision of the magistrate's court for itself.
GR2 (Government): In conclusion, the government respectfully requests the court to declare the complaints, with the exception of Article 5, Paragraph 4 of the Convention, inadmissible, and the latter claim to be unfounded.
GR2 (Government): Alternatively, the government requests the court to reject the complaints on the merits.
GR2 (Government): on behalf of the delegation of Turkey, I thank you for your attention.
Linos-Alexandre Sicilianos (JudgeP): I call Mrs. Mijatović.
TP1 (ThirdParty): Mr. President, distinguished members of the court,
TP1 (ThirdParty): I have decided to take part in this hearing because of the importance of this case for a number of human rights issues my office has been following very closely in Turkey, in particular the use of pretrial detention in the Turkish justice system.
TP1 (ThirdParty): At the outset, let me stress that I fully subscribe to the original written submission that my predecessor, Nils Muzniacs, made in the present case in November 2017.
TP1 (ThirdParty): But I would like to take this occasion to complement that submission based on my recent work.
TP1 (ThirdParty): I hope that this will help to put in context numerous cases pending before this court, including this one.
TP1 (ThirdParty): Since the beginning of my mandate in April 2018, questions relevant to this case have featured prominently on my agenda.
TP1 (ThirdParty): In January this year, I made a written submission in the case of Kavala versus Turkey and shared with this court my concerns about the use of pretrial detention in Turkey and criminal proceedings in general.
TP1 (ThirdParty): More recently, at the beginning of July, I conducted a country visit to Turkey, focusing on the judiciary, among other issues, paying particular attention to the functioning of the criminal justice system and the independence of the judiciary.
TP1 (ThirdParty): The present case, which concerns allegedly unlawful arrest and detention, it is far from being isolated.
TP1 (ThirdParty): My office also intervened as a third party before this court concerning the detention of many other members of parliament, journalists, and, as just mentioned, a human rights defender.
TP1 (ThirdParty): These cases are representative of a widespread pattern raising fundamental human rights concern.
TP1 (ThirdParty): Among my main concerns regarding these cases is the systematic failure by Turkish courts to meet the requirements of Article 5 for arrest, initial, and continued detention.
TP1 (ThirdParty): Decisions ordering initial detention and its continuation, and in particular, the decisions of magistrates, also known as criminal judgeships of the peace, continue to be stereotypical and abstract in nature.
TP1 (ThirdParty): They often fail to reference credible evidence to establish a reasonable suspicion and to address the factual grounds of the case and the individual circumstances of the suspect.
TP1 (ThirdParty): Likewise, courts often fail to demonstrate other grounds to justify deprivation of liberty, such as necessity and proportionality.
TP1 (ThirdParty): It is also increasingly common that the evidence used to justify detention is exclusively limited to statements and acts which are clearly nonviolent and should a priori be protected under the convention, in particular, under Article 10.
TP1 (ThirdParty): Turkish prosecutors and courts systematically are subject to a large body of case law finding violations of the right to freedom of expression in Turkey spanning for more than two decades.
TP1 (ThirdParty): Furthermore, the suspect's ability to challenge their detention is limited.
TP1 (ThirdParty): A significant problem is the closed circuit system in which magistrates operate.
TP1 (ThirdParty): Another one is the denial of access to the investigation file without proper justification.
TP1 (ThirdParty): Now, such access restrictions has become almost automatic in the Turkish legal system.
TP1 (ThirdParty): I think that in such case, it should be up to the authorities to prove why such a restriction was absolutely necessary in the circumstances.
TP1 (ThirdParty): Now, as regard the questions of a speedy judicial review, I already argued before this court that systematic delays affecting the review of detention cases by the Turkish Constitutional Court caused serious doubts on the effectiveness of the individual application procedure.
TP1 (ThirdParty): I consider that a constitutional court has neither the capacity nor should it have the role to act as an appeal court for all detention cases, while lower courts continue to ignore the principles contained in the constitutional court's case law.
TP1 (ThirdParty): The combination of these and other factors results in a situation where detention on remand become de facto, an instrument of punishment.
TP1 (ThirdParty): In the case of members of parliament, including the applicant, lengthy detention also had the obvious result of depriving a significant portion of the Turkish population from democratic representation.
TP1 (ThirdParty): Regarding the issue whether detention is being used for purposes other than those prescribed by convention, my predecessor put to this court that laws and criminal proceedings in Turkey were being used to silent dissenting voices.
TP1 (ThirdParty): The chamber gave significant weight to these observations in its judgments finding a violation of Article 18.
TP1 (ThirdParty): This problem is still ongoing in Turkey, affecting not only opposition parliamentarians, but also human rights defenders, journalists, academics, and other critical voices in the society.
TP1 (ThirdParty): They are regularly subjected to the judicial actions based on their supposed intentions, often with no proof of criminal activity other than nonviolent statements.
TP1 (ThirdParty): To be clear, the problem goes far beyond detention and affects criminal proceedings as a whole.
TP1 (ThirdParty): Indeed, many people were convicted in this manner for very serious offenses in recent years, including life sentences.
TP1 (ThirdParty): This led me to state after my recent visit to Turkey that this longstanding problem, which results from an overbroad definition of terrorism in statutes and the judiciary's tendency to stretch it even further, has now reached unprecedented levels.
TP1 (ThirdParty): During this visit, I also observed that what is used as evidence is sometimes so inconsistent that it has become virtually impossible to foresee in good faith the legal consequences of actions.