Placement of a 13-year-old in pre-trial detention for participating in a demonstration: violation of the Convention
Agit Demir v. Turkey 27.02.2018 (no. 36475/10)
Arrest and temporary detention of a 13-year-old teenager to take part in a demonstration and to throw stones at security forces during the demonstration. The proposed alternative measures for the minor were not implemented. Illegal detention and violation of the right to liberty and security. Infringement of the right of assembly due to the non-proportionality of the measures.
Article 5 §§ 1 (c) and 3
Article 5 § 4
The applicant, Agit Demir, is a Turkish national who was born in 1996 and lives in Şırnak (Turkey).
Mr Demir, who was aged 13 at the relevant time, was placed in pre-trial detention on 19 January 2010 for participating in a demonstration organised in December 2009 to protest against the conditions of detention of Abdullah Öcalan, head of the illegal armed organisation the PKK (Workers’ Party of Kurdistan), and for throwing stones at the security forces during the demonstration. He was released on 13 April 2010.
Criminal proceedings were instituted against Mr Demir, resulting in a suspended sentence of one year and 15 days’ imprisonment for disseminating propaganda on behalf of a terrorist organisation and participating in a violent demonstration.
THE DECISION OF THE COURT
Article 5 §§ 1 (c) and 3 (right to liberty and security)
The Court noted that Law no. 5395 stipulated that placing a minor in pre-trial detention should be a measure of last resort and could be ordered only if a judicial supervision measure had proved ineffective or had not been complied with. In the present case it observed that the reasons given by the magistrate in the pre-trial detention order did not suggest that detention had been used – in view of Mr Demir’s age – only as a measure of last resort or that the magistrate had first considered measures other than detention. Accordingly, the Court found that the placement in detention of a 13-year-old minor could not be regarded as lawful for the purposes of Article 5 § 1 of the Convention, particularly in view of the fact that alternative measures, although provided for by domestic law, had not been considered. There had therefore been a violation of Article 5 § 1 of the Convention.
In view of its findings under Article 5 § 1, the Court considered it unnecessary to examine the admissibility and merits of the complaint concerning the length of the proceedings (Article 5 § 3).
Article 5 § 4 (right to a speedy decision on the lawfulness of detention)
Mr Demir complained of the lack of an effective remedy by which to contest his placement in pre-trial detention (decision of 19 January 2010) and his continued detention (decision of 16 February 2010). However, he had not appealed against these decisions to the courts. Under the Criminal Procedure Act which had entered into force on 1 June 2005, it was open to the representative or defence lawyer of a person in detention to give evidence to the judicial authority when an appeal was being examined. This complaint was therefore manifestly ill-founded (Article 35 § 3 of the Convention).
Article 11 (freedom of assembly and association)
The Court found that Mr Demir’s placement in pre-trial detention and continued detention (when he was less than 13), as well as his suspended sentence, amounted to “interference” with the exercise of his right to freedom of assembly under Article 11 of the Convention, read in conjunction with Article 10. The Court also noted that the interference in question had been prescribed by law and had pursued the legitimate aim of protecting national security and public order.
With regard to Mr Demir’s conviction for disseminating propaganda on behalf of a terrorist organisation, the Court observed that the mere fact of waving a portrait of Abdullah Öcalan at a demonstration could not be regarded as a form of expression calling for the use of violence, armed resistance or uprising. Likewise, it did not constitute hate speech.
As to the fact that the applicant had thrown stones and offered resistance to the security forces during the demonstration, the Court considered that these actions clearly overstepped the limits of public political debate, and that in this regard the taking of action against Mr Demir could reasonably be said to respond to a “pressing social need”. On the subject of the proportionality of measures taken against a minor accused and convicted on similar charges to those in the present case, the Court referred to its findings in the case of Gülcü v. Turkey, to the effect that the arrest and placement in pre-trial detention of a minor should be used only as measures of last resort and for the shortest possible period of time. It had therefore found the use of such measures against a minor to be disproportionate. In the instant case, in the light of its ruling in Gülcü, the Court took the view that the Government had not advanced any facts or arguments capable of leading to a different conclusion. The domestic courts had not taken sufficient account of Mr Demir’s young age, and the courts had not ordered his detention as a measure of last resort. The fact that the Criminal Court had decided to suspend delivery of the judgment did not diminish its significance, in so far as Mr Demir, having already spent over two months in detention, had lived with the threat of imprisonment for a period of three years from the date of the judgment.
Consequently, the Court held that the reasons advanced by the respondent State could not be deemed sufficient in the present case to justify the interference in question. It further found that there was no reasonable relationship of proportionality between the measures taken against Mr Demir and the legitimate aims pursued. There had therefore been a violation of Article 11 of the Convention.
The Court dismissed Mr Demir’s remaining complaints.
Article 41 (just satisfaction)
The Court held that Turkey was to pay the applicant 7,500 euros (EUR) in respect of non-pecuniary damage and EUR 3,000 in respect of costs and expenses (echrcaselaw.com editing).