Detention of a suspect for 1.5 hours despite the revocation of the arrest warrant. Violation of the right to personal liberty
JUDGMENT
Kerem Çiftçi v. Turkey 21.09.2021 (app. no. 35205/09)
SUMMARY
Temporary detention, conditions of legality, right to compensation for unlawful deprivation of liberty.
The applicant was suspected of serious charges of involvement in a terrorist organization, assault on security forces with stones and Molotov cocktails and damage to foreign property. An arrest warrant was issued which was revoked following an appeal. The prosecution was more than a month late in sending the revocation of the warrant to the Police. He was therefore arrested and remanded in custody for 1.5 hours. He filed a complaint for violation of his right to liberty and for the rejection of his claim for compensation.
The Court reiterated that Article 5 § 1 of the Convention requires that any detention be “lawful” in the first place. The list of exceptions to the right to liberty referred to in Article 5 § 1 is exhaustive in order to ensure that no one is arbitrarily deprived of his liberty.
In the present case, it observed that the disputed deprivation of liberty had no legal basis from the outset. The ECtHR found that there had been a violation of Article 5 § 1 of the ECHR as the applicant’s detention, albeit for a short period of time, despite the fact that the arrest warrant had been revoked, was unlawful.
The ECtHR further found that the law of the respondent State did not provide for an enforceable right to compensation for unlawful deprivation of liberty, and therefore held that there had been a violation of Article 5 5 5 of the ECHR.
PROVISIONS
Article 5 par. 1
Article 5 par. 5
PRINCIPAL FACTS
The applicant, Kerem Çiftçi, is a Turkish national who was born in 1970 and lives in Batman (Turkey).
The case concerns an arrest warrant against the applicant and his police custody for, among other
things, being a member of a terrorist organisation (the PKK – Workers’ Party of Kurdistan, an illegal
armed organisation), attacking security forces using stones, sticks and Molotov cocktails and causing
damage to public and private property. He was detained for approximately an hour and half in
January 2007.
Relying on Article 5 (right to liberty and security), he alleges that his detention was unlawful as the
arrest warrant had already been withdrawn one month earlier. He also alleges under Article 5 § 5
(enforceable right to compensation) that the domestic courts dismissed his compensation claim for
unlawful detention.
THE DECISION OF THE COURT…
Turning to the circumstances of the present case, the Court notes that the applicant was in police custody for approximately an hour and a half. It is not disputed that he was accordingly “deprived of his liberty” within the meaning of Article 5 § 1 of the Convention.
The Court observes that on 4 April 2006 the Batman Criminal Court ordered the applicant’s arrest on suspicion of undermining the unity of the State and the integrity of the country by way of attacking the security forces using stones, sticks and Molotov cocktails; being a member of a terrorist organisation; forcing small and medium-sized enterprises to close; and causing damage to public and private property. It notes, however, that during the hearing held on 26 December 2006, the Diyarbakır Assize Court took the applicant’s statements and requested that the Diyarbakır public prosecutor withdraw the arrest warrant before its execution. Despite the withdrawal of the arrest warrant, the applicant was taken into custody about one month later pursuant to that same arrest warrant, because the decision to withdraw the arrest warrant before its execution had not yet been transmitted to the Batman police. In such circumstances, the Court needs to examine whether the applicant’s detention in police custody, despite the withdrawal of the arrest warrant, could nevertheless be considered lawful within the meaning of Article 5 of the Convention.
On this point, the Court notes that the lawfulness of the applicant’s detention in police custody was the subject of an examination by the Assize Court, in the context of the action for damages under Article 141 of the CCP. In that connection, the Court observes that it is in the first place for the national authorities, and notably the courts, to interpret domestic law, and in particular rules of a procedural nature, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. However, since failure to comply with domestic law may entail a breach of Article 5 § 1 of the Convention, it follows that the Court can and should exercise a certain power to review whether the domestic law has been complied with (see Toshev v. Bulgaria, no. 56308/00, § 58, 10 August 2006, and Shteyn (Stein) v. Russia, no. 23691/06, § 89, 18 June 2009).
The Court notes that the Assize Court rejected the applicant’s action on the grounds that the length of his period in police custody could be considered reasonable and appropriate taking into account “inter-institutional functioning” and the “natural flow of life”; in other words, in the Assize Court’s view, this duration was reasonable for the determination by the legal authorities of whether the arrest warrant in respect of the applicant was valid. The Court notes here that while assessing the applicant’s claim for compensation, the Assize Court mainly took into consideration the length of time the applicant had spent in police custody and not the period needed to implement the withdrawal of the arrest warrant. The Assize Court merely pointed out that the Diyarbakır public prosecutor had received the decision given by the Diyarbakır Assize Court requesting the withdrawal of the arrest warrant on the same day as the applicant’s arrest, and had notified the relevant authorities of the withdrawal of the arrest warrant on the same day that he had received that decision. Thus, the Court considers that the decision given by the domestic court concerning the applicant’s compensation claim did not contain relevant and sufficient reasoning concerning the period needed to implement the withdrawal of the arrest warrant.
The Court observes that it has already examined cases relating to the wrongful arrest of applicants when the basis for their detention had ceased to exist, as a result of administrative shortcomings in the transmission of documents between various State bodies. It found a violation of Article 5 of the Convention in Velinov v. the former Yugoslav Republic of Macedonia (no. 16880/08, 19 September 2013), in which the applicant was arrested and detained over eight months after he had paid the fine that had been converted into a detention order, and in Oprea v. Romania (no. 26765/05, 10 December 2013), where the applicant was arrested under a warrant for the execution of his sentence, which had been revoked more than two months before his arrest.
The Court sees no reason to reach a different conclusion in the present case. Even if the period observed in the present case – almost one month – for the implementation of the decision to withdraw the arrest warrant was shorter than in the above-mentioned cases in which it found a violation, the Court considers that that period cannot be regarded as reasonable and acceptable. The Diyarbakır Assize Court took almost a month simply to transmit to the public prosecutor of the same city its decision to withdraw the arrest warrant. In that connection, the Court notes that when the contested deprivation of liberty has no legal basis from the outset, as in the present case, a strict approach is required. It further notes that having learned that he was wanted by the police, the applicant surrendered to the Batman police station in accordance with the arrest warrant, in the presence of his lawyer. According to the compensation claim he brought on 22 February 2007, at the time of his arrest the applicant had been carrying the decision given by the Diyarbakır Assize Court requesting the withdrawal of the arrest warrant in respect of him.
In the light of the foregoing, the Court considers that the applicant’s detention in police custody despite the fact that the arrest warrant had been withdrawn, even if only for a brief period, was unlawful. There has therefore been a violation of Article 5 § 1 of the Convention.
- ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
The applicant complained that he had no right to claim compensation under domestic law in respect of his complaints under Article 5 of the Convention. He relied on Article 5 § 5 of the Convention, which reads as follows:
“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.”
The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to Article 5 §§ 1, 2, 3 or 4 (see Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185‑A). The right to compensation set forth in Article 5 § 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002‑X).
The Court notes that it has found that the applicant’s detention in police custody was unlawful under Article 5 § 1 of the Convention. It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether Turkish law afforded the applicant an enforceable right to compensation for the breach of Article 5 in this case. In that connection, the Court observes that the applicant brought a claim for compensation under Article 141 of the CCP in the Batman Assize Court concerning his detention in police custody, and that the claim was dismissed. It follows that, in the applicant’s case, Article 141 of the CCP did not provide an enforceable right to compensation for the breach of his right under Article 5 § 1 of the Convention.
There has accordingly been a violation of Article 5 § 5 of the Convention.
