Necessity to exhaust internal remedies. States cannot be prosecuted in international courts for acts they did not have the opportunity to resolve in their own judicial systems

JUDGMENT

Kaman v, Turkey  04.06.2020 (no. 29798/18)

see here

SUMMARY

The case concerns the applicant’s custody on remand from 29 December 2017 until 25 October
2019, in the aftermath of the attempted coup d’état in July 2016.

The Court reiterated that the rule on the exhaustion of domestic remedies was an indispensable part
of the Convention mechanism. States were dispensed from answering before an international body
for their acts before they had had an opportunity to put matters right through their own legal
systems. Lastly, the Court observed that it had previously found the right of individual application
before the Constitutional Court to be capable of providing appropriate redress for complaints under
Articles 2 and 3 of the Convention.

PROVISIONS

Article 3

Article 5

Article 6

Article 13

PRINCIPAL FACTS

The applicant, Ms Halime Kaman, is a Turkish national who was born in 1984 and lives in Istanbul.
An attempted coup took place during the night of 15-16 July 2016, led by a group belonging to the
Turkish Armed Forces and accused of being linked to the illegal organisation FETÖ/PDY (Gülenist
terrorist organisation/parallel State structure). During the night, more than 240 people, mostly
civilians, lost their lives opposing the insurgents and several thousand others were injured.

Accused of having links with the FETÖ/PDY organisation, Ms Kaman was arrested on 29 December
2017 and remanded in custody. As regards the reasons for her detention, the Istanbul Criminal Court
referred to a computer application used by members of the organisation for encrypted exchanges
before the attempted coup d’état. The application used by Ms Kaman and her correspondence were
analysed. The court indicated that there was a strong suspicion that Ms Kaman had committed the
offence of aiding and abetting the organisation in question.

Ms Kaman has two children, who at the time of the events were one month and four years old. They
were placed with her in the women’s remand centre at Bakırköy, which had facilities for children.
In a decision of 4 May 2018 the Istanbul Assize Court hearing the case extended her detention on
remand, invoking the risk of destruction of evidence in the event of her release.
Ms Kaman made several requests for release, all of which were rejected.

On 12 June 2018 she submitted an individual application to the Constitutional Court with a request
for an interim measure. On 27 June 2018, on the basis of the information provided by the Ministry of
Justice and the prison, that court rejected the request for an interim measure, considering that there
was no threat to the life or well-being of the applicant or her baby. The case remains pending before
the Constitutional Court and the criminal case against her is still before the Istanbul Assize Court.
On 25 October 2019 Ms Kaman was released from custody.

THE DECISION OF THE COURT…

Article 3

The applicant mainly argued that the prison conditions had been inappropriate for her baby and she
relied on Articles 2 and 3 of the Convention in that connection. The Court was of the view that this
complaint should be examined under Article 3 alone.

The Court observed that the applicant had referred this complaint to the Constitutional Court on 12
June 2018 and that she had also asked that court to order an interim measure. On 27 June 2018, in
the light of the information provided by the Ministry of Justice and the remand prison, the
Constitutional Court rejected the interim measure request on the ground that the detention
conditions had not endangered the life or well-being of the applicant or her baby. The Court thus
noted that the Constitutional Court had quickly established the facts and had examined the interim
measure request. The case was still pending before that court.

The Court reiterated that the obligation to exhaust domestic remedies was an indispensable part of
the Convention mechanism. States were dispensed from answering before an international body for
their acts before they had had an opportunity to put matters right through their own legal systems
(Hasan Uzun v. Turkey, 30 April 2013).

The Court observed that it had previously found the right of individual application before the
Constitutional Court to be capable of providing appropriate redress for complaints under Articles 2
and 3 of the Convention (Kaya and Others v. Turkey, 20 March 2018). The Court further noted that
the Constitutional Court had in other cases ordered interim measures in favour of those requesting
them, with regard to the compatibility of their state of health with the prison conditions.

Lastly, the Court noted that in the present case the applicant had been released on 25 October 2019.
The Court was of the opinion that the case did not present any aspect that would justify a departure
from its findings in the above-cited Hasan Uzun and Kaya and Others decisions, taken together. It
concluded that the complaint had to be rejected for non-exhaustion of domestic remedies.

Articles 5, 6, 8 and 13

The applicant complained that she had been subjected to humiliating detention. She argued that the
measure had not been based on sufficient grounds. She further complained of a breach of her right
to be presumed innocent and of a lack of legal assistance while in police custody.

The Court noted that the applicant had referred her complaints to the Constitutional Court in the
context of the above-mentioned pending case. It followed that this part of the application was
premature and had to be declared inadmissible. The applicant would be free to bring her case back
to this Court if she still considered herself to be a victim of a violation of the Convention after the
proceedings brought by her, or if the length of those proceedings were so excessive that she became
a victim as a result.

As to the complaint about the lack of independence and impartiality of the judicial authorities, the
Court observed that the applicant had not submitted this complaint in her individual application
before the Constitutional Court and thus declared it inadmissible for non-exhaustion of domestic
remedies.

Lastly, the Court took the view that the complaint to the effect that the applicant did not have any
domestic remedies by which to obtain an examination of the substantive complaints contained in
her application was manifestly ill-founded and had to be declared inadmissible.

The Court, by a majority, declared the application inadmissible.


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