Facts
- In March 1994, Sirri Sakık, Ahmet Türk, Mahmut Alınak, Leyla Zana, Mehmet Hatip Dicle, and Orhan Doğan were arrested in Ankara on suspicion of terrorist-related offenses.
- The applicants were former members of the Turkish Grand National Assembly; their parliamentary immunity had been lifted on March 4, 1994, shortly before their arrest.
- Following arrest, the applicants were held in police custody for between 12 and 14 days, with the authorities citing the need for further investigation.
- During this police-custody period, the applicants were not brought before a judge or other officer authorized by law to exercise judicial power.
- After the police-custody period, a judge of the Ankara National Security Court ordered the applicants’ detention pending trial, referring to the character and nature of the alleged offenses and the evidence obtained.
- The applicants were not permitted to challenge the lawfulness of their detention pending trial before the National Security Court; an appeal against the detention order was unsuccessful.
- On December 8, 1994, the National Security Court convicted the applicants: Sakık and Alınak received 42 months’ imprisonment for separatist propaganda, and Türk, Zana, Dicle, and Doğan received 15 years’ imprisonment for membership in an armed gang.
- In October 1995, the Court of Cassation quashed the conviction of one applicant who had received a 15-year sentence and ordered his release, while upholding the other convictions.
- The applicants filed applications before the Convention organs alleging violations of, among other provisions, Article 5 of the European Convention on Human Rights.
- Turkey relied on its 1990 Notice of Derogation under Article 15 (linked to a state of emergency in certain provinces). The applicants argued the derogation could not justify measures taken in Ankara, which was not among the provinces listed.
- The European Commission of Human Rights concluded the derogation was inapplicable and referred the case to the European Court of Human Rights, which decided the merits and just satisfaction.
Issues
- Whether Turkey could rely on its Article 15 derogation to justify the applicants’ arrest and detention in Ankara, a location not listed in the derogation notice.
- Whether holding the applicants for 12–14 days in police custody without being brought before a judge violated Article 5(3).
- Whether the absence of timely judicial review of the lawfulness of the applicants’ custody and detention violated Article 5(4), and whether Turkey could raise a non-exhaustion objection at the Court stage.
- Whether Turkish law provided an enforceable right to compensation for the Article 5 violations, as required by Article 5(5).
- Whether the applicants’ arrest and detention were unlawful under Article 5(1).
Decision
- Article 15: The Court held Turkey’s derogation was inapplicable ratione loci because Ankara was not among the provinces identified in the derogation notice; extending the derogation beyond the specified territory would conflict with the limited nature of Article 15.
- Article 5(1): The Court found no violation, noting the applicants accepted the Commission’s conclusion and gave no basis for the Court to depart from it.
- Article 5(3): The Court found a violation because 12–14 days of police custody without judicial intervention was not “prompt,” even assuming the allegations related to terrorism.
- Article 5(4): The Court rejected Turkey’s non-exhaustion objection because it had not been raised in time before the Commission, so Turkey was barred from raising it later. On the merits, the Court found a violation because judicial intervention occurred only after 12–14 days, which was incompatible with a “speedy” decision on lawfulness.
- Article 5(5): The Court found a violation because, after violations of Article 5(3) and 5(4), Turkish law did not provide the applicants an enforceable right to compensation.
- The Court awarded non-pecuniary damages and part of the applicants’ costs and expenses.
Legal Principles
- Article 15 derogations are interpreted strictly; a State may not rely on a derogation outside the territory expressly identified in the notice of derogation.
- Article 5(3) requires prompt judicial control following arrest; extended police custody of 12–14 days without a judge breaches the Convention, including in terrorism investigations.
- Article 5(4) requires a procedure enabling a detainee to obtain a judicial decision on the lawfulness of detention within a short time; delays of 12–14 days are not “speedy.”
- A respondent State that fails to raise a non-exhaustion objection at the proper stage before the Commission may be prevented from raising it later before the Court.
- Article 5(5) creates a separate obligation to provide an enforceable right to compensation when detention violates Article 5.
Conclusion
In Sakik and Others v. Turkey, the Court held that Turkey could not rely on its Article 15 derogation for arrests in Ankara and that holding the applicants—former MPs—for 12–14 days without being brought before a judge or obtaining a speedy ruling on lawfulness violated Article 5(3) and 5(4), with a further violation of Article 5(5) due to the lack of an enforceable compensation remedy, while finding no violation of Article 5(1).