Individual Application

The Facts

The applicant, who served as a deputy project manager and a member of the tender commission at a company, was indicted for collusive tendering. The arrest warrant issued against the applicant could not be implemented since his residential address was unknown. Therefore, the applicant was contacted by telephone through another suspect, who had previously been arrested as part of the same investigation and was acquainted with the applicant. During the telephone conversation, the applicant, informed about the arrest warrant issued against him, was asked to surrender voluntarily. The applicant subsequently surrendered himself to the authorities and was held in custody for three days. In the course of the investigation, the applicant’s computers, two mobile phones, and the SIM cards contained therein were seized pursuant to a search and seizure warrant issued by the incumbent magistrate judge.

At the end of the proceedings, the applicant was acquitted of the offence of collusive tendering on behalf of an organisation established for the purpose of criminal activity, without being a member of it. Upon the finalisation of the acquittal decision, he lodged an action for pecuniary and non-pecuniary compensation. The assize court examining the compensation claim awarded the applicant 448.83 Turkish liras (TRY) in pecuniary compensation for the unlawful custody and seizure, as well as TRY 1,000 in non-pecuniary compensation for the unlawful custody. The applicant’s appellate request, arguing that the amount awarded could not suffice to redress the grievances he had suffered during the process, was dismissed.

The Applicant’s Allegations

The applicant maintained that his right to personal liberty and security was violated due to the insufficiency of the compensation awarded in the action brought against the protective measures of unlawful arrest and custody. The applicant further claimed that the right to an effective remedy, taken in conjunction with the right to respect for private life and the freedom of communication, had been violated due to the failure to examine his compensation claim regarding the unlawful seizure warrant.

The Court’s Assessment

A. As Regards the Alleged Violation of the Right to Personal Liberty and Security

While the inferior courts enjoy a margin of appreciation in determining compensation based on the particular circumstances of each case, an award of relatively insignificant amount that is disproportionate to the severity of the violation would constitute a violation of Article 19 of the Constitution. In this regard, the amount of compensation should not fall significantly below the amounts awarded by the Court in precedent cases of a similar nature. However, it should be noted that such a determination does not per se constitute a violation of Article 19 of the Constitution. A comprehensive evaluation of the particular circumstances of the case is therefore required.

In determining the adequacy of non-pecuniary compensation, a comparative analysis must be conducted with reference to the awards that the Court has made or is expected to make in similar applications. In adjudicating claims for non-pecuniary damages arising from unlawful arrest, custody, or detention, the Court takes into account multiple elements, including but not limited to, the applicant’s social and economic status, his professional and societal standing, the nature of the alleged offence, the procedural and substantive circumstances underlying the imposition of the protective measure, the psychological and material impact of the measure on the applicant, the duration for which the measure was imposed, and the severity of the infringement occasioned by the measure.

In light of the above criteria, it has been observed that the applicant was awarded TRY 1,000 as non-pecuniary compensation under Article 141 of the Code of Criminal Procedure no. 5271, for his being placed in unlawful custody, following his acquittal. In consideration of the specific circumstances of the case and the aforementioned criteria for determining non-pecuniary compensation, the disputed amount can, as of the date of the decision, be considered sufficient in comparison to the amounts that the Court might reasonably award in similar cases.

On the other hand, the adequacy of the pecuniary compensation also warrants scrutiny. The applicant’s claim for reimbursement of the attorney’s fee incurred during the criminal proceedings resulting in his acquittal was dismissed. In reaching this conclusion, the relevant inferior court merely pointed out that the receipt and the professional fee invoice had been issued after the date of the decision. However, the court did not conduct any further inquiry into whether the attorney’s fee had indeed been covered by the applicant, whether the attorney had received the fee in question, or whether the receipt and invoice in question were fraudulent or improperly issued.

The court further based its reasoning on the fact that a fixed attorney’s fee had been awarded in favour of the applicant in the acquittal decision. However, as the attorney’s fee, unless otherwise agreed in the retainer agreement between the client and the attorney, is legally regarded as belonging to the attorney, the award of a fixed attorney’s fee in the applicant’s favour cannot, in itself, be deemed sufficient to establish that the applicant’s pecuniary damage has been remedied. In this context, the inferior court ought to have examined whether the applicant and his attorney had included the fixed attorney’s fee as part of the agreed remuneration in his retainer agreement. Moreover, even if it is presumed that the fixed attorney’s fee was indeed paid to the applicant, the court failed to provide a reasoned assessment as to why the portion exceeding this fixed fee was not regarded as pecuniary damage. Additionally, the court failed to assess whether there was a causal link between the claimed amount and the unlawful custody measure, and if such a link existed, whether the claimed amount was both necessary and reasonable in the present case.

Consequently, the Court has found a violation of the right to personal liberty and security.

B. As Regards the Alleged Violation of the Right to an Effective Remedy in Conjunction with the Right to Respect for Private Life and the Freedom of Communication

In the present case, the applicant brought an action for compensation pursuant to Article 141 of the Code of Criminal Procedure no. 5271, alleging that the seizure measure had been implemented unlawfully, without adherence to the conditions prescribed by law. However, an examination of the judicial decisions rendered during the proceedings reveals that the applicant’s claim was not substantively addressed. While the inferior court awarded pecuniary compensation to the applicant for the depreciation in value of the seized mobile phones, it failed to assess whether the seizure of the applicant’s mobile phones and computers was conducted in compliance with the legal requirements. It failed to adjudicate this well-founded claim of the applicant. The lack of an assessment regarding the applicant’s allegation that the seizure measure was unlawful and the absence of a ruling on this matter precluded the examination of the applicant’s claims and deprived him of an opportunity for adequate redress. Accordingly, the judicial process did not allow for an effective examination of the complaint concerning the alleged violation of fundamental rights and freedoms. In light of the specific circumstances of the case, it was concluded that the applicant had not been afforded an effective legal remedy capable of providing minimum safeguards for the redress of the damage sustained in the context of his right to respect for private life and freedom of communication.

Consequently, the Court has found a violation of the right to an effective remedy.