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ECHR: Ersin Pulatlı court decision

Kader Kadem | 07:03 | 0 Comments
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Decision to deprive a serviceman of his liberty must be taken or reviewed by a competent and independent judicial body
In today’s Chamber judgment in the case of Pulatlı v. Turkey (application no. 38665/07), which is not final,1 the European Court of Human Rights held, unanimously, that there had been:

A violation of Article 5 § 1 of the European Convention on Human Rights.
The case concerned a disciplinary sanction depriving the applicant, a Turkish serviceman, of his liberty, without any examination of his case by a judicial body.

The Court found that the most appropriate form of redress would be for Turkey to introduce a mechanism to ensure that disciplinary sanctions involving deprivation of liberty were imposed or reviewed in proceedings before a judicial body.

The applicant, Ersin Pulatlı, is a Turkish national who was born in 1981 and lives in Diyarbakır (Turkey). At the time of the events of this case, he was a serviceman.After going absent without leave from his garrison in April 2007, he was remanded under close arrest for seven days by his immediate superior (a captain), under the Military Criminal Code.

He was able to challenge that decision only by appealing to a higher-ranking officer (his colonel) and not by way of judicial review, the latter remedy being unavailable to members of the Turkish armed forces under Turkish law (section 21 of the Supreme Military Administrative Court Act (Law no. 1602)).
Complaints, procedure and composition of the Court
Mr Pulatlı’s main complaint was that his deprivation of liberty on the basis of a disciplinary decision taken by his immediate superior and not by an independent and impartial tribunal was in breach of Article 5 § 1 (right to liberty and security).
The application was lodged with the European Court of Human Rights on 13 August 2007.
Judgment was given by a Chamber of seven judges, composed as follows:
Françoise Tulkens (Belgium), President,
Danutė Jočienė (Lithuania),
David Thór Björgvinsson (Iceland),
Dragoljub Popović (Serbia),
András Sajó (Hungary),
Işıl Karakaş (Turkey),
Guido Raimondi (Italy), Judges,
and also Stanley Naismith, Section Registrar.
Decision of the Court
Article 5 § 1
The Court reiterated that, in order to satisfy the requirements of Article 5, deprivation of liberty must be imposed by a competent court that has power to try the case, is independent of the executive and affords adequate judicial guarantees.
In Mr Pulatlı’s case, he was deprived of his liberty by order of a higher-ranking officer who, in turn, was subject to and not independent of the military chain of command.
Accordingly, Mr Pulatlı’s detention could not be regarded as lawful detention “after conviction by a competent court”.
Article 5 § 1 had thus been breached.
Article 46
The Court reaffirmed the principle that Turkey remained free, subject to monitoring by the Committee of Ministers of the Council of Europe, to choose the means by which to discharge its legal obligation under Article 46 (execution of the Court’s judgments).
It noted, however, that, in Mr Pulatlı’s case, the violation of Article 5 § 1 resulted mainly from a systemic problem, since under the actual provisions of Turkish law (section 21 of the Supreme Military Administrative Court Act (Law no. 1602)), disciplinary sanctions – even those involving deprivation of liberty – imposed by higher-ranking officers for breaches of military discipline were not subject to judicial review.
The Court thus observed that the adoption of general measures by Turkey was undoubtedly called for in the execution of this judgment, and that the most appropriate form of redress would be to incorporate in the Turkish system a mechanism for ensuring that disciplinary sanctions involving deprivation of liberty were imposed or reviewed in proceedings before an authority affording judicial guarantees.
Article 41
By way of just satisfaction, the Court held that Turkey was to pay Mr Pulatlı 9,000 euros (EUR) in respect of non-pecuniary damage and EUR 500 in respect of costs and expenses.
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