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THIRD
SECTION
CASE OF KOÇAK AND OTHERS v. TURKEY
(Applications
nos. 23720/02, 23735/02 and 23736/02)
JUDGMENT
STRASBOURG
21
December 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Koçak and Others v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr R. Türmen,
Mr C. Bîrsan,
Mr V.
Zagrebelsky,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and
Mr V. Berger, Section Registrar,
Having
deliberated in private on 30 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications (nos. 23720/02, 23735/02 and
23736/02) against the Republic of Turkey lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by three Turkish
nationals, Mr Turgut Koçak, Mr Hasan Yavaş and Mr
Necmi Özyurda (“the applicants”), on 24 May
2002.
- The
applicants were represented by Mr M.A. Keleş, Mr S. Kozağaçlı,
Mr E. Olkun, Ms N. B. Vangölü and Mr K. Arslan, lawyers
practising in Ankara. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
3 July 2003 the Court joined the applications. It further decided to
declare them partly inadmissible and to communicate to the Government
the complaint concerning the non-communication of the written opinion
of the principal public prosecutor at the Court of Cassation.
- In
a letter of 24 June 2005, the Court informed the parties that in
accordance with Article 29 §§ 1 and 3 of the Convention it
would decide on both the admissibility and merits of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1949, 1960 and 1964 respectively and were
serving their prison sentences in Antalya prison at the time of their
applications to the Court.
- At
the time of the events, the first applicant was the General Secretary
and the other applicants were the members of the board of directors
of the Turkish Socialist Workers Party (Türkiye Sosyalist
İşçi Partisi).
- On
12 December 2000 a demonstration concerning the establishment of
F-type prisons turned violent. On the same day the police, in
accordance with a search warrant issued by a State Security Court,
searched the Party building and found a number of documents and
materials.
- On
19 December 2000 the applicants were remanded in custody.
- On
9 January 2001 the public prosecutor at the Ankara State Security
Court filed an indictment accusing the applicants of aiding and
abetting an illegal organisation and requested that they be convicted
and sentenced under Article 169 of the Criminal Code and Article 5 of
the Law no. 3713.
- In
the course of the proceedings, the applicants maintained that the
materials found during the search could have been placed there by
anyone since anyone could have entered into the building. They
pointed out that, on the day of the search, there had been a violent
demonstration during which the doors and the windows of the Party
building had been broken.
- On
15 May 2001 the Ankara State Security Court, referring to the
documents and materials seized in the Party building, convicted the
applicants as charged and sentenced them to three years and nine
months' imprisonment. The court further barred them from public
service for three years.
- The
applicants appealed to the Court of Cassation.
- On
an unspecified date, the principal public prosecutor submitted his
written opinion to the Court of Cassation. This opinion was not
communicated to the applicants.
- On
26 November 2001 the Court of Cassation held a hearing and upheld the
judgment of the first-instance court. This decision was pronounced,
in the absence of the applicants and their representatives,
on 28 November 2001.
- On
20 August 2003 the applicants were released from prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in the Göç v. Turkey judgment ([GC], no.
36590/97, § 34, ECHR 2002 V).
- On
2 January 2003 Article 316 of the Code of Criminal Procedure Law was
amended to provide that the written opinion of the principal public
prosecutor at the Court of Cassation be notified to the parties.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that the written opinion of the principal
public prosecutor at the Court of Cassation was never served on them,
thus depriving them of the opportunity to put forward their
counter-arguments. The applicants relied on Article 6 § 3 (b) of
the Convention.
- The
Court considers that this complaint should be examined from the
standpoint of Article 6 § 1, which in so far as relevant
provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government maintained, in particular, that the applicants had the
possibility to submit their counter-arguments since the written
opinion of the principal public prosecutor had been read out during
the hearing before the Court of Cassation.
- The
applicants maintained their allegations.
- The
Court notes that it has already examined the same grievance in the
past and has found a violation of Article 6 § 1 (see, in
particular, Göç, cited above, § 58; Abdullah
Aydın v. Turkey (no. 2), no. 63739/00, § 30,
10 November 2005; and Ayçoban and Others v. Turkey,
nos. 42208/02, 43491/02 and 43495/02, 22 December 2005).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed, in total, 600,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage. They submitted that as a result
of the attack of the police and members of a right-wing party, the
windows of the Party building and the furniture contained in it were
destroyed. They maintained that they were unable to work during the
criminal proceedings and whilst in prison. Finally, they claimed that
as a result of the trial they had been deprived of their right to
vote and to be elected.
- The
Government contested these claims.
- As
regards the alleged pecuniary damage sustained by the applicants, the
Court notes that some of their claims discern no causal link between
the violation found and the pecuniary damage requested. It further
notes that in support of their remaining claims the applicants failed
to produce any receipt or other relevant documents. The Court
accordingly dismisses it.
- The
Court further considers that the finding of a violation constitutes
in itself sufficient compensation for any non-pecuniary damage
suffered by the applicants (see, mutatis mutandis, Parsil
v. Turkey, no. 39465/98, § 38, 26 April 2005; and
Ayçoban and Others, cited above, § 32).
B. Costs and expenses
- The
applicants, relying on the fee agreed upon with their
representatives, also claimed 7,500,000,000 Turkish liras (TRL)
(approximately EUR 4,598) in respect of costs and expenses.
- The
Government contested the amount.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicants, jointly, the sum of EUR 1,000
under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the applications
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000
(one thousand euros) in respect of costs and expenses, to be
converted into New Turkish liras at the rate applicable at the day of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
