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SECOND
SECTION
CASE OF YAVUZ AND OSMAN v. TURKEY
(Application
no. 39863/02)
JUDGMENT
STRASBOURG
19
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 Yavuz and Osman v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mrs A. Mularoni,
Mrs E.
Fura-Sandström,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 28 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39863/02) 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 a Turkish national, Mr Hasan Yavuz and by a Syrian national, Mr
Abdülmenaf Osman (“the applicants”), on 2 October
2002.
- The
applicants were represented by Mr F. Gümüş, a lawyer
practising in Diyarbakır. The Turkish Government
(“the Government”) did not designate an Agent for the
purposes of the proceedings before the Court.
- On
9 May 2006 the Court
declared the application partly inadmissible and decided to
communicate the complaints concerning the independence and
impartiality of the Diyarbakır State Security Court and the
length of the proceedings to the respondent Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1955 and 1965 respectively. The first
applicant lives in Batman and the second applicant is currently
detained in the Gaziantep Prison.
- On
13 March 1993 the applicants were taken into custody by policemen
from the Anti-Terrorism Branch of the Batman Security Directorate on
suspicion of their membership of an illegal organisation, namely the
Workers' Party of Kurdistan (“the PKK”).
- On
13 April 1993 the applicants were brought before the public
prosecutor and subsequently the investigating judge, who ordered the
applicants' detention on remand.
- On
26 April 1993 the Diyarbakır State Security Court Public
Prosecutor filed an indictment against 38 accused persons, including
the applicants. He accused the first applicant of membership of the
PKK and requested the court to sentence him under Article 168 §
2 of the Criminal Code. The public prosecutor further accused the
second applicant of carrying out activities aimed at breaking up the
unity of the State and removing part of the national territory from
the State's control. The prosecutor requested the court to sentence
him in accordance with Article 125 of the Criminal Code.
- On
18 June 1999 the constitution was amended and the military judge
sitting on the bench of the Diyarbakır State Security Court was
replaced by a civilian judge.
- Between
16 June 1993 and 12 March 2002, the court held 69 hearings. On
12 March 2002 the Diyarbakır State Security Court, which was
composed of three civilian judges, acquitted the first applicant of
the charges against him. The court further found the second applicant
guilty as charged and sentenced him to the death penalty under
Article 125 of the Criminal Code. The death penalty was commuted to a
life sentence.
- On
1 October 2002 the Court of Cassation upheld the decision of the
Diyarbakır State Security Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that they had been denied a fair hearing by an
independent and impartial tribunal on account of the presence of a
military judge on the bench of the Diyarbakır State Security
Court which tried them. The applicants further complained that the
length of the criminal proceedings brought against them was in breach
of the “reasonable time” requirement of Article 6 §
1 of the Convention.
Article
6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by an independent and impartial tribunal established
by law.”
1. As regards the second applicant, Mr Abdülmenaf
Osman
- The
Court observes that the complaints brought by the second applicant,
Mr Abdülmenaf Osman, were the subject of a similar application
pending before the Court (no. 4415/02, judgment pronounced on the
same day as the present case).
- Consequently,
this part of the present application is inadmissible in terms of
Article 35 § 2 (b) of the Convention for being substantially the
same as that examined in application no. 4415/02, and must be
rejected pursuant to Article 35 § 4.
2. Independence and impartiality of the trial court
- The Court observes that the first applicant was
acquitted at the end of the criminal proceedings brought against him.
Any alleged unfairness in his trial before the Diyarbakır State
Security Court must therefore be considered to have been rectified by
the acquittal judgment. Thus, he can no longer claim to be a victim
of the alleged violation (see Ahmet Yavuz and others v. Turkey
(dec.), no. 38827/02, 4 January 2005, and Fehime Ete and Şehadet
Ete v. Turkey (dec.), no. 29315/02, 13 June 2006).
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
3. Length of the proceedings
A. Admissibility
- The
Court notes that the first applicant's complaint regarding the length
of the criminal proceedings is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible. (The first applicant will simply be referred to as “the
applicant” hereafter.)
B. Merits
- The
Government stated that the length of the proceedings in the instant
case could not be considered unreasonable in view of the number of
accused persons, the complexity of the case and the nature of the
offence with which the applicant was charged.
- The
Court observes that the period to be taken into consideration began
on 13 March 1993 when the applicant was taken into police custody,
and ended on 1 October 2002 with the decision of the Court of
Cassation. The proceedings therefore lasted for more than nine years
and six months for two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present case. Having regard to its case-law on the subject, the Court
considers that the length of the proceedings against the applicant
was excessive and failed to meet the “reasonable time”
requirement of Article 6 § 1.
There
has accordingly been a breach of this provision.
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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint of the first applicant
concerning the excessive length of the proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the first applicant.
Done in English, and notified in writing on 19 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
