BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD SECTION
CASE OF HİKMEDİN YILDIZ v. TURKEY
(Application no. 69124/01)
JUDGMENT
STRASBOURG
19 October 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 Hikmedin Yıldız v. Turkey,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C.
Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David
Thór Björgvinsson, judges,
and Mr V. Berger,
Section Registrar,
Having deliberated in private on 28 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 69124/01)
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
Hikmedin Yıldız (“the applicant”), on 23
October 2000.
- The applicant was represented by Mr E. Talay and Mr S.
Akbaş, lawyers practising in Diyarbakır. The Turkish
Government (“the Government”) did not designate an
Agent for the purpose of the proceedings before the Court.
- On 1 September 2005 the Court declared the application
partly inadmissible and decided to communicate the complaint
concerning the length of the criminal proceedings to the Government.
Under Article 29 § 3 of the Convention, it decided to examine
the merits of the application at the same time as its admissibility.
THE FACTS
- The applicant was born in 1957 and lives in Diyarbakır.
- On 12 January 1993 the applicant was arrested and taken
into custody on suspicion of his membership in an illegal
organisation, namely the PKK. On 29 January 1993 he was brought
before a judge at the Diyarbakır State Security Court who
ordered his remand in custody.
- The public prosecutor at the Diyarbakır State
Security Court, in his indictment dated 3 March 1993, accused the
applicant and fifty other co accused of membership and/or aiding
and abetting the PKK. The charges against the applicant were brought
under Article 168 § 2 of the Criminal Code and Article 5 of Law
no. 3713.
- On 11 March 1993 the criminal proceedings against the
applicant and fifty other co-accuseds commenced before the Diyarbakır
State Security Court. The first hearing was scheduled for 14 April
1993.
- On 14 April 1993 the court heard some of the accused
including the applicant, who denied the accusations against him. The
court decided to request documents from various authorities with a
view to completing the case-file and ordered the co-accused to be
ready to submit their defence submissions at the next hearing.
- Between 14 April 1993 and 25 April 2000 the court held
hearings at regular intervals. During this time at each hearing the
court heard some of the accused and requested documents from various
authorities with a view to completing the case-file. In the course of
the proceedings, the public prosecutor filed additional indictments
against some of the accused and therefore the court sought to obtain
additional defence submissions from these persons. In the hearing
held on 2 April 1996 the public prosecutor submitted his
observations on the merits of the case. The court decided to release
the applicant pending trial. Following this date, the court adjourned
the hearings partly on account of the failure of some of the
co-accused, who were remanded in custody, to appear before the court.
On 21 January 1997 and 26 February 1998 the court considered the
possibility of disjoining the criminal proceedings if the case file
could not be completed as regards some of the accused. At its hearing
held on 28 April 1998 the court warned that it would decide in the
absence of the accused if they were not present at the next hearing.
However, no such decisions were taken by the court.
- On 25 April 2000 the Diyarbakır State Security
Court ordered that the criminal proceedings against the applicant be
terminated on the ground that the statutory time-limit under Articles
102 and 104 of the Criminal Code had expired.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that the length of the
criminal proceedings exceeded the “reasonable time”
requirement under Article 6 § 1 of the Convention, the relevant
part of which reads as follows:
“In the determination of ...any criminal charge
against him, everyone is entitled to a...hearing within a reasonable
time by [a] ...tribunal...”
A. Admissibility
- The Government contended that the applicant had lost
his “victim status”
following the decision of the State Security Court to release him
pending trial on 2 April 1996 because the applicant did not suffer
any disadvantage or loss resulting form the length of the criminal
proceedings after this date. The Government further asked the Court
to dismiss the application for failure to exhaust domestic remedies,
under Article 35 § 1 of the Convention. In this
regard, the Government maintained that the applicant failed to raise
the substance of his complaint before the domestic courts.
- The applicant disputed these arguments.
- The Court reiterates that an applicant is deprived of
his or her status as a victim if the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, a breach of the Convention (see Dalban v.
Romania [GC], no. 28114/95, § 44, ECHR 1999 VI).
In the instant case, the Court opines that the release of the
applicant pending trial in 1996 does not constitute recognition or a
redress for the violation alleged by the applicant. Accordingly, the
Government's objection under this head should be rejected.
- The Court further reiterates that it has already
examined and rejected the Government's preliminary objection as
regards the failure to exhaust domestic remedies in similar cases
(see Karakullukçu v. Turkey, no. 49275/99,
§§ 27-28, 22 November 2005, and Mete v. Turkey,
no. 39327/02, §§ 18-19, 25 October 2005). The Court
finds no particular circumstances in the instance case, which would
require it to depart from its findings in the above-mentioned
applications. It therefore rejects the Government's objection under
this head.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other grounds for declaring it inadmissible has been
established. It must therefore be declared admissible.
B. Merits
- The Court considers that the period to be taken into
consideration in determining whether the proceedings satisfied the
“reasonable time” requirement laid down by Article 6 §
1 began on 12 January 1993 when the applicant was arrested and taken
into custody and ended on 25 April 2000 when the criminal proceedings
against the applicant were terminated by the first-instance court.
The period under consideration thus lasted seven years before one
instance.
- The Government maintained that, in the circumstances
of the present case, the length of the criminal proceedings could not
be considered unreasonably long. In this respect, they referred to
the number of the co accused and the time spent gathering
evidence. The Government further pointed out that the applicant and
the co-accused had also contributed to the prolongation of the
proceedings by failing to attend to a number of hearings.
- The applicant maintained his allegations.
- 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 and what was at stake for the applicant
in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- The Court considers that, even though the case was a
complex one owing to the large number of co-accused and the nature of
the accusations against them, it cannot be said that this in itself
justified the entire length of the proceedings before a single
instance.
- As regards the conduct of the applicant, the Court
does not find that the applicant contributed significantly
to the prolongation of the proceedings for his failure to attend a
number of hearings since none of them were adjourned on this ground.
23. As to the conduct of the domestic
authorities, the Court observes that there was a significant period
of delay which was attributable to the authorities. In this respect,
the Court notes that the factual circumstances of the case against
the applicant and a number of co-accused were elucidated as early as
2 April 1996 when the public prosecutor submitted his
observations on the merits. Regardless of this fact, the proceedings
continued for approximately four years. Admittedly, the
Court notes that the proceedings were prolonged partly because of the
failure of some of the accused, in particular those who were remanded
in custody, to appear before the court. However, reiterating that
Article 6 § 1 of the Convention imposes on the Contracting
States the duty to organise their legal systems in such a way that
their courts can meet each of the requirements of that provision
including the obligation to decide cases within a reasonable time
(see Arvelakis v. Greece, no. 41354/98, § 26,
12 April 2001), the Court considers that the domestic court
could have applied stricter measures to speed up the proceedings.
Neither the complexity of the case nor the conduct of the defendants
is sufficient to explain the delay in which the case was processed by
the first-instance court. Therefore, the Court
considers the delay must be considered to be attributable to the
domestic court's handling of the proceedings.
24. Finally, the Court considers that what
was at stake for the applicant in these proceedings was of
considerable importance to him.
25. Having regard to its case-law on the
subject, the Court considers that, in the instant case, the length of
the proceedings was excessive and failed to meet the “reasonable
time” requirement.
26. There has accordingly been a breach of
Article 6 § 1.
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 applicant claimed 12,943 euros (EUR) in respect of
pecuniary damage and EUR 20,000 in respect of non-pecuniary damage.
As regards his pecuniary damage claim, the applicant submitted that
he had lost his earnings as a result of his remand in detention.
- The Government contested the amounts.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR
3,500 in respect of non pecuniary damage.
B. Costs and expenses
- The applicant also claimed EUR 2,360 for costs and
expenses incurred before the Court.
- 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 sum of EUR
1,000 for the proceedings before the Court.
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 application
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 applicant,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention,
the following amounts to be converted into new Turkish liras at the
rate applicable at the date of settlement:
(i) EUR 3,500 (three thousand and five hundred euros) in
respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros) in respect of costs
and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
