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THIRD
SECTION
CASE OF UYSAL AND OSAL v. TURKEY
(Application
no. 1206/03)
JUDGMENT
STRASBOURG
13
December 2007
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 Uysal and Osal v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R.
Türmen,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I.
Berro-Lefèvre, judges,
and Mr S. Naismith, Deputy
Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 1206/03) 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 two Turkish nationals, Mr Sait Uysal and Mr İskan Osal (“the
applicants”), on 20 November 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
29 January 2007 the
Court decided to give notice of the application to the 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 1974 and 1972 respectively and live in
Şırnak.
- The
applicants were taken into police custody on 27 June 1992 and 24 May
1992 respectively on suspicion of their membership of an illegal
organisation, the PKK (the Kurdistan Workers' Party). On 9 July 1992
and 8 June 1992 respectively, the applicants were brought before the
investigating judge, who ordered their detention on remand.
- On
1 September 1992 the Diyarbakır State Security Court Public
Prosecutor filed an indictment against 49 accused persons, including
the applicants. He accused the applicants 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 the applicants in accordance with Article 125
of the Criminal Code.
- On
12 June 1998 the applicants were released pending trial. On an
unspecified date in 1998 the second applicant went abroad.
- On
3 July 1998 the Diyarbakır State Security Court, composed of
three judges including a military judge, delivered its judgment. The
court found the applicants guilty of aiding and abetting an illegal
organisation and sentenced them to three years and nine months'
imprisonment, pursuant to Article 169 of the Criminal Code. The
applicants appealed.
- In
the meantime, on 18 June 1999 the Constitution was amended and the
military judges sitting on the bench of the State Security Courts
were replaced by civilian judges.
- On
14 October 1999 the Court of Cassation quashed the judgment of the
Diyarbakır State Security Court.
- On
30 December 1999 the Diyarbakır State Security Court, composed
of three civilian judges, recommenced the trial of the applicants.
The court further decided to summon all the accused, including the
applicants, to the next hearing to submit their views on the Court of
Cassation's decision.
- During
the proceedings, the court repeatedly summoned the applicants;
however, the second applicant did not respond. As a result, on 24
December 2002 the Diyarbakır State Security Court decided that
the file concerning the second applicant be separated and given
another file number. It further found the first applicant guilty of
membership of a terrorist organisation and sentenced him to twelve
years and six months' imprisonment pursuant to Article 168 of the
Criminal Code.
- On
10 April 2003 the Court of Cassation held that the first applicant's
prison sentence should be recalculated and quashed the judgment of
the Diyarbakır State Security Court.
- On
30 September 2003 the Diyarbakır State Security Court
recalculated the first applicant's prison sentence and decided that
he should be sentenced to eight years and four months' imprisonment.
This decision became final on 26 February 2004.
- On
7 May 2004 State Security Courts were abolished following a
constitutional amendment and the second applicant's case was
transferred to the Diyarbakır Assize Court.
- On
14 July 2006 the court ordered an arrest warrant for the second
applicant. According to the information in the case file, the trial
is still pending before the Diyarbakır Assize Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicants complained that the length of their police custody
exceeded the reasonable time, in breach of Article 5 § 3 of the
Convention.
- The
Court notes that the applicants' police custody ended on 9 July 1992
and 8 June 1992 respectively. However, the application was lodged
with the Court on 20 November 2002, which is more than six months
from the date of the facts giving rise to the alleged violation.
- It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Independence and impartiality of the Diyarbakır
State Security Court
- The
applicants maintained under Article 6 of the Convention that they
were not tried by an independent and impartial court due to the
presence of a military judge on the bench of the Diyarbakır
State Security Court.
- The
Government referred to the constitutional amendment of 1999 whereby
military judges could no longer sit on such courts.
- The
Court observes that the criminal proceedings against the second
applicant are still pending before the Diyarbakır Assize Court.
His complaint is therefore premature and should be rejected for
non-exhaustion of domestic remedies within the meaning of Article 35
§§ 1 and 4 of the Convention.
- As
regards the first applicant, the Court recalls that it has examined
similar cases in the past and has concluded that there was a
violation of Article 6 § 1 of the Convention (see Özel
v. Turkey, no. 42739/98, §§ 33-34, 7 November 2002 and
Özdemir v. Turkey, no. 59659/00, §§ 35-36, 6
February 2003). However, the present application may be distinguished
for the following reasons.
- The
Court notes that although the first applicant was convicted by the
Diyarbakır State Security Court, whose composition included a
military judge, this judgment was subsequently quashed by the Court
of Cassation on 14 October 1999. In the meantime, while the appeal
proceedings were pending, in 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. As a result,
following the decision of the Court of Cassation, the first applicant
was tried afresh before the Diyarbakır State Security Court,
which was composed of three civilian judges with all of the
procedural safeguards provided for by the ordinary criminal procedure
(see Yaşar v. Turkey (dec.), no. 46412/99, 31 March 2005;
Tarlan v. Turkey (dec.), no. 31096/02, 30 March 2006 and
Pakkan v. Turkey, no. 13017/02, §§ 33-34, 31 October
2006).
- In
the light of the foregoing, the Court finds that the first
applicant's complaint concerning the independence and impartiality of
the Diyarbakır State Security Court should be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
B. Length of the proceedings
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, 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...”
- The
Government submitted that the case was complex, as the proceedings
included 49 accused and the charges they faced were very serious. It
was therefore difficult to gather the evidence and determine the
facts. They also maintained that the applicants and their lawyer did
not attend many hearings. Finally, the second applicant contributed
to the length of the proceedings by absconding.
1. 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.
2. The period to be taken into consideration
i. In respect of the first applicant
- The
period to be taken into consideration began on 27 June 1992 with the
first applicant's arrest and ended on 30 September 2003 with the
decision of the Diyarbakir State Security Court. It thus lasted
eleven years and three months for five levels of jurisdiction in
respect of the first applicant.
ii. In respect of the second applicant
- The
Court notes that the proceedings in respect of the second applicant
commenced on 24 May 1992 with his arrest and are still pending. They
have therefore lasted more than fifteen years for three levels of
jurisdiction. However, the Court observes that the second applicant
left the country during 1998 while his trial was still pending and
failed to return when the proceedings resumed. It recalls that the
flight of an accused person has in itself certain repercussions on
the scope of the guarantee provided by Article 6 § 1 of the
Convention as regards the duration of proceedings. When an accused
person absconds, it may be assumed that he or she is not entitled to
complain of the unreasonable duration of proceedings following that
flight, unless sufficient reason can be shown to rebut this
assumption (see Ventura v. Italy, no. 7438/76, Commission's
report of 15 December 1980, Decisions and Reports (DR) 23, p.
91, § 197). However, in the absence of any concrete indication
that the applicant was avoiding being brought to justice in his own
country in the initial stages of his absence, the relevant period
must be regarded as having ended on 30 December 1999, the day on
which the Diyarbakır State Security Court summoned the second
applicant to the next hearing to submit his views on the Court of
Cassation's decision and following which the applicant failed to
appear (see Vayiç v. Turkey, no. 18078/02,
§ 44, ECHR 2006 ... (extracts)). The relevant period
to be taken into account is therefore over seven years and six months
for two levels of jurisdiction.
3. Merits
- 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 applicants 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 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 in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. 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 100,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. In
respect of non-pecuniary damage, ruling on an equitable basis, it
awards the first applicant EUR 2,400 and the second applicant EUR
1,800.
B. Costs and expenses
- Referring
to the Diyarbakır Bar Association's scale of fees, the
applicants' representative claimed 10,100 New Turkish liras (YTL)
(approximately EUR 5,800) for 26 hours' legal work, spent in the
preparation and presentation of this case before the Court.
- The
Government contested the claim.
- 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 1,500 to the applicants 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 complaint 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;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with 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 and
free of any taxes or charges that may be payable:
(i) EUR
2,400 (two thousand four hundred euros) to the first applicant in
respect of non-pecuniary damage;
(ii) EUR
1,800 (one thousand eight hundred euros) to the second applicant in
respect of non-pecuniary damage;
(iii)
EUR 1,500 (one thousand five hundred euros) jointly to the applicants
in respect of costs and expenses;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič Deputy
Registrar President
