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 TURĞAY v. TURKEY
(Application
no. 21085/02)
JUDGMENT
STRASBOURG
12
April 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 Turğay 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 E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Berro-Lefèvre, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21085/02) 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 Abdulkadir Turğay
(“the applicant”), on 19 May 2002.
- The
Turkish Government (“the Government”) did not designate
an Agent for the purposes of the proceedings before the Court.
- On
22 June 2006 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the
non-communication of the written opinion of the principal public
prosecutor at the Court of Cassation. Under the provisions of Article
29 § 3 of the Convention, it decided to examine the merits of
the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Adana.
- Criminal
proceedings were brought against the applicant by the public
prosecutor at the Adana State Security Court under Article 168 §
2 of the Criminal Code. The applicant was accused of membership of an
illegal organisation.
- In
the course of the criminal proceedings the applicant was remanded in
custody. On 20 March 2001 Adana State Security Court convicted the
applicant as charged and sentenced him to twelve years and six
months' imprisonment. The applicant appealed.
- On
28 August 2001 the principal public prosecutor at the Court of
Cassation submitted his written opinion to the latter. This opinion
was not communicated to the applicant.
- On
20 November 2001 the Court of Cassation upheld the judgment of the
first-instance court.
- In
March 2006 the applicant was released from prison following the
reduction of his sentence in accordance with the provisions of the
new Criminal Code.
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
applicant complained that the written opinion of the principal public
prosecutor at the Court of Cassation was never served on him, thus
depriving him of the opportunity to put forward his
counter-arguments. The applicant relied on Article 6 §§ 1
and 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 written opinion of the
principal public prosecutor is a short document in which it is
briefly stated whether the judgment of the first instance court
should be upheld or quashed.
- 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 of the
Convention (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.”
Damage, costs and expenses
- The
applicant claimed reimbursement of the damages he had sustained as a
result of his remand in custody. In this respect he submitted a
comprehensive list. The applicant did not seek reimbursement of any
costs and expenses in connection with the proceedings before the
Court.
- The
Government contested his claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- The
Court further considers that the finding of a violation constitutes
in itself sufficient compensation for any non-pecuniary damage
suffered by the applicant (see, mutatis mutandis, Parsil v.
Turkey, no. 39465/98, § 38, 26 April 2005; and Ayçoban
and Others, cited above, § 32).
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 that the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
