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SECOND
SECTION
CASE OF İZMİRLİ v. TURKEY
(Application
no. 30316/02)
JUDGMENT
STRASBOURG
26
June 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 İzmirli v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė,
judges,
and Mrs F. Elens-passos, Deputy Section
Registrar,
Having
deliberated in private on 5 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30316/02) 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 Hilmi İzmirli
(“the applicant”), on 11 June 2002.
- The
applicant was represented by Mrs O. Ersoy, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- The
applicant complained of a violation of his right to a fair hearing
within a reasonable time by an independent and impartial tribunal
established by law.
- On
12 September 2006 the Court decided to give notice of the application
to the Government. 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Istanbul.
- On
16 October 1981, at a time when Turkey was ruled by martial law
following the military “coup” of 12 September 1980, the
applicant was arrested on suspicion of being a member of an illegal
armed organisation, the Dev-Yol (Revolutionary Way).
- He
was detained for forty-seven days. During his interrogation, which
allegedly involved ill-treatment, he confessed to having been
involved in various illegal activities of the Dev-Yol. On 2 December
1981 the Ankara Martial Law Court (Sıkıyönetim
Mahkemesi) ordered his detention on remand and transferred him to
the Mamak Military Prison.
- On
26 February 1982 the Military Public Prosecutor filed a bill of
indictment with the Martial Law Court against the applicant and 722
other defendants. The prosecutor accused the applicant, inter
alia, of membership of the Dev-Yol, whose aim was to undermine
the constitutional order and replace it with a Marxist-Leninist
regime. The prosecution sought the death penalty under Article 146 §
1 of the – then in force – Criminal Code.
- In
a judgment of 13 March 1985, the Martial Law Court convicted the
applicant of membership of the Dev-Yol. It sentenced him to
five years' imprisonment under Article 168 § 2 of the
Criminal Code. One of the judges dissented, opining that the evidence
against the applicant was insufficient.
- Both
the defendants and the prosecutor appealed to the Military Court of
Cassation. While the appeal was pending, the applicant was released
from prison on 14 November 1988.
- In
the meantime, martial law was terminated. Following the promulgation
of the Law of 27 December 1993 abolishing the jurisdiction of the
martial law courts, the Court of Cassation (Yargıtay)
acquired jurisdiction over the case.
- On
27 December 1995 the Court of Cassation quashed the applicant's
conviction. It re-qualified the offence under Article 146 § 1 of
the Turkish Criminal Code, which entailed a more severe sentence. It
transmitted the case to the Ankara Assize Court, which held its first
hearing on 6 May 1996.
- On
16 July 2002 the Assize Court handed down its verdict on the
applicant and numerous other accused.
- On
28 May 2004, however, the Court of Cassation quashed the verdict,
holding that the court should have taken into account some recent
legislative amendments affecting the situation of some of the accused
including the applicant. It remitted the case to the assize court,
before which the proceedings are still pending.
- On
3 October 2006 the Ankara Assize Court convicted the applicant, under
Article 146 § 1 of the Turkish Criminal Code, of attempting to
undermine the constitutional order and sentenced him to life
imprisonment. The applicant appealed against this judgment and the
proceedings are still pending before the Court of Cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had been incompatible with the “reasonable time”
requirement, provided 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 contested that argument. They argued that the criminal
proceedings brought against the applicant could not be considered to
have been unreasonably long, given the difficulties involved in the
collection of the evidence, hearing witnesses and the testimonies of
the defendants. They maintained that the courts had to deal with a
trial involving 723 defendants, including the applicant, whose
activities and connections with the terrorist organisation had to be
established. In this connection, the Government pointed out that the
overall case-file was composed of four hundred and sixty binders.
- They
further asserted that the defendants had caused a substantial delay
in the proceedings by making repetitive requests for extension of
time-limits. The Government contended that these factors explained
the length of the proceedings and that no negligence or delay could
be imputed to the judicial authorities.
- The
Court notes that the proceedings began on 16 October 1981, the date
of the applicant's arrest, and are still pending before the Court of
Cassation. They have already lasted more than twenty-six years.
- The
Court's jurisdiction ratione temporis only permits it to
consider the period of just above twenty years that elapsed after
28 January 1987, the date of deposit of Turkey's declaration
recognising the right of individual petition. It must nevertheless
take account of the state of the proceedings at the time when the
aforementioned declaration was deposited (see Şahiner
v. Turkey, no. 29279/95, ECHR 2001 IX, § 22; and
Cankoçak v. Turkey, nos. 25182/94 and 26956/95,
§§ 25 26, 20 February 2001). On that critical
date the proceedings had already lasted more than six years.
A. Admissibility
- The
Court notes that the application 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
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 considers that there were substantial delays both at first
instance and in the appeal proceedings. It can accept that the case,
mounted against a large number of defendants, was complex. That being
so, it cannot but note that the proceedings have already lasted more
than twenty-five years of which twenty years are within the scope of
the Court's consideration. The length of this period is excessive and
cannot be justified by the complexity of the case alone. In the
Court's opinion, the length of the proceedings can only be explained
by the failure of the domestic courts to deal with the case
diligently (see, in this connection, Cankoçak, cited
above § 32, and Şahiner, cited above, §
27).
- Finally,
the Court considers that what was at stake for the applicant in the
domestic litigation was of considerable importance to him.
- Having
regard to all the evidence before it and to its case-law on the
subject (see, Cankoçak, cited above, § 33
and Şahiner, cited above, § 30), the Court finds
that the length of the proceedings at issue did not satisfy the
“reasonable time” requirement.
- There
has been accordingly been a breach of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Admissibility
1. The complaints stemming from the events preceding
the date of recognition by Turkey of right to individual petition
- The
applicant alleged that the length of his detention pending the trial
before the Ankara Martial law Court had violated his rights protected
by Articles 5 § 3 and 6 § 2 of the Convention. He
maintained that the Martial Law Court was not an independent and
impartial tribunal established by law. He also alleged that his right
to a fair trial had been breached since the Martial Law Court had
convicted him on the basis of the statements he had made to the
police under duress.
- The
Government submitted that these complaints should be declared
inadmissible.
- The Court reiterates that it can only consider
complaints relating to facts occurring after 28 January 1987, the
date on which Turkey recognised the competence of the Convention
organs to examine individual applications (see Cankoçak,
cited above, § 25).
- In this connection, the Court observes that the
proceedings before the Martial Law Court came to an end on 13 March
1985, which was almost two years before Turkey recognised the right
of individual petition. Accordingly, these complaints are
incompatible ratione temporis with the provisions of the
Convention within the meaning of Article 35 § 3 and must be
rejected in accordance with Article 35 § 4.
2. The complaint arising from the facts which occurred
after 28 January 1987
- The
applicant finally complained under Article 6 § 1 of the
Convention that the Court of Cassation had disregarded the dissenting
opinion from the verdict and had held instead that the applicant's
conduct fell under the scope of a more severe provision of the
Criminal Code.
- The
Government did not comment on this complaint.
- The
Court notes that the criminal proceedings against the applicant are
still pending before the Court of Cassation. The Court is therefore
unable to examine the entire criminal proceedings in order to express
an opinion as to whether they comply with the requirements of Article
6 of the Convention. Accordingly, the introduction of the above
complaints appears to be premature given the current state of the
proceedings.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention.
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
applicant claimed 87,591 euros (EUR) by way of pecuniary damage for
loss of earnings as a teacher since 25 May 1980. He also claimed EUR
50,000 for non-pecuniary damage.
- The
Government contested the amounts claimed by the applicant. They
submitted that he had not provided any evidence in support of his
alleged pecuniary or non-pecuniary loss. They also argued that the
Court should not allow the compensation procedure to be exploited or
lead to unjust enrichment.
- As
regards the pecuniary damage, having regard to the evidence in its
possession, the Court considers that the applicant has failed to
demonstrate that the pecuniary damage pleaded was actually caused by
the unreasonable length of the impugned proceedings. Consequently,
there is no justification for making any award to him under that head
(see, mutatis mutandis, Kudła v. Poland [GC], no.
30210/96, § 164, ECHR 2000-XI).
- However,
the Court accepts that the applicant has certainly suffered
non-pecuniary damage – such as distress and frustration
resulting from the protracted length of his detention and trial –
which is not sufficiently compensated by the findings of violation of
the Convention. Ruling on an equitable basis and having regard to the
criteria laid down in its case-law (see, among many others, Ertürk
v. Turkey, no. 15259/02, § 32, 12 April 2005), the Court
awards the applicant EUR 24,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 7,861.30 for the costs and expenses
incurred before the Court.
- The
Government submitted that no award should be made under this heading
given that the applicant has failed to provide any document in
support of his 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 2,000 for costs and expenses.
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 length of
criminal 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 the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 24,000
(twenty-four thousand euros) in respect of non-pecuniary damage and
EUR 2,000 (two thousand euros) for costs and expenses, 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 26 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens- Passos F. Tulkens
Deputy Registrar President
