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SECOND
SECTION
CASE OF
KÖKLÜ v. TURKEY
(Application
no. 10262/04)
JUDGMENT
STRASBOURG
14 October
2008
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 Köklü v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Ireneu Cabral
Barreto,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
Vladimiro Zagrebelsky,
András
Sajó, substitute judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 23 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 10262/04) 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 Turgut
Köklü (“the applicant”), on 17 February 2004.
- The
applicant was represented by Mrs S. Akat, a lawyer practising in
Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
6 September 2007 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in Istanbul.
- On
10 March 1998 the applicant was arrested on suspicion of membership
of an illegal armed organisation, namely the TIKB (the
Revolutionary Communist Union of Turkey).
- On
13 March 1998 he was brought before the public prosecutor and then
the investigating judge at the Istanbul State Security Court. The
latter remanded him in custody on the same day.
- On
17 March 1998 the public prosecutor filed a bill of indictment with
the Istanbul State Security Court, charging the applicant with
membership of an illegal organisation under Article 168 § 2 of
the Criminal Code.
- Between
25 March 1998 and 21 March 2001, the court held nineteen hearings.
During these hearings the Istanbul Security Court, relying on the
state of the evidence, the nature of the offence, and the duration of
his detention, refused to release the applicant.
- On
21 March 2001 the Istanbul State Security Court pronounced its
judgment and convicted the applicant as charged and sentenced him to
twelve years and six months' imprisonment under Article 168 of the
Criminal Code.
- On
8 August 2001 the Court of Cassation quashed this judgment. The case
was accordingly remitted to the Istanbul State Security Court.
- On
17 September 2001 the Istanbul State Security Court resumed the
trial. During the subsequent hearings, the court rejected the
applicant's requests for release, having regard to the state of the
evidence.
- At
the hearing on 1 June 2003, the applicant's lawyer once again
requested the court to release the applicant. In her submissions, she
also drew attention to the psychological state and treatment of the
applicant. The court rejected this request. An appeal lodged in that
connection was also dismissed by a further court on 28 August 2003.
- By
Law no. 5190, in June 2004 State Security Courts were abolished.
Subsequently, the Istanbul Assize Court acquired jurisdiction over
the case.
- On
25 October 2004 the applicant's lawyer requested the court to release
the applicant. On 1 November 2004 the applicant was released pending
trial.
- According
to the information made available to the Court by the parties to
date, the case is apparently still pending before the Istanbul Assize
Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention on remand exceeded the
reasonable time requirement. He also contended that he had no
effective remedy to challenge the lawfulness of his detention on
remand. In respect of his complaints the applicant relied on Articles
5 § 3 and 13 of the Convention. However, the Court considers
that the applicant's second complaint should be examined from the
standpoint of Article 5 § 4, rather than Article 13.
- Article
5 §§ 3 and 4 of the Convention provides as relevant:
Article 5 § 3
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
Article 5 § 4
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. Article 5 § 3 of the Convention
1. Admissibility
- The
Government argued that, as the applicant had lodged his complaint
under Article 5 § 3 of the Convention on 17 February 2004, the
time he had spent in detention between 10 March 1998 and 21 March
2001 should be rejected for having been introduced outside the
six-month time-limit laid down in Article 35 § 1.
- The
Court refers to the principles adopted in the Solmaz v. Turkey
judgment (no. 27561/02, § 36, ECHR 2007 ...
(extracts)), where it held that, if the applicant is in effect
imprisoned throughout, the multiple, consecutive detention periods
should be regarded as a whole and the six-month period should only
start running from the end of the last period. In the instant case,
the applicant's detention on remand began when he was arrested on
10 March 1998. He was detained within the meaning of Article 5 §
3 of the Convention until his conviction by the Istanbul State
Security Court on 21 March 2001. As from that date, until 8
August 2001, when the Court of Cassation quashed the decision of the
first-instance court, he was detained “after conviction by a
competent court”, within the meaning of Article 5 § 1(a)
and, therefore, this part of his detention falls outside the scope of
Article 5 § 3. From 8 August 2001 until his release pending
trial on 1 November 2004, the applicant was again in pre-trial
detention falling under Article 5 § 3 of the Convention. As a
result, given the applicant's continued detention throughout these
different phases, the six-month period should only start running from
the end of the last period of pre-trial custody, which is 1 November
2004 (see Akyol v. Turkey, no. 23438/02, § 25,
20 September 2007).
- The
Court accordingly dismisses the Government's objection.
- It further notes this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court notes that, as explained above, the period in question began on
10 March 1998 with the applicant's arrest and ended on 1 November
2004, when the applicant was released pending trial. In line with its
case-law, after deducting the time during which the applicant was
detained as a convicted prisoner under Article 5 § 1 (a) of the
Convention between 21 March 2001 and 8 August 2001, the period to be
taken into consideration under Article 5 § 3 in the instant case
is over six years and four months. The domestic courts had constantly
extended the applicant's detention on remand using identical,
stereotyped terms, such as “having regard to the nature of the
offence and the state of evidence”.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, Atıcı v. Turkey, no.
19735/02, 10 May 2007; Solmaz, cited above; Dereci v.
Turkey, no. 77845/01, 24 May 2005; Taciroğlu v. Turkey,
no. 25324/02, 2 February 2006).
- 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, it considers that in
the instant case the length of the applicant's pre-trial detention
was excessive and contravened Article 5 § 3 of the Convention.
- There
has accordingly been a violation of this provision.
B. Article 5 § 4 of the Convention
1. Admissibility
- The
Government asked the Court to dismiss the applicant's complaint under
Article 5 § 4 of the Convention for failure to exhaust domestic
remedies under Article 35 § 1. Referring to the Court's decision
in the cases of Köse v. Turkey ((dec.), no. 50177/99, 2
May 2006) and Baştımar and Turkey ((dec.), no.
74337/01, 5 December 2006), the Government maintained that the
applicant had failed to object to his continued remand in custody
pursuant to Articles 297-304 of the former Code of Criminal
Procedure. However, the Court finds that these cases cited by the
Government may be clearly distinguished on their facts from the
present application.
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objections in cases similar to the present
application (see Koşti v. Turkey, no. 74321/01, §§
18-24, 3 May 2007). It finds no particular circumstances in the
instant case which would require it to depart from this
jurisprudence. Consequently, it rejects the Government's preliminary
objection.
- The
Court considers this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established. It must therefore be declared admissible.
2. Merits
- The
Government contended that the domestic law provided an effective
remedy to challenge the lawfulness of the applicant's detention on
remand.
- The
applicant maintained that his objection to his detention had received
no serious consideration by the domestic courts, which used
stereotyped wording in dismissing his requests.
- The
Court notes that, in several cases raising similar issues to the
present application, it has rejected the Government's foregoing
contention. It concluded that Article 298 of the Code of Criminal
Procedure could not be considered an effective remedy and found a
violation of Article 5 § 4 of the Convention (see, mutatis
mutandis, Koşti and Others, cited above, §§
21 25; Nart v. Turkey, no. 20817/04,
§ 39, 6 May 2008; Öcalan v. Turkey [GC],
no. 46221/99, §§ 71 72, ECHR 2005 IV).
The Court finds no particular circumstances in the instant case which
would require it to depart from these previous findings.
- In
conclusion, the Court holds that there has been a violation of
Article 5 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant 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 contested that argument.
- The
period to be taken into consideration began on 10 March 1998 with the
applicant's arrest and, according to the information in the case file
provided by the parties, had not yet ended at the time of the
adoption of the present judgment. It has thus lasted more than ten
years and six months for two levels of jurisdiction.
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
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,
and 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 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 finds that
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
applicant claimed 50,000 euros (EUR) in respect of non-pecuniary
damage. He further claimed 3,600 new Turkish liras (TRY) in respect
of pecuniary damage. In this connection, the applicant submitted that
he was suffering from psychological problems and had had to be
hospitalised for treatment.
- The
Government contested the claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
some non-pecuniary damage on account of the undue length of his
detention on remand and of the criminal proceedings, which cannot be
sufficiently compensated by the finding of violations alone. Ruling
on an equitable basis, it awards him EUR 8,000 under that head.
B. Costs and expenses
- The
applicant also claimed a total of TRY 3,227.70 for the costs and
expenses incurred before the Court. In this respect, he submitted
copies of postal expenses amounting to TRY 11.60, equivalent to
approximately EUR 6.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the applicant has not
substantiated that he has actually incurred the costs claimed.
Accordingly, it makes no award 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 application admissible;
- Holds that there has been a violation of Article
5 §§ 3 and 4 of the Convention;
3. 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 8,000
(eight thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, which sum is to be converted into
new Turkish liras at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 14 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally
Dollé Françoise Tulkens
Registrar President
