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SECOND
SECTION
CASE OF AĞRAKÇE v. TURKEY
(Application
no. 29059/02)
JUDGMENT
STRASBOURG
4 November
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 Ağrakçe
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş, judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29059/02) 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 Abdülkerim Ağrakçe
(“the applicant”), on 10 May 2002.
- The
applicant was represented by Mr Ö. Öneren, a lawyer
practising in Ankara. The Turkish Government (“the Government”)
were represented by their Agent.
- On
5 November 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Diyarbakır.
- On
16 September 1980 the applicant was arrested and taken into custody
for his suspected involvement in terrorist activities. Subsequently,
he was remanded in custody until 6 April 1984, when, in the course of
the criminal proceedings brought against him, he was released. On
15 May 1990 he was acquitted of all charges. The applicant
submits that since this decision was not duly notified to him, he
learned of his acquittal only in 1996.
- On 24 May 1996 the applicant applied to the Diyarbakır
Assize Court, seeking compensation pursuant to Law no. 466. That
Law provides, inter alia, for an award of damages to any
person who has been unlawfully deprived of his or her liberty, or
who, after being lawfully detained, was not subsequently committed
for trial or was acquitted after standing trial. The applicant
claimed 20,000,000,000 Turkish liras (TRL) (approximately 256,706 US
Dollars) for non pecuniary damage.
- On
27 February 1998 the first-instance court awarded a certain amount of
compensation. The Court of Cassation quashed that ruling on
30 December 1998 and remitted the file to the Diyarbakır
Assize Court for a more comprehensive examination.
- On
16 June 1999 the assize court dismissed the case on the ground that
the applicant had failed to respect the statutory time-limit. This
judgment was also quashed by the Court of Cassation on 2 May
2000.
- On
4 October 2000 the first-instance court handed down its third ruling
where it awarded a certain amount of compensation. On 27 March
2001 the Court of Cassation quashed this judgment on the ground that
the amount awarded was too low.
- On
6 September 2001 the assize court awarded the applicant
TRL 3,000,000,000 (approximately EUR 2,400) in respect of
non-pecuniary damage.
- On
5 March 2002 the Court of Cassation upheld the judgment of the
first-instance court.
- In
the course of the proceedings the assize court held investigatory
sittings on a regular basis. Only on four occasions did it decide to
notify the applicant's lawyer of the date of its next session
(30 April 1997, 10 February 1999, 1 June 2000 and 6 June
2001). However, no session was postponed on account of the
applicant's lawyer's failure to attend.
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, §§ 27-32, ECHR 2002 V).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The applicant complained that the length of the
compensation 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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The
Government asked the Court to dismiss the complaint as being
inadmissible for failure to comply with the requirement of exhaustion
of domestic remedies under Article 35 of the Convention. They also
maintained that the applicant did not raise the substance of his
complaint before the domestic courts.
- The
applicant rejected the Government's arguments.
- The Court observes
that in previous cases it has already examined and rejected similar
objections of the Government as regards the alleged failure to
exhaust domestic remedies (see, in particular, Karakullukçu
v. Turkey, no.
49275/99, §§ 27-28, 22 November 2005). The Court finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned case. It therefore
rejects the Government's objection under this head.
- 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
period to be taken into consideration began on 24 May 1996 and ended
on 5 March 2002. It thus lasted nearly five years and nine months
before two levels of jurisdiction, with four remittals.
- The
Government maintained that, in the circumstances of the present case,
the length of the administrative proceedings could not be considered
unreasonably long. In particular, they alleged that the applicant
contributed to the prolongation of the proceedings by not duly
securing the required documents and by not attending the hearings
held before the Assize Court.
- The
applicant refuted the Government's arguments, made lengthy
submissions about the procedure under Law no. 466 and maintained his
allegations under this head. He further submitted copies of cases
where the compensation proceedings, pursuant to Law no. 466, had
lasted less then a year.
- 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 has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for example, Ali Rıza Doğan v.
Turkey, no. 50165/99, §§ 31-39, 22 December
2005, and Erden v. Turkey, no. 27719/02, §§ 20-22,
20 November 2007).
- 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 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his application form, the applicant first complained that he had been
deprived of his liberty for three years and 7 months. Secondly, he
claimed that he had not been notified of his acquittal for a long
time, in breach of the right to a fair judgment. Finally, the
applicant criticised the amount of compensation awarded to him
and questioned the effectiveness of the proceedings under Law
no. 466. The applicant invoked Articles 5 § 1,
6, 13 and 41 of the Convention.
- In
later submissions the applicant made allusion to the length of the
criminal proceedings and the lack of an oral hearing before the
assize court.
- However, in the light of all the material in its
possession, the Court finds that the applicant's above submissions do
not disclose any
appearance
of a violation
of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 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, in total, EUR 29,490 in respect of pecuniary
damage. This sum included loss of earnings and the travelling
expenses of his family who visited him in prison. The applicant
further claimed EUR 40,000 in respect of non-pecuniary damage.
- The
Government contested the amount.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have sustained
non pecuniary damage as a result of the prolongation of the
compensation proceedings. Ruling on an equitable basis, it awards him
EUR 2,500 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 11,600 for the costs and expenses incurred
before the domestic courts and before the Court. The applicant
submitted documentation regarding attorney fees and translation
costs.
- The
Government contested the amount.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
but considers it reasonable to award the sum of EUR 1,350 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 complaint concerning the length of
the compensation 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 according to
Article 44 § 2 of the Convention, the following amounts, to
be converted into the national currency of the respondent State at
the date of settlement:
(i) EUR
2,500 (two thousand five hundred euros) for non pecuniary
damage;
(ii) EUR
1,350 (one thousand three hundred and fifty euros) in respect of
costs and expenses;
(iii) any
tax that may be chargeable to the applicant 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 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
