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SECOND
SECTION
CASE OF UYANIK AND KABADAYI v. TURKEY
(Application
no. 7945/05)
JUDGMENT
STRASBOURG
22 September 2009
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 Uyanık and
Kabadayı v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7945/05) 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 Özgür
Uyanık and Mr Ozan Kabadayı (“the applicants”),
on 8 February 2005. The applicants were detained on remand in Kartal
Prison, İstanbul, when they lodged the case.
- On
27 March 2008 the Court declared the application partly inadmissible
and decided to communicate to the Government the applicants'
complaints concerning the length of their detention and the length of
the criminal proceedings brought against them. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Turkish Government (“the Government”) were represented by
their Agent. On 8 July 2008 the Government submitted their
observations which were sent to Mr. E. Olcaytu, the applicants'
lawyer practicing in Istanbul, who was requested to submit his
replies to the Government's observations and just satisfaction
claims. The Registry did not receive a reply.
- By
a letter dated 23 February 2009, Mr V. Gültaş, a lawyer
practising in Izmir, informed the Court that Mr Olcaytu no longer
practised law and he was the new representative. Upon the Registry's
subsequent request, Mr Gültaş presented a power of
attorney in respect of the first applicant. Consequently, on 31 March
2009, the Registry sent the case file to Mr Gültaş (by
fax and mail) and to the second applicant in Kartal Prison, setting a
new time limit for their replies to the Government's observations and
just satisfaction claims. The Registry has not received a reply from
either the first applicant's new representative or the second
applicant.
THE FACTS
- On
16 May 1996 the applicants were arrested and taken into police
custody by officers of the İstanbul security police in
connection with an investigation into an illegal organisation.
On 30 May 1996 the applicants were brought before the İstanbul
public prosecutor and the investigating judge respectively, who
remanded the applicants in custody.
- By an indictment dated 27 June
1996, the public prosecutor at the İstanbul State Security Court
initiated criminal proceedings against the applicants and a number of
others, accusing them, inter alia, of membership of an
illegal armed organisation and of taking part in its activities.
- On 4 June 2003 the İstanbul
State Security Court sentenced the applicants to life imprisonment,
pursuant to Article 146 § 1 of the Criminal Code. On 20 January
2004 the Court of Cassation quashed the judgment of the
first-instance court and remitted the case. State Security
Courts were abolished by constitutional amendments introduced on 7
May 2004. Subsequently, the applicants' case was resumed before the
12th Assize Court of İstanbul.
- Referring to recent amendments in
domestic law, on 27 December 2004 the applicants requested to be
released pending trial. Relying on the accusations against the
applicants, the length of their detention and the content of the case
file, the 12th
Assize Court of İstanbul refused the applicants' request on 29
December 2004. The applicants appealed. On 18 January 2005 the
13th
Assize Court of İstanbul dismissed their appeal without further
reasoning.
- On 1 February 2006 the applicants
were released pending trial.
- On 30 April 2008 the 12th Assize Court of
İstanbul sentenced the applicants as charged. According to the
information in the case file, as submitted by the parties, the
proceedings are pending before the Court of Cassation.
THE LAW
A. In respect of the second applicant
- Although not explicitly stated in the Government's
observations, the Court observes from the annexed documents that the
applicants were released pending trial on 1 February 2006. The last
communication in respect of the second applicant dates back to 2005
when the application was lodged with the Court. No other addresses
are indicated in the Registry's records and the applicant has not to
date resumed his correspondence with the Court.
- The
Court recalls that, pursuant to Rule 47 § 6 of the Rules of
Court, “the applicants shall keep the Court informed of any
change of address...” In the present case, although released
from prison, the applicant has failed to inform the Court of his new
address. Therefore, he may be regarded as no longer wishing to pursue
his application, within the meaning of Article 37 § 1 (a)
in fine. Moreover, the Court finds no special circumstances
regarding respect for human rights as defined in the Convention and
its Protocols which require the continued examination of this aspect
of the case. In view of the above, it is appropriate to strike the
second applicant's case out of the list (see Dariusz Ostapiuk v.
Poland (dec.), no. 71628/01, 27 June 2006; Knez and Others v.
Slovenia, no. 48782/99, § 124, 21 February 2008).
B. In respect of the first applicant
- The first applicant complained under Articles 5 §
3 and 6 § 1 of the Convention that the length of his detention
on remand and the length of the criminal proceedings brought against
him had been excessive. The Government contested these arguments.
- The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
- The Court observes that the applicant's detention, for
the purposes of Article 5 § 3 of the Convention, began when he
was taken into police custody on 16 May 1996 and continued until he
was convicted by the trial court on 4 June 2003. From this date until
his conviction was quashed by the Court of Cassation on 20 January
2004, he was detained “after conviction by a competent court”,
within the meaning of Article 5 § 1 (a). Therefore that period
of his detention falls outside the scope of Article 5 § 3 (see
Cahit Solmaz v. Turkey, no. 34623/03, § 34, 14 June
2007 and the cases cited therein). From 20 January 2004 until his
release pending trial on 1 February 2006, however, the applicant
was once more in pre-trial detention for the purposes of Article 5 §
3 of the Convention. It follows that the applicant spent a total of
nine years and one month as a remand prisoner.
- As
for the period to be taken into consideration for the purposes of
Article 6 § 1, the Court observes that the proceedings began on
16 May 1996 and are still pending. Thus they have so far lasted some
13 years and 3 months for two levels of jurisdiction, delivering
three judgments.
- The
Court has frequently found violations of Articles 5 § 3 and 6 §
1 of the Convention in cases raising similar issues to those in the
present application (see, for example, Güveç
v. Turkey,
no. 70337/01, § 108, 20 January 2009, Ütebay
v. Turkey, no. 40555/04, § 35, 17 July 2008).
- Having
examined all the material submitted to it and having regard to its
case-law on the subject, the Court considers that in the instant case
the length of the applicant's detention on
remand and the length of the criminal proceedings against him
was excessive.
- There has accordingly been a breach of Article 5 §
3 and Article 6 § 1 of the Convention.
- As
for the just satisfaction award under Article 41 of the Convention,
the Court observes that the applicant failed to submit the just
satisfaction claims in time. Accordingly, the Court considers that
there is no call to make an award of compensation.
However,
having regard to the fact that the proceedings in question are still
pending before the domestic courts, the Court considers that the most
appropriate form of redress would be to bring them to a conclusion as
speedily as possible, while taking into account the requirements of
the proper administration of justice and Article 6 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to strike the application out of its
list of cases in respect of the second applicant.
- Declares the complaints concerning the length of
the first applicant's detention on remand and the length of the
criminal proceedings brought against him admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention.
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
