ULU AND OTHERS v. TURKEY - 29545/06 [2010] ECHR 1962 (7 December 2010)


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    European Court of Human Rights
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    Cite as: [2010] ECHR 1962

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    SECOND SECTION







    CASE OF ULU AND OTHERS v. TURKEY


    (Applications nos. 29545/06, 15306/07, 30671/07, 31267/07, 21014/08 and 62007/08










    JUDGMENT




    STRASBOURG


    7 December 2010



    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 Ulu and others v. Turkey,

    The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

    Ireneu Cabral Barreto, President,
     Danutė Jočienė,
     Dragoljub Popović,
     Nona Tsotsoria,
     Işıl Karakaş,
     Kristina Pardalos,
     Guido Raimondi, judges,
    and Stanley Naismith, Section Registrar,

    Having deliberated in private on 16 November 2010,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

  1. The case originated in six applications (nos. 29545/06, 15306/07, 30671/07, 31267/07, 21014/08 and 62007/08) 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 six Turkish nationals, Turgay Ulu, Sedat Hayta, Kamil Yaman, Metin Yamalak, Tamer Tuncer and Kamil Görkem, born in 1973, 1973, 1977, 1980, 1971 and 1981 respectively. The dates of introduction of the applications and the names of the applicants' representatives are indicated in the appended table. The Turkish Government (“the Government”) were represented by their Agent.

  2. On 19 May 2009 the Court decided to give notice of the applications to the Government. It also decided to examine the merits of the applications at the same time as their admissibility (former Article 29 § 3).

    3. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  3. The applicants are Turkish nationals who were arrested and subsequently detained pending judicial proceedings. They were either released or convicted on various dates, except for the applicant Kamil Yaman (no. 30671/07) who is still in pre-trial detention. The details of the dates of the arrests, the dates of the orders for the applicants' pre trial detention, the dates of the indictments, the dates of the domestic court decisions, the total periods of pre-trial detention, the total periods of the criminal proceedings where relevant, the dates of release and the grounds for continued detention are set out in the appendix hereto.

    4. II.  RELEVANT DOMESTIC LAW AND PRACTICE

  4. A description of the relevant domestic law and practice prior to the entry into force of the new Code of Criminal Procedure (Law no. 5271) (“the CCP”) on 1 June 2005 may be found in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-31, 30 January 2007). The current practice under the CCP is outlined in Şayık and Others v. Turkey (nos. 1966/07, 9965/07, 35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§ 13 15, 8 December 2009).

    5. THE LAW

    I.  JOINDER

  5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.

    6. II.  ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

  6. The applicant in application no. 15306/07 complained under Article 5 § 3 of the Convention that he had not been brought promptly before a judge or other officer authorised by law to exercise judicial power.

  7. The applicants complained under Articles 5 §§ 1 (c), 3 and 5 and 6 § 2 of the Convention that the length of their pre-trial detention had been excessive. The applicant in application no. 31267/07 submitted under Article 6 § 3 (b) of the Convention that he had not had adequate time and facilities for the preparation of his defence on account of the excessive pre trial detention. He contended under Article 2 of Protocol No. 1 to the Convention that he had been denied the right to education due to his pre-trial detention. The applicant in application no. 21014/08 claimed under Article 2 of the Convention that his excessive pre-trial detention had breached his right to life. He further claimed that the postponement by Law no. 5320 of the date of enforcement of Article 102 of the CCP, which regulates the maximum authorised length of pre-trial detention, to 31 December 2010 for certain types of offences including his own, violated Articles 6, 13 and 14 of the Convention. The applicant in application no. 62007/08 also submitted that Article 1 of Protocol No. 1 to the Convention had been breached on account of his excessive pre-trial detention. The Court deems it appropriate to examine all these complaints from the standpoint of Article 5 § 3 alone, as they mainly concern the length of the applicants' pre-trial detention (see Ayhan Işık v. Turkey (dec.), no. 33102/04, 16 December 2008, and Can v. Turkey (dec.), no. 6644/08, 14 April 2009).

  8. The applicant in application no. 15306/07 complained under Article 6 § 3 (b) and (c) of the Convention that he had had no effective remedy to challenge the lawfulness of the length of his pre-trial detention. The Court considers that this complaint must be examined under Article 5 § 4 of the Convention.

  9. In their submissions of 21 December 2009, the applicants in applications nos. 29545/06, 31267/07 and 21014/08 also complained under Article 5 § 4 of the Convention that they had had no effective remedy to challenge the lawfulness of the length of their pre-trial detention.

    10. A.  Article 5 § 3 of the Convention

    1.  As regards the length of the detention in police custody concerning Sedat Hayta (no. 15306/07)

  10. The Court observes that the applicant's police custody ended on 19 December 1999, whereas the application was lodged with the Court on 10 May 2006 – that is, more than six months later (see Ege v. Turkey (dec.), no. 47117/99, 10 February 2004, and Doğan v. Turkey (dec.), no. 67214/01, 7 June 2005).

  11. It follows that this complaint has been lodged out of time and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

    12. 2.  As regards the length of pre-trial detention

  12. 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.

  13. The Government maintained that the applicants' detention had been based on the existence of reasonable grounds of suspicion of them having committed an offence, and that their detention had been reviewed periodically by a competent authority, with special diligence, in accordance with the requirements laid down by applicable law. They pointed out that the offences with which the applicants had been charged had been of a serious nature, and that their continued remand in custody had been necessary to prevent crime and to preserve public order.

  14. The Court notes that the shortest duration of pre-trial detention in the present case is more than four years (in application no. 62007/08). In the remaining applications, it is over seven years (see appended table).

  15. The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Tutar v. Turkey, no. 11798/03, § 20, 10 October 2006, and Cahit Demirel v. Turkey, no. 18623/03, § 28, 7 July 2009). 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 and the length of the applicants' pre-trial detention in the present case (see appended table), the Court finds that in the instant case the length of the applicants' pre-trial detention was excessive.

  16. There has accordingly been a violation of Article 5 § 3 of the Convention.

    17. B.  Article 5 § 4 of the Convention

    1.  As regards applications nos. 29545/06, 31267/07 and 21014/08

  17. The Court notes that the applicants' pre-trial detention ended on 22 May 2009 in applications nos. 29545/06 and 21014/08 and on 7 May 2007 for the applicant in application no. 31267/07 when the İstanbul Assize Court convicted them, whereas the complaint at issue was raised before the Court for the first time on 21 December 2009 – that is, more than six months later (Canevi and Others v. Turkey (dec.), no. 40395/98, 30 May 2000). It follows that this part of the application was introduced out of time and must therefore be rejected in accordance with Article 35 §§1 and 4 of the Convention.

    18. 2.  As regards application no. 15306/07

  18. 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.

  19. As regards the merits of the case, the Government submitted that the applicant had in fact had the possibility of challenging his continued detention by lodging objections. They further stated that the applicant could have sought compensation under Article 141 of the CCP following its entry into force on 1 June 2005.

  20. The applicant maintained his complaint.

  21. The Court has already examined the possibility of challenging the lawfulness of pre-trial detention in Turkey in other cases and concluded that the Government has failed to show that the above-mentioned remedies provided for a procedure that was genuinely adversarial for the accused (see, for example, Koşti and Others v. Turkey, no. 74321/01, §§ 19 24, 3 May 2007, and Şayık and Others v. Turkey, cited above, §§ 28-32). The Court notes that the Government have not put forward any argument or material in the instant case which would require the Court to depart from its previous findings.

  22. In the light of the foregoing the Court concludes that there has been a breach of Article 5 § 4 of the Convention in respect of the applicant in application no. 15306/07.

    23. III.  ALLEGED VIOLATION OF ARTICLES 6 § 1 and 13 OF THE CONVENTION

    A.  Article 6 § 1 of the Convention

    1.  As regards the independence and impartiality of the İstanbul State Security Court and the İstanbul Assize Court

  23. The applicant in application no. 21014/08 complained under Article 6 § 1 of the Convention that he had not been tried by an independent and impartial tribunal. He submitted, in particular, that the judges had been appointed by the Supreme Council of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu), which had been presided over by the Minister of Justice.

  24. The Court observes that the criminal proceedings against the applicant are still pending. The applicant's complaint under this provision is therefore premature. Consequently, this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).

    25. 2.  As regards the length of criminal proceedings

  25. The applicants in applications nos. 15306/07, 31267/07, 21014/08 and 62007/08 complained that the length of the criminal proceedings against them was incompatible with the reasonable time requirement, laid down in Article 6 § 1 of the Convention. The Government disputed this contention.

  26. 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.

  27. As regards the merits of the applications, the Government submitted that the length of the proceedings could not be considered to have been unreasonable in view of the complexity of the cases, the number of the accused and the nature of the offences with which the applicants were charged.

  28. The Court notes that the shortest duration of the criminal proceedings in the present case is over nine years (see appended table).

  29. The Court has frequently found violations of Article 6 § 1 of the Convention in applications raising issues similar to the one in the present case (see Bahçeli v. Turkey, no. 35257/04, § 26, 6 October 2009, and Er v. Turkey, no. 21377/04, § 23, 27 October 2009). 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. The Court therefore considers 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 of the Convention.

    30. B.  Article 13 of the Convention

  30. In his submission of 21 December 2009, the applicant in application no. 31267/07 complained that he had not had an effective remedy in domestic law whereby he could have challenged the excessive length of the criminal proceedings against him.

  31. The Court notes that the criminal proceedings against the applicant ended on 7 May 2009 when the Court of Cassation upheld the relevant judgment of the first-instance court, whereas the complaint in issue was raised before the Court for the first time on 21 December 2009 – that is, more than six months later. It follows that this part of the application was introduced out of time and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

    32. IV.  OTHER ALLEGED VIOLATION OF THE CONVENTION

  32. The applicant in application no. 31267/07 claimed under Article 1 of Protocol No. 12 to the Convention that he had been discriminated against on account of the fact that he had been held in detention during judicial proceedings for an excessive length of time.

  33. The Court considers that, as Protocol No. 12 has not been ratified by the respondent State, the applicant's complaint in this regard is incompatible ratione personae with the Convention and must therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

    34. V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  34. Article 41 of the Convention provides:

    35. “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

  35. The applicant in application no. 29545/06 claimed 100,000 euros (EUR) in respect of non-pecuniary damage.

  36. The applicant in application no. 15306/07 claimed 60,000 Turkish Liras (TRY) (approximately EUR 30,550) in respect of pecuniary damage. He further claimed TRY 75,000 (approximately EUR 38,185) for non pecuniary damage.

  37. The applicant in application no. 30671/07 claimed EUR 20,000 for non pecuniary damage.

  38. The applicant in application no. 31267/07 claimed EUR 30,000 for non pecuniary damage.

  39. The applicant in application no. 21014/08 claimed EUR 5,000 for non pecuniary damage.

  40. The applicant in application no. 62007/08 claimed EUR 50,000 for non pecuniary damage and EUR 139,000 for pecuniary damage.

  41. The Government contested these claims.

  42. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the relevant claims. However, the Court considers that the applicants must have sustained non-pecuniary damage. In the light of the Court's jurisprudence and ruling on an equitable basis, it makes the following awards under this head in respect of the applicants' non-pecuniary damage:

    43. (i)  EUR 14,500 to the applicant in application no. 29545/06;

    (ii)  EUR 11,700 to the applicant in application no. 15306/07;

    (iii)  EUR 15,600 to the applicant in application no. 30671/07;

    (iv)  EUR 12,700 to the applicant in application no. 31267/07;

    (v)  EUR 5,000 to the applicant in application no. 21014/08; and

    (vi)  EUR 6,400 to the applicant in application no. 62007/08.

  43. Furthermore, according to the information submitted by the parties, the criminal proceedings against the applicant in application no. 62007/08 are still pending and the applicant in application no. 30671/07 is still detained. In these circumstances, the Court considers that an appropriate means for putting an end to the violations which it has found would be to conclude the criminal proceedings at issue as speedily as possible, while taking into account the requirements of the proper administration of justice (see Yakışan v. Turkey, no. 11339/03, § 49, 6 March 2007).

    44. B.  Costs and expenses

  44. The applicant in application no. 29545/06 claimed TRY 12,637 (approximately EUR 6,400) for costs and expenses. In support of his claims the applicant submitted his lawyer's engagement letter, a receipt for legal fees incurred, a time sheet and a table of costs and expenses.

  45. Referring to the İstanbul Bar Association's scale of fees, the applicant in application nos. 15306/07 claimed TRY 185,625 (approximately EUR 94,500) for costs and expenses incurred before the domestic courts and before the Court, which included expenditure such as telephone calls, mail, translation fees, stationery, and travel costs. He also submitted receipts for legal fees incurred.

  46. The applicant in application no. 30671/07 claimed TRY 300 (approximately EUR 155) for costs and expenses. He also claimed EUR 2,000 in respect of his lawyer's fees. In support of his claims he submitted a time-sheet prepared by his lawyer, his lawyer's engagement letter and a table of costs and expenses.

  47. The applicant in application no. 31267/07 claimed EUR 640 for costs and expenses and EUR 1,160 in respect of legal fees. In support of his claims he submitted the Turkish Bar Association's scale of fees, a table of costs and expenses, and a receipt for the legal fees incurred.

  48. The applicant in application no. 21014/08 claimed EUR 350 for costs and expenses. He also claimed EUR 3,000 in respect of his lawyer's fees. In support of his claims he submitted his lawyer's engagement letter, a table of costs and expenses and invoices for postal expenses and stationery.

  49. The applicant in application no. 62007/08 claimed EUR 20,000 for costs and expenses incurred before the domestic courts. He submitted a receipt for legal fees incurred.

  50. The Government contested these claims.

  51. 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. Regard being had to the documents in its possession and the above criteria, the Court makes the following awards under this head:

    52. (i)  EUR 1,500 to the applicant in application no. 29545/06;

    (ii)  EUR 1,300 to the applicant in application no. 15306/07;

    (iii)  EUR 500 to the applicant in application no. 30671/07;

    (iv)  EUR 1,160 to the applicant in application no. 31267/07;

    (v)  EUR 1,000 to the applicant in application no. 21014/08; and

    (vi)  EUR 1,000 to the applicant in application no. 62007/08.

    C.  Default interest

  52. The Court considers it appropriate that default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

    53. FOR THESE REASONS, THE COURT UNANIMOUSLY

  53. Decides to join the applications;


  54. Declares the complaints concerning the length of pre-trial detention in respect of all applicants, the complaint concerning the lack of a remedy to challenge the lawfulness of the pre-trial detention brought by the applicant in application no. 15306/07, and the complaints concerning the length of criminal proceedings brought by the applicants in applications nos. 15306/07, 31267/07, 21014/08 and 62007/08 admissible and the remainder of the application inadmissible;


  55. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of all the applicants;


  56. Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the applicant in application no. 15306/07;


  57. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the applicants in applications nos. 15306/07, 31267/07, 21014/08 and 62007/08;


  58. Holds

    59. (a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into Turkish liras at the rate applicable on the date of settlement, plus any tax that may be chargeable to the applicants:

    (i)  to Mr Turgay Ulu, EUR 14,500 (fourteen thousand five hundred euros) for non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) for costs and expenses;

    (ii)  to Mr Sedat Hayta, EUR 11,700 (eleven thousand seven hundred euros) for non-pecuniary damage and EUR 1,300 (one thousand three hundred euros) for costs and expenses;

    (iii)  to Mr Kamil Yaman, EUR 15,600 (fifteen thousand six hundred euros) for non-pecuniary damage and EUR 500 (five hundred euros) for costs and expenses;

    (iv)  to Mr Metin Yamalak, EUR 12,700 (twelve thousand seven hundred euros) for non-pecuniary damage and EUR 1,160 (one thousand one hundred and sixty euros);

    (v)  to Mr Tamer Tuncer, EUR 5,000 (five thousand euros) for non-pecuniary damage and EUR 1,000 (one thousand euros) for costs and expenses;

    (vi)  to Mr Kamil Görkem, EUR 6,400 (six thousand four hundred euros) for non-pecuniary damage and EUR 1,000 (one thousand euros) for costs and expenses;

    (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;


  59. Dismisses the remainder of the applicants' claim for just satisfaction.

    60. Done in English, and notified in writing on 7 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Stanley Naismith Ireneu Cabral Barreto
    Registrar President


    Information concerning the application

    Date of the arrest

    Date of the order for pre-trial detention

    Date of the indictment

    Date of the judgment(s) of the first-instance court

    Date of the decision(s) of the Court of Cassation

    Objections to the pre-trial detention or continued pre-trial detention where relevant

    Total period of pre-trial detention and of proceedings where relevant (on the basis of the information in the case file)

    Grounds for continued detention

    1 - 29545/06 introduced on 6 July 2006 by Turgay ULU, represented by Nermin Kaplan

    29/05/1996

    07/06/1996

    11/10/1996

    1. İstanbul State Security Court -26/04/2002 (E: 1997/127, K:2002/84)

    2. İstanbul Assize Court – 22/05/2009 (E: 2003/178, K: 2009/121)

    1. 12/05/2003 (E:2002/2311, K: 2003/816)

    (set aside)


    2. Pending


    11 years and 11 months (length of pre-trial detention)

    - the state of the evidence

    - the nature of the offence

    - strong suspicion of having committed the offence in question

    - danger of flight

    - the overall period of pre-trial detention

    - persistence of the grounds for continued detention indicated in Article 100 of the CCP

    2 - 15306/07 introduced on 19 February 2007 by Sedat HAYTA, represented by Ercan Kanar

    12/12/1999

    19/12/1999

    30/12/1999

    1. İstanbul Assize Court -24/08/2005 (E:2000/6, K:2005/346)


    2. İstanbul Assize Court – 12/03/2008 (E:2006/202, K:2008/53)

    1. 30/05/2006 (E:2006/1276, K:2006/2927) (set aside)


    2. 10/02/2009 (E:2008/14070, K: 2009/1341) (upheld)

    Lodged on: 27/12/2006

    Dismissed on: 05/01/2007

    (2007/4)

    7 years and 5 months (length of pre-trial detention)

    Released on: 04/03/2008


    9 years and 2 months (length of proceedings)

    - the nature of the offence

    - the state of the evidence

    - danger of flight

    - the overall period of pre-trial detention

    - gravity of the offence charged

    - persistence of the grounds for continued detention indicated in Article 100 of the CCP

    - strong suspicion of having committed the offence charged

    3 - 30671/07 introduced on 6 July 2007 by Kamil YAMAN, represented by Filiz Kılıçgün

    5/02/1997

    19/02/1997

    20/05/1997

    1. İstanbul State Security Court - 8/02/2002 (E: 1997/253, K: 2002/13)


    2. Pending before the İstanbul Assize Court (E: 2002/319)

    1. 15/10/2002

    (E: 2002/1241, K: 2002/2023)

    (set aside)


    13 years (length of pre-trial detention)

    - the content of the case file

    - the state of the evidence

    - the nature of the offence

    - the overall period of pre-trial detention

    - strong suspicion of having committed the offence in question

    - danger of flight

    4 - 31267/07 introduced on 3 July 2007 by Metin YAMALAK

    30/03/1999

    6/04/1999

    26/04/1999

    İstanbul Assize Court - 7/05/2007 (E: 1999/153, K: 2007/275)

    7/05/2009 (E: 2008/19686, K: 2009/5404)

    (upheld)


    8 years and 1 month (length of pre-trial detention)


    10 years and 1 month (length of proceedings)

    - the nature of the offence

    - the state of the evidence

    - the overall period of detention

    - danger of flight

    - content of the case file

    - gravity of the offence charged

    - strong suspicion of having committed the offence in question

    - persistence of the grounds for continued detention indicated in Article 100 of the CCP

    5 - 21014/08 introduced on 25 March 2008 by Tamer TUNCER, represented by Sevim Akat

    3/03/1997

    14/03/1997

    (the applicant escaped on 7/08/ 1997 and was detained again on 23/05/1998)

    8/06/1998

    1. İstanbul State Security Court -26/04/2002 (E: 1997/127, K:2002/84)

    2. İstanbul Assize Court – 22/05/2009 (E: 2003/178, K: 2009/121)

    1. 12/05/2003 (E:2002/2311, K: 2003/816)

    (set aside)


    2. Pending


    10 years and 4 months (length of pre-trial detention)


    13 years and 7 months (length of proceedings)

    - the state of the evidence

    - the nature of the offence

    - strong suspicion of having committed the offence in question

    - danger of flight

    - the overall period of pre-trial detention

    - persistence of the grounds for continued detention indicated in Article 100 of the CCP

    6 - 62007/08 introduced on 5 December 2008 by Kamil GÖRKEM

    10/06/2001

    14/06/2001

    25/06/2001

    1. Siverek Assize Court - 11/04/2003 (E: 2001/134, K: 2003/54)

    2. Siverek Assize Court - 14/12/2005 (E: 2004/168, K:2005/273)

    3. Siverek Assize Court - 20/07/2009 (E: 2008/179, K: N/A)

    1. 4/11/2004 (E:2004/693, K: 2004/3727)


    2. 9/05/2008 (E: 2007/4617, K: 2008/3867)


    3. Pending


    4 years and 1 month (length of pre-trial detention)


    9 years and 4 months (length of proceedings)

    - the state of the evidence

    - the nature of the offence

    - length of the sentence envisaged for the crime in issue

    - danger of flight



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