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SECOND
SECTION
CASE OF FETİ ATEŞ AND OTHERS v. TURKEY
(Applications nos. 34759/04, 28588/05, 1016/06 and 19280/06)
JUDGMENT
STRASBOURG
21
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 Ateş and
others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four applications (nos. 34759/04, 28588/05,
1016/06, and 19280/06) 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
four Turkish nationals, Feti Ateş, Nursel Demirdöğücü,
Hakkı Alçin, and Metin Durmaz (“the applicants”),
born in 1972, 1964, 1980 and 1955 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.
- On
10 September 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are Turkish nationals who were arrested and subsequently
detained pending judicial proceedings. They were released on various
dates. 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
period of pre-trial detention, total period of criminal proceedings,
the dates of release and the grounds for continued detention are set
out in the appendix hereto.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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).
THE LAW
I. JOINDER
- Having
regard to the similar subject matter of the applications, the Court
finds it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicants complained under Article 5 § 3 of the Convention that
the length of their pre-trial detention had been excessive.
- The
Government contested the applicants' arguments.
A. As regards the applicant in application no. 19280/06
- The
Court notes that, after excluding the period when the applicant was
detained after conviction under Article 5 § 1 (a) of the
Convention from the total time that he has been held in pre-trial
detention, the period to be taken into consideration is one year and
eleven months (see Solmaz v. Turkey, no. 27561/02,
§§ 36-37, ECHR 2007-II (extracts)).
- The
Court observes that, given the nature of the offence the applicant
was charged with, the length of time he spent in detention was not
unreasonable. Furthermore, the applicant did not submit any document
or argument demonstrating that the length of his detention on remand
was attributable to a lack of special diligence on the part of the
authorities (see Kılıçöz v. Turkey
(dec.), no. 26662/05, 14 September 2010). It follows that this
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
B. As regards the remaining applicants
- 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.
- As
regards merits, 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 the 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.
- The
Court notes that, after excluding the period when the applicants were
detained after conviction under Article 5 § 1 (a) of the
Convention from the total time that they have been held in pre-trial
detention, the period to be taken into consideration is over eight
years and three months in application no. 34759/04; over thirteen
years and four months in application no. 28588/05; and over four
years and four months in application no. 1016/06 (Solmaz v.
Turkey, cited above, §§ 36-37).
- 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, Gökçe and
Demirel v. Turkey, no. 51839/99, § 44, 22 June 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, the Court finds that in
the instant case the length of the applicants' pre-trial detention
was excessive.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. As to the complaint concerning the length of the
criminal proceedings
- The
applicants complained that the length of criminal proceedings against
them had been incompatible with the reasonable time requirement, laid
down in Article 6 § 1 of the Convention.
- 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.
- As
regards the merits, the Government submitted that the length of the
proceedings could not be considered to be unreasonable in view of the
complexity of the case, the number of the accused and the nature of
the offence with which the applicants were charged.
- The
Court notes that the shortest duration of the criminal proceedings in
the present case is over seven years and three months (see appended
table).
- Having
examined all the material submitted to it, the Court considers that
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement (see Daneshpayeh v.
Turkey, no. 21086/04, § 28, 16 July 2009). There has
accordingly been a breach of Article 6 § 1 of the Convention in
respect of all the applicants.
B. As to the compliant concerning the absence of legal
assistance during police custody
- The
applicant in application no. 1016/06 complained that he had been
denied legal assistance during his detention in police custody.
- 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.
- The
Government argued that the absence of legal assistance at the initial
stages of the criminal proceedings did not affect the applicant's
defence rights considering that he benefited from legal assistance at
the subsequent stages of the trial.
- The
Court observes that it has already examined the same grievance in the
case of Salduz v. Turkey and found a violation
of Article 6 § 3 (c) of the Convention in conjunction with
Article 6 § 1 ([GC], no. 36391/02, §§ 56-62,
27 November 2008).
- The Court has examined the present case and finds no
particular circumstances which would require it to depart from its
findings in the aforementioned Salduz judgment. There
has therefore been a violation of Article 6 § 3 (c)
of the Convention in conjunction with Article 6 § 1 in respect
of the applicant in application no. 1016/06.
C. As to the remaining complaints under Article 6 of
the Convention
- The
applicant in application no. 34759/04 complained under Article 6 of
the Convention that he had not been tried by an independent and
impartial tribunal on account of his trial before the State Security
Court until its abolition. The applicant in application no. 1016/06
claimed that he had been denied a fair trial on account of his
conviction based on his statements given to the police under duress.
Lastly, the applicant in application no. 19280/06 complained under
the same Article that he was denied a fair trial as the national
courts failed to assess the domestic law and the evidence in the case
file properly.
- In
the light of all the material in its possession, the Court finds that
the above submissions by the applicants do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that these complaints must be
declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
IV. 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 in application no. 28588/05 claimed 50,000 euros (EUR) in
respect of non-pecuniary damage.
- The
applicant in application no. 1016/06 claimed 100,000 Turkish Liras
(TRY) (approximately EUR 50,588) in respect of non-pecuniary damage
and TRY 16,500 (approximately EUR 8,347) for pecuniary damage.
- The
applicant in application no. 19280/06 claimed TRY 120,000
(approximately EUR 61,000) each for pecuniary and non-pecuniary
damage.
- The
Government contested these claims.
- 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:
(i) EUR
20,900 to the applicant in application no. 28588/05;
(ii) EUR
6,900 to the applicant in application no. 1016/06; and
(iii) EUR
3,600 to the applicant in application no. 19280/06.
- The
applicant in application no. 34759/04 did not claim any pecuniary or
non-pecuniary damage. Accordingly, no award is made under this head.
- The Court further considers that the most appropriate
form of redress would be the re-trial of the applicant in application
no. 1016/06 in accordance with the requirements of Article 6 § 1
of the Convention, should he so request (see Salduz, cited
above, § 72).
- Furthermore,
according to the information submitted by the parties, the criminal
proceedings against the applicants in applications nos. 34759/04
and 28588/05 are still pending. In these circumstances, the Court
considers that an appropriate means for putting an end to the
violations which it has found it 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).
B. Costs and expenses
- The
applicant in application no. 28588/05 claimed EUR 3,300 for lawyer's
fee and EUR 1,000 for costs and expenses. In support of her claims
she submitted a time-sheet and a table for costs and expenses.
- The
applicant in application no. 1016/06 claimed TRY 12,750
(approximately EUR 6,460) for legal fees and TRY 22,425
(approximately EUR 11,360) for costs and expenses before the
domestic courts. In support of his claims he submitted a receipt for
the legal fee incurred and the İstanbul Bar Association's scale
of fees.
- The
applicant in application no. 19280/06 claimed TRY 56,000
(approximately EUR 28,327) for costs and expenses. In support of his
claim he submitted a legal fee agreement.
- The
Government contested these claims.
- 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. Regard being had to the documents in its
possession and the above criteria the Court finds it reasonable to
award EUR 500 each to the applicants in applications nos. 28588/05,
1016/06 and 19280/06. These amounts cover costs under all heads.
- The
applicant in application no. 34759/04 did not claim any costs and
expenses. Accordingly, no award is made 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
- Decides to join the applications;
- Declares the complaints concerning the length of
the criminal proceedings in respect of all the applicants, the length
of pre-trial detention brought by the applicants in applications nos.
34759/04, 28588/05 and 1016/06, and the lack of legal assistance
during police custody brought by the applicant in application
no. 1016/06 admissible and the remainder of the applications
inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention in respect of the applicants in
applications nos. 34759/04, 28588/05 and 1016/06;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings against all applicants;
- Holds that there has been a violation of Article
6 § 3 (c) of the Convention in conjunction with Article 6 §
1 of the Convention on account of the lack of legal assistance while
in police custody in respect of the applicant in application
no. 1016/06;
- Holds
(a) that
the respondent State is to pay the applicants mentioned below, 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
Ms Nursel Demirdöğücü, EUR 20,900 (twenty
thousand nine hundred euros) for non-pecuniary damage and EUR 500
(five hundred euros) for costs and expenses;
(ii) to
Mr Hakkı Alçin, EUR 6,900 (six thousand nine hundred
euros) for non-pecuniary damage and EUR 500 (five hundred euros) for
costs and expenses;
(iii) to
Mr Metin Durmaz, EUR 3,600 (three thousand six hundred euros) for
non-pecuniary damage and EUR 500 (five hundred 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
APPENDIX
-
|
Application
No.
|
Date of arrest
|
Date of the
order for the pre-trial detention
|
Date of the bill
of indictment
|
Date of the
judgments of the first instance court
|
Date of the
decisions of the Court of Cassation
|
Date of the
release of the applicant where applicable
|
Total period of
pre-trial detention (on the basis of the information in the case
file)
|
Grounds for
continued detention (on the basis of the information in the case
file)
|
|
1-
34759/04
introduced on 11/06/2004 by Feti Ateş
represented by
Kamil Tekin Sürek
|
21/08/1996
|
03/09/1996
|
06/12/1996
|
1.
İstanbul State Security Court-20/05/2002 (E:1996/354,
K:2002/105)
2. İstanbul
Assize Court-21/10/2009 (E: 2003/315, K: 2009/260)
|
1.
30/09/2003 (E: 2003/1241, K: 2003/1597)
(set
aside)
2. Pending
|
31/03/2006
|
8
years and 3 months (pre-trial detention)
14 months and 2
months (proceedings)
|
- the nature of the offence
-
the state of the evidence
- overall period of the pre-trial
detention
|
|
2- 28588/05
introduced on 23/07/2005 by Nursel
Demirdöğücü represented
by Taylan Talay
|
29/09/1992
|
12/10/1992
|
08/01/1993
|
1.
İstanbul Assize Court -02/05/2005 (E:1993/114, K:2005/64)
2. Pending before
the İstanbul Assize Court (E: 2006/221)
|
11/07/2006
(E:2006/1537,
K: 2006/4178)
(set aside)
|
02/05/2007
|
13
years and 4 months (pre-trial detention)
18 years and a
month (proceedings)
|
- the nature of the offence
-
the state of the evidence
- overall period of the pre-trial
detention- danger of flight
- the stage of the trial
-
strong suspicion of having committed the offence charged
-
the scope and particularity of the trial
|
|
Application
No.
|
Date of arrest
|
Date of the
order for the pre-trial detention
|
Date of the bill
of indictment
|
Date of the
judgments of the first instance court
|
Date of the
decisions of the Court of Cassation
|
Date of the
release of the applicant where applicable
|
Total period of
pre-trial detention (on the basis of the information in the case
file)
|
Grounds for
continued detention (on the basis of the information in the case
file)
|
|
|
3- 1016/06
introduced on 13/12/2005 by
Hakkı Alçin represented
by Ercan Kanar
|
07/02/2001
|
13/02/2001
|
19/02/2001
|
İstanbul
Assize Court
22/06/2007
(E:2001/82,K:2007/329)
|
05/11/2008
(E:
2008/8457,K: 2008/11807)
(upheld)
|
15/06/2005
|
4
years and 4 months (pre-trial detention)
7 years and 8
months (proceedings)
|
- the nature of the offence
-
the state of the evidence
- overall period of the pre-trial
detention
- danger of flight
- the severity of the
offence charged
|
|
|
4- 19280/06
introduced on 10/04/2006 by Metin Durmaz
represented by Ahmet Arısoy
|
26/10/2002
|
26/10/2002
|
18/11/2002
|
1.
Aksaray Assize Court
11/03/2004
(E:
2002/293, K: 2004/75)
2. Aksaray Assize Court
20/04/2006
(E:2006/35,
K: 2006/170)
3. Aksaray Assize Court
02/12/2008
(E:2007/241, K: 2008/333)
|
1.
23/11/2005 (E:2005/821, K: 2005/3532) (set aside)
2.
21/11/2007
(E:2007/1977,
K: 2007/8604)
(set
aside)
3.
03/02/2010
(upheld)
|
24/01/2008
|
1
year and 11 months (pre-trial detention)
7 years and 3
months (proceedings)
|
- the content of the case file
-
the state of the evidence
- overall period of the pre-trial
detention
|
|
