BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF YEŞİLYURT v. TURKEY
(Application
no. 15649/05)
JUDGMENT
STRASBOURG
23
February 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 Yeşilyurt 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,
Nona
Tsotsoria,
Işıl
Karakaş, judges,
and
Sally
Dollé,
Section Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15649/05) 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 a Turkish national, Ms Bahar Yeşilyurt
(“the applicant”), on 27 April 2005.
- The
applicant was represented by Mr M.S. Talay, a lawyer practising in
Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
- On
10 September 2008 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
- The
applicant was born in 1978 and lives in Batman.
- On
12 October 1995 the applicant was taken into custody by police
officers from the anti-terror branch of the Istanbul Security
Directorate on suspicion of membership of an illegal organisation. On
25 October 1995 she was brought before the investigating judge at the
Istanbul State Security Court, who ordered her detention on remand.
- On
29 November 1995 the Istanbul State Security Court Public Prosecutor
declared a lack of jurisdiction and transferred the case file to the
Diyarbakır State Security Court.
- On
29 December 1995 the Public Prosecutor at the Diyarbakır State
Security Court filed an indictment with that court accusing her,
inter alia, of membership of an illegal armed organisation and
of involvement in activities that undermined the constitutional order
of the State. The prosecution requested that the applicant be
sentenced pursuant to Article 125 of the Criminal Code.
- The
trial commenced before the Diyarbakır State Security Court. In
the subsequent hearings, the court refused to release the applicant
on account of the nature of the alleged offence and the state of
evidence.
- On
12 June 2001 the applicant submitted a petition to the Diyarbakır
State Security Court, alleging that she had been ill-treated during
police custody.
- The
case against the applicant continued before the Diyarbakır State
Security Court until 7 May 2004 when, following a constitutional
amendment, State Security Courts were abolished. Thereafter, the
applicant's case was transferred to the Diyarbakır Assize Court.
- On
3 November 2004 the applicant was released pending trial.
- On
26 January 2005 the Diyarbakır Assize Court declared its lack of
jurisdiction and transferred the applicant's case to the Diyarbakır
Juvenile Court, holding that the applicant had been a minor at the
time of the events.
- On
an unspecified date, the Diyarbakır Juvenile Court also declared
its non-jurisdiction and the case file was then transferred to the
Batman Assize Court.
- 9
May 2005 the Batman Assize Court declared a lack of jurisdiction and
transmitted the case file to the Court of Cassation to resolve the
jurisdictional conflict.
- On
17 October 2006 the Court of Cassation decided that the case should
be heard by the Batman Assize Court.
- On
4 December 2007 the Batman Assize Court acquitted the applicant of
the charges against her.
- Subsequently,
the applicant applied to the Midyat Assize Court seeking compensation
for both non-pecuniary and pecuniary damage pursuant to Law no. 466
pertaining to the payment of compensation to persons unjustifiably
arrested or detained. On 24 April 2008 the Midyat Assize Court
awarded the applicant 11,881 Turkish
liras (TRY) in respect of pecuniary damage and TRY 10,000
in respect of non-pecuniary damage. According to the information
submitted by the applicant, the proceedings are still pending before
the Court of Cassation, following her appeal, and she has not yet
received the due amount.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government submitted that as, following her acquittal, the applicant
had been awarded pecuniary and non-pecuniary compensation by the
national courts pursuant to Law no. 466, she can no longer claim to
be a victim of the alleged violation under Article 5 § 3 of the
Convention. The Government further asked the Court to reject the
complaint raised under Article 6 § 1 of the Convention for
failure to comply with the rules of exhaustion of domestic remedies
and the six-month time-limit under Article 35 § 1 of the
Convention. In this respect, they submitted that the criminal
proceedings against the applicant had still been pending when the
application was lodged with the Court.
- The
Court observes that, in awarding compensation under the terms of Law
no. 466, the national court based its assessment solely on the fact
that there had been an acquittal. The national court's assessment was
an automatic consequence of the acquittal and did not amount to the
establishment of any violation of paragraphs 1 to 4 of Article 5 of
the Convention (see Elğay v. Turkey, no. 18992/03, §§
28-34, 20 January 2009, and Sinan Tanrıkulu and Others v.
Turkey, no. 50086/99, § 50, 3 May 2007). As a result,
although the applicant will receive compensation from the
authorities, she can still claim to be a victim of a breach of
Article 5 § 3 of the Convention.
- As
for the remaining objections of the Government, the Court recalls
that, according to its well established case-law, complaints
concerning length of proceedings can be lodged with it before the
termination of the domestic proceedings (see Mustafa
Türkoğlu v. Turkey, no. 58922/00, § 30,
8 August 2006). Accordingly, the Government's objections must be
dismissed.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- Relying
on Article 5 § 3 of the Convention, the applicant complained
about the length of her pre-trial detention.
- The
Court observes that the applicant's pre-trial detention began on
12 October 1995 with her arrest and lasted until 3 November 2004
when she was released pending trial. The period to be taken into
consideration in the instant case is therefore nine years. During
this time, the domestic courts constantly extended the applicant's
detention using identical, stereotyped terms, such as “having
regard to the nature of the offence and the state of the 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 v. Turkey, no.
27561/02, ECHR 2007 II (extracts); Dereci v. Turkey,
no. 77845/01, 24 May 2005; and 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. In the light of the
foregoing, the Court finds that the length of the applicant's
pre-trial detention contravened Article 5 § 3 of the
Convention. There has accordingly been a violation of this provision.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant maintained that the length of the criminal proceedings had
been incompatible with the “reasonable time” requirement
of Article 6 § 1 of the Convention.
- The Court observes that the
period to be taken into consideration began on 12 October 1995 with
the applicants' arrest and ended on 4 December 2007 with her
acquittal by the Batman Assize Court. It therefore lasted twelve
years and one month for one level of jurisdiction. 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
application (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.
The Court therefore considers 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.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Invoking
Articles 3 and 13 of the Convention, the applicant alleged that she
had been ill-treated during her police custody. Under Article 6 of
the Convention, she further challenged the independence and
impartiality of the Diyarbakır State Security Court and
complained that she had not been provided with an interpreter during
her police custody.
- However,
an examination by the Court of the material
submitted to it does not disclose any appearance of a violation of
these provisions. It follows that this part of the application is
manifestly ill-founded and must be declared inadmissible pursuant to
Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed TRY 75,329 (approximately EUR 33,651) in respect of
pecuniary damage and TRY 75,000 (approximately EUR 33,505) in respect
of non-pecuniary damage. She did not submit any claim for costs and
expenses. The Government contested the claims.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
However, in respect of non-pecuniary damage, ruling on an equitable
basis, it awards her EUR 13,000.
- The
Court further finds 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 complaints concerning the length of
the pre-trial detention and the length of the criminal proceedings
admissible and the remainder of the application inadmissible;
- 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;
- 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 13,000 (thirteen
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into 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 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
