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SECOND
SECTION
CASE OF AYHAN IŞIK v. TURKEY
(Application
no. 33102/04)
JUDGMENT
STRASBOURG
30 March
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 Ayhan Işık 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,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 9 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33102/04) 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 Ayhan Işık
(“the applicant”), on 15 July 2004.
- The
applicant was represented by Ms H. Çekiç, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
16 December 2008 the
Court declared the application partly inadmissible and decided to
communicate to the Government the complaints under Articles 6 and 13
of the Convention concerning the absence of legal assistance during
the applicant's detention in police custody, the non-communication of
the opinion of the Principal Public Prosecutor at the Court of
Cassation, the length of the proceedings and the lack of remedies in
that respect. It also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and lives in Tekirdağ.
- On
27 January 1999 the applicant was arrested and taken into custody in
Istanbul on suspicion of involvement in the activities of the
PKK (the Kurdistan Workers' Party, an illegal organisation). The
applicant had a forged identity card in his possession when arrested.
In his police statement, taken in the absence of a lawyer, the
applicant accepted the charges against him.
- On
3 February 1999 he was brought before the public prosecutor and
subsequently the investigating judge at the Istanbul
State Security Court, who ordered his pre-trial detention. In his
statements before the public prosecutor and the judge, taken in the
absence of a lawyer, the applicant denied that he had been involved
in the activities of an illegal organisation.
- On
11 February 1999 the public prosecutor at the Istanbul
State Security Court filed a bill of indictment against the applicant
and nine other persons. The applicant was charged with membership of
an illegal organisation under Article 168 § 2 of the former
Criminal Code.
- On
18 June 1999 the Constitution was amended and the military judges
sitting on the bench of State Security Courts were replaced by
civilian judges.
- On
21 December 2000 Law no. 4616 on Conditional Release, Deferral of
Procedure and Punishments was promulgated. On 18 July 2001 the
Constitutional Court annulled Section 1 § 4 of this Law.
- Of
the twenty hearings held between 30 April 1999 and 14 May 2003, six
were adjourned at the applicant's request or at the request of other
accused. Two hearings were adjourned at the public prosecutor's
request. Seven witnesses were heard in the course of the proceedings.
- Between
15 May 2002 and 24 July 2002, the court awaited the enactment of a
new provision to replace the annulled Section 1 § 4 of Law no.
4616.
- On
14 May 2003 the Istanbul State Security
Court convicted the applicant as charged and sentenced him to twelve
years and six months' imprisonment.
- On
31 October 2003 the written opinion of the Principal Public
Prosecutor submitted to the Court of Cassation was communicated to
the applicant.
- On
9 December 2003 the Court of Cassation upheld the judgment of the
first-instance court.
- On
28 April 2004 the applicant was served with the committal order
(müddetname) concerning
the execution of his sentence.
- By Law no. 5190 of 16 June 2004, published in the
Official Gazette on 30 June 2004, State Security Courts
were abolished. The case against the applicant
and his co-accused was transferred to the Istanbul Assize Court.
- On
21 October 2004 the applicant was released.
- On
1 June 2005 the new Criminal Code (Law no. 5237) entered into force.
- On
14 June 2005 the Istanbul Assize Court
reviewed the applicant's conviction in the light of the provisions of
the new Criminal Code and decided to reduce his sentence of
imprisonment to six years and three months.
- On
14 August 2005 the judgment became final as no appeal was made.
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, § 34, ECHR 2002 V).
- On
2 January 2003 Article 316 of the Code of Criminal Procedure Law was
amended to provide that the written opinion of the principal public
prosecutor at the Court of Cassation be notified to the parties.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE
CONVENTION
A. As to the complaint concerning the length of the
proceedings
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention that the length of the proceedings had been incompatible
with the “reasonable time” requirement and that there had
been no effective remedy remedies in domestic law in respect of his
Convention grievances.
- The
Government argued that the applicant had failed to exhaust domestic
remedies as he had not raised the substance of his complaints before
the national authorities.
- The
Court does not find it necessary to determine whether or not the
applicant complied with the requirements under Article 35 of the
Convention as his complaints under Articles 6 § 1 and 13 are, in
any event, manifestly ill-founded for the reasons stated below.
- The
Court observes that the period to be taken into consideration
began on 27 January 1999 with the applicant's arrest and
ended on 9 December 2003 when the Court
of Cassation upheld the judgment of the Istanbul State Security
Court. The period under consideration thus lasted some four years and
ten months before two levels of jurisdiction.
27. The
Court considers that the case had a certain degree of complexity
since it involved the prosecution of ten persons for charges
regarding their activities on behalf of an illegal organisation. As
regards the applicant's conduct, the Court observes that it does not
appear that he contributed to the prolongation of the proceedings. In
so far as the conduct of the judicial authorities is concerned, the
Court notes that the case was examined by two levels of jurisdiction.
Twenty hearings were held and seven witnesses were
heard in the course of the proceedings. The Court notes that, between
15 May 2002 and 24 July 2002, the court awaited the enactment of a
new provision to replace the annulled Section 1 § 4 of the Law
no. 4616. The Court considers that such delays in the conduct of the
hearing could have been minimised. However, the Court recalls that
limited delays at some stage may be tolerated if the overall duration
of the proceedings cannot be deemed excessive (see, Çaplık
v. Turkey, no. 57019/00, § 38, 15 July 2005; Özsoy
v. Turkey, no. 58397/00, § 33, 2 February 2006; Aydoğan
and Others v. Turkey, no. 41967/02, §
29, 2 December 2008; Karabulut v. Turkey, no. 56015/00, §
45, 24 January 2008; Fehmi Koç v. Turkey, no.
71354/01, § 32, 27 March 2007).
- The foregoing considerations lead the Court to
conclude that the total duration of the proceedings of four years and
ten months was not incompatible with the reasonable time requirement
of Article 6 § 1 of the Convention. It follows that
this part of the application must be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of
the Convention.
- In view of its conclusion above, the Court considers
that the applicant has no arguable claim of a violation of his
right under Article 6 § 1 of the Convention which
would have required a remedy within the meaning of Article 13 of
the Convention. Consequently, this part of the application should
also be declared inadmissible as being manifestly ill-founded
pursuant to Article 35 §§ 3 and 4 of the Convention.
B. As to the complaint concerning the lack of legal
assistance
- The
applicant complained that he had been denied legal assistance during
his detention in police custody, as well as before the public
prosecutor, and the judge who had subsequently questioned him.
- 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). In that judgment, the Court held that the restriction
imposed on the right of access to a lawyer was systematic and applied
to anyone held in police custody at the material time, regardless of
his or her age, in connection with an offence falling within the
jurisdiction of the State Security Courts.
- 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 the present
case.
C. As to the complaint concerning the non-communication
of the written opinion of the Principal Public Prosecutor at the
Court of Cassation to the applicant
- The
applicant complained that the written opinion of the Principal Public
Prosecutor at the Court of Cassation was never served on him, thus
depriving him of the opportunity to put forward his
counter-arguments. The applicant relied on Article 6 §§ 1
and 3 (b) of the Convention.
- The
Government maintained that the applicant could not be considered to
be a victim of such a violation since the written opinion of the
Principal Public Prosecutor was indeed served on the applicant on 31
October 2003. In support of this argument, the Government submitted
the notification document addressed to the applicant.
- Having
regard to the document demonstrating the notification of the written
opinion of the chief public prosecutor to the applicant on 31 October
2003, the Court finds that the applicant has failed to substantiate
his allegation that he was deprived of the opportunity to put forward
his counter-arguments. It follows that this complaint is
manifestly ill-founded and must be rejected 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 10,000 euros (EUR) in respect of pecuniary damage
and EUR 10,000 in respect of 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 this claim.
However, deciding on an equitable basis, it awards the applicant EUR
1,800 in respect of non pecuniary damage.
- The Court further considers that the most appropriate
form of redress would be the re-trial of the applicant in accordance
with the requirements of Article 6 § 1 of the Convention, should
he so request (see, Salduz, cited above, § 72).
B. Costs and expenses
- The
applicant also claimed EUR 500 for the costs and expenses incurred
before the Court. He also claimed EUR 6,000 in respect of lawyer's
fee.
- 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. In the present case, the Court observes
that the applicant did not produce any document in support of his
claims. Accordingly, the Court makes no award under this head (see
Karataş and Yıldız and Others v. Turkey, nos.
4889/05, 4897/05, 24009/05, 33694/05, 37759/05, 42996/06,
43031/06, 43019/06, 43038/06 and 43054/06, §
30, 16 July 2009).
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 lack of
legal assistance at the initial stages of the criminal proceedings
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 3 (c) of the Convention in conjunction with Article 6 §
1;
- 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 1,800 (one
thousand eight hundred euros) plus any tax that may be chargeable in
respect of non-pecuniary damage, to be converted into national
currency of the respondent State 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 30 March 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
