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SECOND
SECTION
CASE OF ASLANTÜRK v. TURKEY
(Application
no. 3884/04)
JUDGMENT
STRASBOURG
19
January 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 Aslantürk 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 Sally
Dollé, Section
Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 3884/04) 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 Ejder
Aslantürk (“the applicant”), on 3 September 2003.
- The
applicant was represented by Mr B. Mungan and Ms A. Aslantürk,
two lawyers practising in Ankara? and Ms G. Doyduk, a lawyer
practising in Strasbourg. The Turkish Government (“the
Government”) were represented by their Agent.
- On
16 September 2008 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Ankara.
- On
11 August 1994 the applicant, a building contractor, was charged by
the Ardahan public prosecutor with forgery of official documents for
his personal financial benefit to the detriment of the administrative
authorities.
- On
18 October 1994 the Ardahan Assize Court held the first hearing on
the merits of the case (case no. 1994/47).
- During
the second hearing held on 29 November 1994, the Ardahan Assize Court
decided to await the outcome of certain administrative proceedings
against a civil engineer working at the Kars governor's office.
- On
21 May 1998 criminal proceedings brought against
the aforementioned civil engineer were joined to the case against the
applicant.
- On
2 March 1999 the first-instance court was notified of the outcome of
the administrative proceedings against the civil engineer.
- On
13 February 2001 the Ardahan Assize Court convicted the applicant as
charged.
- On
15 November 2002 the Court of Cassation upheld the judgment of the
first-instance court.
- On
9 January 2003 the Principal Public Prosecutor at the Court of
Cassation objected to the decision of the Court of Cassation,
arguing, inter alia,
that the first-instance court had failed to conduct a graphological
examination of the allegedly forged documents.
- On
1 April 2003 the Plenary Court of Cassation (Criminal
Divisions) (Yargıtay Ceza Genel Kurulu) dismissed the
Principal Public Prosecutor's objection regarding the graphological
examination, holding that such an examination was not justified by
the facts of the case, and upheld the judgment of 13 February 2001
with one minor technical amendment (düzelterek onama).
- On
23 June 2003 the decision of the Plenary
Court of Cassation (Criminal Divisions) was deposited with the
registry of the first-instance court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 7 OF
THE CONVENTION
- The
applicant complained under Article 7 of the Convention that he had
been wrongly convicted of the forgery of documents which did not bear
his signature and which were not drafted under his responsibility.
- The
Government submitted that this part of the application was manifestly
ill-founded.
- The
Court considers that this complaint should be examined from the
standpoint of Article 6 § 1 of the Convention (see
Volkan Şahin v. Turkey, (dec.), no. 34400/02, 6
May 2004). In this connection, the Court reiterates that it is not
competent to examine the outcome of the proceedings unless there is
arbitrariness. In the present case, the Court finds no basis on which
to conclude that the domestic courts, when establishing the facts and
interpreting the law, acted in an arbitrary or unreasonable manner
(see Şahin, cited above).
- 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.
II. ALLEGED VIOLATION OF ARTICLE 6 §
1 OF THE CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention
- 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 has already examined and rejected, in previous cases, similar
objections to those of the Government as regards the alleged failure
to exhaust domestic remedies (see, for example, Karakullukçu
v. Turkey, no. 49275/99, §§ 27-28, 22
November 2005). The Court finds no particular circumstances in the
instant case which would require it to depart from its findings in
the above-mentioned application. It therefore rejects the
Government's objection, and finds that this part of the application
is admissible.
- As
regards the merits of the applicant's complaint, the Court observes
that the period to be taken into consideration began on 11 August
1994 when the public prosecutor issued an indictment charging the
applicant and ended on 1 April 2003 when the
Plenary Court of Cassation (Criminal Divisions) upheld the
judgment of Ardahan Assize Court. The period under consideration thus
lasted eight years and seven months before two levels of
jurisdiction.
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case (see
Sertkaya v. Turkey,
no. 77113/01, § 21, 22 June 2006, and Hasan
Döner v. Turkey,
no. 53546/99, § 54, 20 November 2007). It
finds no reason to depart from such a conclusion in the present case.
Consequently, there has been a breach of Article 6 § 1 of the
Convention owing to the excessive length of the criminal proceedings
against the applicant.
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
- In
respect of pecuniary damage, the applicant claimed 50,000 Turkish
liras (TRY)
for each year that he could not work as a building contractor after
his conviction. He further claimed TRY 1,300
for each month that he could not undertake his professional duties as
a construction engineer after his conviction.
- The
applicant claimed TRY 50,000
in respect of non-pecuniary damage.
- The
Government contested these claims.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court observes that the applicant did not produce any document in
support of his claim, which the Court accordingly dismisses.
- However,
it accepts that the applicant must have suffered some non pecuniary
damage which cannot be sufficiently compensated by the finding of a
violation alone. Consequently, taking into account the circumstances
of the case and having regard to its case-law, the Court awards the
applicant EUR 4,200.
B. Costs and expenses
- The
applicant also claimed TRY 34,000
for the costs and expenses incurred before the domestic courts and
TRY 15,950
for those incurred before the Court.
- 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 excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- 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 4,200 (four thousand
two hundred euros) plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Turkish liras at the rate
applicable on 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 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
