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SECOND
SECTION
CASE OF KALAYLI v. TURKEY
(Application
no. 43654/05)
JUDGMENT
STRASBOURG
11 October
2011
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 Kalaylı v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
Giorgio
Malinverni,
Işıl Karakaş,
Paulo
Pinto de Albuquerque, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43654/05) 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, Mr Tevfik Kalaylı
(“the applicant”), on 17 November 2005.
- The
applicant was represented by Mr C. Koç, a lawyer practising in
Izmir. The Turkish Government (“the Government”) were
represented by their Agent.
- On
12 June 2009 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Izmir.
- On
12 December 2003 the Izmir Magistrates’ Court issued an arrest
warrant for the applicant on suspicion of assault and attempted
murder.
- On
18 December 2003 the Izmir Public Prosecutor filed a bill of
indictment charging the applicant with the offences of assault and
attempted murder.
- On
6 October 2004 the applicant was arrested.
- On
9 October 2004 the Antalya Magistrates’ Court ordered the
applicant’s detention on remand.
- On
1 December 2005 the Izmir Assize Court sentenced the applicant to six
years and two months’ imprisonment.
-
On 21 February 2007 the Izmir Assize Court ordered the applicant’s
release pending trial, having considered the time spent under
detention on remand.
-
On 6 June 2007 the Court of Cassation upheld the judgment of
1 December 2005.
-
Between 12 October 2004 and 1 December 2005, the Izmir Assize Court
examined the applicant’s continued detention at the end of
every hearing, either of its own motion or upon the applicant’s
requests. On each occasion, the court ordered the applicant’s
continued detention, having regard to the state of the evidence,
nature of the offence, content of the file and the incomplete
collection of evidence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
13. A description of the relevant
domestic law and practice prior to the entry into force of the new
Code of Criminal Procedure (CCP) (Law no. 5271) 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 Law no. 5271 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. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Article 5 §§ 1 (c) and 3 of the
Convention that the length of his pre-trial detention had been
excessive. The applicant contended under Article 6 § 2 that his
right to be presumed innocent had been violated because he had been
detained on remand for an excessive length of time.
- He
further complained under Article 5 § 4 of the Convention that
his pre-trial detention had been unlawful. The applicant maintained
under Articles 6 § 1 and 13 of the Convention that the
first-instance courts used stereotyped wording while giving reasons
for the continuation of his pre trial detention.
-
The Court considers it appropriate to examine these complaints from
the standpoint of Article 5 §§ 3 and 4.
A. Article 5 § 3 of the Convention
- The
Government maintained that the applicant’s detention was based
on the existence of reasonable grounds of suspicion of him having
committed an offence, and that his detention had been reviewed
periodically by the competent authority, with special diligence, in
accordance with the requirements laid down by the applicable law.
-
The applicant contested these arguments.
-
The Court notes that the applicant’s pre-trial detention lasted
from 6 October 2004 to 1 December 2005, that is, approximately
one year and two months.
-
The Court observes that, given the nature of the offence the
applicant was charged with and the short period of pre-trial
detention, 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. Article 5 § 4 of the Convention
- The
Government submitted that the applicant had in fact the possibility
of challenging his pre-trial detention by lodging objections pursuant
to Article 297 and following articles of the former CCP or under
Article 104 (2) of the CCP.
- The
applicant maintained his allegations.
- 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 had 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;
Elğay v. Turkey, no. 18992/03, § 18-23, 20 January
2009; and Yiğitdoğan v. Turkey, no. 20827/08,
§§ 28-31, 16 March 2010).
- 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.
- In
the light of the foregoing the Court concludes that there has been a
breach of Article 5 § 4 of the Convention.
II. 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 6,000 euros (EUR) in respect of pecuniary damage
and EUR 10,000 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, it awards the applicant EUR 900 in respect of non-pecuniary
damage.
B. Costs and expenses
- The applicant also claimed EUR 4,465.60 for legal fees
and EUR 68.80 for costs and expenses. In support of his claims
the applicant submitted the Izmir Bar’s scale of minimum fees.
- The
Government contested these claims.
- In
respect of costs and expenses, 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.
In the present case, the applicant has not substantiated his
contention that he actually incurred the costs claimed (Güngil
v. Turkey, no. 28388/03, § 33, 10 March 2009). Accordingly,
no award shall be 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
- Declares the complaint
concerning the lack of a remedy to challenge the lawfulness of the
applicant’s pre-trial detention admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
5 § 4 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 900 (nine hundred euros) in respect of
non pecuniary damage, to be converted into Turkish liras
at the rate applicable on the date of settlement and free of any
taxes or charges that may be payable;
(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 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
