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Cite as: [2007] ECHR 298

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THIRD SECTION

CASE OF TURĞAY v. TURKEY

(Application no. 21085/02)

JUDGMENT

STRASBOURG

12 April 2007

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 Turğay v. Turkey,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

Having deliberated in private on 22 March 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 21085/02) 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 Abdulkadir Turğay (“the applicant”), on 19 May 2002.

The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 22 June 2006 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the non-communication of the written opinion of the principal public prosecutor at the Court of Cassation. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1959 and lives in Adana.

Criminal proceedings were brought against the applicant by the public prosecutor at the Adana State Security Court under Article 168 § 2 of the Criminal Code. The applicant was accused of membership of an illegal organisation.

In the course of the criminal proceedings the applicant was remanded in custody. On 20 March 2001 Adana State Security Court convicted the applicant as charged and sentenced him to twelve years and six months' imprisonment. The applicant appealed.

On 28 August 2001 the principal public prosecutor at the Court of Cassation submitted his written opinion to the latter. This opinion was not communicated to the applicant.

On 20 November 2001 the Court of Cassation upheld the judgment of the first-instance court.

In March 2006 the applicant was released from prison following the reduction of his sentence in accordance with the provisions of the new Criminal Code.

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 VIOLATION OF ARTICLE 6 OF THE CONVENTION

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 Court considers that this complaint should be examined from the standpoint of Article 6 § 1, which in so far as relevant provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A. Admissibility

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.

B. Merits

The Government maintained, in particular, that the written opinion of the principal public prosecutor is a short document in which it is briefly stated whether the judgment of the first instance court should be upheld or quashed.

The applicants maintained their allegations.

The Court notes that it has already examined the same grievance in the past and has found a violation of Article 6 § 1 of the Convention (see, in particular, Göç, cited above, § 58; Abdullah Aydın v. Turkey (no. 2), no. 63739/00, § 30, 10 November 2005; and Ayçoban and Others v. Turkey, nos. 42208/02, 43491/02 and 43495/02, 22 December 2005).

The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned cases.

There has accordingly been a violation of Article 6 § 1 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.”

Damage, costs and expenses

The applicant claimed reimbursement of the damages he had sustained as a result of his remand in custody. In this respect he submitted a comprehensive list. The applicant did not seek reimbursement of any costs and expenses in connection with the proceedings before the Court.

The Government contested his claim.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

The Court further considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see, mutatis mutandis, Parsil v. Turkey, no. 39465/98, § 38, 26 April 2005; and Ayçoban and Others, cited above, § 32).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the remainder of the application admissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant;

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 12 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Boštjan M. Zupančič
Registrar President