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SOLMAZ v. TURKEY - 27561/02 [2007] ECHR 51 (16 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/51.html
Cite as:
[2007] ECHR 51
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SECOND
SECTION
CASE OF SOLMAZ v. TURKEY
(Application
no. 27561/02)
JUDGMENT
STRASBOURG
16
January 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 Solmaz v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr A.B. Baka, President,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E.
Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27561/02) 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 Sami Solmaz (“the
applicant”), on 17 June 2002.
The
applicant was represented by Ms F.G. Yolcu, Ms G. Altay and Mr H.
Karakuş, lawyers practising in Istanbul. The Turkish Government
(“the Government”) did not designate an Agent for the
purposes of the proceedings before the Court.
On
29 June 2005 the Court decided to communicate the application to the
Government. 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 1966 and lives in Ankara.
On
23 January 1994 the applicant was arrested and placed in police
custody by officers from the anti-terrorism branch of the Istanbul
Security Directorate on suspicion of being involved in the activities
of an illegal armed organisation, namely the TKP/ML (Türkiye
Komünist Partisi / Marksist Leninist, Turkish Communist
Party / Marxist Leninist).
On
7 February 1994 he was brought before the public prosecutor and then
the investigating judge at the Istanbul State Security Court. The
same day, the investigating judge ordered the applicant’s
detention on remand.
On
31 March 1994 the public prosecutor filed an indictment charging the
applicant and four others with membership of an illegal armed
organisation and involvement in activities which undermined the
constitutional order of the State.
At
the time of the events, a similar case concerning certain activities
of the TKP/ML was pending before the third chamber of the Istanbul
State Security Court. Following a jurisdictional conflict between the
two chambers, on 14 March 1995 the Court of Cassation decided to join
the applicant’s case to the one pending before the third
chamber. Consequently, the number of accused was increased to 16
people.
The
applicant did not attend a number of hearings.
In
the course of the proceedings, the court held 48 hearings. At the end
of each hearing the State Security Court rejected the applicant’s
requests for release pending trial, having regard to the nature of
the offence, the state of the evidence and the content of the case
file.
On
12 June 2000 the Istanbul State Security Court convicted the
applicant as charged and sentenced him to life imprisonment.
On
15 May 2001 the Court of Cassation quashed the decision for
procedural reasons. The case was remitted to the Istanbul State
Security Court for further examination and the applicant remained in
detention. The case was resumed with 15 accused, including the
applicant.
On
8 February 2002 the applicant’s lawyer requested the court to
release the applicant pending trial due to his poor health. He
submitted a medical report certifying that Mr Solmaz was suffering
from the Wernicke-Korsakoff syndrome. The court dismissed the
lawyer’s request, maintaining that the applicant could be
treated in the prison. Moreover, it held that, considering the nature
of the offence, the state of evidence and the content of the file,
the applicant should continue to be detained pending trial.
Following
the objection of the applicant’s lawyer, the court reconsidered
its decision of 8 February 2002. On 18 February 2002,
relying on a medical report and considering the length of the period
which the applicant had already spent in detention, the court ordered
his release pending trial. It further held that it was likely that
the final decision of the court would be in favour of the applicant.
State
Security Courts were abolished by constitutional amendments,
introduced on 7 May 2004. Subsequently, the applicant’s case
was resumed before the Istanbul Assize Court.
After
holding 17 hearings, on 31 January 2005 the Istanbul Assize
Court convicted the applicant and sentenced him to life imprisonment,
in accordance with Article 146 of the Criminal Code.
However,
on an unknown date the Court of Cassation quashed the decision of the
first instance court once again. The case was resumed before the
Istanbul Assize Court where it is still pending.
II. RELEVANT DOMESTIC LAW
Article
63 of the Criminal Code (Law no. 5237) provides as follows:
“ Any term, served due to circumstances which took
place before the finalisation of the judgment and resulted in the
restriction of personal liberty, shall be deducted from the sentence.
(...)”
THE LAW
I. ADMISSIBILITY
The
Court notes that the application 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.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that his detention on remand exceeded the
“reasonable time” requirement of Articles 5 § 3,
which reads in so far as relevant as follows:
Article 5 § 3
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be
conditioned by guarantees to appear for trial.”
The
Government maintained that the applicant’s detention was
reviewed at regular intervals. However, in view of the seriousness of
the charges against him and the evidence in the case file, the court
had to prolong his detention pending trial.
The
applicant argued that the length of his detention had been
unreasonable. He further contended that the domestic court’s
decisions ordering his continued detention did not justify its
excessive length.
A. Period to be taken into consideration
1. Recapitulation of the relevant case-law
The
Court recalls that the word “conviction”, for the
purposes of Article 5 § 1 (a), is to be understood as signifying
both a finding of guilt, after it has been established in accordance
with the law that an offence has been committed, and the imposition
of a penalty or other measure involving a deprivation of liberty (Van
Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A
no. 50, p. 19, § 35). The detention of a person convicted at
first instance, whether or not he or she was detained beforehand,
falls under Article 5 § 1 (a) which provides as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court; ...”
Thus,
if an applicant has been detained pending trial under Article 5 §
3, that form of custody would end on the day on which the charge is
determined, even if only by a court of first instance (Wemhoff v.
Germany judgment of 27 June 1968, Series A no. 7, p. 23 § 9).
The Court additionally observes that a person who had cause to
complain of the continued detention after conviction pending a
delayed appeal, may not be able to invoke Article 5 § 3 but
could possibly allege a breach of the “reasonable time”
requirement of Article 6 § 1 of the Convention (ibidem.).
This
general principle asserted in Wemhoff has been confirmed
in the B. v. Austria judgment (28 March 1990, Series
A no. 175, p. 23, § 9): Given the essential link between
paragraph 3 and sub-paragraph 1 (c) of Article 5, a person convicted
at first instance and detained pending appeal could not be considered
to be detained for the purpose of bringing him or her before the
competent legal authority on reasonable suspicion of having committed
an offence.
There
exist important differences among the Contracting States on the
question whether a person convicted at first instance has started
serving a prison sentence while an appeal is still pending. However,
the Court held in B. v Austria that the important guarantees
of Article 5 § 3 of the Convention are not dependent on national
legislation (ibid., § 39). Thus, even if the domestic law
of a Member State provides that a sentence only becomes final on
completion of all appeals, detention on remand comes to an end for
the purposes of the Convention with the finding of guilt and the
sentence imposed at first instance.
In
the Neumeister v. Austria case (judgment of 27 June 1968,
Series A no. 8; p. 37, § 6), the applicant’s
initial period of detention ended more than six months before the
date on which he lodged his application with the Commission.
Therefore the Court considered that it may not be able to examine
whether the first period was compatible with the Convention. However,
it went on to say that, in the event of an applicant being convicted,
the first period would normally be deducted from any term of
imprisonment imposed; it would thus reduce the actual length of
imprisonment which might be expected. The Court accordingly decided
that the first period should be taken into account in assessing the
reasonableness of the applicant’s later detention (ibid.).
In
doing so, it explained that it would be excessively formalistic to
require an applicant, complaining about the length of his or her
remand in custody within the same criminal proceedings, to file a new
application with the Convention organs after each pre-trial detention
period ends (Neumeister, p. 38, § 7). Moreover, it
observed that such a requirement would overburden the Convention
system with multiple applications lodged by the same applicant, with
the same complaint concerning different, yet consecutive detention
periods (ibid.).
It
can be construed from the above explanations that the Wemhoff
and Neumeister judgments (pronounced on the same day)
complement each other, as the former determines when the relevant
period under Article 5 § 3 ceases to apply, while the latter
advises on the application of the six-month rule under Article 35 §
1 of the Convention and the calculation of the total length of
pre-trial detention periods.
The
Court has followed the same approach in more recent judgments. It has
held that where an accused person is detained for two or more
separate periods pending trial, the “reasonable time”
guarantee of Article 5 § 3 requires a global assessment of the
accumulated periods (see Kemmache v. France (no. 1 and no. 2)
judgment of 27 November 1991, Series A no. 218, § 44; I.A. v.
France, judgment of 23 September 1998, Reports of Judgments
and Decisions 1998 VII, p. 2979, § 98; Vaccaro
v. Italy, no. 41852/98, 16 November 2000, §§ 31 33;
Mitev v. Bulgaria, no. 40063/98, 22 December 2004, §
102). In these cases, unlike the Neumeister judgment, no
reference was made to the application of six-month rule.
However,
until recently, the approach adopted in Turkish cases examined by the
Court under Article 5 § 3 has been slightly different from that
above: If an application was lodged more than six months after the
end of initial periods of detention on remand, the Court declared the
complaints regarding these periods inadmissible. Nevertheless, when
deciding on the reasonableness of the last period of detention on
remand, account was taken of the previous periods of detention to
which the applicant had already been subjected (see, among others,
Kalay v. Turkey, no. 16779/02, § 34, 22 September
2005; Gıyasettin Altun v. Turkey, no. 73038/01, § 28,
24 May 2005; Çiçekler v. Turkey, no. 14899/03,
§ 61, 22 December 2005; Bahattin Şahin
v. Turkey (dec.), no. 29874/96, ECHR 17 October 2000; Köse
v. Turkey (dec.), no. 50177/99, ECHR 2 May 2006).
31. Then
again, in the recent Baltacı v. Turkey judgment
(no. 495/02, §§ 44 46, 18 July 2006),
the Court reinstated the global approach by making an assessment of
the accumulated periods of detention, without mentioning the question
of the six-month rule.
From
the above recapitulation of its case-law, the Court concludes that
confusion has grown regarding the application of the six-month rule
in cases of the present kind. It recalls that this rule, in
reflecting the wish of the Contracting Parties to prevent past
decisions being called into question after an indefinite lapse of
time, serves the interests not only of the respondent Government but
also of legal certainty as a value in itself. It marks out the
temporal limits of supervision carried out by the organs of the
Convention and signals to both individuals and State authorities the
period beyond which such supervision is no longer possible. It is
therefore not open to the Court to set aside the application of the
six-month rule solely because a Government have not made a
preliminary objection based on it (see, Walker v. United
Kingdom (dec.), no. 34979/97, ECHR 2000-I).
In
the light of the above explanations, the Court wishes to clarify the
application of the six-month rule in cases of multiple detention
periods, within the meaning of Article 5 § 3 of the Convention,
through its examination of the present case.
2. The approach in the instant case
The
Court observes that, in the present case, the applicant’s
detention on remand began when he was arrested on 23 January 1994. He
was detained within the meaning of Article 5 § 3 of the
Convention until his conviction by the Istanbul State Security Court
on 12 June 2000. As from that date, until 15 May 2001, when the Court
of Cassation quashed the decision of the first instance court, he was
detained “after conviction by a competent court”, within
the meaning of Article 5 § 1 (a) and therefore that period of
his detention falls outside the scope of Article 5 § 3
(see B. v Austria, cited above, §§ 33 39;
Kudła v. Poland [GC], no. 30210/96, § 104, ECHR
2000-XI). From 15 May 2001 until his release pending trial
on 18 February 2002, the applicant was again in pre-trial
detention falling under Article 5 § 3 of the Convention.
The Court notes that, in the absence of domestic
remedies, the six-month time limit starts to run from the act of
which complaint is made. It nevertheless reaffirms and emphasises the
Neumeister considerations cited above (paragraph 27), in
particular the need to avoid excessive formalism and the imposition
of an excessive burden on not only the applicant but also the
Convention supervisory mechanism (Neumeister, cited above, p.
38, § 7). This is especially so in the circumstances of the
present case where the criminal proceedings were pending at the
appeal stage and the applicant continued to be deprived of his
liberty, albeit under Article 5 § 1 (a) of the Convention.
Consequently,
the Court considers that, in the instant case, the multiple,
consecutive detention periods of the applicant should be regarded as
a whole, and the six-month period should only start to run from the
end of the last period of pre-trial custody, i.e. 18 February
2002.
The
Court further notes that, according to Article 63 of the Criminal
Code, any period of imprisonment served before the finalisation of a
judgment depriving an individual of personal liberty shall be
deducted from the sentence (paragraph 18). In order to assess the
reasonableness of the length of the applicant’s pre-trial
detention, the Court should therefore make a global evaluation of the
accumulated periods of detention under Article 5 § 3 of the
Convention (see, mutatis mutandis, Neumeister, cited
above, p. 37, § 6). Consequently, the Court concludes that,
after deducting the periods when the applicant was detained after
conviction under Article 5 § 1 (a) of the Convention
from the total time that he was deprived of his liberty, the period
to be taken under consideration in the instant case is nearly six
years and eight months.
B. Reasonableness of the length of detention
1. Principles established under the Court’s
case-law
The
Court reiterates that the question of whether or not a period of
detention is reasonable cannot be assessed in the abstract. Whether
it is reasonable for an accused to remain in detention must be
assessed in each case according to its special features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the need to
respect individual liberty as guaranteed by Article 5 of the
Convention (see, among other authorities, Kudła v. Poland
[GC], cited above, §§ 110-111).
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end, they must
examine all the facts arguing for or against the existence of the
above-mentioned requirement of public interest justifying a departure
from the rule in Article 5, and must set them out in their decisions
on the applications for release. It is essentially on the basis of
the reasons given in these decisions and of the well-documented facts
stated by the applicant in his appeals that the Court is called upon
to decide whether or not there has been a violation of Article 5 §
3 (see, Labita v. Italy [GC], no. 26772/95, § 152, ECHR
2000-IV; Kudła, cited above, § 110).
The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. The Court must then establish whether the
other grounds given by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings. The complexity and special
characteristics of the investigation are factors to be considered in
this respect (see, for example, Scott v. Spain, judgment of 18
December 1996, Reports 1996-VI, pp. 2399-2400, § 74;
I.A. v. France, judgment of 23 September 1998,
Reports 1998-VII, p. 2978, § 102).
2. Application of the principles to the circumstances
of the present case
The Court observes that the Istanbul State Security
Court examined the applicant’s continued detention at the end
of every hearing, either on its own motion or upon the applicant’s
request. It notes however, from the material in the case file, that
the court ordered the applicant’s continued detention on remand
using identical, stereotyped terms, such as “having regard to
the nature of the offence, the state of evidence and the content of
the file” at the end of most of the hearings. Although, in
general, the expression “the state of evidence” may be a
relevant factor for the existence and persistence of serious
indications of guilt, in the present case it nevertheless, alone,
cannot justify the length of the detention of which the applicant
complains (see Letellier v. France, judgment of 26 June
1991, Series A no. 207; Tomasi v. France, judgment of 27
August 1992, Series A no. 241-A; Demirel v. Turkey,
no. 39324/98, § 59, 28 January 2003).
In
this context, the Court notes that the State Security Court failed to
indicate to what extent the applicant’s release would have
posed a risk, after - by then - well over eight years of detention
(including the periods of imprisonment after conviction), in its last
decision to prolong the applicant’s remand in custody pending
his re-trial at first instance (see Demirel, cited above,
§ 60).
The
foregoing considerations are sufficient to enable the Court to
conclude that the grounds given for the applicant’s pre-trial
detention were not “sufficient” and “relevant”
to justify holding him in custody for nearly six years and eight
months. In these circumstances it is not necessary to examine whether
the proceedings were conducted with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained under Article 6 § 1 of the Convention about
the length of the criminal proceedings, which are still pending after
more than 12 years. Article 6 § 1 provides as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government submitted that the case was complex, considering the
charges against the applicant and the need to organise a large-scale
trial involving 16 defendants and numerous witnesses. They contended
that these factors explained the length of the proceedings and that
no negligence or delay could be imputed to the judicial authorities.
They alleged that the applicant had contributed to the length of the
proceedings by not participating in a number of hearings. Furthermore
they maintained that his lawyer failed to submit her defence
statements for five consecutive hearings.
The
applicant contended that he could not appear at some of the hearings
due to his illness. He maintained however that he cannot be held
responsible for the total length of the proceedings.
The
Court observes that the proceedings began on 23 January 1994
with the applicant’s arrest and are still pending before the
Istanbul Assize Court. They have thus already lasted twelve years and
eleven months for two levels of jurisdiction, which examined the case
twice.
The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to that in
the present application (see Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999 II; Ertürk
v. Turkey, no. 15259/02, 12 April 2005).
Having
examined all the material submitted to it and having regard to its
case-law on the subject, the Court 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 of the
Convention.
IV. 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 25,000 euros (EUR) in respect of pecuniary damage
and EUR 12,500 for the non-pecuniary damage he had sustained.
The
Government disputed these demands.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it accepts that the applicant must have suffered some
non-pecuniary damage on account of the undue length of his pre-trial
detention and criminal proceedings, which cannot be sufficiently
compensated by the finding of violations alone. Taking into account
the circumstances of the case and having regard to its case-law, the
Court awards the applicant EUR 10,000 under this head.
B. Costs and expenses
By
way of costs and expenses in relation to his representation, the
applicant claimed 400 New Turkish Liras (YTL) (EUR 200) in respect of
communication and translation costs, and YTL 6,700 (EUR 3,350)
for legal expenses. He submitted that this amount included the
visiting and travel expenses of his lawyer, as well as the work
relating to the proceedings before the Court in preparing the
application and the observations on admissibility and merits. He
claimed that his representative had applied the scale recommended by
the Istanbul Bar for applications to the Court.
The
Government contested the applicant’s claim as being
unsubstantiated by any documentation.
On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicant EUR 2,500 in respect
of costs and expenses.
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 application admissible;
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;
4. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts, to
be converted into New Turkish liras at the rate applicable at the
date of settlement:
(i) EUR
10,000 (ten thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros) in respect of costs and
expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé A.B. Baka
Registrar President
