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MEHMET YAVUZ v. TURKEY - 47043/99 [2007] ECHR 665 (24 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/665.html
Cite as:
[2007] ECHR 665
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FOURTH
SECTION
CASE OF
MEHMET YAVUZ v. TURKEY
(Application
no. 47043/99)
JUDGMENT
STRASBOURG
24
July 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 Mehmet Yavuz v. Turkey,
The European Court of Human Rights
(Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr R. Türmen,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta, judges,
and Mrs F. Aracı, Deputy
Section Registrar,
Having
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 47043/99) 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 Mehmet Yavuz
(“the applicant”), on 1 February 1999.
The
applicant was represented by Mr S. Çınar, a lawyer
practising in Diyarbakır. The Turkish Government did not
designate an Agent for the purposes of the proceedings before the
Court.
On
5 October 2004 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the length of
the applicant’s detention on remand and the criminal
proceedings against him 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 1965 and was detained in Diyarbakır prison
at the time of his application to the Court.
On
8 November 1993 the applicant was taken into police custody by police
officers from the Diyarbakır Security Directorate on
suspicion of membership of an illegal organisation, the PKK
(Kurdistan Workers’ Party).
On
26 November 1993 he was brought before a judge who ordered his
detention on remand.
On
29 November 1993 the applicant filed an objection against the
decision of 26 November 1993.
On
7 December 1993 the Diyarbakır State Security Court dismissed
the applicant’s objection.
On
23 December 1993 the public prosecutor at the Diyarbakır State
Security Court filed a bill of indictment against the applicant and
ten other persons. The applicant was charged under Article 125
of the Criminal Code with carrying out activities with the aim
of bringing about the secession of part of the national territory.
On
28 December 1993 the Diyarbakır State Security Court held
the first hearing in the case against the applicant and the
other co-accused (case no. 1993/663).
Between
28 December 1993 and 16 January 1996 the Diyarbakır State
Security Court held fourteen hearings, approximately once every two
months on the merits of the case. During this time, at each hearing
the court heard some of the accused and requested documents from
various authorities with a view to completing the case file.
Meanwhile,
on 4 October 1994 the first-instance court decided to join another
case (case no. 1993/821) to case no. 1993/663.
On
26 March 1996 the public prosecutor submitted his observations on the
merits of the case. The first-instance court requested the applicant
and some of the other co-accused to make their defence submissions.
Between
26 March 1996 and 16 September 1997 the Diyarbakır
State Security Court adjourned the hearings as some of the
accused had failed to file their defence submissions.
In
the meantime, on 3 July 1996 the Diyarbakır State Security Court
decided to join another case (case no. 1994/433) to case no.
1993/633.
On
21 October 1997 the Diyarbakır State Security Court decided to
join a third case (case no. 1996/512) to case no. 1993/663.
Between
21 October 1997 and 3 March 1998 the first-instance court heard the
accused of the joined case and collected evidence in their respect.
On
3 March 1998 the court requested the public prosecutor to submit his
observations on the merits of the case.
On
22 July 1998 the public prosecutor amended the indictment concerning
the applicant and charged him under Article 168 § 2 of the
Criminal Code with membership of an illegal organisation.
On
15 September 1998 the applicant’s lawyer contended that the
applicant had been employed in Alanya at the time of the alleged
offence and requested the first-instance court to conduct a further
investigation with a view to confirming the veracity of his claim.
The court accepted the applicant’s request and ordered the
Alanya gendarmerie command to obtain evidence in that respect.
On
29 December 1998 the court adjourned the hearing as it did not
receive the requested information from the Alanya gendarmerie
command.
On
2 February 1999 the first-instance court withdrew its order of
15 September 1998.
On
2 March 1999 the Diyarbakır State Security Court requested the
accused to file their defence submissions. On an unspecified date,
the applicant made his submissions.
On 23 March 1999 the Diyarbakır State Security
Court concluded the proceedings against twenty accused persons,
including the applicant, and convicted the latter of membership of
the PKK under Article 168 § 2 of the Criminal Code and
Article 5 of Law no. 3713. The first-instance court sentenced the
applicant to twelve years and six months’ imprisonment and
permanently debarred him from employment in the civil service.
The
Diyarbakır State Security Court held forty-one hearings in
total. At the end of each hearing the court
considered the applicant’s and the other co accused’s
continued detention, either of its own motion or upon the request of
the accused. The court ordered the applicant’s continued
detention on every occasion, having regard to the state of the
evidence, the nature of the offence and the content of the case file.
On
17 February 2000 the Court of Cassation upheld the judgment of the
Diyarbakır State Security Court in respect of the applicant and
some of the other co-accused.
II. RELEVANT DOMESTIC LAW
Article 104 of the Code of Criminal Procedure in force
at the material time provided that a person could be remanded in
custody where there was a fear that the accused would abscond, or
where there were attempts by the accused to remove evidence or
interfere with witnesses. When the offence was a felony, it was
presumed that the suspect was planning to escape. The last paragraph
of Article 104 provided that detention on remand could not be imposed
if another measure was adequate.
Articles
117-122 of the Code of Criminal Procedure in force at the material
time provided for the conditions for release on bail.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant complained that his detention on remand
had exceeded the “reasonable time” requirement as
provided in Article 5 § 3 of the Convention, which reads, in so
far as relevant, as follows:
“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.”
A. Admissibility
The Government alleged that the applicant had failed
to exhaust domestic remedies. However, they did not explicitly refer
to the applicant’s complaint under Article 5 § 3 of the
Convention. Nor did they point to a particular remedy. The Court
accordingly rejects the Government’s objection.
The
Court further 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 submitted that the trial court had not unduly prolonged
the applicant’s trial or his detention on remand. The offence
with which the applicant was charged was of a serious nature, and his
detention on remand was necessary to prevent him from absconding. The
State Security Court took into consideration the very high risk of
the applicant escaping. The Government submitted that there had been
a genuine public interest for the continued detention of the
applicant as the illegal organisation to which he belonged had
carried out violent activities.
The
applicant reiterated that he had been detained on remand for an
excessive length of time.
Under the Court’s case-law, the issue of whether
a period of detention is reasonable cannot be assessed in
abstracto. 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 rule of respect for individual liberty (see, among
other authorities, W. v. Switzerland, judgment of
26 January 1993, Series A no. 254-A, p. 15, § 30;
Kudła v. Poland [GC], no. 30210/96, § 110,
ECHR 2000-XI).
The rule of presumption of innocence favours release
from detention. As established in Neumeister v. Austria
(judgment of 27 June 1968, Series A no. 8, p. 37,
§ 4), the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until her or his conviction, the
accused must be presumed innocent, and the purpose of the provision
under consideration is essentially to require his provisional release
once his continuing detention ceases to be reasonable (see McKay v.
the United Kingdom [GC], no. 543/03, § 41, ECHR
2006 ...).
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 a genuine requirement of public interest justifying, with due
regard to the principle of the presumption of innocence, a departure
from the rule of respect for individual liberty and set them out in
their decisions dismissing the applications for release. It is
essentially on the basis of the reasons given in these decisions and
of the established facts mentioned 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 of the Convention (see
McKay, cited above, § 43).
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. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. (see, among others, Labita
v. Italy [GC], no. 26772/95, § 153, ECHR
2000-IV).
The
Court notes that, in the instant case, the period to be taken into
consideration began on 8 November 1993, when the applicant was taken
into police custody and ended on 23 March 1999, when the
first-instance court convicted the applicant. The applicant’s
detention on remand thus lasted more than five years and four months.
During
this period, the Diyarbakır State Security Court considered the
applicant’s continued detention at the end of each hearing,
either of its own motion or upon the request of the applicant.
However, the first-instance court ordered the applicant’s
continued detention on remand on all occasions, using identical
expressions, i.e. “the state of the evidence”, “the
nature of the offence” and “the content of the case
file”.
The Court considers that, in general, the expression
“the state of the evidence” may be a relevant factor for
the existence and persistence of serious indications of guilt. The
Court further acknowledges the seriousness of the offence with which
the applicant was charged and the severity of the sentence which he
faced if found guilty. In this respect, the Court agrees that the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding (see Michta v. Poland,
no. 13425/02, § 49, 4 May 2006). However, in the Court’s
view, neither the state of evidence nor the gravity of the charges
can by themselves serve to justify long periods of detention
pending trial (see, among others, 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; Vayiç v. Turkey,
no. 18078/02, § 37, ECHR 2006 ...; Ilijkov v.
Bulgaria, no. 33977/96, §§ 80 81,
26 July 2001; Ječius v. Lithuania,
no. 34578/97, § 94, ECHR 2000-IX).
In
this connection, the Court observes that the Diyarbakır State
Security Court failed to indicate to what extent the applicant’s
release would have posed a risk after the passage of time, in
particular in the later stages of the proceedings after more than
five years of detention on remand (see Demirel, cited above,
§ 60). Furthermore, the first-instance court never gave
consideration to the application of a preventive measure, such as
prohibition on leaving the country or release on bail, other than
continued detention of the applicant.
The
foregoing considerations are sufficient to enable the Court to
conclude that the length of the applicant’s detention on
remand, which lasted over five years and four months, has not
been shown to have been justified by relevant and sufficient reasons.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Independence and impartiality of the State Security
Court
In
his submissions of 15 August 2005, the applicant complained under
Article 6 § 1 of the Convention that he did not have a fair
trial by an independent and impartial tribunal.
The
Court reiterates that it may only deal with a matter within a period
of six months from the date on which the final decision was
taken. When the acts of an authority are not open to any
effective remedy, the six-month period runs from the date on which
the act took place.
The
Court observes that the criminal proceedings against him ended on 17
February 2000, whereas this complaint was lodged with the Court on 15
August 2005 i.e. more than six months later.
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
B. Length of the criminal proceedings
The
applicant complained that the length of the criminal proceedings had
been incompatible with the “reasonable time” requirement
provided in Article 6 § 1 of the Convention, which reads, in so
far as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
period to be taken into consideration began on 8 November 1993,
when the applicant was arrested and taken into police custody and
ended on 17 February 2000, when the Court of Cassation upheld the
judgment of the Diyarbakır State Security Court in respect of
the applicant. The period under consideration thus lasted more than
six years and three months before two instances.
The
Government asked the Court to dismiss the complaint concerning the
length of the criminal proceedings for failure to exhaust domestic
remedies, as required by Article 35 § 1 of the
Convention. In this regard, the Government maintained that the
applicant had failed to raise the substance of his complaint before
the domestic courts.
Regarding
the merits of the complaint, the Government maintained that the
length of the proceedings in the instant case could not be considered
unreasonable in view of the number of accused persons, the complexity
of the case and the nature of the offence with which the applicant
was charged. The Government submitted that the national court had to
postpone the hearings in order to await the information that it had
requested from various authorities. They also contended that the
absence of some of the defendants had also delayed the procedure.
As
regards the Government’s preliminary objection concerning the
failure to exhaust domestic remedies, the Court notes that it has
already examined and rejected the Government’s similar
objections in previous cases (see, for example, Mete v. Turkey,
no. 39327/02, §§ 18-19, 25 October 2005).
The Court finds no particular circumstances in the instance case,
which would require it to depart from its findings in the
above-mentioned application. It therefore rejects the Government’s
objection under this head.
The
Court however considers that this complaint is manifestly ill founded
for the following reasons.
The
Court reiterates, at the outset, that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the criteria
established by its case-law, particularly the complexity of the case,
the conduct of the applicant and that of the relevant authorities
(see Kiper v. Turkey, no. 44785/98, § 36,
23 May 2006).
The
Court considers that the subject matter of the case before the
Diyarbakır State Security Court was undoubtedly complex, as
shown, inter alia, by the number of investigations which
were linked to each other, the number of defendants and the nature of
the offence with which the latter were charged. It notes, in this
connection, that at the beginning of the proceedings the applicant
was being tried along with ten other persons. After the two other
cases had been joined to the applicant’s case, the proceedings
continued with a total of twenty accused persons. Furthermore, the
defendants were accused of being members of an illegal organisation
and of carrying out terrorist activities.
As
regards the conduct of the applicant, the Court observes that it does
not appear that he contributed to the prolongation of the
proceedings. The Government have not argued to the contrary.
As
to the conduct of the domestic authorities, the Court does not
observe any period of inactivity that could be attributable to the
domestic courts during the conduct of the proceedings. It is true
that a number of hearings in the case were adjourned between 26 March
1996 and 16 September 1997 since some of the accused failed
to comply with the summonses. By contrast, there is nothing in the
case file which shows that the adjournments were due to the
first-instance court’s failure to organise the proceedings
efficiently. The Diyarbakır State Security Court adjourned the
hearings in the interest of the proper administration of justice as
it should and could not have rendered a judgment without obtaining
all the defendants’ submissions.
Furthermore,
hearings were scheduled at regular intervals of approximately one and
a half months. Following receipt of the appeal, the Court of
Cassation decided the case in less than a year.
Having regard to the particular circumstances of the
case, and taking into account in particular the overall duration of
the proceedings, the Court concludes that there has been
compliance with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention
(see Sałapa v. Poland, no. 35489/97, § 86, 19 December 2002;
and Bayram Yılmaz and Others v. Turkey (dec.), no.
38370/02, 19 September 2006).
It
follows that this complaint is manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and must, therefore,
be declared inadmissible.
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 16,130 euros (EUR) in respect of pecuniary damage
for the loss of earnings incurred as a result of his imprisonment. He
further claimed EUR 35,000 in respect of non-pecuniary damage.
The Government submitted in reply that the amount claimed in respect
of non-pecuniary damage was excessive. As regards the applicant’s
submissions concerning pecuniary damage, the Government maintained
that the applicant’s claim was unsubstantiated.
On
the question of pecuniary damage, the Court observes that the
applicant has not produced any document in support of his claim. It
accordingly dismisses the claim.
As
regards the alleged non-pecuniary damage, the Court accepts that the
applicant must have suffered non-pecuniary damage which cannot be
sufficiently compensated by the finding of a violation alone. Taking
into account the circumstances of the case and having regard to its
case-law, the Court awards the applicant EUR 3,400.
B. Costs and expenses
The
applicant also claimed EUR 7,571 for the costs and expenses incurred
both before the domestic courts and before the Court. This
included legal work and administrative costs incurred by his
representative such as telephone calls, postage, stationary and
translation costs. In support of his claims, the applicant submitted
a detailed schedule of costs prepared by his representative.
The
Government contested these claims.
According
to the Court’s jurisprudence, an applicant is entitled to
reimbursement of his 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 (see Sawicka v. Poland, no. 37645/97,
§ 54, 1 October 2002). In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 1,000
for the proceedings before the Court.
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 complaints concerning the length of
the applicant’s detention on remand admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention on account of the length of the
applicant’s detention on remand;
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, the following
amounts to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR
3,400 (three thousand four hundred euros) in respect of non pecuniary
damage;
(ii) EUR
1,000 (one thousand 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 abovementioned 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 24 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
