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European Court of Human Rights
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ER v. TURKEY - 21377/04 [2009] ECHR 1653 (27 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1653.html
Cite as:
[2009] ECHR 1653
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SECOND
SECTION
CASE OF ER v. TURKEY
(Application
no. 21377/04)
JUDGMENT
STRASBOURG
27
October 2009
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 Er v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 21377/04) 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 Ahmet Kenan
Er (“the applicant”), on 30 April 2004. The
applicant was represented by Mr H.İ. Er, a lawyer practising in
Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
On
18 November 2008 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the criminal
proceedings to the Government. It 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 1964 and lives in Istanbul.
On
10 October 1990 the applicant, who served as a first lieutenant in
the Turkish Armed Forces at the material time, was arrested on
suspicion of, inter alia, professional misconduct and bribery.
On
28 March 1991 the military prosecutor at the 33rd Infantry Division
Commander's office filed an indictment charging the applicant with
twenty-four different offences, including professional misconduct,
bribery and assault and battery of his inferiors.
On
12 May 1993 the Kırklareli Military Court acquitted the
applicant in relation to certain charges and found him guilty of the
remaining offences.
On
19 January 1994 the Military Court of Cassation upheld the judgment
of the first-instance court in relation to certain offences and
quashed the remainder of the judgment on grounds of, inter alia,
insufficient investigation.
On
7 November 1995 the Kırklareli Military Court acquitted the
applicant in relation to certain charges and found him guilty as
charged for the remaining offences.
On
6 March 1996 the Military Court of Cassation partially upheld the
first-instance court's judgment.
On
16 April 1996 the Kırklareli Military Court once again acquitted
the applicant in relation to certain charges and found him guilty of
the remaining offences.
On
9 May 1997 the applicant was expelled from the armed forces.
On
10 June 1998 the Military Court of Cassation quashed the judgment of
the first-instance court on procedural grounds in relation to certain
charges and for being time-barred (zamanaşımı)
in relation to the remainder.
On
5 August 1999 the Çorlu Military Court found the applicant
guilty as charged in relation to those offences which were not
time-barred and of which he had not already been acquitted.
On
28 March 2001 the Military Court of Cassation quashed the judgment of
the first-instance court once again in the light of a recent
amendment to the relevant jurisdictional rules, and held that the
case should be heard by ordinary criminal courts.
On
26 December 2001 the Çorlu Military Court issued a decision of
lack of jurisdiction and referred the case to the Kırklareli
Assize Court.
On
2 December 2003 the Kırklareli Assize Court decided to
discontinue the proceedings against the applicant as the prosecution
had become time-barred.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the criminal proceedings had
been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention.
The
Government contested that argument.
The
period to be taken into consideration began on 10 October 1990 and
ended on 2 December 2003. It thus lasted approximately thirteen years
and two months for two levels of jurisdiction, including military and
ordinary first-instance courts.
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.
As
regards the merits, the Government maintained that the proceedings
could not be considered to have been unreasonably long, particularly
in view of the complexity of the case, the number of witnesses
examined and the great number of offences with which the applicant
was charged.
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 Frydlender v. France [GC], no. 30979/96, § 46,
ECHR 2000-VII; Szilvássy v. Hungary, no. 17623/04, §§
26-34, 1 April 2008). The Court particularly notes in the present
case that the Court of Cassation quashed the judgment of the
first-instance court as many as four times. It reiterates that the
repeated quashing and remittal of lower court decisions for
re-examination are usually ordered as a result of errors committed by
the latter, which, within one set of proceedings, discloses a
deficiency in the operation of the legal system (see Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003;
Falimonov v. Russia, no. 11549/02, § 58, 25 March
2008).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages and costs and expenses
The
applicant claimed 686,306.35 euros (EUR) in respect of pecuniary
damage on account his salary cuts during the criminal proceedings and
the future pension rights he had been denied after his expulsion from
the armed forces. He also claimed EUR 50,000 for non pecuniary
damage and EUR 6,000 for costs and expenses incurred before the
domestic courts.
The
Government contested these claims as being unsubstantiated and
excessive.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have suffered
some non-pecuniary damage which the finding of a violation of the
Convention in the present judgment does not suffice to remedy. Ruling
on an equitable basis, in accordance with Article 41, it awards the
applicant EUR 9,500 under this head.
As
regards the applicant's claim for costs and expenses, the Court makes
no award under this head as the applicant has not produced any
documents in support of his requests.
B. 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 remainder of the application
admissible;
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 9,500 (nine
thousand five 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 at 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 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 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
