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ATSIZ AND OTHERS v. TURKEY - 7987/07 [2009] ECHR 976 (23 June 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/976.html
Cite as:
[2009] ECHR 976
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SECOND
SECTION
CASE OF ATSIZ AND OTHERS v. TURKEY
(Application
no. 7987/07)
JUDGMENT
STRASBOURG
23
June 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 Atsız and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar.
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 7987/07) 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 five Turkish nationals, Mr Sedat Atsız, Mr Mehmet Emin
Türk, Mr Şerefettin Türk, Mr Mahfuz Siğinç
and Mr Orhan Sakci (“the applicants”), on 26 January
2007.
The
applicants were represented by Mr S. Yurtdaş, a lawyer
practising in Diyarbakır. The Turkish Government
(“the Government”) were represented by their Agent.
On
10 June 2008 the Court
declared the application partly inadmissible and decided to give
notice to the Government of the complaints concerning the applicants'
right to be released pending trial and the length of the proceedings.
It also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
The
applicants were born in 1970, 1970, 1966, 1974 and 1970 respectively,
and live in Diyarbakır.
The
applicants were taken into custody on the following dates: the fifth
applicant on 6 January 1994, the first three applicants on 9 March
1994, and the fourth applicant on 19 March 1994. The applicants were
arrested on suspicion of membership of the PKK (the Kurdistan
Workers' Party), an illegal organisation.
On
20 January 1994 a single judge at the Muş Magistrates' Court
remanded the fifth applicant in custody.
On
31 March 1994 a single judge at the Muş Magistrates' Court
remanded the other applicants in custody.
On
16 March 2004 the Diyarbakır State Security Court convicted the
applicants of carrying out activities for the purpose of bringing
about the secession of part of the national territory under Article
125 of the former Criminal Code, and sentenced them to life
imprisonment.
By
Law no. 5190 of 16 June 2004, published in the Official Gazette on 30
June 2004, State Security Courts were abolished. The case against the
applicants was transferred to the Diyarbakır Assize Court.
On
6 June 2005 the Court of Cassation quashed the judgment of 16 March
2004 in respect of the applicants and remitted the case to the
first instance court.
On
16 November 2007 the Diyarbakır Assize Court convicted the
applicants under Article 125 of the former Criminal Code and again
sentenced them to life imprisonment.
On
20 January 2008 the applicants appealed.
According
to the information in the case file, the case is still pending before
the Court of Cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicants complained that their detention during the judicial
proceedings had exceeded the “reasonable time”
requirement of Article 5 § 3 of the Convention.
The
Government contested that argument and maintained that the length of
the applicants' pre-trial detention had been reasonable.
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.
As
regards the merits of this part of the application, the Court
observes that there were two periods of detention in the present
case.
The
first period began when the applicants were taken into police
custody:
- on
9 March 1994 for the first three applicants,
- on
19 March 1994 for the fourth applicant, and
- on
6 January 1994 for the fifth applicant.
It
ended on 16 March 2004, when the Diyarbakır State Security Court
convicted them. From that point on, until the Court of Cassation's
decision of 6 June 2005, the applicants were detained “after
conviction by a competent court”, which falls within the scope
of Article 5 § 1 (a) of the Convention. The first period thus
lasted over ten years for all the applicants.
The
second period began on 6 June 2005, when the Court of Cassation
quashed the first-instance court's judgment and ended on 16 November
2007 when the Diyarbakır Assize Court convicted the applicants
for a second time. It thus lasted approximately two years and five
months.
The
total length of the applicants' pre-trial detention was, therefore,
approximately twelve years and five months.
The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, Tutar v. Turkey, no. 11798/03,
§§ 16-20, 10 October 2006, and Solmaz v. Turkey,
no. 27561/02, §§ 34-37, ECHR 2007 ...).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing 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
finds that the length of the applicants' detention during the
judicial proceedings was excessive and contravened Article 5 § 3
of the Convention.
There
has accordingly been a violation of this provision.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention.
A. As regards the fifth applicant (Mr Orhan Sakci)
The
Government maintained that Mr Sakci had introduced the same complaint
to the Court on 3 January 2002 (application no. 8147/02), which had
resulted in the finding of a violation of Article 6 § 1 of the
Convention on 16 January 2007. The Government, therefore, requested
the Court to declare his length of proceedings complaint inadmissible
in accordance with Article 35 § 2 (b) of the Convention.
The
applicant contended that his application contained new information
and complaints which had not been previously examined by the Court in
application no. 8147/02.
The
Court notes that the present application was submitted to the Court
on 26 January 2007, i.e. after the adoption of the judgment on
application no. 8147/02. In these circumstances, the Court considers
that it is precluded by Article 35 § 2 (b) of the Convention
from ruling upon the complaint under Article 6 § 1 of the
Convention in as much as it was already examined within the context
of application no. 8147/02. The Court, however, may examine this
complaint in relation to the period that has elapsed after the
adoption of the initial judgment, i.e. the period after 16 January
2007. The Court, therefore, dismisses the Government's preliminary
objection in this regard. The Court, however, considers that
this complaint should be declared inadmissible for other reasons.
The
Court notes in this regard that the period to be taken into
consideration began on 16 January 2007, when the Court found a
violation of Article 6 § 1 of the Convention in application no.
8147/02 on account of the excessive length of the criminal
proceedings against the applicant and is still continuing, as the
case is pending before the Court of Cassation. Thus, the period under
consideration is already over two years and one month before two
instances: ten months before the Diyarbakır Assize Court and the
rest before the Court of Cassation.
The
Court observes that the case was one of a certain complexity, having
regard, in particular, to the seriousness of the charges brought
against the applicant. However, examining the overall duration of the
subsequent proceedings under consideration – a period which
does not seem prima facie unduly long in the light of the case-law of
the Convention organs – and taking into account the judgment
adopted on 16 January 2007 by the Court in relation to application
no. 8147/02, where a violation of Article 6 § 1 of the
Convention was found as regards the proceedings which had lasted
approximately fourteen years at that point, the Court considers that
the remaining length of the proceedings has not been excessive (see
Mariniello v. Italy (dec.), no. 36012/97, 28 September 1999,
and Koşti and Others v. Turkey, no. 74321/01, §§
32-37, 3 May 2007).
It
follows that the complaint under Article 6 § 1 as regards the
length of the proceedings against the fifth applicant is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
B. As regards the remaining applicants
The
Government maintained that, in the circumstances of the present case,
the length of the criminal proceedings could not be considered
unreasonably long.
The
applicants maintained their allegations.
The
Court notes that this part of 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 of this part of the application, the Court
observes that the period to be taken into consideration began on
9 March 1994 for the first three applicants and on 19 March 1994
for the fourth applicant, when they were taken into police custody
and is still continuing as the proceedings are pending before the
Court of Cassation. The period under consideration has thus already
lasted over fifteen years and two months before two instances.
The Court has frequently found violations of Article 6 § 1 of
the Convention in cases raising issues similar to the one in the
present application (see Akyol v. Turkey, no. 23438/02, §§
39-45, 20 September 2007).
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
application. Having regard to its case-law on the subject, the Court
considers that the length of the proceedings against the first,
second, third and fourth applicants was excessive and failed to meet
the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The
applicants claimed 250,000 euros (EUR) in respect of pecuniary damage
and EUR 250,000 in respect of 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 each of the first four applicants EUR 17,250 and
the fifth applicant EUR 10,500 in respect of non-pecuniary damage.
Furthermore,
according to the information submitted by the parties, the criminal
proceedings against the applicants are still pending. In these
circumstances, the Court considers that an appropriate means for
putting an end to the violation of Article 6 § 1 of the
Convention which it has found would be to conclude the criminal
proceedings in issue as speedily as possible, while taking into
account the requirements of the proper administration of justice
(see, mutatis mutandis, Yakışan v. Turkey,
no. 11339/03, § 49, 6 March 2007).
The
applicants also claimed EUR 10,000 for legal fees and costs and
expenses incurred before the Court, such as stationery, translation
and transport expenses. The applicants submitted two bank receipts in
the amounts of 166 Turkish liras (TRY) (approximately EUR 75) and
TRY 210 (approximately EUR 95) to substantiate their translation
expenses.
The
Government contested this claim.
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 were
reasonable as to quantum. In the present case, the applicants have
not substantiated that they had actually incurred much of the costs
so claimed. The Court therefore only awards EUR 170 to the
applicants, jointly, in respect of their documented 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 admissible the complaint concerning the
detention during judicial proceedings as regards all the applicants,
as well as the complaint concerning the excessive length of the
proceedings as regards all applicants except for the fifth (Mr Orhan
Sakci);
Declares
inadmissible the remainder of the
application;
Holds that there has been a violation of Article
5 § 3 of the Convention as regards all the applicants;
Holds that there has been a violation of Article 6 §
1 of the Convention as regards Mr Sedat
Atsız, Mr Mehmet Emin Türk, Mr Şerefettin
Türk and Mr Mahfuz Siğinç;
Holds
(a) that
the respondent State is to pay, 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
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
17,250 (seventeen thousand two hundred and fifty euros), plus any tax
that may be chargeable, to each of the four applicants - Mr Sedat
Atsız, Mr Mehmet Emin Türk, Mr Şerefettin
Türk and Mr Mahfuz Siğinç - in respect of
non pecuniary damage;
(ii) EUR
10,500 (ten thousand five hundred euros), plus any tax that may be
chargeable, to Mr Orhan Sakci, in respect of non pecuniary
damage;
(iii) EUR
170 (one hundred and seventy euros) to the applicants, jointly, plus
any tax that may be chargeable to them, in respect of costs and
expenses;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 23 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
