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YER AND GUNGOR v. TURKEY - 21521/06 [2010] ECHR 1961 (7 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1961.html
Cite as:
[2010] ECHR 1961
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SECOND
SECTION
CASE OF YER AND GŰNGÖR v. TURKEY
(Applications
nos. 21521/06 and 48581/07)
JUDGMENT
STRASBOURG
7 December
2010
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 Yer and Güngör
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Ireneu Cabral Barreto,
President,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 21521/06 and 48581/07)
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 two Turkish nationals,
Şerafettin Yer and Ayhan Güngör, both born in 1976.
The dates of introduction of the applications and the names of the
applicants' representatives are indicated in the appended table. The
Turkish Government (“the Government”) were represented by
their Agent.
On
12 June 2009 the Court decided to give notice of the applications to
the Government. It also decided to examine the merits of the
applications at the same time as their admissibility (former Article
29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants are Turkish nationals who were arrested and subsequently
detained pending judicial proceedings. They were either released or
convicted on various dates. The details of the dates of the arrests,
the dates of the orders for the applicants' pre trial detention,
the dates of the indictments, the dates of the domestic court
decisions, the total period of pre-trial detention, total period of
criminal proceedings where relevant, the dates of release and the
grounds for continued detention are set out in the appendix hereto.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A description of the relevant domestic law and practice
prior to the entry into force of the new Code of Criminal Procedure
(“the CCP”) (Law no. 5271) on 1 June 2005
may be found in Çobanoğlu and Budak v. Turkey
(no. 45977/99, §§ 29-31, 30 January 2007). The
current practice under the CCP is outlined in Şayık and
Others v. Turkey (nos. 1966/07, 9965/07, 35245/07,
35250/07, 36561/07, 36591/07, and 40928/07, §§ 13 15,
8 December 2009).
THE LAW
I. JOINDER
Having
regard to the similar subject matter of the applications, the Court
finds it appropriate to join them.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant in application no. 21521/06 complained under Article 5 §
3 of the Convention that he had not been brought promptly before a
judge or other officer authorised by law to exercise judicial power.
The
applicants complained under Article 5 § 3 of the Convention that
the length of their pre-trial detention had been excessive. The
applicant in application no. 21521/06 further complained under
Article 6 § 2 of the Convention that his right to be presumed
innocent had been violated in that he had been under pre-trial
detention for an excessive length of time. The Court considers it
appropriate to examine these complaints from the standpoint of
Article 5 § 3 alone.
The
Government contested the applicants' arguments.
A. As regards the length of the detention in police
custody of the applicant in application no. 21521/06
The
Court observes that the applicant's police custody ended on 4 January
2001 whereas the application was lodged with the Court on 27 May
2006, that is, more than six months later (see Ege v. Turkey
(dec.), no. 47117/99, 10 February 2004, and Doğan
v. Turkey (dec.), no. 67214/01, 7 June 2005).
It follows that this complaint has been lodged out of
time and must be rejected in accordance with Article 35 §§ 1 and
4 of the Convention.
B. As regards the length of pre-trial detention
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, the Government maintained that the applicants'
detention had been based on the existence of reasonable grounds of
suspicion of them having committed an offence, and that their
detention had been reviewed periodically by a competent authority,
with special diligence, in accordance with the requirements laid down
by the applicable law. They pointed out that the offences with which
the applicants had been charged had been of a serious nature, and
that their continued remand in custody had been necessary to prevent
crime and to preserve public order.
The
Court notes that, excluding the period when the applicants were
detained after conviction under Article 5 § 1 (a) of the
Convention from the total time that they have been held in detention,
the period to be taken into consideration is over four years and
eleven months in application no. 21521/06 and over five
years and four months in application no. 48581/07 (see Solmaz v.
Turkey, no. 27561/02, §§ 36-37, ECHR 2007-II
(extracts)).
The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases disclosing comparable lengthy periods of
pre-trial detention (see, for example, Gökçe and
Demirel v. Turkey, no. 51839/99, § 44, 22 June 2006,
and Cahit Demirel v. Turkey, no. 18623/03, § 28,
7 July 2009). 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 finds that in the instant case the
length of the applicants' pre-trial detention was excessive.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. As to the complaint concerning the length of the
criminal proceedings
The
applicants complained that the length of the criminal proceedings
against them had been incompatible with the reasonable time
requirement, laid down in Article 6 § 1 of the Convention.
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, the Government submitted that the length of the
proceedings could not be considered to be unreasonable in view of the
complexity of the case, the number of the accused and the nature of
the offences with which the applicants were charged.
The
Court notes that the period to be taken into consideration is over
seven years and six months in application no. 21521/06 and over six
years and seven months in application no. 48581/07.
Having
examined all the material submitted to it, the Court considers that
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement (see Daneshpayeh v.
Turkey, no. 21086/04, § 28, 16 July 2009). There has
accordingly been a breach of Article 6 § 1 of the Convention.
B. As to the compliant concerning the absence of legal
assistance during police custody
The
applicant in application no. 48581/07 complained that he had been
denied legal assistance during his detention in police custody.
The
Government maintained that there had been no violation under this
head since the applicant had benefited from legal assistance during
police custody. In support of this argument, the Government submitted
the custody form signed by the applicant and his lawyer showing that
the applicant had benefited from legal assistance during police
custody.
Having
regard to the document demonstrating that the applicant benefited
from legal assistance during police custody on 22 September 2000, the
Court finds that the applicant has failed to substantiate his
allegation. It follows that this complaint is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
C. As to the remaining complaints under Article 6 of
the Convention
The
applicant in application no. 48581/07 claimed under Article 6 of the
Convention that he had been denied a fair trial on account of his
conviction based on his statements given to the police under duress,
his trial by the State Security Court, and the failure of the
first-instance court to hear his witness.
In
the light of all the material in its possession, the Court finds that
the above submissions by the applicant do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols. It follows that these complaints must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 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 in application no. 21521/06 claimed 50,000 Turkish Liras
(TRY) (approximately 25,271 euros (EUR)) in respect of pecuniary
damage and TRY 40,000 (approximately EUR 20,217) for non-pecuniary
damage.
The
applicant in application no. 48581/07 claimed EUR 15,000 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 the relevant
claim. However, the Court considers that the applicants must have
sustained non-pecuniary damage.
In
the light of the Court's jurisprudence and ruling on an equitable
basis, it makes the following awards:
(i) EUR
8,000 to the applicant in application no. 21521/06; and
(ii) EUR
8,500 to the applicant in application no. 48581/07.
B. Costs and expenses
The
applicant in application no. 21521/06 claimed TRY 122,625
(approximately EUR 61,978) for lawyer's fee and for costs and
expenses in the domestic proceedings and before the Court, which
included expenditure such as telephone calls, mail, translation fees,
stationery and travel costs. In support of his claims he submitted
the İstanbul Bar Association's scale of fees and a receipt for
the legal fee incurred.
The
applicant in application no. 48581/07 claimed TRY 4,270
(approximately EUR 2,160) for legal fees and TRY 90 (approximately
EUR 45) for costs and expenses. In support of his claims he
submitted a receipt for the legal fee incurred.
The
Government contested these claims.
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. Regard being had to the documents in its
possession and the above criteria the Court makes the following
awards under this head:
(i) EUR
500 to the applicant in application no. 21521/06; and
(ii) EUR
1000 to the applicant in application no. 48581/07.
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
Decides to join the applications;
Declares the complaints concerning the length of
pre-trial detention and the length of the criminal proceedings
admissible and the remainder of the applications inadmissible;
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;
Holds
(a) that
the respondent State is to pay the applicants, 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 on the date of
settlement, plus any tax that may be chargeable to the applicants:
(i) to
Mr Şerafettin Yer, EUR 8,000 (eight thousand euros) for
non-pecuniary damage and EUR 500 (five hundred euros) for costs and
expenses;
(ii) to
Mr Ayhan Güngör, EUR 8,500 (eight thousand five hundred
euros) for non-pecuniary damage and EUR 1,000 (one thousand euros)
for 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 7 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Ireneu Cabral
Barreto Registrar President
|
Application
|
Date
of arrest
|
Date
of the order for the pre-trial detention
|
Date
of the bill of indictment
|
Date
of the judgments of the first instance court
|
Date
of the decisions of the Court of Cassation
|
Date
of the release of the applicant where applicable
|
Total
period of pre-trial detention (on the basis of the information in
the case file)
|
Grounds for
continued detention (on the basis of the information in the case
file)
|
|
1-21521/06
introduced on 27/05/2006 by Şerafettin
YER represented by Ercan Kanar
|
28/12/2000
|
04/01/2001
|
08/01/2001
|
İstanbul Assize Court -
27/04/2007 (E: 2001/23, K: 2007/208)
|
09/07/2008-
(E: 2008/9435, K:2008/8881)
(upheld)
|
30/11/2005
|
4 years
and 11 months (pre-trial detention)
7 years and 6 months (proceedings)
|
- the
state of the evidence
- the
nature of the offence
- the overall period of
pre-trial detention
|
|
2-
48581/07 introduced on 22/10/2007 by Ayhan
GŰNGÖR represented by
Metin Atlan
|
19/09/2000
|
25/09/2000
|
02/11/2000
|
1.
İstanbul State Security Court -21/11/2003 (E: 2000/254, K:
2003/325)
2. İstanbul Assize Court -
26/09/2006 (E: 2004/248, K: 2006/207)
|
1.
12/07/2004 – (E: 2004/1507, K: 2004/3878)
(set
aside)
2.
07/05/2007- (E: 2007/3113, K: 2007/3830)
(upheld)
|
|
5 years and 4 months
(pre-trial detention)
6 years and 7 months (proceedings)
|
- the nature
of the offence
- the state
of the evidence
- the
overall period of pre-trial detention
- persistence of the grounds for
continued detention indicated in Article 100 of the CCP
|
