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CETINKAYA v. TURKEY (no. 2) - 17860/07 [2011] ECHR 132 (25 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/132.html
Cite as:
[2011] ECHR 132
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SECOND
SECTION
CASE OF ÇETİNKAYA v. TURKEY (no. 2)
(Application
no. 17860/07)
JUDGMENT
STRASBOURG
25
January 2011
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 Çetinkaya v. Turkey (no. 2),
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 17860/07) 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 a
Turkish national, Mr Suat Çetinkaya (“the applicant”),
on 10 April 2007.
The
applicant was represented by Mr A. Kansu, a lawyer practising in
İzmir. The Turkish Government (“the
Government”) were represented by their Agent.
On
27 August 2009 the
Court decided to give notice of the application to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (former Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and lives in İzmir.
On
8 July 1999 the İzmir
Public Prosecutor issued an indictment against the applicant,
charging him with a violation of the Associations Law.
On
19 November 2003 the İzmir
Criminal Court sentenced him to a fine.
On
9 March 2006 the Court of Cassation quashed the judgment of
19 November 2003.
On
28 November 2006 the İzmir
Criminal Court decided to discontinue the proceedings against the
applicant, holding that the prosecution was time-barred.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the 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 8 July 1999 when the
indictment was issued against the applicant and ended on 28 November
2006 when the İzmir Assize Court decided to discontinue the
proceedings against him. It thus lasted seven years and four months
before two levels of jurisdiction.
The
Government put forward various preliminary objections concerning
non-exhaustion of domestic remedies and asked the Court to dismiss
the complaints under Article 6 § 1 of the Convention, as
required by Article 35 § 1 of the Convention.
The
Court notes that it has already examined similar submissions made by
the respondent Government in Daneshpayeh v. Turkey
(no. 21086/04, §§ 35-38, 16 July 2009). The Government
have not submitted any arguments which could lead the Court to reach
a different conclusion in the instant case. Consequently, the Court
rejects the Government's preliminary objections.
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 Court reiterates 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 following
criteria: the complexity of the case and the conduct of the applicant
and of the relevant authorities (Daneshpayeh, cited above, §
26).
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 (Daneshpayeh, cited above).
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 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Articles 6, 10, 11 and 13 of the
Convention that he had been denied a fair trial on account of the
fact that the written opinion of the Chief Public Prosecutor at the
Court of Cassation had never been served on him and of the decision
to discontinue the proceedings, as he had thereby been deprived of a
trial at which he could have been acquitted. The Court considers it
appropriate to examine these complaints from the standpoint of
Article 6 of the Convention alone.
The Court notes that the
proceedings against the applicant were discontinued as the
prosecution of the offences had become time-barred. Consequently, the
applicant was not convicted and cannot claim to be a victim of the
alleged violation of Article 6 of the Convention (Er
v. Turkey (dec.), no. 21377/04, 18 November 2008).
The Court further notes that Article 6 does not give a right to
a particular outcome, including an acquittal (Withey v. the
United Kingdom (dec.), no. 59493/00, 26 August 2003).
It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
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 1,000 euros (EUR) in respect of pecuniary damage
and EUR 7,000 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 applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 3,600 under that head.
B. Costs and expenses
The
applicant also claimed EUR 2,500 for the legal fees and EUR 4
for the costs and expenses incurred before the Court. In support of
his claims, he submitted invoices for postal expenses and a legal fee
agreement but he failed to prove that he actually incurred the
amounts concluded in the agreement.
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. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 500 covering 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
Declared the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
Held that there had been a violation of Article
6 § 1 of the Convention;
Held
(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 Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
3,600 (three thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
500 (five hundred euros), plus any tax that may be chargeable to the
applicant, 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;
Dismissed the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
