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AFSAR v. TURKEY - 26998/04 [2011] ECHR 1926 (15 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1926.html
Cite as:
[2011] ECHR 1926
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SECOND
SECTION
CASE OF AFŞAR v. TURKEY
(Application
no. 26998/04)
JUDGMENT
STRASBOURG
15
November 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Afşar v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
David Thór Björgvinsson,
President,
Guido Raimondi,
Helen Keller,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 18 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 26998/04) 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 Hamit Afşar (“the applicant”),
on 21 May 2004.
The
applicant was not represented by a lawyer. The Turkish Government
(“the Government”) were represented by their Agent.
On
4 September 2009 the
President of the Second Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1957 and lives in Balıkesir.
The
applicant is a doctor.
On
23 November 1998, another doctor, V.B., brought a case against the
applicant before the Ayvalık Civil Court, requesting
compensation for defamation. V.B. alleged that the applicant had
diffused false information among his patients to the effect that he
had been selling a certain unauthorised medicine. V.B. relied on a
note obtained from a certain patient A.S., in which the name of the
medicine, as well as his name and work address were written.
According to the plaintiff, this note was written by the applicant in
order to damage his reputation.
In
the course of the proceedings, the court heard statements from
several witnesses such as doctors and nurses working at the health
centre, who confirmed V.B.’s account of the facts. In
particular, some of the witnesses submitted that they had seen A.S.
with this note.
At
the hearing on 8 June 2000 the applicant admitted having written the
name of the medicine on the paper, but denied having written the
other notes.
It
appears from the case file that the applicant did not request the
court to hear A.S. during the proceedings.
On
4 February 2003 the court, on the basis of the witness testimonies as
well as the statements given at the hearing of 8 June 2000, found it
established that the applicant had directed the patients towards V.B.
and therefore ordered the applicant to pay compensation.
On
11 March 2003 the applicant appealed. In his appeal petition, the
applicant submitted inter alia that the trial court had failed
to hear evidence from A.S.
On
10 July 2003, finding the judgment of the first instance court in
line with domestic law, the Court of Cassation rejected the
applicant’s appeal.
On
29 March 2004 the Court of Cassation dismissed a request by the
applicant for rectification of the judgment.
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, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument. They
maintained that the impugned proceedings could not be considered to
have been excessively long in view of the complexity of the case.
They concluded therefore that there had been no delay in the
proceedings that may be attributable to the State.
The
period to be taken into consideration began on 23 November 1998
and ended on 29 March 2004. It thus lasted five
years and four months for two levels of jurisdiction.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
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, §§
42-46, ECHR 2000 VII, and Daneshpayeh
v. Turkey, no. 21086/04, §§
26-29, 16 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 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 further complained under Article 6 § 2 of the
Convention that his right to the presumption of innocence had been
breached, as the domestic court assumed from the start that the
applicant was guilty. He argued under Article 6 §§ 3 (b)
and (c) of the Convention that he had been denied a fair hearing as
the decision of the Court of Cassation, as well as the decision on
the request for rectification of the judgment, had lacked reasoning.
He maintained finally under Articles 6 § 1 and 6 §
3 (d) of the Convention that the first-instance court had failed to
hear the crucial witness, A.S.
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 (see, in particular, García
Ruiz v. Spain [GC], no. 30544/96,
§§ 28 29, ECHR 1999 I; Kabasakal
and Atar v. Turkey, nos. 70084/01 and 70085/01, 19 September
2006; and Perna v. Italy [GC], no. 48898/99, § 29,
ECHR 2003 V). It follows that these
complaints must be declared inadmissible as being manifestly
ill-founded, 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 8,500 euros (EUR) in respect of
non-pecuniary damage for his mental and physical suffering and
distress.
The
Government contested the claim as being excessive.
The
Court considers that the applicant must have sustained non-pecuniary
damage which is not sufficiently compensated by
the finding of a violation. Ruling on an equitable basis, it
awards him EUR 2,400 under that head.
The
applicant did not submit any claims for pecuniary damage.
Accordingly, the Court considers that there is no call to award him
any sum under this head.
B. Costs and expenses
The
applicant also claimed EUR 3,600 for the costs and expenses,
EUR 260 of which is requested for expenses incurred before the
domestic courts and the rest for the compensation he had to pay to
the plaintiff as a result of the defamation proceedings.
The
Government contested these claims.
Regard
being had to the documents in its possession and to its case-law, as
well as the fact that the applicant was not represented by a lawyer,
the Court rejects the claim for costs and expenses in the domestic
proceedings and finds that there is no call to award the applicant
any amount under this head.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
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,
EUR 2,400 (two thousand four hundred euros) to be converted into
Turkish liras at the rate applicable at the date of settlement, plus
any tax that may be chargeable;
(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 15 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos David Thór Björgvinsson Deputy
Registrar President
