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FETULLAH AKPOLAT v. TURKEY - 22077/03 [2011] ECHR 306 (15 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/306.html
Cite as:
[2011] ECHR 306
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SECOND
SECTION
CASE OF FETULLAH AKPOLAT v. TURKEY
(Application
no. 22077/03)
JUDGMENT
STRASBOURG
15 February 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 Fetullah Akpolat v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 22077/03) 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 Fetullah Akpolat
(“the applicant”), on 22 April 2003.
The
applicant was represented by Mr F. Babaoğlu, a lawyer practising
in Ankara. The Turkish Government (“the Government”) were
represented by their Agent.
The
applicant alleged under Articles 5 § 3 and 6 § 1 of the
Convention that the length of his pre-trial detention and the
criminal proceedings against him had been excessive. He also
maintained that the seizure of his correspondence had breached his
rights protected by Articles 8 and 10 of the Convention.
On
17 June 2008 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaints
concerning the applicant's rights to release
pending trial, to a fair hearing within a reasonable time and
concerning the alleged unjustified interference with the applicant's
right to respect for his correspondence. It also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1971 and was detained in
the Üsküdar prison as at the time of his application to the
Court.
A. The criminal proceedings against the applicant
On
6 January 1993 the applicant was taken into police custody in
Istanbul on suspicion of membership of the PKK
(Kurdistan Workers' Party, an illegal organisation).
On
13 January 1993 he was brought before a single judge at the Istanbul
Security Court who remanded him in custody.
On 25 January 1993 the public
prosecutor at the Istanbul State
Security Court filed an indictment against the applicant and
seventeen other people. The applicant was charged with membership of
the PKK under Article 168 of the former Criminal Code.
On
10 October 2001 the Istanbul State Security
Court, after having held ten hearings, found
the applicant guilty of activities carried out for the purpose
of bringing about the secession of part of the national territory
under Article 125 of the former Criminal Code.
The applicant was sentenced to death, commuted to life imprisonment.
On
12 February 2002 the Court of Cassation quashed the judgment of the
first-instance court on the grounds that the Istanbul
State Security Court had found that the applicant had
committed certain acts which had not been included in the indictment
of 25 January 1993.
On
12 September 2002 the public prosecutor at the Istanbul
State Security Court filed an additional indictment against
the applicant, containing allegations that the applicant had
committed the acts referred to in the State Security Court's judgment
of 10 October 2001.
On
5 November 2003 the Istanbul State
Security Court once again convicted the
applicant under Article 125 of the former Criminal Code.
(This judgment was not submitted to the Court).
On
12 April 2004 the Court of Cassation upheld the judgment of
5 November 2003.
On
23 September 2004 the Public Prosecutor at the Court of Cassation
dismissed the applicant's request for rectification of the decision
of 12 April 2004.
B. The seizure of the applicant's correspondence
On
19 November 2003 the Prison Disciplinary Board seized a letter
written by the applicant and addressed to the “President of the
United Kingdom” with a view to destroying it, considering that
it “would stir up trouble” (“sakıncalı”
in Turkish).
On
3 December 2003 the applicant lodged an objection to the decision of
19 November 2003 with the Üsküdar Post-Sentencing Judge.
On
10 December 2003 the Üsküdar Post-Sentencing Judge upheld
the Prison Disciplinary Board's decision. The judge held that the
letter had been written as propaganda in favour of the PKK terrorist
organisation and its leader, because it contained allegations that
Abdullah Öcalan had been pressurised and isolated in prison.
On
25 December 2003 the Üsküdar Assize Court dismissed the
applicant's objection to the decision of 10 December 2003.
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 (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 Law no. 5271 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
relevant domestic law in regard to the applicant's complaint under
Article 8 may be found in Tan v.
Turkey, no. 9460/03, §§ 13-14, 3 July 2007.
THE LAW
I. ADMISSIBILITY
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.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that the length of his pre-trial detention had
exceeded the reasonable time requirement under Article 5 § 3 of
the Convention, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
The
Government maintained that the applicant's detention had been based
on the existence of reasonable grounds of suspicion of his having
committed an offence, and that his detention had been reviewed
periodically by the competent authority, with special diligence, in
accordance with the requirements laid down by applicable law. They
pointed out that the offence with which the applicant had been
charged was of a serious nature, and that his continued remand in
custody was necessary to prevent crime and to preserve public order.
The Court notes two periods of detention in the
present case. The first period began on 6 January 1993, when the
applicant was taken into police custody, and ended on 10 October
2001, when the Istanbul State Security Court convicted the applicant.
From that point on, and until the Court of Cassation's decision of 12
February 2002, the applicant was 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 eight years,
nine months and four days. The second period began on
12 February 2002, when the Court of Cassation quashed the
first-instance court's judgment, and ended on 5 November 2003 with
the State Security Court's judgment. The second period thus lasted
one year, eight months and twenty four days. Accordingly,
the period to be taken into consideration in the instant case is
approximately ten years and six months (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, Tutar v. Turkey, no.
11798/03, § 20, 10 October 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 applicant's pre-trial detention was excessive.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the criminal proceedings
against him had been incompatible with the reasonable time
requirement, laid down in Article 6 § 1 of the Convention. The
Government disputed this allegation.
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 offence with which
the applicant was charged.
The
Court notes that the criminal proceedings in
the present case began on 6 January 1993, when the applicant was
arrested, and ended on 12 April 2004, when the Court of Cassation
rendered the final decision in the case. They thus lasted eleven
years and three months across two levels of jurisdiction.
The
Court has frequently found violations of Article 6 § 1 of the
Convention in applications raising issues similar to the one in the
present case (see Bahçeli v. Turkey, no. 35257/04, §
26, 6 October 2009, and Er v. Turkey, no. 21377/04,
§ 23, 27 October 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. The Court therefore
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.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant further complained that the prison authorities' seizure of
his letter addressed to the “President of the United Kingdom”
had violated his right to respect for correspondence guaranteed by
Article 8 of the Convention, which reads:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government submitted that the interference in question had been
prescribed by law and had pursued a number of legitimate aims, namely
the protection of national security, territorial integrity, public
safety, public order and prevention of crime. They also claimed that
the restriction had been necessary in a democratic society because it
had been carried out as a result of a pressing social need and had
been proportionate to the legitimate aims pursued. They concluded
that, in the exercise of their discretion, the prison authorities had
decided not to allow the impugned letter to be sent outside.
The
applicant maintained his allegations.
The
Court notes that it has already examined the same grievance in the
case of Tan v. Turkey (cited above, §§ 15-26) where
it found a violation of Article 8 of the Convention. In that judgment
the Court held that sections 144 and 147 of Regulation no. 647
on prison management and the service of sentences did not indicate
with sufficient clarity the scope and arrangements for exercise of
the authorities' discretion in the monitoring of inmates'
correspondence. It also observed that the way in which the discretion
was exercised in practice did not appear to remedy the deficiency.
Accordingly, the Court took the view that the interference with the
applicant's right to respect for his correspondence had not been “in
accordance with the law” within the meaning of the second
paragraph of Article 8 of the Convention.
The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned case.
Accordingly,
there has been a violation of Article 8 of the Convention.
V. 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 25,000 euros (EUR) in respect of pecuniary damage
and EUR 25,000 in respect of non-pecuniary damage.
The
Government contested this claim.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, having regard to the nature of the violations found in the
present case and ruling on an equitable basis, the Court awards the
applicant EUR 16,000 in respect of non pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 5,000 for costs and expenses incurred
before the Court.
The
Government objected to the claim as being unsubstantiated.
According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, the applicant has not substantiated
that he actually incurred the costs claimed. In particular he failed
to submit documentary evidence, such as bills, receipts, a contract,
a fee agreement or a breakdown of the hours spent by his lawyer on
the case. Accordingly, the Court makes no award under this head.
C. Default interest
The
Court considers it appropriate that 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 application admissible;
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 that there has been a violation of Article
8 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 16,000
(sixteen thousand euros), plus any tax that may be chargeable to the
applicant, 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 15 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens Deputy
Registrar President
