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MEHMET NUR v. TURKEY - 23139/07 [2012] ECHR 757 (24 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/757.html
Cite as:
[2012] ECHR 757
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SECOND
SECTION
CASE OF MEHMET NURİ ÇAÇAN
v. TURKEY
(Application
no. 23139/07)
JUDGMENT
STRASBOURG
24 April 2012
This judgment is final but it
may be subject to editorial revision.
In the case of Mehmet Nuri Çaçan
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Isabelle Berro-Lefèvre,
President,
Guido Raimondi,
Helen Keller,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 3 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 23139/07) 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 Mehmet Nuri Çaçan
(“the applicant”), on 21 May 2007.
The
applicant was represented by Mr M. Erbil, a lawyer practising in
Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
On
27 August 2009 the
application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. The proceedings before the State Security Court
The
applicant was born in 1970 and lives in Bitlis.
On
29 April 2000 the applicant was arrested and
imprisoned after a criminal conviction.
During
the imprisonment it was found that the applicant was mistakenly
incarcerated due to his personal identity card being used by his
brother in commission of a crime.
On
25 July 2000 the Istanbul State Security Court found in favour of the
applicant and ordered his release.
The
applicant could only be released on 7 August 2000 because of extended
paperwork.
On
4 February 2002 the Istanbul State Security Court ordered the
acquittal of the applicant.
B. The proceedings before the Assize Court
On
27 October 2000 the applicant lodged criminal complaint with the
Bakırköy Assize Court requesting compensation for his
unlawful detention for a period of three months and eight days,
pursuant to Law no. 466.
During
the course of the proceedings, the court held twenty one hearings.
The applicant was present only at one of them, which was held on 19
July 2001. The applicant’s lawyer did not attend to any of the
hearings despite having been notified.
On
7 March 2007 the court partially granted the applicant’s
request.
On
15 April 2009 the Court of Cassation quashed the judgment of the
first-instance court on the ground that the proceedings before the
Istanbul State Security Court had not been finalised at the time when
the applicant brought the compensation action before the assize
court. It held that the applicant had failed to comply with a
prerequisite in order to bring such an action.
On
25 September 2009 the court dismissed the case in line with the
decision of the Court of Cassation.
According
to the information in the case file the proceedings are currently
pending before the Court of Cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings before the
assize court 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 argued that the length of the proceedings could not be
attributable to the national authorities as the applicant did not
show diligence in pursuing his case and caused prolongation. They
claimed that the applicant did not attend the hearings although he
was informed about the date of the hearings.
The
applicant contended that the authorities were responsible for the
excessive length of the proceedings because of their own conduct in
the proceedings, namely frequent changes of the judges at the bench
of the trial court and the failure of the national authorities to
send the required documents to the trial court. He alleged that in
the cases as such, there was no requirement for the claimant or his
lawyer to attend the hearings as it was mainly the trial court which
was supposed to collect the evidence.
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.
The
Court notes that the domestic proceedings commenced on
27 October 2000, and they are still
pending before national courts. They have, thus, already
lasted approximately eleven years and five months before two levels
of jurisdiction.
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 the relevant authorities (see,
among many other authorities, Daneshpayeh v. Turkey, no.
21086/04, § 26, 16 July 2009).
As
regards the conduct of the applicant, the Court observes that the
applicant and his lawyer have failed to appear before the trial court
even though they were invited to the hearings. It
further notes that the absence of the applicant and his lawyer
affected the length of the proceedings, as the court needed to obtain
certain information from the applicant concerning his detention and
acquittal, which had not been provided by the applicant or his
lawyer. In this regard, the Court is of the opinion
that the applicant contributed to the prolongation of the proceedings
by his own failure to appear before the court and that delay could
not be attributable to the authorities (see Aladağ v. Turkey
(dec.), no. 6781/04, 9 February 2010).
On
the other hand, given the remaining length of the proceedings, the
Court notes that the period in question cannot be explained solely by
the delaying conduct of applicant. Observing the intervals between
the hearings, as well as the length of appeal proceedings, the Court
finds that there were unnecessary delays in the proceedings, for
which the judicial authorities were responsible. For this reason, the
Court is not convinced that the domestic courts showed the required
diligence to conclude the proceedings within a reasonable time.
24. The Court has
frequently found a violation of Article 6 § 1 of the Convention
in cases raising similar issues to the one in the present case (see
Daneshpayeh,
cited above, §§ 26-29, and Frydlender
v. France [GC],
no. 30979/96, §§ 42-46, ECHR 2000 VII). 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. It
concludes therefore that in the instant case the length of the
proceedings failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that there was no domestic remedy proceedings.
He relied on Article 13 of the Convention which reads as available
under the Turkish law whereby he could challenge the excessive length
of follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ...”
The
Government submitted the same objections which they put forward
against the applicant’s complaint under Article 6.
The
Court has examined similar cases on previous occasions and has found
violations of Article 13 of the Convention in respect of the lack of
an effective remedy under Turkish law whereby the applicant could
have contested the length of the proceedings at issue (see
Daneshpayeh, cited above §§ 37 and 51; Bahçeyaka
v. Turkey, no. 74463/01, §§ 26-30, 13 July 2006;
and Tendik and Others v. Turkey, no. 23188/02, §§
34–39, 22 December 2005). It finds no reason to depart
from that conclusion in the present case.
There
has accordingly been a breach of Article 13.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly
the applicant complained under Article 5 §§
1 and 5 of the Convention that his arrest and detention had not been
lawful and that he had not had any effective legal remedy whereby he
could obtain compensation for his detention.
As
regards the complaint concerning the unlawfulness of the applicant’s
detention under Article 5 § 1, the Court notes that the
applicant was released from detention on 7 August 2000. The
application, however, was not lodged until 21 May 2007, that is, more
than six months later. Therefore, this complaint was lodged out of
time and must be rejected under Article 35 §§ 1 and 4
of the Convention.
As
regards the complaint under Article 5 § 5, The Court reiterates
that the right to compensation set forth in paragraph 5 therefore
presupposes that a violation of one of the other paragraphs has been
established, either by a domestic authority or by the Convention
institutions. The Court notes in the present case that neither the
domestic authorities nor the Court established a violation under
other paragraphs of Article 5 (see N.C. v. Italy [GC], no.
24952/94, § 49, ECHR 2002 X). Furthermore, the compensation
proceedings are still pending before the national courts.
It follows that this complaint must be rejected under Article 35 §§
1 and 4 of the Convention for non-exhaustion of domestic remedies.
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 claimed 242 Turkish liras (TRL approximately
100 euros (EUR) in respect of pecuniary damages referring to the
damage estimated by the expert report in the domestic proceedings. He
also claimed 10,000 euros (EUR) in respect of non-pecuniary
damage for the distressed caused due to his
unlawful detention.
The
Government contested these claims finding them unsubstantiated.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 4,200 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed TRL 3,000 (approximately EUR 1,200) for the
costs and expenses incurred in respect of lawyer’s fee.
In support of his claims, the applicant submitted a fee agreement,
stating that the lawyer would receive an amount of TRL 3,000
following the termination of the Court proceedings. He also submitted
a document indicating the lawyer’s stationery, telephone,
translation and transportation expenses.
The
Government contested these claims as being unsubstantiated.
Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the sum of EUR 1,200
covering costs under this head.
C. Default interest
The
Court considers it appropriate that the default interest rate 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 complaints concerning the excessive
length of the proceedings and the lack of an effective remedy
admissible and the remainder of the application inadmissible;
Holds that there has been
a violation of Articles 6 § 1 and 13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
4,200 (four thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable, 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle Berro-Lefèvre Deputy
Registrar President
