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FOURTH
SECTION
CASE OF HIDIR DURMAZ v. TURKEY
(Application
no. 55913/00)
JUDGMENT
STRASBOURG
5
December 2006
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 Hıdır Durmaz v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr R.
Türmen,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 14 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 55913/00) 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 Hıdır Durmaz
(“the applicant”), on 18 October 1999.
- The
applicant was represented by Mr E. L. Yavuzer, a lawyer practising in
Konya. The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- On
22 March 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and was serving his prison sentence in
Ceyhan prison at the time of his application to the Court.
- On
11 August 1995 the applicant was arrested and taken into custody in
Mersin on suspicion of membership of an illegal organisation, namely
the TKP/ML-TIKKO.
On the same day the
applicant was examined by a doctor at the Mersin State Hospital who
did not find any signs of ill treatment on the applicant’s
body.
- On
23 August 1995 the applicant was examined by a doctor at the Mersin
State Hospital who did not find any signs of ill treatment on
the applicant’s body.
- On
24 August 1995 the applicant was brought before a judge at the State
Security Court who ordered his detention on remand.
- The
public prosecutor at the Konya State Security Court in his
indictment, dated 20 September 1995, accused the applicant of
membership of an illegal organisation. The charges were brought under
Article 168 § 1 of the Criminal Code and Article 5 of Law no.
3713.
- In
the meantime, on 12 October 1995, the applicant filed a petition with
the Mersin public prosecutor (hereinafter: “the prosecutor”)
and claimed that he had been subjected to ill-treatment while he was
held in police custody. On an unspecified date, the prosecutor
instigated an investigation into the applicant’s allegations.
- On
16 October 1995 the criminal proceedings against the applicant and
two other accused commenced before the Konya State Security Court.
- On
13 November 1995 the prosecutor took the statement of the applicant.
In his deposition, the applicant submitted, in particular, that he
had been hung up, subjected to electric shocks and hosed with
pressurised water. He further stated that, during interrogation, his
hands and feet had been beaten with a hard object. Finally, he gave
the names of four detainees who witnessed the incident.
- On
15 November 1995, upon the request of the prosecutor, the applicant
was examined by a doctor at the Konya Forensic Medicine Department
who noted healed superficial grazes under the armpits and a healed
wound of about 1 mm on one of the fingers of the applicant’s
right hand. She further found a loss of pigment of 1x2 mm on the
applicant’s penis.
- The
prosecutor took the statements of two police officers who had
interrogated the applicant on 17 November 1995 and 3 December 1997.
They both denied the allegations of the applicant. The prosecutor
also took the witness statements of three detainees (Mr D.B., Mr Y.A.
and Mr M.U.). They all affirmed, in particular, that they saw the
applicant bleeding from under his armpits during his stay in custody.
- In
the meantime, at the hearing held on 28 November 1995 the
first instance court heard witnesses on behalf of the applicant.
Four witnesses (Mr D.B., Mr Y.A., Mr M.U. and Mr A.Ö) maintained
that they had seen the applicant during his detention in the Security
Directorate and that he had bruises on his face and armpits. In the
course of the criminal proceedings, the Konya State Security Court
decided to join the proceedings against the applicant to several
other cases brought against other persons who were also accused of
membership of the same organisation.
- On
12 June 1997, the Adana State Security Court acquired jurisdiction
over the case since the Konya State Security Court had been abolished
by Law no. 4210 on 19 May 1997.
- On
4 December 1997 the prosecutor, taking into account the contents of
the medical reports dated 11 and 23 August 1995 and the fact that it
was not possible to determine whether the physical findings noted in
the medical report of 15 November 1995 - three months after the
applicant’s stay in custody - were the result of ill-treatment,
decided that no prosecution should be brought against the two police
officers who had interrogated the applicant. The prosecutor found in
this connection that there was insufficient evidence in support of
the allegations. This decision was not served on the applicant.
- Between
12 June 1997 and 14 July 1998 the Adana State Security Court held
sixteen hearings at regular intervals.
- On
14 July 1998 the Adana State Security Court convicted the applicant
as charged and sentenced him to fourteen years and seven months’
imprisonment.
- On
20 April 1999 the Court of Cassation held a hearing and upheld the
judgment of the first-instance court. The applicant’s
representative failed to attend the hearing.
- On
24 December 2004 the Adana Assize Court suspended the execution of
the applicant’s sentence and ordered his release from prison in
light of the provisions of the new Criminal Code.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgments and decision: Batı and
others v. Turkey (nos. 33097/96 and 57834/00,
§§ 96 100, ECHR 2004 IV (extracts)),
Özel v. Turkey (no. 42739/98, §§ 20-21,
7 November 2002), Gençel v. Turkey (no. 53431/99,
§§ 11-12, 23 October 2003) and Nuray Şen
v. Turkey ((dec.), no. 41478/98, 30 April 2002).
- Law
no. 5190 of 16 June 2004, published in the Official Journal on 30
June 2004, abolished the State Security Courts.
- According
to Article 165 of the Criminal Procedure Code a complainant may file
an appeal against the decision of a public prosecutor not to
institute criminal proceedings. This appeal must be lodged, within
fifteen days from the day of notification of the decision to the
complainant, with the president of the assize court in whose
jurisdiction the public prosecutor works.
- Under
Article 102 of the Criminal Code, taken in conjunction with Articles
243 and 245, a prosecution for an offence of ill-treatment or torture
by a public official must be brought within five years.
- According
to Article 32 of Law no. 7201 concerning notification, a notification
which was not served in accordance with law is valid if the person
concerned learns of its existence. The date of notification is the
date relied on by the concerned person.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to torture while held
in police custody, in breach of Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The Government asked the Court to dismiss this part of
the application as being inadmissible for failure to comply with the
requirement of exhaustion of domestic remedies under Article 35 § 1
of the Convention. They argued that the applicant failed to object to
the decision of non prosecution of the public prosecutor and
that he could have also sought reparation for the harm he allegedly
suffered by instituting an action in the civil or administrative
courts.
- The
applicant claimed that he was never served with the public
prosecutor’s decision. He maintained that, in any event,
lodging an objection against it would have been unsuccessful since
perpetrators of torture were never prosecuted in Turkey.
- The
Court reiterates that an appeal against decisions of public
prosecutors not to prosecute constitutes, in principle, an effective
and accessible remedy within the meaning of Article 35 § 1 of
the Convention (see, in particular, Saraç v. Turkey
(dec.), no. 35841/97, 2 September 2004; and Nuray Şen
v. Turkey (dec.), no. 41478/98, 30 April 2002).
- In
the present case, the applicant did not contest the prosecutor’s
decision. Even though the decision not to prosecute was not formally
served on the applicant, the Court considers that the applicant
and/or his representative, had they behaved more diligently, could
have apprised themselves of the decision much sooner. It notes in
this connection that, under the relevant domestic law (see paragraph
24 above), the applicant had a period of five years in which to
contest the prosecutor’s decision. In the particular
circumstances of the case, the Court does not find any special
circumstances which would dispense the applicant from the obligation
to object to the public prosecutor’s decision of
non-prosecution in order to exhaust domestic remedies.
- In
these circumstances, the Court accepts the Government’s
objection that the applicant has failed to exhaust domestic remedies.
It follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention on remand exceeded the
“reasonable time” requirement as provided in Article 5 §
3 of the Convention, which reads insofar as relevant 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 argued that the applicant was no longer a victim within
the meaning of Article 34 of the Convention since the period he had
spent in remand had been deducted from the sentence eventually
imposed by the domestic court.
- The Court reiterates that the taking into account of
detention on remand as part of a later sentence cannot eliminate a
violation of Article 5 § 3,
but may have repercussions only under Article 41 on the basis
that it limits the loss occasioned (see Engel and Others v. the
Netherlands, judgment of 8 June 1976, Series A no. 22, § 69;
and Kimran v. Turkey,
no. 61440/00, § 41, 5 April 2005). Accordingly, the
Government’s objection that the applicant could not be
considered a “victim” should
be rejected.
- However,
the Court observes that the applicant’s remand in custody ended
when he was convicted by the State Security Court on 14 July 1998,
whereas this complaint was lodged with the Court on 18 October 1999,
i.e. more than six months later (see, in particular, Wemhoff v.
Germany, judgment of 27 June 1968, Series A no. 7, p. 23, §
9; and Turan v. Turkey (dec.), no. 879/02, 27 January 2005).
It follows that this part of the application must be rejected for
non-compliance with the six month rule in accordance with
Article 35 §§ 1 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been denied a fair hearing by an
independent and impartial tribunal on account of the presence of a
military judge on the bench of the State Security Courts which tried
and convicted him. He further complained that he had not been
informed of the nature and cause of the accusations against him and
that he did not have adequate time and facilities for the preparation
of his defence. Finally, he claimed that the length of the criminal
proceedings brought against him was excessive. The applicant relied
on Article 6 §§ 1 and 3 (a) and (b) of the Convention,
which, in so far as relevant, read as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...within a
reasonable time by an independent and impartial tribunal established
by law.”
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence. ”
A. Admissibility
- The Court, in the light of its established case-law
(see, among many other authorities, Çıraklar v.
Turkey, judgment of 28 October 1998, Reports of
Judgments and Decisions 1998-VII) and in view of the materials
submitted to it, considers that these complaints raise complex issues
of law and fact under the Convention, the determination of which
should depend on an examination of the merits. The Court therefore
concludes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of
the Convention. No other grounds for declaring it inadmissible have
been established.
B. Merits
1. Independence and impartiality of the State Security
Court
- The Court has examined a large number of cases raising
similar issues to those in the present case and found a violation of
Article 6 § 1 of the Convention (see Özel, cited
above, §§ 33-34; and Özdemir v. Turkey,
no. 59659/00, §§ 35-36, 6 February 2003).
- The
Court finds no reason to reach a different conclusion in the instant
case. Accordingly, the Court concludes that there has been a
violation of Article 6 § 1 under this head.
2. Fairness of the proceedings
- Having
regard to its finding of a violation of the
applicant’s right to a fair hearing by an independent
and impartial tribunal, the Court considers that it is not necessary
to examine the remaining complaints under Article 6 of the Convention
relating to the fairness of the proceedings before the domestic
courts (see, among other authorities, İncal v. Turkey,
judgment of 9 June 1998, Reports 1998 IV, § 74).
3. Length of the proceedings
- The
Court observes that the period to be taken into consideration began
on 11 August 1995, when the applicant was arrested and taken into
police custody and ended on 20 April 1999, when the Court of
Cassation upheld the judgment of the Adana State Security Court. The
period under consideration thus lasted three years and eight months
before two instances.
- After
examining the overall duration of the proceedings, and taking into
account that the case was of some complexity, the number of the
accused and the fact that the case was dealt with at two levels of
jurisdiction, the Court does not consider that the length of the
proceedings in the present case was excessive even if it had been
somewhat prolonged by the decisions of the first-instance court to
join the applicant’s case to other related criminal
proceedings. The Court further finds that no significant delay
resulted from the transfer of the case to the Adana State Security
Court.
- Having
regard to the particular circumstances of the case, the Court finds
that the “reasonable time” requirement laid down in
Article 6 § 1 of the Convention was complied with in the present
case. Consequently, the Court concludes that there has been no
violation of Article 6 § 1 as regards the length of the
proceedings.
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 7,500 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the amount.
- The
Court considers that the finding of a violation of Article 6
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant in this respect (see İncal,
cited above, p. 1575, § 82; and Çıraklar,
cited above, § 45).
B. Costs and expenses
- The
applicant also claimed, in total, EUR 7,863 for costs and expenses
incurred both before the domestic courts and before the Court. The
applicant submitted a schedule of costs prepared by his
representative and relied on the Konya Bar Association’s
recommended minimum fees list. However, he did not submit any receipt
or invoice in support of his claims.
- The
Government contested the amount.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his 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 information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 1,000 for the
proceedings before the Court.
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 complaints concerning the
applicant’s right to a fair trial within a reasonable time and
by an independent and impartial tribunal admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the complaint relating to the
independence and impartiality of the Adana State Security Court;
- Holds that there has been no violation of
Article 6 § 1 of the Convention as regards the length of the
criminal proceedings;
- Holds that it is not necessary to consider the
applicant’s complaints under Article 6 of the Convention
relating to fairness of the proceedings;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage suffered by the applicant;
- 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 1,000
(one thousand euros) in respect of costs and expenses, to be
converted into New Turkish liras at the rate applicable at the day 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 5 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
