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THIRD
SECTION
CASE OF ORUÇ v. TURKEY
(Application
no. 33620/02)
JUDGMENT
STRASBOURG
21
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 Oruç v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr R. Türmen,
Mr C.
Bîrsan,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mr David Thór Björgvinsson,
Mrs I.
Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having
deliberated in private on 30 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33620/02) 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 Abdulvahap Oruç
(“the applicant”), on 6 August 2002.
- The
applicant was represented by Ms N. Aktaş, a lawyer practising in
İzmit. In the instant case, the Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- The
applicant alleged, in particular, that the length of the criminal
proceedings brought against him was excessive.
- On
1 December 2005 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of the criminal proceedings 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in İzmit.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
11 June 1991 an auditor initiated an investigation into the alleged
falsification of documents carried out in the applicant's pharmacy.
On 4 July 1991 the auditor informed the Diyarbakir Public
Prosecutor about the outcome of his investigation.
- The
Ministry of Finance and Customs filed a complaint against the
applicant. Consequently, on 16 June 1993 the Public Prosecutor filed
an indictment against the applicant for forgery of official
documents.
- On
21 June 1993 the Diyarbakır Assize Court scheduled the first
hearing for 20 September 1993. It requested the Diyarbakır
Security Directorate to find the applicant's address. It also
requested the Ministry of Finance to submit all documents that are
relevant to the case. The applicant was not present during most of
the hearings, however he was represented by his lawyer.
- On
10 May 1994, at the sixth hearing, the Ministry complied with the
court's request.
- Following
the establishment of the applicant's address, his statement taken by
way of rogatory letter was submitted to the case file during the
hearing of 28 June 1994. Moreover, at the same hearing the court
requested Bismil and Mersin Assize Courts to take the statements of
two witnesses. These statements were submitted to the case-file at
the following hearing.
- On
28 February 1995 the court sent the case-file to an expert to comment
on the allegedly forged documents. During the following seven
hearings there was no reply from the expert. The trial judge has
therefore rescheduled the hearing without taking any substantial or
procedural decision. At the hearing of 14 May 1996 the expert report
was submitted to the case file.
- On
19 September 1996 the court referred the case-file to the Forensic
Department in order to have their opinion on the matter. After eight
hearings, on 27 January 1998, the Forensic Department
submitted its report on the allegedly forged documents, but it failed
to send back the case-file. On 23 June 1998 the case-file
was sent back to the court.
- On
9 February 1999 the court requested a graphology expert at the
Forensic Department to determine whether the handwriting and the
signatures found on the documents belonged to the applicant.
- On
23 December 1999 the graphology expert submitted his report.
- On
18 January 2000 the Diyarbakır Assize Court found the applicant
guilty of the charges and sentenced him to two years and eleven
months imprisonment.
- The
applicant appealed against the judgement of the Assize Court. On
24 January 2002 the Court of Cassation upheld the decision of
the Assize Court. The Court of Cassation pronounced its decision in
the presence of the applicant. The final decision was deposited with
the Registry of the first instance court on 26 February 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
exceeded the “reasonable time” requirement under Article
6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The Government argued that the application is
inadmissible as the applicant failed to comply with the six-month
rule laid down in Article 35 § 1 of the
Convention because he did not introduce his application within six
months of the Court of Cassation's decision of 24 January
2002. They argued that as the applicant was present during the
hearing held before the Court of Cassation he did not have to wait
until the decision was notified to him in writing.
- The applicant contended that the six months should
start to run from the date on which he was officially notified of the
decision of the Court of Cassation.
- The Court refers to its case-law according to which
the object and purpose of Article 35 § 1 of the Convention are
best served by counting the six-month period as running from the date
of service of the written judgment in cases where the applicant is
entitled, pursuant to domestic law, to be served ex officio
with a written copy of the final domestic decision, irrespective of
whether that judgment was previously delivered orally (see, Worm
v. Austria, judgment of 29 August 1997, Reports of Judgments
and Decisions 1997 V, p. 1547, § 33; Venkadajalasarma
v. The Netherlands (dec.), no.58510/00, 9.7.2002, unreported).
Whereas in cases where the domestic law does not provide for service,
the Court considers it appropriate to take the date the decision was
finalised as the starting-point, that being when the parties were
definitely able to be informed of its content (see, among many
others, Seher Karatas v. Turkey, no. 33179/96, § 27,
9 July 2002, and Karatepe v. Turkey (dec.), no.
43924/98, 3 April 2003).
- The
Court observes that, despite the wording of Article 33 of the Code of
Criminal Procedure which stipulates that judgments and decisions of
courts are to be served on the parties to the case, it is not the
practice of the Criminal Divisions of the Court of Cassation to serve
their decisions on defendants (see Seher Karatas, cited above,
§ 28). However, the accused and his or her lawyer have the
possibility to request a copy of the judgment from the moment when
the judgment of the Court of Cassation is sent back to the registry
of the first instance court.
- In
the present case, the written judgment which contained detailed legal
reasoning was at the disposal of the applicant and his lawyer as
of 26 February 2002, when it was sent to the registry of
the first-instance court. The application to the Court was introduced
less than six months thereafter, namely on 6 August 2002. It follows
that the Government's preliminary objection must be dismissed.
- 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.
B. Merits
- The
Government argued that it was a complex case which concerned forgery
of official documents. It had been difficult to find the addresses of
all doctors who had their signatures under the documents which were
allegedly forged. Moreover as these witnesses were living in
different cities their statements had to be taken by way of rogatory
letters. In their submissions the length of the proceedings was
mostly due to the negligent acts of the applicant who changed his
address without notifying the court.
- The
applicant alleged that the length of the criminal proceedings was
excessive. He also claimed that the authorities could have easily
found his address.
- The
Court observes that the period to be taken into consideration began
on 16 June 1993, when the Diyarbakır Public Prosecutor filed a
bill of indictment against the applicant and ended on 24 January
2002, when the Court of Cassation upheld the judgment of the
first-instance court. The period under consideration thus lasted
eight years and seven months before two instances.
- 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,
the conduct of the applicant and the relevant authorities (see, among
many others, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II).
- The
Court considers that, even though the case was of some complexity, it
cannot be said that this in itself justified the entire length of the
proceedings.
- As
regards the conduct of the applicant, the Court observes that at the
beginning of the proceedings, the authorities were unable to
determine the applicant's address for almost a year. After taking his
statements in the very beginning of the proceedings, the court has
never requested the applicant's presence. Moreover, he was
represented by his lawyer throughout the proceedings. Thus, it does
not appear that the applicant's absence has contributed significantly
to the prolongation of the proceedings, as alleged by the Government.
- As
to the conduct of the domestic authorities, the Court observes that
the domestic court waited for more than one year for the expert
report on the allegedly forged documents to be drafted (paragraph
13). Similarly, the graphology expert at the Forensic Department took
nine months to determine whether the handwriting and the signatures
found on the documents belonged to the applicant (paragraphs 15
and16). During both of these periods the court rescheduled the
hearings for a later date, without taking any substantial or
procedural decisions.
The
Court further observes that it took the experts at the Forensic
Department almost sixteen months to submit their opinion on the
case-file. Additionally, the fact that these experts have failed to
send the case file back to the court delayed the proceedings for five
more months (paragraph 14).
- Finally,
the Court considers that what was at stake for the applicant in the
domestic litigation was of considerable importance to him. It
observes that a criminal case into the alleged falsification of
documents carried out in the applicant's pharmacy has clearly had a
negative effect on his professional life.
- The foregoing considerations are sufficient to enable
the Court to conclude 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 violation of Article 6 § 1 of the
Convention.
II. 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 120,000 euros (EUR) in respect of pecuniary damage.
He further claimed a total of EUR 30,000 for non-pecuniary damage.
- The
Government disputed these claims.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court observes that he has not produced any document in support of
his claim. Accordingly, the Court dismisses the applicant's claims in
respect of pecuniary damage.
- With
regard to the non-pecuniary damage, the Court considers that the
applicant may have suffered a certain amount of distress in the
circumstances of the case. Taking into account the circumstances of
the case and having regard to its case-law, the Court awards the
applicant EUR 4,500 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 2,000 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government maintained that only those expenses which were actually
and necessarily incurred could be reimbursed. In this connection,
they submitted that the applicant and his representative had failed
to submit documents showing the costs and expenses.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far 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 considers it
reasonable to award to EUR 1,000 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
- Declares the application admissible;
- 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
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 new Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
4,500 (four thousand five hundred euros) in respect of non pecuniary
damage;
(ii) EUR
1,000 (one thousand euros), in respect of costs and expenses;
(iii) any
taxes that may be chargeable on the above amounts;
(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 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
