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SECOND
SECTION
CASE OF HANBAYAT v. TURKEY
(Application
no. 18378/02)
JUDGMENT
STRASBOURG
17
July 2007
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 Hanbayat v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mrs A.
Mularoni,
Mrs D. Jočienė, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18378/02) 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 Aydın Hanbayat
(“the applicant”), on 22 January 2002.
- By
a letter dated 1 March 2006, the Registry was informed of the death
of the applicant on 18 June 2005 and the applicant’s mother,
Mrs Fatma Hanbayat, declared her intention to pursue the
application.
- The
applicant’s mother was represented by Mr and Mrs Kırdök,
lawyers practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
15 September 2006 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 1962.
- On
9 October 1994 the applicant was arrested by police officers from the
Anti-Terror branch of the Istanbul Security Directorate in the course
of a police operation carried out against the illegal organisation
the TKP/ML-TIKKO (the Turkish Communist
Party/Marxist Leninist - Turkish Workers and Peasants’
Liberation Army).
- On
21 October 1994 the applicant was brought before a single judge at
the Istanbul State Security Court, who ordered his detention on
remand.
- On
15 November 1994 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant and ten other
persons. The public prosecutor charged the applicant with membership
of an illegal organisation under Article 168 § 1 of the Criminal
Code.
- On
1 February 1995 the Istanbul State Security Court held the first
hearing on the merits of the case (no. 1994/183).
- On
13 October 1997 the public prosecutor at the Istanbul State Security
Court filed a further bill of indictment against the applicant,
accusing him of attempting to undermine the constitutional order,
contrary to Article 146 of the Criminal Code.
- Between
1 February 1995 and 27 August 1999, the Istanbul State Security Court
held 28 hearings in the case. Throughout these hearings, the
applicant and his representative requested that the applicant be
released pending trial. They contended that the length of the
applicant’s detention on remand was excessive and that he
suffered from health problems. The court dismissed the requests on
each occasion, holding that the applicant’s detention pending
trial should continue having regard to the nature of the offence with
which he was charged, the state of the evidence and the date of the
remand decision.
- On
27 August 1999 the Istanbul State Security Court decided to disjoin
the proceedings against the applicant from case no. 1994/183 and to
join them to a case brought against him in 1997 (no. 1997/359).
- On
8 August 2001, at the end of the 21st hearing, the
Istanbul State Security Court ordered the applicant’s release
pending trial, having regard to the content of the case file, the
state of the evidence and the date of the remand decision.
- Between
1997 and 2004, the Istanbul State Security Court postponed the
hearings in case no. 1997/359 as it had not received from German
authorities an investigation file concerning a homicide allegedly
committed by the applicant in Germany.
- By Law no. 5190 of 16 June 2004, published in the
Official Gazette on 30 June 2004, State Security Courts
were abolished. Subsequently, the Istanbul Assize Court acquired
jurisdiction over the case.
- On
23 February 2005 the Istanbul Assize Court acquitted the applicant of
the charge under Article 146 of the Criminal Code, but convicted him
of membership of an illegal organisation under Article 168 § 2
of the Criminal Code. It sentenced the applicant to twelve years and
six months’ imprisonment.
- On
an unspecified date, the applicant appealed. While the
proceedings were pending before the Court of Cassation, on 18 June
2005 the applicant died.
- Subsequently,
on 19 October 2005 the Istanbul Assize Court decided to discontinue
the proceedings.
THE LAW
I.
THE GOVERNMENT’S PRELIMINARY OBJECTION
- The
Government submitted that the case should be struck out of the
Court’s list of cases on the ground that the applicant’s
mother was not affected by the alleged violations, and thus could not
claim to be a victim within the meaning of Article 34 of the
Convention.
- The Court notes that the applicant died on 18 June
2005. On 1 March 2006 his mother expressed her wish to continue the
application. The Court reiterates that in a number of cases in which
an applicant died in the course of the proceedings, it has taken
account the statements of the applicant’s heirs or of close
family members expressing their wish to pursue the case before the
Court (see, among many others, Dalban v. Romania [GC],
no. 28114/95, § 39, ECHR 1999-VI, Latif Fuat Öztürk
v. Turkey, no. 54673/00, § 27, 2 February 2006,
and Mutlu v. Turkey, no. 8006/02, §§ 13-14,
10 October 2006).
- In
view of the above, the Court holds that the applicant’s mother
has standing to continue the present proceedings in the applicant’s
stead. Consequently, the Government’s objection that the case
should be struck out is dismissed.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
- The
applicant complained that his detention on remand exceeded the
“reasonable time” requirement of Article 5 § 3 of
the Convention, which in so far as relevant 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 contested that argument.
A. Admissibility
- The
Government asked the Court to dismiss the application for failure to
exhaust domestic remedies, pursuant to Article 35 § 1
of the Convention. In this regard, they maintained that the applicant
could have sought compensation pursuant to Law no. 466 on the Payment
of Compensation to Persons Unlawfully Arrested or Detained.
- The Court recalls that it has in the past already
examined and rejected similar objections of the Government (see Yağcı
and Sargın v. Turkey, judgment of 8 June 1995, Series A
no. 319 A, § 44, and Ahmet Mete v.
Turkey, no. 77649/01, § 21, 25 April 2006). The
Court finds no particular circumstances in the instant case which
would require it to depart from this jurisprudence. As a result, it
rejects the Government’s preliminary objection.
- The Court considers that this complaint 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
Court notes that, in the instant case, the period to be taken into
consideration began on 9 October 1994 with the applicant’s
arrest and ended on 8 August 2001, when the applicant was released
pending trial. It thus lasted approximately 6 years and 10
months. During this period, the domestic courts prolonged the
applicant’s detention on remand using identical, stereotyped
terms, such as “having regard to the nature of the offence, the
state of evidence and the duration of detention”.
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, Atıcı v. Turkey, no.
19735/02, 10 May 2007; Solmaz, cited above; Dereci v.
Turkey, no. 77845/01, 24 May 2005; Taciroğlu v. Turkey,
no. 25324/02, 2 February 2006).
- 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, it considers that in
the instant case the length of the applicant’s pre-trial
detention was excessive and contravened Article 5 § 3 of the
Convention.
- There
has accordingly been a violation of this provision.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained of a breach of the reasonable time requirement
of Article 6 § 1 of the Convention, which provides as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that allegation.
- The
Court notes that the period to be taken into consideration began on 9
October 1994 when the applicant was taken into police custody and
ended on 19 October 2005 with the decision of the Istanbul Assize
Court. They thus lasted over eleven years 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 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 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 other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see Pélissier and Sassi, cited above).
- 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.
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 15,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- Ruling
on an equitable basis, the Court awards the applicant’s heir,
Mrs Fatma Hanbayat, EUR 12,000 under this head.
B. Costs and expenses
- The
applicant also claimed 5,500 New Turkish liras (YTL) –approximately
EUR 3,000 – for legal fees and YTL 300 – approximately
EUR 168 – for costs and expenses.
- The
Government contested these claims.
- Making
its own estimate based on the information available, the Court
considers it equitable to award the applicant’s heir, Mrs Fatma
Hanbayat, EUR 1,500 for the costs and expenses incurred 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 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
(a) that
the respondent State is to pay the applicant’s heir, Mrs Fatma
Hanbayat, 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 and free of
any taxes or charges that may be payable:
(i) EUR
12,000 (twelve thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros) 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 claim for just
satisfaction.
Done in English, and notified in writing on 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens Registrar President
