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SECOND
SECTION
CASE OF ÜTEBAY v. TURKEY
(Application
no. 40555/04)
JUDGMENT
STRASBOURG
17
July 2008
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 Ütebay v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 24 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40555/04) 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 Ekrem Ütebay (“the
applicant”), on 1 October 2004.
- By
a letter of 11 March 2007, the Registry was informed of the death of
the applicant. His parents, Mrs Muteber Ütebay and Mr Gıyasettin
Ütebay, and his brother, Mr Ercan Ütebay, declared their
intention to pursue the application.
- For practical reasons, Mr Ütebay will continue to
be called “the applicant” in this judgment, although his
family is now to be regarded as such (see Ahmet Sadık v.
Greece, judgment of 15 November 1996, Reports of Judgments and
Decisions 1996 V, p. 1641, § 3).
- The
applicant was represented by Mr F. Babaoğlu, a lawyer practising
in Ankara. The Turkish Government (“the Government”) were
represented by their Agent.
- On
6 November 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 1973 and lived in İstanbul. He died on
14 June 2005.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- On
7 March 1994 the applicant was taken into police custody in Muş
on suspicion of being a member of the illegal PKK (the Kurdistan
Workers' Party). On 13 March 1994 he was handed over to the Istanbul
Security Directorate for further investigation.
- On
21 March 1994 the applicant was taken before the investigating judge
at the Istanbul State Security Court, who ordered his detention
pending trial.
- By
an indictment dated 23 June 1994, the public prosecutor initiated
criminal proceedings against the applicant and forty-five other
defendants before the Istanbul State Security Court, accusing them,
inter alia, of membership of an illegal armed organisation and
of involvement in activities that undermined the constitutional order
of the State. The prosecution requested that the applicant be
sentenced pursuant to Article 125 of the Criminal Code.
- On
5 May 1999 the Istanbul State Security Court, composed of three
judges including a military judge, decided that the applicant's case
should be separated from the file as his final defence submissions
had not been submitted to the court.
- On
18 June 1999 the Constitution was amended and the military judge
sitting on the bench of the Istanbul State Security Court was
replaced by a civilian judge.
- The
case against the applicant continued before the Istanbul State
Security Court. In the course of the proceedings the State Security
Court rejected the applicant's requests for release, taking into
account the nature of the alleged offence and the state of the
evidence.
- On
5 April 2004 the applicant was released pending trial. The case was
still pending before the domestic courts when the applicant died on
14 June 2005.
THE LAW
I. 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 family were
not affected by the alleged violations and could therefore not claim
to be victims within the meaning of Article 34 of the Convention.
- The Court reiterates that in a number of cases in
which an applicant died in the course of the proceedings, it has
taken account of the statements of the applicants' heirs or close
family members expressing their wish to pursue the case before the
Court (see, among many other authorities, Dalban v. Romania
[GC], no. 28114/95, § 39, ECHR 1999 VI; Latif Fuat
Öztürk v. Turkey, no. 54673/00, § 27, 2 February
2006; Mutlu v. Turkey, no. 8006/02, §§
13–14, 10 October 2006). In the present case the Court
considers that, apart from having explicitly expressed their wish to
do so, the applicant's family have sufficient legitimate interests in
obtaining a ruling that the length of the applicant's detention
pending trial and the criminal proceedings against him was excessive,
in breach of Articles 5 § 3 and 6 § 1 of the
Convention.
- In
view of the above, the Court holds that the applicant's family 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 pending trial had 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. With reference to the ruling of the
Court in its Ahmet Sadık
v. Greece
judgment (cited above), they contended that the applicant had not
raised his complaint before the domestic courts.
- The
applicant denied the Government's allegations.
- The
Court notes that, on various occasions during the proceedings, the
applicant expressly complained about the length of his detention
pending trial and unsuccessfully requested the trial court to release
him. Against this background the Court finds that the applicant must
be considered to have complied with Article 35 § 1.
Consequently, the Court rejects the Government's objection.
- 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
Government submitted that the applicant's detention pending trial had
complied with domestic law. In view of the seriousness of the charges
brought against him and the evidence in the case file, the court had
prolonged that detention.
- The
Court notes that, in the instant case, the period to be taken into
consideration began on 7 March 1994 with the applicant's arrest and
ended on 5 April 2004, when the applicant was released pending trial.
It thus lasted nearly 10 years and 1 month. 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. 1),
no. 19735/02, § 50, 10 May 2007; Dereci v. Turkey,
no. 77845/01, §§ 38-40, 24 May 2005; Taciroğlu
v. Turkey, no. 25324/02, § 24, 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 detention pending
trial 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 7
March 1994 when the applicant was taken into police custody. In the
absence of any information in the case file as to whether, and if so
when, the domestic courts decided to discontinue the proceedings in
respect of the applicant after his death, the Court cannot determine
the exact length of the period in question. However proceedings were
pending at the time of the applicant's death on 14 June 2005 and had
thus already lasted some eleven years and three months for one level
of jurisdiction at that point.
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, and 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 (ibid.).
- 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 application. 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
- Muteber
Ütebay, Gıyasettin Ütebay and Ercan Ütebay
claimed 20,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim.
- The
Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it
therefore rejects this claim. However, it accepts that the applicant
must have suffered some non-pecuniary damage which cannot be
sufficiently compensated by the finding of a violation alone.
Consequently, taking into account the circumstances of the case and
having regard to its case-law, the Court awards
the applicant EUR 14,000 for non-pecuniary damage, to be paid
jointly to his successors, Muteber Ütebay, Gıyasettin
Ütebay and Ercan Ütebay.
B. Costs and expenses
-
Muteber Ütebay, Gıyasettin Ütebay and Ercan
Ütebay also claimed EUR 7,000
for legal fees and costs and expenses.
- The
Government contested this claim.
- Since no substantiation of this claim has been
submitted, as required by Rule 60 of the Rules of Court, the
Court makes no award under this head.
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;
4. Holds
(a) that
the respondent State is to pay Muteber Ütebay, Gıyasettin
Ütebay and Ercan Ütebay, jointly, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 14,000 (fourteen thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into new Turkish liras at the
rate applicable at the date of the settlement;
(b) that
from the expiry of the abovementioned 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 claim for just satisfaction.
Done in English, and notified in writing on 17
July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
Sally
Dollé Françoise
Tulkens Registrar President
