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SECOND
SECTION
CASE OF FIRAT v. TURKEY
(Application
no. 37291/04)
JUDGMENT
STRASBOURG
30
June 2009
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 Fırat 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 9 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37291/04) 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 Mehmet Fırat (“the
applicant”), on 30 March 2004.
- The
applicant was represented by Ms N.B. Gümrükçüoğlu,
a lawyer practising in Trabzon. The Turkish Government (“the
Government”) were represented by their Agent.
- On
7 May 2008 the President of the Second Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Istanbul.
- On
5 September 2000 the applicant was arrested and taken into custody on
suspicion of membership of an organised criminal gang and involvement
in kidnapping on behalf of that organisation. On 8 September
2000 he was remanded in custody.
- On
18 October 2000 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant and twenty one
other persons on the above-mentioned charges.
- On
6 November 2000 the criminal proceedings against the applicant
and the twenty-one other accused commenced before the Istanbul State
Security Court. Eighteen hearings were held in total. Throughout
the proceedings the applicant's lawyer repeatedly requested that the
applicant be released during trial, but those requests were dismissed
at the end of each hearing by way of an interim decision using an
identical expression, namely “having regard to the nature of
the offence with which he is charged and the state of the evidence”.
- On
a number of occasions the applicant's lawyer objected to the interim
decisions of the Istanbul State Security Court extending the
applicant's detention, and in each case the objections were further
dismissed by the Istanbul State Security Court using the
aforementioned identical expression.
- On
11 March 2004 the Istanbul Assize Court convicted the applicant as
charged and sentenced him, in total, to 27 years and 4 months'
imprisonment.
- On
20 April 2005 the Court of Cassation held a hearing and upheld the
first-instance court's judgment in respect of the applicant's
membership of an organised criminal gang, but quashed the judgment in
respect of the sentence imposed on the applicant for kidnapping.
- On
1 August 2005 the case was referred back to the Istanbul Assize
Court.
- On
10 November 2005 the Istanbul Assize Court decided to release the
applicant pending trial. He was accordingly released the next day.
- On
26 February 2008 the Istanbul Assize Court convicted the applicant as
charged and sentenced him to imprisonment for, in total, twelve
years, eight months and fifteen days.
- The
case is still pending before the Court of Cassation.
THE LAW
- The
applicant complained that his requests for release during the
judicial proceedings had been dismissed on identical and
stereotypical grounds, which did not constitute relevant and
sufficient grounds justifying the continuing deprivation of liberty,
in breach of Article 5 §§ 1 and 3 of the Convention.
- The
Court considers that this complaint should be examined from the
standpoint of Article 5 § 3 of the Convention alone.
- 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.
- The Government contended that the domestic authorities
had displayed diligence when considering the applicant's requests for
release. Moreover, they claimed that the seriousness of the crime and
the special circumstances of the case justified his continued
detention on remand for about five years.
- The
applicant maintained his allegations.
- The
Court refers to the basic principles laid down in its judgments
concerning Article 5 § 3 (see, in particular, Sevgin
and İnce v. Turkey,
no. 46262/99, § 61, 20 September 2005; Ilijkov
v. Bulgaria, no. 33977/96, § 77, 26 July 2001;
Labita v. Italy [GC], no. 26772/95, §§
152-153, ECHR 2000 IV; Kudła v. Poland [GC], no.
30210/96, § 110, ECHR 2000 XI; Smirnova v. Russia,
nos. 46133/99 and 48183/99, § 59, ECHR 2003 IX
(extracts); and Letellier v.
France, 26 June
1991, § 43, Series A no. 207). It will
examine the present case in the light of these principles.
- The
Court notes that the applicant's remand in custody consisted of two
periods of pre trial detention and lasted over four years and 21
days in total (see, in particular, Solmaz v. Turkey, no.
27561/02, §§ 23-36, 16 January 2007, as regards the
calculation of periods of pre-trial detention). The Court further
notes from the material in the case file that the State Security
Court considered the applicant's detention at the end of every
hearing. On each occasion it extended that detention using identical,
stereotyped terms. The applicant's objections to these interim
decisions were also dismissed in similar terms.
- 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, Getiren v. Turkey, no.
10301/03, § 108, 22 July 2008; Çetin Ağdaş
v. Turkey,
no. 77331/01, § 28, 19 September 2006; and Mehmet
Yavuz v. Turkey,
no. 47043/99, § 39, 24 July 2007).
- Having examined all
the material submitted to it, the Court considers that the Government
have not put forward any fact or convincing argument capable of
persuading it to reach a different conclusion in the present case.
In this connection, the Court observes that the domestic courts
failed to indicate to what extent the applicant's release would have
posed a risk after the passage of time, in particular in the later
stages of the proceedings (see Demirel v.
Turkey,
no. 39324/98, § 60, 28
January 2003). Furthermore, the first-instance court never considered
a different preventive measure, such as a prohibition on leaving the
country or release on bail, instead of maintaining the applicant's
detention (see Mehmet Yavuz, cited above, § 40).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the length of the applicant's detention, which lasted
over four years and 21 days, given the stereotypical reasoning of the
first-instance court, has not been shown to have been justified (see
Çetin Ağdaş, cited above, § 33).
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
- As
regards just satisfaction under Article 41 of the Convention, the
applicant first claimed 144,491 euros (EUR) in respect of pecuniary
damage. This sum corresponded to the loss of earnings due to his
early retirement from the army as a result of the criminal
proceedings against him. He further claimed EUR 125,000 in
respect of non-pecuniary damage. The applicant, without specifying an
amount, further requested the reimbursement of the costs and expenses
incurred by his legal representative both before the domestic courts
and before the Court. He referred to the Trabzon Bar Association's
scale of fees. The Government contested the claims.
- As
regards damage, the Court does not discern any causal link between
the violation found and the pecuniary damage alleged; it therefore
rejects this claim. However, deciding on an equitable basis, it
awards the applicant EUR 2,000 in respect of non pecuniary
damage.
- As
to costs and expenses, in the absence of any particulars or
supporting documents submitted within the specified time limit,
the Court finds the applicant's claim under this head unsubstantiated
and accordingly dismisses it.
- 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
(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 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non pecuniary damage, which sum is to be converted into Turkish
liras at the rate applicable at the date of settlement:
(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 30 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
Cabral Barreto is annexed to this judgment.
S.D.
F.T.
CONCURRING OPINION OF JUDGE CABRAL BARRETO
In my
opinion, once the applicant had been convicted and sentenced by the
Assize Court to various terms of imprisonment for several offences,
including that of three years and four months for membership of an
illegal organisation, which decision was upheld on cassation, the
only period to be taken into account for the violation of Article 5 §
3 of the Convention ran from his arrest until his conviction at first
instance - a period of three and a half years.
