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SECOND
SECTION
CASE OF CAHİT DEMİREL v. TURKEY
(Application
no. 18623/03)
JUDGMENT
STRASBOURG
7
July 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 Cahit Demirel 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 Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 16 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18623/03) 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 Cahit Demirel (“the
applicant”), on 29 April 2003.
- The
applicant was represented by Mr M. Beştaş and Mrs M.
Beştaş, lawyers practising in Diyarbakır. The Turkish
Government (“the Government”) were represented by
their Agent.
- On
11 September 2007 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaints concerning the applicant's right to release pending trial,
to take proceedings to challenge the lawfulness of his detention and
to a fair hearing within a reasonable time. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in Batman.
- On
1 April 1996 the applicant was arrested by gendarmerie officers while
he was leaving Batman. He was then transferred to the Anti-Terrorist
Branch of the Batman Police Headquarters on suspicion of involvement
in the activities of the PKK (the Workers' Party of Kurdistan), an
illegal organisation.
- On
18 April 1996 the applicant was brought before the Batman public
prosecutor and the judge at the Batman Magistrates' Court. The judge
remanded the applicant in custody.
- On
an unspecified day the Batman public prosecutor issued a decision of
non-jurisdiction and sent the case file to the public prosecutor's
office at the Diyarbakır State Security Court.
- On
22 May 1996 the public prosecutor filed a bill of indictment against
the applicant, along with other persons, charging him with membership
of the PKK under Article 168 § 2 of the former Criminal Code.
- On
30 July 1996 the Diyarbakır State Security Court held the first
hearing on the merits of the case.
- On
25 December 2001 the Fourth Chamber of the Diyarbakır State
Security Court convicted the applicant as charged and sentenced him
to twelve years and six months' imprisonment.
- Throughout
the proceedings, the applicant and his representative requested
several times that the applicant be released pending trial. At the
end of each hearing the State Security Court rejected the applicant's
requests, having regard to the nature of the offence, the state of
the evidence and the content of the case file.
- On
9 October 2002 the Court of Cassation quashed the judgment of the
first-instance court. The case was subsequently
remitted to the Diyarbakır State Security Court.
- On 13 May 2003 the Diyarbakır
State Security Court ordered the applicant's release pending trial.
- On
23 March 2004 the State Security Court once again convicted the
applicant under Article 168 § 2 of the former Criminal Code and
sentenced him to twelve years and six months' imprisonment.
- On
19 October 2004 the Court of Cassation quashed the judgment of 23
March 2004.
- Pursuant to Law no. 5190 of 16
June 2004, published in the Official Gazette on 30 June
2004, abolishing State Security Courts, the case against the
applicant was transferred to the Diyarbakır Assize Court.
- On
2 May 2005 the Diyarbakır Assize Court decided
that the proceedings against the applicant should be
terminated on the ground that the statutory time limit under
Article 102 of the Criminal Code had expired.
This decision to terminate the case became final as neither the
applicant nor the public prosecutor appealed.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law and practice in force at the
material time are outlined in Çobanoğlu and Budak v.
Turkey (no. 45977/99, §§ 29-30, 30 January 2007).
THE LAW
I. ADMISSIBILITY
- 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.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Article 5 § 3 of the Convention that
he had been detained pending trial for an
excessive length of time. Relying on Article 5 § 4 of the
Convention, he complained that there had been no effective remedy to
challenge the first-instance court orders for his continued
detention.
A. Article 5 § 3 of
the Convention
- The
Government submitted that there had been a genuine public interest in
the detention of the applicant, who had been charged with a
terrorism-related offence. They maintained that his detention had
also been necessary to prevent him from committing a further offence,
absconding and removing evidence.
- The
applicant maintained his allegations and contested the Government's
submissions.
- The
Court notes that, when calculating the period to be taken into
consideration, the multiple, consecutive detention periods served by
the applicant should be regarded as a whole. While assessing the
reasonableness of the length of the applicant's pre-trial detention,
it should make a global evaluation of the accumulated periods of
detention under Article 5 § 3 of the Convention (see Solmaz v.
Turkey, no. 27561/02, §§ 36-37, ECHR
2007-... (extracts)). Consequently, after deducting the period when
the applicant was detained after conviction under Article 5 § 1
(a) of the Convention – namely the period between 25 December
2001 and 9 October 2002 – from the total time that he was
deprived of his liberty, the period to be taken into consideration in
the instant case is nearly six years and four months.
- 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, such as “having regard to the
nature of the offence, the state of the evidence and the content of
the case file”.
- The
Court considers that, in general, the expression “the state of
the evidence” may be a relevant factor for the existence and
persistence of serious indications of guilt. The Court further
acknowledges the seriousness of the offence with which the applicant
was charged and the severity of the sentence which he faced if found
guilty. In this respect, the Court agrees that the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding (see Getiren v. Turkey, no. 10301/03, § 107,
22 July 2008). However, in the Court's view, neither the state of
evidence nor the gravity of the charges can by themselves serve
to justify a length of preventive detention of over six years
and four months (see and Mehmet Yavuz v. Turkey, no. 47043/99,
§ 39, 24 July 2007).
- In
this connection, the Court observes that the Diyarbakır State
Security Court 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. Furthermore, the
first-instance court never gave consideration to the application of a
preventive measure, such as a prohibition on leaving the country or
release on bail, other than the continued detention of the applicant
(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, given the
stereotypical reasoning of the first-instance court, has not been
shown to have been justified.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
B. Article 5 § 4 of
the Convention
- The
Government did not make any submissions regarding the applicant's
contentions under Article 5 § 4 of the Convention.
- The
applicant maintained his allegations.
- The Court observes at the outset that the applicant
requested to be released pending trial several times before the
Diyarbakır State Security Court, which dismissed all such
requests. The trial court therefore had had the opportunity to end
the applicant's alleged lengthy detention and to avoid or to redress
an alleged breach of the Convention (see Acunbay v. Turkey,
nos. 61442/00 and 61445/00, § 48, 31 May 2005, and
Mehmet Şah Çelik v. Turkey,
no. 48545/99, § 26, 24 July 2007).
- The
Court further notes that it has already found that the remedy
provided by Articles 297-304 of the former Code of Criminal
Procedure, whereby the applicant could object to the decisions
ordering his continued detention, offered little prospect of success
in practice, and that it did not provide for a procedure that was
genuinely adversarial for the accused (see Koşti and Others
v. Turkey, no. 74321/01, § 22, 3 May
2007; Bağrıyanık v. Turkey, no. 43256/04,
§§ 50 and 51, 5 June 2007; Doğan
Yalçın v. Turkey, no. 15041/03, § 43,
19 February 2008).
- In
the present case, there is no element which would require the Court
to depart from its previous findings. The Court therefore concludes
that there was no remedy within the meaning of Article 5 § 4 by
which the applicant could challenge the lawfulness of his pre-trial
detention.
- There
has accordingly been a violation of Article 5 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained of the length of the criminal proceedings
brought against him. He relied on Article 6 § 1, 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 maintained that, in the circumstances
of the present case, the criminal proceedings could not be considered
to have been unreasonably long. In this respect, they referred to the
number of defendants who had been on trial for terrorist-related
offences. The Government further submitted that the applicant and the
other defendants had contributed to the prolongation of the
proceedings by requesting extensions for the submission of their
defence statements.
- The
applicant maintained his allegations.
- The
Court observes that the period to be taken
into consideration began on 1 April 1996, when the applicant was
arrested and taken into police custody, and ended on 2 May 2005, when
the Diyarbakır Assize Court decided to discontinue the
proceedings. The period under consideration thus lasted nine years
and one month before two levels of jurisdiction.
- 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 (see, for example, Sertkaya
v. Turkey, no. 77113/01, § 21, 22 June
2006; Hasan Döner v. Turkey, no. 53546/99, §
54, 20 November 2007; Uysal and Osal v. Turkey,
no. 1206/03, § 33, 13 December 2007).
- 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 of the
Convention.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Article
46 of the Convention reads as follows:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- The Court observes at the outset that up until 1
January 2009 68 judgments against Turkey, in which the main
legal question was the length of the applicants' pre-trial detention
and in which a violation of Article 5 § 3 of the Convention was
found, became definitive.
The Court further notes that in a number of judgments against Turkey
it has also found a violation of Article 5 § 4 of the Convention
due to the absence of a domestic remedy which was genuinely
adversarial or which could offer reasonable prospects of success
whereby the applicants could challenge the lawfulness of their
pre trial detention (see paragraph 32 above). Moreover, more
than 140 applications against Turkey in which the applicants
allege a violation of Article 5 §§ 3 or 4 in relation to
their pre-trial detentions are currently pending before the Court.
- The Court further observes that in almost all of its
judgments against Turkey where there was a violation of Article 5 §
3, it found that the domestic courts ordered the applicants'
continued detention pending trial using identical, stereotyped terms,
such as “having regard to the nature of the offence, the state
of the evidence and the content of the file” (see, among many
others, Dereci v. Turkey, no. 77845/01, § 38, 24 May
2005; Solmaz, cited above, § 41; Akyol v. Turkey,
no. 23438/02, § 30, 20 September 2007). The Court also
found that the courts failed to give consideration to the application
of other preventive measures foreseen by Turkish law, such as a
prohibition on leaving the country or release on bail, other
than the continued detention of the applicants (see Yavuz,
cited above, § 40; Duyum v. Turkey, no. 57963/00, §
38, 27 March 2007; Getiren v. Turkey, cited above, §
107). Similarly, the Court has repeatedly held there is no remedy in
Turkish law within the meaning of Article 5 § 4 by which
applicants could challenge the lawfulness of their pre-trial
detention (see paragraph 30 above).
- Thus,
the Court considers that the violations of Article 5 §§ 3
and 4 of the Convention found in the instant case originated in
widespread and systemic problems arising out of the malfunctioning of
the Turkish criminal justice system and the
state of the Turkish legislation, respectively (see Kauczor
v. Poland,
no. 45219/06, §§ 58 and 60, 3 February 2009; Gülmez
v. Turkey, no. 16330/02, § 60, 20 May 2008).
- In this connection, it is
to be reiterated that, where the Court finds a violation, the
respondent State has a legal obligation under Article 46 of the
Convention not just to pay those concerned the sums awarded by way of
just satisfaction under Article 41, but also to select, subject to
supervision by the Committee of Ministers, the general and/or, if
appropriate, individual measures to be adopted in their domestic
legal order to put an end to the violation found by the Court and to
redress so far as possible the effects. The respondent State remains
free, subject to monitoring by the Committee of Ministers, to choose
the means by which it will discharge its legal obligation under
Article 46 of the Convention, provided that such means are compatible
with the conclusions set out in the Court's judgment (see Kauczor,
cited above, § 61; Scozzari and Giunta v. Italy
[GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII).
- Having
regard to the systemic situation which it has identified, the Court
is of the opinion that general measures at national level must be
taken in the execution of the present judgment in order to ensure the
effective protection of the right to liberty and security in
accordance with the guarantees laid down in Article 5 §§
3 and 4 of the Convention.
V. 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 36,975 Turkish liras (TRY) (17,900 euros
(EUR)) in respect of pecuniary damage and TRY 75,000
(EUR 36,300) in respect of non-pecuniary damage.
- The
Government contested these claims.
- As
regards the alleged pecuniary damage sustained by the applicant, the
Court observes that the applicant did not produce any document in
support of his claim, which the Court accordingly dismisses.
- 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 7,000.
B. Costs and expenses
- The
applicant also claimed TRY 16,850 (EUR 8,154) for the costs and
expenses incurred before the Court. In this connection, he submitted
a time sheet indicating twenty-eight hours' legal work carried out by
his legal representative and a table of costs and expenditures.
- The
Government maintained that only costs actually incurred can be
reimbursed. In this connection, they submitted that all costs and
expenses must be documented by the applicant.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
finds it reasonable to award the sum of EUR 1,000 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 remainder of 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
5 § 4 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, 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 Turkish liras at the rate applicable at
the date of settlement:
(i) EUR
7,000 (seven thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, for 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
