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SECOND
SECTION
CASE OF BARIŞ v. TURKEY
(Application
no. 26170/03)
JUDGMENT
STRASBOURG
31 March 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 Barış 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,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy Section Registrar.
Having
deliberated in private on 10 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26170/03) 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, Mrs İlkay Barış
(“the applicant”), on 18 June 2003.
- The
applicant was represented by Mr H. Sağlam, a lawyer practising
in Istanbul. The Turkish Government (“the Government”)
were represented by their Agent.
- On
14 September 2007 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Istanbul.
- On
13 July 1992 the applicant was taken into police custody on suspicion
of membership of the Revolutionary Left (the “DEV-SOL”),
an illegal organisation.
- On
28 July 1992 she was brought before a single judge at the Istanbul
State Security Court who ordered her detention on remand.
- On
18 September and 14 October 1992 and 26 May 1995, the public
prosecutor at the Istanbul State Security Court filed three bills of
indictment, charging the applicant with attempting to undermine the
constitutional order, proscribed by Article 146 of the former
Criminal Code.
- The
case against the applicant was joined to another brought against five
other persons. On 28 September 1992 the first hearing before the
Istanbul State Security Court was taken up with procedural matters.
- By
24 December 2002 the applicant had made several requests for release
pending trial to the Istanbul State Security Court. The court
dismissed her requests on each occasion, having regard to the nature
of the offence, the state of evidence and the content of the case
file.
- On
24 December 2002 the Istanbul State Security Court convicted the
applicant as charged and sentenced her to death, subsequently
commuted to life imprisonment. The State Security Court further
ordered the applicant's release from prison, having regard to the
total amount of time that she had been in detention.
- On
28 April 2003 the Court of Cassation quashed the judgment of
24 December 2002.
- On
15 November 2006 the Istanbul Assize Court convicted
the applicant under Article 146 of the former Criminal Code and
sentenced her to life imprisonment.
- On
16 April 2007 the Court of Cassation upheld the judgment of the
assize court.
II. RELEVANT DOMESTIC LAW
- Section
1 (d) of Article 141 of the new Law of
Criminal Procedure (Law no. 5271),
which was adopted on 4 December 2004 and
entered into force on 1 June 2005,
provides:
“Persons who; ...
d) have been lawfully detained but not brought before
the legal authorities within a reasonable time and who have not been
tried within such time,...
during criminal investigation or prosecution may demand
all pecuniary and non pecuniary damages they sustained from the
State.”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
- The
Government asked the Court to dismiss the application for failure to
exhaust domestic remedies, under Article 35 § 1 of the
Convention. In this regard, they submitted that the applicant could
have sought compensation pursuant to Articles 141 § 1(d) of Law
no. 5271.
- The
applicant contested the availability and effectiveness of this
remedy.
- The
Court reiterates that it has examined and rejected similar arguments
previously within the context of Law no. 466 on the Payment of
Compensation to Persons Unlawfully Arrested or Detained (see Bayam
v. Turkey, no. 26896/02, §
16, 31 July 2007, and Yağcı and Sargın
v. Turkey, 8 June 1995, § 44, Series A no. 319 A).
The Court notes that although the scope of Law no. 5271 is wider than
that of Law no. 466, in that the latter only entails an action for
damages against the State in respect of detention undergone by
persons who had been unlawfully detained or acquitted, the underlying
idea remains the same, which is to provide a remedy against
shortcomings in relation to the detention procedure by way of
compensation. However, the Court has clearly established in the past
that the right to be tried within a reasonable time or released
during the proceedings is not the same as the right to receive
compensation for detention; Article 5 § 3 of the Convention
covers the former and Article 5 § 5 the latter (see
Yağcı and Sargın,
cited above, § 44). In other words, a claim for compensation as
indicated by the Government would not make it possible to end
detention of excessive length within the meaning of Article 5 §
3 of the Convention (see Tepe v.
Turkey (dec.), no. 31247/96,
22 January 2002, and Sincar and
Others v. Turkey (dec.),
no. 46281/99, 24 March 2005) and therefore may not be
considered an effective remedy in these circumstances.
- In
the light of the foregoing, the Court concludes that this objection
cannot be upheld.
- The
Court notes that this 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 VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that her detention during the aforementioned
judicial proceedings had exceeded the “reasonable time”
requirement of Article 5 § 3 of the Convention, which provides
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 maintained that the length of the applicant's remand in
custody had been reasonable. In particular, they submitted that the
seriousness of the crime, the risk of escape or the committal of a
further crime, together with the special circumstances of the case,
had justified her continued detention pending trial.
- The
applicant maintained her allegations and contested the Government's
arguments.
- The
Court observes that in the instant case the applicant's detention
began on 13 July 1992 when she was taken into police custody and
ended on 24 December 2002 upon her release by an order of the
Istanbul State Security Court. It thus lasted over ten years and five
months.
- 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, Dereci v. Turkey, no. 77845/01,
§§ 34-41, 24 May 2005; Atıcı v. Turkey (no.
1), no. 19735/02, §§ 48-51, 10 May 2007; and Çarkçı
v. Turkey, no. 7940/05, §§ 18-21, 26 June 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. Having regard to its case-law on the subject, the Court
finds that the length of the applicant's detention during judicial
proceedings 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 the
length of the criminal proceedings brought against her. She relied on
Article 6 § 1, which provides as follows:
“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 or to have been prolonged unnecessarily due to a
fault attributable to the State. In this respect, they referred to
the number of defendants, the complexity of the trial and the
difficulties encountered in the collection of evidence and the
notification process. The Government further submitted that the
applicant had contributed to the prolongation of the proceedings by
refraining from participating in a number of hearings.
- The
applicant maintained her allegations.
- The
Court observes that the period to be taken into consideration began
on 13 July 1992, when the applicant was arrested and taken into
police custody, and ended on 16 April 2007, when the Court of
Cassation delivered its final decision. The period under
consideration thus lasted over fourteen years and nine months 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, Ege v. Turkey, no. 47117/99, §
25, 29 March 2005; and Gümüşten v. Turkey,
no. 47116/99, §§ 24-26, 30 November 2004).
- 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. In particular, the Government have not sufficiently
substantiated how the applicant could be considered to have made any
significant contribution to the prolongation of the trial. 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 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, an environmental engineer, claimed 157,080 euros
(EUR) in respect of pecuniary damage for the
loss of earnings incurred as a result of her detention on remand for
an excessive length of time. She relied on the Chamber of
Environmental Engineers' recommended scale of fees in support of her
claim. She further claimed EUR 30,000 in respect of non-pecuniary
damage.
- The
Government contested these claims as speculative and fictitious.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it awards the applicant EUR 15,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,175 in legal fees, calculated on the
basis of the Istanbul Bar Association's minimum fees list, and
EUR 181 as costs and expenses, such as stationery, translation
and postal expenses. She submitted various invoices to substantiate
her costs and expenses but provided no additional documentation, such
as a fee agreement with her representative.
- The
Government contested these claims.
- According to the Court's case-law, an applicant is
entitled to 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, the Court
notes that the applicant solely referred to the Istanbul Bar
Association's rates in relation to her claim for legal fees and
failed to submit any supporting documents. The Court therefore only
awards EUR 120 in respect of her documented 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
Articles 5 § 3 and 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
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
120 (one hundred and twenty euros), plus any tax that may be
chargeable to the applicant, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
