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SECOND
SECTION
CASE OF AKPOLAT v. TURKEY
(Application
no. 35561/06)
JUDGMENT
STRASBOURG
8 January
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 Akpolat 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 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35561/06) 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 Akpolat (“the
applicant”), on 11 July 2001.
- The
applicant was represented by Mr Murat Vargün and Ms Derya Bayır,
lawyers practising in Ankara. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicant alleged that he had not been released pending trial and
that the criminal proceedings against him had not been concluded
within a reasonable time.
- On
22 January 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 1975 and is currently serving a life sentence
in a prison in Turkey.
- On
18 July 1995 the applicant was arrested in Istanbul on suspicion of
killing a person on behalf of the PKK.
The same day he was placed in police custody, where two statements
were taken from him by police officers.
- On
31 July 1995 he was brought before a prosecutor and a judge, who
questioned him further. The judge remanded the applicant in custody
pending the introduction of criminal proceedings against him.
- On
2 August 1995 the prosecutor at the Istanbul State Security Court
filed an indictment with that court, accusing the applicant and five
other persons of carrying out activities for the purpose of bringing
about the secession of part of the national territory. He sought the
death penalty under Article 125 of the Criminal Code.
- Criminal
proceedings began before the Istanbul State Security Court (“the
trial court”) on 30 October 1995.
- During
the 31st hearing held on 28 February 2001, the applicant's
lawyer requested the trial court to release the applicant on bail. In
the request the lawyer also referred to a number of judgments adopted
by the European Court of Human Rights in cases concerning Article 5
of the Convention. The request for release was refused by the trial
court. The objection lodged against the refusal was also rejected on
9 May 2001.
- On
17 April 2002 the applicant was found guilty as charged and sentenced
to death. The death sentence was commuted to life imprisonment on 24
September 2002. An appeal lodged by the applicant against his
conviction was dismissed by the Court of Cassation on 10 June 2003.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 § 3 AND 5 § 4
OF THE CONVENTION
- The
applicant complained that the length of his detention on remand had
been excessive. He also complained about the lack of an effective
procedure by which he could have challenged the lawfulness of his
detention. In respect of these complaints he invoked Articles 5 §
3 and 5 § 4 of the Convention which read as follows:
“3. 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.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful”.
- The
Government contested those arguments.
A. Admissibility
- The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
- As
for the complaint under Article 5 § 3 of the Convention
concerning the applicant's right to release pending trial, the
Government submitted that the applicant's detention during his trial
had been in the interests of public safety and necessary on account
of the risks of his reoffending or destroying the evidence against
him.
- As
for the complaint under Article 5 § 4 of the Convention the
Government submitted that the applicant did in fact have a remedy at
his disposal, under Article 298 of the Code of Criminal Procedure, to
challenge the lawfulness of his detention on remand.
- The
applicant maintained his allegations.
1. Article 5 § 3 of the Convention
- The
Court observes that the applicant's detention on remand began on 18
July 1995 when he was taken into police custody. It ended on 17 April
2002 when the charge against him was determined by the court of first
instance (see Wemhoff v. Germany, judgment of 27 June 1968,
Series A no. 7, § 9). He was thus detained on remand
for a period of six years and nine 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, most recently, Habip Çiftçi
v. Turkey,
no. 28485/03, §§ 29-33, 23 September 2008).
- 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
light of the foregoing, the Court finds that the length of the
applicant's detention on remand was excessive.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
2. Article 5 § 4 of the Convention
- The
Court has already found that the existing remedy by which the
lawfulness of the applicant's detention could have been challenged
offered little prospect of success in practice and that it did not
provide a procedure which was genuinely adversarial for the accused
(see Habip Çiftçi, cited above, § 34 and
the cases cited therein). The Court finds no particular circumstances
in the instant case which would require it to depart from its
previous findings.
- In
light of the foregoing the Court concludes that there has been a
breach of Article 5 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had been in breach of the reasonable time requirement in
Article 6 § 1 of the Convention which provides, in so far
as relevant, 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 rejected that claim and argued that the proceedings were
complex. In the Government's opinion, the trial court displayed
diligence in conducting the case.
- The
Court observes that the criminal proceedings against the applicant
began on 18 July 1995 when he was arrested and were concluded when
the Court of Cassation upheld his conviction on 10 June 2003. They
have thus continued for almost eight years before 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.
Particular regard must be had to 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
case (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 finds that
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.
III. 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 14,994 euros (EUR) in respect of pecuniary and EUR
20,000 for non-pecuniary damage.
- The
Government argued that the sums claimed were excessive and
unsupported by evidence.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 7,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 6,684 for the costs and expenses incurred
before the domestic courts and for those incurred before the Court.
In support of his claims the applicant submitted a schedule of hours
spent by his lawyers on the case.
- The
Government contested the claims.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the global sum of EUR 2,000 to cover
all the applicant's costs.
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
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 the national currency of the respondent
State 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
2,000 (two thousand 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 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
