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SECOND
SECTION
CASE OF DEMİR AND İPEK v. TURKEY
(Applications
nos. 42138/07 and 42143/07)
JUDGMENT
STRASBOURG
26
January 2010
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 Demir and İpek
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 5 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 42138/07 and 42143/07)
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 two Turkish nationals, Mr
Mahmut Demir and Mr Mustafa İpek (“the applicants”),
on 11 September 2007.
- The
Turkish Government (“the Government”) were represented by
their Agent.
- On
21 November 2008 the President of the Second Section decided to give
notice of the applications to the Government. It was also decided to
examine the merits of the applications at the same time as their
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- The
applicants were born in 1974 and 1970 respectively and are currently
detained in Diyarbakır.
- On
19 January 2000 the applicants were taken into police custody on
suspicion of membership of the Hizbullah, an illegal
organisation.
- On
31 January 2000 a single judge at the Second Chamber of the Ankara
State Security Court ordered the applicants' pre-trial detention.
- On
24 May 2000 the public prosecutor at the Diyarbakır State
Security Court filed a bill of indictment against the applicants,
charging them under Article 146 §1 of the former Criminal Code
with attempting to undermine the constitutional order.
- On
10 July 2000 the first hearing was held before the Third Chamber of
the Diyarbakır State Security Court.
- By
Law no. 5190 of 16 June 2004, published in the Official Gazette on
30 June 2004, State Security Courts were abolished. The case
against the applicants was transferred to the Sixth Chamber of the
Diyarbakır Assize Court.
- At
the end of each hearing, the Diyarbakır State Security Court,
and subsequently the Diyarbakır Assize Court, considered the
applicants' detention either of their own motion or at the
applicants' request. Each time, they ordered the applicants'
continued detention pending trial, having regard to the nature of the
offence with which they were charged, the existence of a strong
suspicion that they had committed the offence and the state of
evidence.
- According
to the information in the case file, the proceedings are still
pending before the Sixth Chamber of the Diyarbakır Assize Court
and the applicants are still remanded in custody.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law and practice prior to the
entry into force of the new Code of Criminal Procedure (CCP)
(Law no. 5271) on 1 June 2005 may be found in
Çobanoğlu and Budak v. Turkey (no. 45977/99,
§§ 29 31, 30 January 2007). The current practice
under Law no. 5271 is outlined in Şayık and Others v.
Turkey (nos. 1966/07, 9965/07, 35245/07, 35250/07, 36561/07,
36591/07 and 40928/07, §§ 13-15, 8 December 2009).
THE LAW
- Given
the similarity of the applications, both as regards fact and law, the
Court deems it appropriate to join them.
I. ALLEGED VIOLATION OF ARTICLES 5 § 3, 6 §§
1 AND 2 OF THE CONVENTION
- The
applicants complained under Articles 5 § 3 of the Convention
that the length of their pre-trial detention had been excessive. They
further submitted under Article 6 § 2 of the Convention that
their lengthy remand in custody had violated their right to be
presumed innocent. Lastly, they alleged under Article 6 § 1 of
the Convention that the criminal proceedings against them had not
been concluded within a reasonable time.
- The
Court considers that the applicants' complaints under Articles 5 §
3 and 6 § 2 of the Convention should be examined from the
standpoint of Article 5 § 3 alone (see Güler v. Turkey
(dec.), no. 14152/02, 28 September 2006; Tamamboğa
and Gül v. Turkey, no. 1636/02, § 26,
29 November 2007).
A. Admissibility
- The
Government asked the Court to dismiss the complaint under Article 5 §
3 of the Convention for failure to exhaust domestic remedies under
Article 35 § 1 of the Convention. The Government maintained that
the applicants had objected to their continued remand in detention
neither under Articles 298 and 299 of the former Code of Criminal
Procedure (CCP) (Law no. 1412), nor under Article 104 (2) of the new
CCP (Law no. 5271), which entered into force on 1 June
2005.
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objection in respect of the remedy provided
under the former CCP for being ineffective (see, in particular, Koşti
and Others v. Turkey, no. 74321/01, §§ 19-24, 3
May 2007). The Court further notes that the remedy indicated by the
Government under the new CCP has similarly been examined in the case
of Şayık and Others and found to be wanting for the
time being (cited above, §§ 30-32). Bearing in mind
that the Government have not submitted any examples of domestic cases
where the adversarial procedure envisaged by Article 271 (1) of the
new CCP has been employed, the Court finds no reason to depart from
its conclusion in Şayık and Others in the present
case. Consequently, the Court rejects the Government's preliminary
objection. It further notes that these applications are not
inadmissible on any other grounds and must, therefore, be declared
admissible.
B. Merits
- The
Government maintained that the length of the applicants' remand in
custody and the length of the criminal proceedings against them were
both reasonable, particularly in view of the complexity of the case,
the seriousness of the crimes, the number of accused and the inherent
difficulties in collecting evidence in cases involving organised
crime.
- The
Court notes that the proceedings in question commenced on 19 January
2000, and are still pending before the first-instance court. They
have thus already lasted almost ten years for one level of
jurisdiction. The Court further notes that the applicants were, and
continue to be, remanded in custody pending trial throughout this
entire period.
- The
Court has frequently found violations of Articles 5 § 3 and 6 §
1 of the Convention in cases disclosing comparable lengthy periods of
pre trial detention and criminal proceedings (see, for example,
Dereci v. Turkey, no. 77845/01, § 41, 24 May 2005;
Taciroğlu v. Turkey, no. 25324/02, § 24, 2
February 2006; Çarkçı v. Turkey, no.
7940/05, § 21, 26 June 2007; Hasan Döner v. Turkey,
no. 53546/99, § 54, 20 November 2007; Uysal and
Osal v. Turkey, no. 1206/03, § 33, 13 December 2007;
Can and Gümüş v. Turkey, nos. 16777/06 and
2090/07, § 21, 31 March 2009). 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 cases. Having regard to its
case-law on the subject, the Court concludes that the length of the
applicants' pre-trial detention, as well as the length of the
criminal proceedings against them, was excessive, in breach of
Articles 5 § 3 and 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damages and costs and expenses
21. The applicants each claimed 40,000 euros (EUR) in respect of
pecuniary damage and EUR 40,000 for non-pecuniary damage.
- The Government contested these claims.
- As regards the alleged pecuniary damage the Court
observes that the applicants did not produce any documents in support
of their claim, which the Court, accordingly, dismisses.
- The Court considers, however, that the applicants must
have suffered some non-pecuniary damage which the findings of a
violation of the Convention in the present judgment do not suffice to
remedy. Ruling on an equitable basis, in accordance with Article 41,
it awards the applicants EUR 15,600 each under this head.
- The
applicants did not seek the reimbursement of costs and expenses
relating to the proceedings before the Court and this is not a matter
which the Court has to examine of its own motion (see Tutar
v. Turkey, no. 11798/03, § 31, 10 October 2006).
- Finally,
the Court notes that, according to the information submitted by the
parties, the criminal proceedings against the applicants are still
pending. In these circumstances, the Court considers that an
appropriate means for putting an end to the violations which it has
found would be to conclude the criminal proceedings against the
applicants as speedily as possible, while taking into account the
requirements of the proper administration of justice (see Yakışan
v. Turkey, no. 11339/03, § 49, 6 March 2007).
B. 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
- Decides to join the applications;
2. Declares the applications 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 each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,600
(fifteen thousand six hundred euros), plus any tax that may be
chargeable, in respect of non pecuniary damage, 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 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 26 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
