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SECOND
SECTION
CASE OF ZEHNİ DOĞAN v. TURKEY
(Application
no. 1515/04)
JUDGMENT
STRASBOURG
2 February
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 Zehni Doğan 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 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1515/04) 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 Zehni Doğan (“the
applicant”), on 25 September 2003.
- The
applicant was represented by Ms Ö. Engin Terkeş and
Mr Şenol Karaaslan, lawyers practising in Izmir. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
20 November 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Istanbul.
- On
3 September 2001 an arrest warrant was issued by the Izmir Criminal
Court in respect of the applicant due to his alleged involvement in
fraud and the forgery of identity cards.
- On
13 August 2001 the Izmir Public Prosecutor filed a bill of
indictment charging the applicant with these offences under Article
350 (1), (2) and (3) of the former Criminal Code.
- On
12 October 2001 the Bakırköy Magistrates' Court ordered the
applicant's detention on remand in accordance with the arrest
warrant.
- On
10 December 2001 the Izmir Criminal Court issued a decision of lack
of jurisdiction and referred the case to the Izmir Assize Court.
- On
11 December 2001 the applicant was heard by the Bakırköy Magistrates'
Court upon the instruction of the Izmir Criminal Court. The applicant
pleaded not guilty and requested his release.
- Between 19 December 2001 and 3 February 2003, the
first-instance court postponed nine hearings since the applicant, who
was detained in the Metris Prison, was not brought before it as he
could not be transferred to the Buca Prison in Izmir.
- Between
19 December 2001 and 7 July 2003, the Izmir Assize Court
examined the applicant's continued detention at the end of every
hearing, either of its own motion or upon the applicant's requests.
On each occasion, the court ordered the applicant's continued
detention, having regard to the state of the evidence and nature of
the offence. On 7 July 2003 the court ordered the
applicant's release.
- On
8 November 2004 the applicant was acquitted for lack of evidence.
- On
10 February 2005 the applicant brought an action before the Bakırköy
Assize Court requesting compensation for his unjustified detention.
- On
8 October 2007, the Bakırköy Assize Court partially granted
the applicant's compensation claim.
- On
20 November 2008 the Court of Cassation quashed the judgment of 8
October 2007.
- According
to the information in the case file, the compensation proceedings are
currently pending before the first instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the domestic law and practice at the relevant time may
be found in Bağrıyanık v. Turkey
(no. 43256/04, § 19, 5 June 2007) and Saraçoğlu
and Others v. Turkey (no. 4489/02, § 19,
29 November 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained under Article 5 § 3 and 6 § 1 of the
Convention that the length of his pre-trial detention had been
excessive.
- The
Court considers that these complaints should be examined from the
standpoint of Article 5 § 3 of the Convention alone.
- 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 maintained that the applicant failed
to object the pre-trial detention order and his continued detention.
The Court has rejected similar objections in many previous cases
(see, in particular, Koşti and Others v. Turkey, no.
74321/01, §§ 19-24, 3 May 2007; Mehmet Şah Çelik
v. Turkey, no. 48545/99, §§ 22-31, 24 July 2007; and
Tamamboğa and Gül v. Turkey, no. 1636/02, §§
27-29, 29 November 2007).
- The
Court finds no particular circumstances in the instant case which
would require it to depart from this jurisprudence. It therefore
finds that this complaint is admissible.
- As
regards the merits of the applicant's complaint about the length of
pre-trial detention, the period to be taken into account began on
12 October 2001 and ended on 7 July 2003. It thus lasted more
than one year and eight months.
- The
Court observes that the Izmir Assize Court examined the applicant's
continued detention at the end of every hearing, either of its own
motion or upon the applicant's requests. On each occasion, the court
ordered the applicant's continued detention, having regard to the
state of the evidence and nature of the offence. Even if the grounds
put forward by the domestic courts for the applicant's continued
detention could be deemed “relevant” and “sufficient”,
the Court must also be satisfied that the competent national
authorities displayed “special diligence” in the conduct
of the proceedings (Muller v. France, 17 March 1997, §
35, Reports of Judgments and Decisions 1997 II).
- In
this connection, the Court observes that the Izmir Assize Court
postponed the hearings between 19 December 2001 and 3 February 2003,
for more than a year, as the administrative authorities failed to
transfer the applicant from Metris Prison to Buca Prison. The Court
considers that the national authorities cannot be considered to have
displayed the required diligence since the only reason for the
postponements of the hearings was the prolonged failure of the
authorities to bring the applicant before the court. Thus he
continued to be detained without being brought before the court for a
considerable time.
- In
the light of the above, the Court concludes that there has been a
violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
- The
applicant complained that he had no right to compensation in domestic
law for the violation of Article 5 § 3 of the Convention. He
relied on Article 5 § 5 of the Convention.
- The
Government submitted that this part of the application was premature
as the proceedings concerning compensation for the applicant's
unjustified detention were still pending.
- The
Court considers that the Government's objection is inextricably
linked to the substance of the applicant's complaint under this head.
It follows that this issue should be joined to the merits of the
case.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It is
also not inadmissible on any other grounds. It must therefore be
declared admissible.
- The
applicant submitted that he did not have any remedy in domestic law
whereby he could seek compensation for the violation of his right
under Article 5 § 3 of the Convention. He submitted that the
remedy provided for by Law no. 466 was not an effective one in this
respect. The Government contested this argument.
- The
Court reiterates that, under Law no. 466, in awarding the
compensation the national courts base their assessment solely on the
fact that the plaintiffs were ultimately acquitted. The national
courts' assessment is an automatic consequence of the acquittal and
does not amount to the establishment of any violation of the first
four paragraphs of Article 5 (see, for example, Sinan Tanrıkulu
and Others v. Turkey, no. 50086/99, § 50, 3 May 2007;
Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May
2007; and Saraçoğlu and Others, cited above,
§ 52). It follows that, in the applicant's case, Law
no. 466 does not provide an enforceable right to compensation for the
breach of his right under Article 5 § 3 of the Convention, as
required by Article 5 § 5.
- The
Court accordingly dismisses the Government's preliminary objection
and concludes that there has been a violation of Article 5 § 5
of the Convention.
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 20,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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.
B. Costs and expenses
- The
applicant also claimed EUR 3,333 for the costs and expenses incurred
before the Court. In support of his claims, the applicant submitted a
legal fee agreement and a time sheet indicating
twenty-seven hours' legal work carried out by his legal
representative.
- The
Government contested this claim.
- 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 documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 covering costs
for the proceedings before the Court.
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 § 5 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 2,000 (two 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, 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 2 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
