CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 octobre 2001

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TURKEY     ( Application no. 31834/96 )     JUDGMENT     STRASBOURG     30 October 2001         FINAL   30/01/2002           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 Yağız v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mrs   E. Palm , President ,   Mr   L. Ferrari Bravo ,   Mr   Gaukur Jörundsson ,   Mr   B. Zupančič ,   Mr   T. Panţîru ,   Mr   R. Maruste , judges ,   Mr   F. Gölcüklü , ad hoc judge , and   Mr   M.   O’Boyle , Section Registrar , Having deliberated in private on 31 August 1999 and on 9 October 2001, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no.   31834/96) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article   25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hasan Yağız (“the applicant”), on 4   June 1996. 2.     The applicant did not appoint a lawyer for his representation. The Turkish Government did not designate an Agent for the purposes of the proceedings before the Court. 3.     The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him. 4.     The application was transmitted to the Court on 1   November 1998, when Protocol No.   11 to the Convention came into force (Article   5   §   2 of Protocol No.   11). 5.     The application was allocated to the First Section of the Court (Rule   52   §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article   27   §   1 of the Convention) was constituted as provided in Rule   26   §   1 of the Rules of Court. Mr   Rıza Türmen, the judge elected in respect of Tukey, withdrew from sitting in the case (Rule   28). The Government accordingly appointed Mr   Feyyaz Gölcüklü to sit as an ad hoc judge, in his place (Article   27   §   2 of the Convention and Rule   29   §   1). 6.     The President of the Chamber decided that in the interests of the proper administration of justice, the present application should be joined to other applications against the same respondent State raising the same complaints (applications nos. 26480/95, 28291/95, 29280/95, 26699/96, 29700/96, 29701/96, 29702/96, 29703/96, 29911/96, 29912/96, 29913/96, 31831/96, 31853/96, 31880/96, 31891/96, 31960/96, 32987/96, 32900/96, 32964/96, 33362/96, 33369/96, 33645/96, 34591/96, 34687/96, 39428/96 and 43362/96) (Rule   43   §   2). 7.     By a decision of 31 August 1999, having obtained the parties’ observations, the Court declared the application admissible. 8.     The applicant and the Government each filed observations on the merits (Rule   59   §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Arrest and detention of the applicant 9.     On 17 April 1985 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal armed organisation, the Dev-Yol (Revolutionary Way). 10.     On 6 February 1985 the Ankara Martial Law Court ( sıkıyönetim mahkemesi ) ordered the applicant’s detention on remand. B.     Trial in the Ankara Martial Law Court 11.     On an unspecified date in 1985 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicant. The Public Prosecutor accused the applicant, inter alia , of membership of the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code. It was further decided that this indictment should be joined to the indictment of 26   February 1982 lodged against 722 other Dev-Yol defendants. 12.     On 11 May 1988 the Ankara Martial Law Court ordered the applicant’s release pending trial. 13.     In a judgment of 19 July 1989 the Martial Law Court convicted the applicant on account of his involvement in the Dev-Yol. It sentenced the applicant to six   years’ imprisonment under Article 146 § 3 of the Turkish Criminal Code. C.     Proceedings on appeal 14.     The applicant appealed to the Military Court of Cassation ( askeri yargıtay ). 15.     Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation ( yargıtay ) acquired jurisdiction over the case and on 26 December 1994 the case file was transmitted to it. 16.     On 27 December 1995 the Court of Cassation upheld the above judgment. II.     RELEVANT DOMESTIC LAW AND PRACTICE 17.     Article 146 §§ 1 and 3 of the Turkish Criminal Code provides: “Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty. ... Accomplices to the crime specified in paragraph one, other than those specified in paragraph two, shall be punished by heavy imprisonment for not less that fifteen years and be disqualified to hold public office for life.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 18.     The applicant complained about the length of the criminal proceedings against him. He alleged a violation of Article 6 § 1 of the Convention, 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...” 19.     The Government refuted the applicant’s allegations. They argued that the case was complex on account of the nature of the charges the applicant faced and the need to organise a large-scale trial involving 723   defendants, including the applicant, all of whose involvement in Dev-Yol activities had to be established. They averred that these factors explained the length of the proceedings and that no negligence or delay could be imputed to the judicial authorities. A.     Period to be taken into consideration 20.     The Court notes that the proceedings began on 17 April 1985, the date of the applicant’s arrest, and ended on 27   December 1995 when the Court of Cassation upheld the applicant’s conviction. They therefore lasted almost ten years and eight months. 21.     The Court’s jurisdiction ratione temporis only permits it to consider the period of almost eight years and nine months that elapsed after 28   January 1987, the date of deposit of Turkey’s declaration recognising the right of individual petition (see Cankoçak v. Turkey (Sect. 1), nos.   25182/94 and 26956/95, judgment of 20 February 2001, § 26). It must nevertheless take account of the state of the proceedings at the time when the aforementioned declaration was deposited ( ibid ., § 25). On the critical date the proceedings had already lasted one year and nine months. B.     Reasonableness of the length of proceedings 22.     The Court observes that the Martial Law Court took almost four years to reach a verdict. It took the Military Court of Cassation more than four years to rule on the appeal. Furthermore, the Court of Cassation gave judgment on 27 December 1995, approximately one year after it had been seized of the case. The Court considers that both at first instance and in the appeal proceedings there were substantial delays, which cannot be explained in terms of the admitted complexity of the case and must be considered attributable to the national authorities. 23.     Having regard to all the evidence before it and to its case-law on the subject (see Şahiner v. Turkey (Sect. 1), no. 29279/95, judgment of 4   September 2001, to be published in ECHR 2001-...), the Court holds that the length of the proceedings in issue did not satisfy the “reasonable time” requirement. 24.     There has accordingly been a breach of Article 6 § 1 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 25.     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 26.     The applicant claimed the sum of 300,000 French francs (FRF) by way of compensation for pecuniary and non-pecuniary damage. He referred in this connection to his suffering as a result of the excessive length of the proceedings against him. 27.     The Government did not make any comments on the applicant’s claim. 28.     The Court considers that the applicant must have suffered a certain amount of distress, having regard to the total length of the proceedings against him. Deciding on an equitable basis, it awards him the sum of FRF   70,000. B.     Costs and expenses 29.     When submitting his post-admissibility observations, the applicant claimed in total that FRF 300,000 be awarded to him. He did not give any particulars of his claim, such as bills for his legal costs and postage fees etc., although he was requested to do so (Rule 60 of the Rules of Court). 30.     The Government did not make any observations under this head of claim either. 31.     The Court considers that the applicant must be taken to have waived his right to an award under this head having regard to his failure to submit a claim. C.     Default interest 32.     According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 4,26% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.     Decides to disjoin the application from other applications joined pursuant to Rule 43 § 1;   2.     Holds that there has been a violation of Article   6 § 1 of the Convention on account of the length of the criminal proceedings;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months   from the date on which the judgment becomes final according to Article   44   §   2 of the Convention, in respect of non-pecuniary damage FRF 70,000 (seventy thousand French francs), together with any tax that may be chargeable, to be converted into Turkish liras at the rate applicable on the date of the settlement; (b)     that simple interest at an annual rate of 4,26% shall be payable from the expiry of the above-mentioned three months until settlement;   4.     Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 30 October 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Michael O’Boyle   Elisabeth Palm   Registrar   President