CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juillet 2007

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TURKEY     (Application no. 47043/99)     JUDGMENT       STRASBOURG   24 July 2007       FINAL     24/10/2007     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 Mehmet Yavuz v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza, President,   Mr   J. Casadevall,   Mr   R. Türmen,   Mr   S. Pavlovschi,   Mr   L. Garlicki,   Ms   L. Mijović,   Mr   J. Šikuta, judges, and Mrs F. Aracı , Deputy Section Registrar , Having deliberated in private on 3 July 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 47043/99) 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 Yavuz (“the   applicant”), on 1 February 1999. 2.     The applicant was represented by Mr S. Çınar, a lawyer practising in Diyarbakır. The Turkish Government did not designate an Agent for the purposes of the proceedings before the Court. 3.     On 5 October 2004 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of the applicant’s detention on remand and the criminal proceedings against him to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1965 and was detained in Diyarbakır prison at the time of his application to the Court. 5.     On 8 November 1993 the applicant was taken into police custody by police officers from the Diyarbakır   Security Directorate on suspicion of membership of an illegal organisation, the PKK (Kurdistan Workers’ Party). 6.     On 26 November 1993 he was brought before a judge who ordered his detention on remand. 7.     On 29 November 1993 the applicant filed an objection against the decision of 26 November 1993. 8.     On 7 December 1993 the Diyarbakır State Security Court dismissed the applicant’s objection. 9.     On 23 December 1993 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and ten other persons. The applicant was charged under Article   125 of the Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory. 10.     On 28 December 1993 the Diyarbakır State Security Court held the   first hearing in the case against the applicant and the other co-accused (case   no. 1993/663). 11.     Between 28 December 1993 and 16 January 1996 the Diyarbakır State Security Court held fourteen hearings, approximately once every two months on the merits of the case. During this time, at each hearing the court heard some of the accused and requested documents from various authorities with a view to completing the case file. 12.     Meanwhile, on 4 October 1994 the first-instance court decided to join another case (case no. 1993/821) to case no. 1993/663. 13.     On 26 March 1996 the public prosecutor submitted his observations on the merits of the case. The first-instance court requested the applicant and some of the other co-accused to make their defence submissions. 14.     Between 26 March 1996 and 16 September 1997 the Diyarbakır State Security Court adjourned the hearings as some of the accused had failed to file their defence submissions. 15.     In the meantime, on 3 July 1996 the Diyarbakır State Security Court decided to join another case (case no. 1994/433) to case no. 1993/633. 16.     On 21 October 1997 the Diyarbakır State Security Court decided to join a third case (case no. 1996/512) to case no. 1993/663. 17.     Between 21 October 1997 and 3 March 1998 the first-instance court heard the accused of the joined case and collected evidence in their respect. 18.     On 3 March 1998 the court requested the public prosecutor to submit his observations on the merits of the case. 19.     On 22 July 1998 the public prosecutor amended the indictment concerning the applicant and charged him under Article 168 § 2 of the Criminal Code with membership of an illegal organisation. 20.     On 15 September 1998 the applicant’s lawyer contended that the applicant had been employed in Alanya at the time of the alleged offence and requested the first-instance court to conduct a further investigation with a view to confirming the veracity of his claim. The court accepted the applicant’s request and ordered the Alanya gendarmerie command to obtain evidence in that respect. 21.     On 29 December 1998 the court adjourned the hearing as it did not receive the requested information from the Alanya gendarmerie command. 22.     On 2 February 1999 the first-instance court withdrew its order of 15   September 1998. 23.     On 2 March 1999 the Diyarbakır State Security Court requested the accused to file their defence submissions. On an unspecified date, the applicant made his submissions. 24.     On 23 March 1999 the Diyarbakır State Security Court concluded the proceedings against twenty accused persons, including the applicant, and convicted the latter of membership of the PKK under Article 168 § 2 of the Criminal   Code and Article 5 of Law no. 3713. The first-instance court sentenced the applicant to twelve years and six months’ imprisonment and permanently debarred him from employment in the civil service. 25.     The Diyarbakır State Security Court held forty-one hearings in total. At the end of each hearing the court considered the applicant’s and the other co ‑ accused’s continued detention, either of its own motion or upon the request of the accused. The court ordered the applicant’s continued detention on every occasion, having regard to the state of the evidence, the nature of the offence and the content of the case file. 26.     On 17 February 2000 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court in respect of the applicant and some of the other co-accused. II. RELEVANT DOMESTIC LAW 27.     Article 104 of the Code of Criminal Procedure in force at the material time provided that a person could be remanded in custody where there was a fear that the accused would abscond, or where there were attempts by the accused to remove evidence or interfere with witnesses. When the offence was a felony, it was presumed that the suspect was planning to escape. The last paragraph of Article 104 provided that detention on remand could not be imposed if another measure was adequate. Articles 117-122 of the Code of Criminal Procedure in force at the material time provided for the conditions for release on bail. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 28.     The applicant complained that his detention on remand had exceeded the “reasonable time” requirement as provided in Article 5 § 3 of the Convention, which reads, in so far as relevant, 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.” A.     Admissibility 29.     The Government alleged that the applicant had failed to exhaust domestic remedies. However, they did not explicitly refer to the applicant’s complaint under Article 5 § 3 of the Convention. Nor did they point to a particular remedy. The Court accordingly rejects the Government’s objection. 30.     The Court further 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 31.     The Government submitted that the trial court had not unduly prolonged the applicant’s trial or his detention on remand. The offence with which the applicant was charged was of a serious nature, and his detention on remand was necessary to prevent him from absconding. The State Security Court took into consideration the very high risk of the applicant escaping. The Government submitted that there had been a genuine public interest for the continued detention of the applicant as the illegal organisation to which he belonged had carried out violent activities. 32.     The applicant reiterated that he had been detained on remand for an excessive length of time. 33.     Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v.   Switzerland , judgment of 26   January 1993, Series   A no.   254-A, p.   15, §   30; Kudła v.   Poland [GC], no.   30210/96, §   110, ECHR   2000-XI). 34.     The rule of presumption of innocence favours release from detention. As established in Neumeister v.   Austria (judgment of 27   June   1968, Series A no.   8, p.   37, §   4), the second limb of Article   5   §   3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until her or his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see McKay   v. the United Kingdom [GC], no.   543/03, §   41, ECHR 2006 ‑ ...). 35.     It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article   5 §   3 of the Convention (see McKay, cited above, §   43). 36.     The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. (see, among others, Labita v.   Italy [GC], no.   26772/95, §   153, ECHR 2000-IV). 37.     The Court notes that, in the instant case, the period to be taken into consideration began on 8 November 1993, when the applicant was taken into police custody and ended on 23 March 1999, when the first-instance court convicted the applicant. The applicant’s detention on remand thus lasted more than five years and four months. 38.     During this period, the Diyarbakır State Security Court considered the applicant’s continued detention at the end of each hearing, either of its own motion or upon the request of the applicant. However, the first-instance court ordered the applicant’s continued detention on remand on all occasions, using identical expressions, i.e. “the state of the evidence”, “the nature of the offence” and “the content of the case file”. 39.     The Court considers that, in general, the expression “the state of the evidence” may be a relevant factor for the existence and persistence of serious indications of guilt. The Court further acknowledges the seriousness of the offence with which the applicant was charged and the severity of the sentence which he faced if found guilty. In this respect, the Court agrees that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding (see Michta v. Poland , no. 13425/02, §   49, 4 May 2006). However, in the Court’s view, neither the state of evidence nor the gravity of the charges can by themselves serve to   justify long periods of detention pending trial (see, among others, Letellier   v.   France , judgment of 26   June   1991, Series A no. 207; Tomasi   v.   France , judgment of 27 August 1992, Series A no. 241-A; Demirel v.   Turkey , no.   39324/98, § 59, 28 January 2003; Vayiç   v. Turkey , no.   18078/02, §   37, ECHR 2006 ‑ ...; Ilijkov v. Bulgaria , no.   33977/96, §§   80 ‑ 81, 26   July 2001; Ječius v.   Lithuania , no.   34578/97, § 94, ECHR   2000-IX). 40.     In this connection, the Court observes that the Diyarbakır State Security Court failed to indicate to what extent the applicant’s release would have posed a risk after the passage of time, in particular in the later stages of the proceedings after more than five years of detention on remand (see Demirel , cited above, §   60). Furthermore, the first-instance court never gave consideration to the application of a preventive measure, such as prohibition on leaving the country or release on bail, other than continued detention of the applicant. 41.     The foregoing considerations are sufficient to enable the Court to conclude that the length of the applicant’s detention on remand, which   lasted over five years and four months, has not been shown to have been justified by relevant and sufficient reasons. 42.     There has accordingly been a violation of Article 5 § 3 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A.     Independence and impartiality of the State Security Court 43.     In his submissions of 15 August 2005, the applicant complained under Article 6 § 1 of the Convention that he did not have a fair trial by an independent and impartial tribunal. 44.     The Court reiterates that it may only deal with a matter within a period of six months from the date on which the final decision was taken.   When the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place. 45.     The Court observes that the criminal proceedings against him ended on 17 February 2000, whereas this complaint was lodged with the Court on 15 August 2005 i.e.   more than six months later. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. B.     Length of the criminal proceedings 46.     The applicant complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement provided in Article 6 § 1 of the Convention, which reads, 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...” 47.     The period to be taken into consideration began on 8   November   1993, when the applicant was arrested and taken into police custody and ended on 17 February 2000, when the Court of Cassation upheld the judgment of the Diyarbakır State Security Court in respect of the applicant. The period under consideration thus lasted more than six years and three months before two instances. 48.     The Government asked the Court to dismiss the complaint concerning the length of the criminal proceedings for failure to exhaust domestic remedies, as required by Article   35   §   1 of the Convention. In this regard, the Government maintained that the applicant had failed to raise the substance of his complaint before the domestic courts. 49.     Regarding the merits of the complaint, the Government maintained that the length of the proceedings in the instant case could not be considered unreasonable in view of the number of accused persons, the complexity of the case and the nature of the offence with which the applicant was charged. The Government submitted that the national court had to postpone the hearings in order to await the information that it had requested from various authorities. They also contended that the absence of some of the defendants had also delayed the procedure. 50.     As regards the Government’s preliminary objection concerning the failure to exhaust domestic remedies, the Court notes that it has already examined and rejected the Government’s similar objections in previous cases (see, for example, Mete v. Turkey , no.   39327/02, §§   18-19, 25   October   2005). The Court finds no particular circumstances in the instance case, which would require it to depart from its findings in the above-mentioned application. It therefore rejects the Government’s objection under this head. 51.     The Court however considers that this complaint is manifestly ill ‑ founded for the following reasons. 52.     The Court reiterates, at the outset, 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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and that of the relevant authorities (see Kiper   v. Turkey , no. 44785/98, §   36, 23   May   2006). 53.     The Court considers that the subject matter of the case before the Diyarbakır State Security Court was undoubtedly complex, as shown, inter   alia , by the number of investigations which were linked to each other, the number of defendants and the nature of the offence with which the latter were charged. It notes, in this connection, that at the beginning of the proceedings the applicant was being tried along with ten other persons. After the two other cases had been joined to the applicant’s case, the proceedings continued with a total of twenty accused persons. Furthermore, the defendants were accused of being members of an illegal organisation and of carrying out terrorist activities. 54.     As regards the conduct of the applicant, the Court observes that it does not appear that he contributed to the prolongation of the proceedings. The Government have not argued to the contrary. 55.     As to the conduct of the domestic authorities, the Court does not observe any period of inactivity that could be attributable to the domestic courts during the conduct of the proceedings. It is true that a number of hearings in the case were adjourned between 26 March 1996 and 16   September   1997 since some of the accused failed to comply with the summonses. By contrast, there is nothing in the case file which shows that the adjournments were due to the first-instance court’s failure to organise the proceedings efficiently. The Diyarbakır State Security Court adjourned the hearings in the interest of the proper administration of justice as it should and could not have rendered a judgment without obtaining all the defendants’ submissions. 56.     Furthermore, hearings were scheduled at regular intervals of approximately one and a half months. Following receipt of the appeal, the Court of Cassation decided the case in less than a year. 57.     Having regard to the particular circumstances of the case, and taking into account in particular the overall duration of the proceedings, the   Court   concludes that there has been compliance with the “ reasonable time” requirement laid down in Article 6 § 1 of the Convention (see   Sałapa   v.   Poland ,   no.   35489/97,   §   86,   19   December   2002; and Bayram Yılmaz and Others v. Turkey (dec.), no. 38370/02, 19   September 2006). 58.     It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must, therefore, be declared inadmissible. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 59.     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 60.     The applicant claimed 16,130 euros (EUR) in respect of pecuniary damage for the loss of earnings incurred as a result of his imprisonment. He further claimed EUR 35,000 in respect of non-pecuniary damage. 61.     The Government submitted in reply that the amount claimed in respect of non-pecuniary damage was excessive. As regards the applicant’s submissions concerning pecuniary damage, the Government maintained that the applicant’s claim was unsubstantiated. 62.     On the question of pecuniary damage, the Court observes that the applicant has not produced any document in support of his claim. It accordingly dismisses the claim. 63.     As regards the alleged non-pecuniary damage, the Court accepts that the applicant must have suffered non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 3,400. B.     Costs and expenses 64.     The applicant also claimed EUR 7,571 for the costs and expenses incurred both before the domestic courts and before the Court. This included legal work and administrative costs incurred by his representative such as telephone calls, postage, stationary and translation costs. In support of his claims, the applicant submitted a detailed schedule of costs prepared by his representative. 65.     The Government contested these claims. 66.     According to the Court’s jurisprudence, an applicant is entitled to reimbursement of his 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 (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the   domestic proceedings and considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court. C.     Default interest 67.     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 1.     Declares the complaints concerning the length of the applicant’s detention on remand admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 5 § 3 of the Convention on account of the length of the applicant’s detention on remand;   3.     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 3,400 (three thousand four hundred euros) in respect of non ‑ pecuniary damage; (ii)     EUR 1,000 (one thousand euros) in respect of costs and expenses; (iii)     any tax that may be chargeable on the above amounts; (b)     that from the expiry of the abovementioned 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;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Nicolas Bratza   Deputy Registrar   President