CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 avril 2012

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TURKEY   (Application no. 23139/07)               JUDGMENT         STRASBOURG   24 April 2012       This judgment is final but it may be subject to editorial revision.   In the case of Mehmet Nuri Çaçan v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Isabelle Berro-Lefèvre, President,   Guido Raimondi,   Helen Keller, judges, and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 3 April 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 23139/07) 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 a Turkish national, Mr Mehmet Nuri Çaçan (“the   applicant”), on 21 May 2007. 2.     The applicant was represented by Mr M. Erbil, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 27 August 2009 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE A.     The proceedings before the State Security Court 4.     The applicant was born in 1970 and lives in Bitlis. 5.     On 29 April 2000 the applicant was arrested and imprisoned after a criminal conviction. 6.     During the imprisonment it was found that the applicant was mistakenly incarcerated due to his personal identity card being used by his brother in commission of a crime. 7.     On 25 July 2000 the Istanbul State Security Court found in favour of the applicant and ordered his release. 8.     The applicant could only be released on 7 August 2000 because of extended paperwork. 9.     On 4 February 2002 the Istanbul State Security Court ordered the acquittal of the applicant. B.     The proceedings before the Assize Court 10.     On 27 October 2000 the applicant lodged criminal complaint with the Bakırköy Assize Court requesting compensation for his unlawful detention for a period of three months and eight days, pursuant to Law no.   466. 11.     During the course of the proceedings, the court held twenty one hearings. The applicant was present only at one of them, which was held on 19 July 2001. The applicant’s lawyer did not attend to any of the hearings despite having been notified. 12.     On 7 March 2007 the court partially granted the applicant’s request. 13.     On 15 April 2009 the Court of Cassation quashed the judgment of the first-instance court on the ground that the proceedings before the Istanbul State Security Court had not been finalised at the time when the applicant brought the compensation action before the assize court. It held that the applicant had failed to comply with a prerequisite in order to bring such an action. 14.     On 25 September 2009 the court dismissed the case in line with the decision of the Court of Cassation. 15.     According to the information in the case file the proceedings are currently pending before the Court of Cassation. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16.     The applicant complained that the length of the proceedings before the assize court had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 17.     The Government argued that the length of the proceedings could not be attributable to the national authorities as the applicant did not show diligence in pursuing his case and caused prolongation. They claimed that the applicant did not attend the hearings although he was informed about the date of the hearings. 18.     The applicant contended that the authorities were responsible for the excessive length of the proceedings because of their own conduct in the proceedings, namely frequent changes of the judges at the bench of the trial court and the failure of the national authorities to send the required documents to the trial court. He alleged that in the cases as such, there was no requirement for the claimant or his lawyer to attend the hearings as it was mainly the trial court which was supposed to collect the evidence. 19.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 20.     The Court notes that the domestic proceedings commenced on 27   October 2000, and they are still pending before national courts. They have, thus, already lasted approximately eleven years and five months before two levels of jurisdiction. 21.     The Court reiterates 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 following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Daneshpayeh v. Turkey , no. 21086/04, § 26, 16   July 2009). 22.     As regards the conduct of the applicant, the Court observes that the applicant and his lawyer have failed to appear before the trial court even though they were invited to the hearings. It further notes that the absence of the applicant and his lawyer affected the length of the proceedings, as the court needed to obtain certain information from the applicant concerning his detention and acquittal, which had not been provided by the applicant or his lawyer. In this regard, the Court is of the opinion that the applicant contributed to the prolongation of the proceedings by his own failure to appear before the court and that delay could not be attributable to the authorities (see Aladağ v. Turkey (dec.), no. 6781/04, 9 February 2010). 23.     On the other hand, given the remaining length of the proceedings, the Court notes that the period in question cannot be explained solely by the delaying conduct of applicant. Observing the intervals between the hearings, as well as the length of appeal proceedings, the Court finds that there were unnecessary delays in the proceedings, for which the judicial authorities were responsible. For this reason, the Court is not convinced that the domestic courts showed the required diligence to conclude the proceedings within a reasonable time. 24.     The Court has frequently found a violation of Article 6 § 1 of the Convention in cases raising similar issues to the one in the present case (see Daneshpayeh , cited above, §§ 26-29, and Frydlender v. France [GC], no.   30979/96, §§ 42-46, ECHR 2000 ‑ VII). 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. It concludes therefore that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 25.     The applicant complained that there was no domestic remedy proceedings. He relied on Article 13 of the Convention which reads as available under the Turkish law whereby he could challenge the excessive length of follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...” 26.     The Government submitted the same objections which they put forward against the applicant’s complaint under Article 6. 27.     The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicant could have contested the length of the proceedings at issue (see Daneshpayeh , cited above §§ 37 and 51; Bahçeyaka v. Turkey , no. 74463/01, §§ 26-30, 13   July 2006; and Tendik and Others v. Turkey , no. 23188/02, §§ 34–39, 22   December 2005). It finds no reason to depart from that conclusion in the present case. There has accordingly been a breach of Article   13. III.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 28.     Lastly the applicant complained under Article 5 §§ 1 and 5 of the Convention that his arrest and detention had not been lawful and that he had not had any effective legal remedy whereby he could obtain compensation for his detention. 29.     As regards the complaint concerning the unlawfulness of the applicant’s detention under Article 5 § 1, the Court notes that the applicant was released from detention on 7 August 2000. The application, however, was not lodged until 21 May 2007, that is, more than six months later. Therefore, this complaint was lodged out of time and must be rejected under Article   35 §§ 1 and 4 of the Convention. 30.     As regards the complaint under Article 5 § 5, The Court reiterates that the right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. The Court notes in the present case that neither the domestic authorities nor the Court established a violation under other paragraphs of Article 5 (see N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002 ‑ X). Furthermore, the compensation proceedings are still pending before the national courts. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 31.     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 32.     The applicant claimed 242 Turkish liras (TRL ‑ approximately 100   euros (EUR) in respect of pecuniary damages referring to the damage estimated by the expert report in the domestic proceedings. He also claimed 10,000   euros (EUR) in respect of non-pecuniary damage for the distressed caused due to his unlawful detention. 33.     The Government contested these claims finding them unsubstantiated. 34.     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 4,200 in respect of non-pecuniary damage. B.     Costs and expenses 35.     The applicant also claimed TRL 3,000 (approximately EUR 1,200) for the costs and expenses incurred in respect of lawyer’s fee. In support of his claims, the applicant submitted a fee agreement, stating that the lawyer would receive an amount of TRL 3,000 following the termination of the Court proceedings. He also submitted a document indicating the lawyer’s stationery, telephone, translation and transportation expenses. 36.     The Government contested these claims as being unsubstantiated. 37.     Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR   1,200 covering costs under this head. C.     Default interest 38.     The Court considers it appropriate that the default interest rate 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 excessive length of the proceedings and the lack of an effective remedy admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement: (i)     EUR 4,200 (four thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, 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;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-Passos   Isabelle Berro-Lefèvre Deputy Registrar President