CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 octobre 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s490D418E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sE0372AB5 { width:21.8pt; text-indent:0pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s6983F43D { margin-top:14pt; margin-left:27.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s36C5EC9D { margin-top:14pt; margin-left:35.72pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.83pt; font-family:Arial; font-size:11pt; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s64406319 { width:11.68pt; display:inline-block } .s2A036C4D { width:140.21pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s9C6A147F { width:184.21pt; display:inline-block }     SECOND SECTION DECISION Application no. 39558/10 Hüseyin URUÇ against Turkey   The European Court of Human Rights (Second Section), sitting on 20   October 2020 as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Aleš Pejchal,   Valeriu Griţco,   Egidijus Kūris,   Branko Lubarda,   Pauliine Koskelo,   Saadet Yüksel, judges, and Stanley Naismith, Section Registrar , Having regard to the above application lodged on 25 May 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Hüseyin Uruç, is a Turkish national who was born in 1972 and lives in Van. He was represented before the Court by Ms   A.   Pamukçu Yördem, a lawyer practising in Diyarbakır. 2.     The Turkish Government (“the Government”) were represented by their Agent. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Criminal proceedings against the applicant 4.     By an indictment of 12 June 1995, the applicant was charged with membership of the illegal organisation Hizbullah; he was finally acquitted of this charge on 25 June 1998. 5.     On 18 January 2001 the applicant was again arrested and remanded in custody on the same charges and, by a judgment of 25 June 2002, the Diyarbakır State Security Court sentenced him to twelve years and six months’ imprisonment. 6.     On 16 December 2002 the Court of Cassation quashed the decision of the State Security Court. Noting that the applicant had been charged for the first time on 12 June 1995 with membership of the Hizbullah organisation and finally acquitted on 25 June 1998, the Court of Cassation considered that it was “unlawful” to have decided on his conviction without examining whether the case before the court was essentially the same as the previous one by ascertaining whether any new acts had been committed after the initial indictment. 7.     In a judgment of 27 February 2003, the State Security Court noted the final acquittal of the applicant and, in the absence of any new charges against him subsequent to the initial indictment, decided to “dismiss the criminal case”, in accordance with the ne bis in idem principle. Its judgment stated as follows: “Although criminal proceedings had been brought against the accused Hüseyin Uruç on account of his membership of the illegal organisation Hizbullah, noting, in the light of the trial and the evidence gathered, that he had previously been tried for the same offence and that he had been acquitted, [it has been decided] to dismiss the criminal case under Article 253 § 3 of the Code of Criminal Procedure in view of [the existence] of a final judgment.” The applicant was released the same day, after spending two years, one month and twenty days in detention. 8.     The judgment of 27 February 2003 became final on 7 March 2003, no   appeal against it having been lodged. Remedy for compensation under Law no. 466 (repealed) 9.     On 15 April 2003 the applicant lodged a claim for compensation under Law no. 466 with the Van Assize Court for unjust detention, in view of the fact that he had been finally acquitted by a previous judgment. The first judgment of 17   June 2004 delivered by the Van Assize Court was subsequently quashed by the Court of Cassation in a judgment of 1   February 2006. It held that the amount awarded in respect of non-pecuniary damage had been insufficient and that the court had erred in the method of calculation it had used to assess costs and expenses. 10.     On 16 June 2006 the Van Assize Court complied with the Court of Cassation’s judgment and awarded the applicant 12,000 Turkish liras (TRY,   approximately 5,930 euros (EUR)) according to the exchange rate at the relevant time) in respect of non-pecuniary damage, together with statutory interest with effect from 15   April 2003. In their reasoning, the judges observed that the applicant, as an “acquitted” individual, was entitled to claim compensation under Law no. 466 from the State for any damage sustained. In that connection, the judges concluded that during the period when he had been unjustly detained, the applicant, a teacher by profession, had certainly sustained damage to his social and family reputation as a result of the nature of the offence he had been charged with and distress due to being deprived of his liberty and being apart from his children and relatives. As regards the applicant’s claims in respect of pecuniary damage, the judges noted that, after the applicant had been reinstated in his teaching post, all salary arrears had been paid to him. Nevertheless, they awarded him TRY 480 (approximately 240 EUR) in respect of pecuniary damage as regards the legal costs incurred in the second set of criminal proceedings. Finally, the judges awarded him TRY 900 (approximately 440 EUR) in respect of the costs and expenses incurred in connection with the claim for compensation. 11.     By a judgment of 20 January 2010, the Court of Cassation upheld the Assize Court’s judgment in substance, correcting ex proprio motu the amount awarded in respect of pecuniary damage, which according to the Court of Cassation should have been TRY 550 (approximately 270 EUR). 12.     On 23 June 2010 the applicant was paid TRY 33,800 in total (approximately 17,600 EUR according to the exchange rate at the relevant time). Relevant domestic law 13.     The relevant parts of Article 253 of the former Code of Criminal Procedure, relating to the closure of hearings and the delivery of judgments, read as follows: “... Judgment shall be given after the closure of the hearing. Decisions on the acquittal or conviction of the accused, or on the dismissal or discontinuation of the criminal case, or on the suspension of the proceedings, shall be considered to be a judgment. If a judgment has previously been delivered or proceedings have been instituted in respect of the same accused on the same facts, a decision shall be taken to dismiss the case. ...” Following the repeal of the former Code of Criminal Procedure, this provision was included in Article 223 § 7 of the new Code of Criminal Procedure. 14.     Section 1(6) of Law no. 466 on the payment of compensation to unlawfully arrested or detained persons, which was in force at the material time, provided as follows: “Compensation shall be paid by the State in respect of all damage sustained by persons: ... 6.     who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; ...” COMPLAINT 15.     The applicant relied on Article 5 § 1 of the Convention and complained in particular of the unfairness of his detention for acts for which he had previously been finally acquitted. THE LAW 16.     Relying on Article 5 § 1 of the Convention, the applicant complained that he had been unjustly detained for more than two years for acts for which he had previously been finally acquitted. 17.     The Government pointed out that on 23 June 2010 the applicant had received payment of TRY 33,800 in compensation for his detention. They accordingly invited the Court to declare the present application inadmissible as incompatible ratione personae with the provisions of the Convention on the ground that the applicant could no longer claim to be a victim within the meaning of Article 34. 18.     The applicant contested the Government’s argument. 19.     The Court reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see, for example, Dalban v. Romania [GC], no.   28114/95, §   44, ECHR   1999-VI). It follows that the Court is required to verify that there has been an acknowledgment, at least in substance, by the authorities of a violation of a right protected by the Convention and whether the redress can be considered as appropriate and sufficient (see, inter alia , Scordino v.   Italy (no. 1) [GC], no. 36813/97, § 193, ECHR 2006-V). 20.     The Court observes that after the Diyarbakır State Security Court had dismissed the criminal case against him, the applicant lodged a claim for compensation under Law no. 466 with the Van Assize Court, which awarded him TRY 12,000 in respect of non-pecuniary damage, TRY   480 in respect of pecuniary damage and TRY 900 in respect of costs and expenses as compensation for his “unjust” detention. In so doing, that court considered the applicant to have been “acquitted” and merely relied on his “acquittal”. The Court observes that in the context of a claim for compensation following an acquittal, under Law no. 466 the Turkish courts did not have to examine whether the detention was unlawful, let alone recognise this, even in substance. As the award of compensation was an automatic consequence of the applicant’s acquittal, it did not amount to a finding of a violation of Article 5 § 1 of the Convention (see, in this connection, Medeni Kavak v. Turkey , no. 13723/02, § 34, 3 May 2007, and Elğay v. Turkey , no.   18992/03, § 32, 20 January 2009; for a similar approach in Italian cases, see Labita v. Italy [GC], no. 26772/95, §   143, ECHR 2000-IV). Thus, in the present case, the Van Assize Court, which decided on the applicant’s claim for compensation, in no way examined whether his detention had been unlawful, and its judgment contains no acknowledgment, either expressly or in substance, of any alleged irregularity in relation to that deprivation of liberty. 21.     The Court notes, however, that the same does not apply to the decision dismissing the criminal case. Indeed, the Diyarbakır State Security Court decided to dismiss the criminal case on the ground that the applicant had been finally acquitted of the offence with which he had been charged and that he could not be prosecuted a second time for the same acts under the ne bis in idem principle enshrined in Article 253 § 3 of the former Code of Criminal Procedure. This is a specific situation, to be distinguished from a judgment of acquittal. In the Court’s view, the State Security Court’s decision to dismiss the criminal case constituted an implicit acknowledgment that the applicant’s detention was in breach of domestic law, namely Article 253 § 3 of the former Code of Criminal Procedure, and that finding can be accepted as an acknowledgment by the domestic authorities, at least in substance, of the unlawful nature of the deprivation of liberty suffered by the applicant (for a similar approach, see Adıgüzel and Others v.   Turkey , no.   65126/09, § 28, 13   February 2018). Moreover, the Court notes that the Court of Cassation expressly admitted in its judgment that the applicant’s conviction had been unlawful, with the consequence that his detention as a result of that conviction had also been unlawful. 22.     It therefore remains to be assessed whether the redress afforded to the applicant can be considered appropriate. When determining this issue, the Court will have regard to its own practice in similar cases. This does not imply that in situations where the domestic authorities have awarded a sum to an applicant with a view to redressing the breach found, the sum awarded must correspond to what the Court would award. The issue must be determined in the light of all the relevant circumstances, including the nature of the breach and the way in which and speediness with which it was established by the domestic authorities, for which it is in the first place to ensure respect for the rights and freedoms guaranteed by the Convention. The level of just satisfaction granted at national level must nevertheless not be manifestly inadequate in the particular circumstances of the case (see Žúbor v.   Slovakia , no. 7711/06, § 63, 6 December 2011, and Hebat Aslan and Firas Aslan v. Turkey , no. 15048/09, § 44, 28 October 2014). 23.     In the present case, the Van Assize Court awarded the applicant TRY 12,000 in respect of non-pecuniary damage, TRY 480 in respect of pecuniary damage (revalued by the Court of Cassation at TRY 550) and TRY 900 in respect of costs and expenses, together with interest at the statutory rate from the date on which the applicant brought the action for damages. The applicant did not in any way allege that the amounts awarded had been inadequate. On 23 June 2010 he was paid the sums awarded to him by the Van Assize Court, TRY 33,800 in total (approximately EUR   17,600 according to the exchange rate at the relevant time). In the Court’s view, that sum cannot be regarded as manifestly inadequate. The Court also notes that, having been cleared of the charges against him following the second set of criminal proceedings, the applicant was reinstated as a teacher and was paid all the salary arrears he had not received during his detention. 24.     Accordingly, as the redress provided under domestic law was sufficient and appropriate, the applicant can no longer claim to be the “victim” of a violation of Article 5 § 1 of the Convention. The Court therefore accepts the Government’s objection on this point. 25.     It follows that the complaint under Article 5 § 1 of the Convention is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35   §   3   (a) and must be rejected in accordance with Article 35   §   4. 26.     Lastly, although notice of a complaint under Article   5   §   5 of the Convention had initially been given to the Government, it appears from an examination of the material in the case file that that complaint has not been raised by the applicant before the Court, even in substance. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the remainder of the application inadmissible. Done in English and notified in writing on 26 November 2020.   Stanley Naismith   Jon Fridrik Kjølbro   Registrar   President