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SECOND
SECTION
CASE OF SELEK v. TURKEY
(Application
no. 43379/02)
JUDGMENT
STRASBOURG
12
December 2006
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 Selek v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D.
Jočienė,
Mr D. Popović, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 21 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43379/02) 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 Faruk Selek, on
13 November 2002.
- The
applicant was represented by Ms T. Esen, Ms Ö. Öker, and
Ms S.P. Çelik. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
16 September 2004 the Court (Third Section) declared the application
partly inadmissible and decided to communicate the complaint
concerning the length of the proceedings to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Istanbul.
- The
applicant was a civil servant at the Istanbul Municipality.
- On
22 December 1994 he was arrested by police officers from the Istanbul
Security Directorate on suspicion of forgery. He admitted to the
charges before the police.
- On
26 December 1994 the applicant was brought before the investigating
judge at the Istanbul Magistrate’s Court, who ordered his
detention on remand.
- On 2 January 1995 the public prosecutor filed an
indictment with the Istanbul 7th Criminal Court against
the applicant and three co-accused (O.I., M.T. and N.S.), requesting
that they be punished for committing forgery under Articles 503 §
1 and 522 of the Criminal Code. The public prosecutor further decided
that the Law on the Prosecution of Civil Servants (Memurin
Muhakemeti Kanunu) did not apply to this case as the offence was
ordinary.
- On 24 January 1995 the 7th Criminal Court
commenced the proceedings. On 3 February 1995 it heard statements
from the applicant and two other co-defendants. The applicant denied
the charges against him, alleging that his statement in the police
station had been extracted from him under duress. At the following
hearing on 24 February 1995, the court released the applicant and two
co-accused from detention on remand. It further decided to prolong,
in absentia, the arrest warrant issued in respect of O.I. as
he had absconded.
- On 10 March 1995 the Istanbul public prosecutor
launched an investigation concerning the applicant’s alleged
abuse of office in relation to the forgery. During the course of the
investigation, the public prosecutor decided that he had no
jurisdiction over the case as the applicant was a civil servant.
Accordingly, he sent the file to the Istanbul Provincial
Administrative Council (İstanbul İl İdare Kurulu),
pursuant to the provisions of the Law on the Prosecution of Civil
Servants, in order to seek authorisation to prosecute the applicant.
- On 7 December 1995 the Provincial Administrative
Council decided not to authorise the applicant’s prosecution.
- On 20 January 1998 the Supreme Administrative Court
put aside this decision and ordered that the applicant be tried.
Subsequently, on 25 March 1998 the public prosecutor filed
another indictment with the Istanbul 11th Criminal Court
accusing the applicant of abuse of office.
- On 10 December 1998 the 11th Criminal Court
decided to join the case pending before it to the proceedings before
the 7th Criminal Court, and sent the case file to the
latter.
- In the course of the proceedings, during the ten
hearings held between 5 March 1996 and 3 November 1998, the
applicant’s lawyer explicitly asked the court to separate his
client’s case from the others and to conclude it. The court
each time rejected these requests given the search for O.I., and
decided to postpone the hearings, awaiting the outcome of the arrest
warrant. In particular, at one of these hearings on 25 November 1997,
the applicant’s lawyer informed the court that he had heard
that O.I. had escaped abroad. He further stated that his client had
been victimised as a result of the prolongation of the proceedings.
- On 20 May 1999 the court decided that the criminal
proceedings concerning O.I. should proceed separately as he could not
be found. The same day the court convicted the applicant and
sentenced him to ten months’ imprisonment and a fine. The
imprisonment was then commuted to a fine and its execution was
suspended in accordance with Section 6 of Law no. 647 (the Law
on the execution of sentences).
- Both the applicant and the public prosecutor appealed
against the decision, the applicant alleging that there was no
concrete evidence on which he could be convicted.
- On 27 May 2002 the Court of Cassation rejected the
reasons for appeal but quashed the judgment on account of a
miscalculation of the amount of the fine imposed on the applicant.
The Court of Cassation did not order a retrial, but corrected the
amount by reducing the fine and upheld the judgment with this
amendment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the criminal proceedings against him were
not concluded within a reasonable time, as required by Article 6 §
1 of the Convention, which reads 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...”
A. Admissibility
- The
Government asked the Court to dismiss the complaint as being
inadmissible for failure to comply with the requirement of exhaustion
of domestic remedies under Article 35 § 1 of the Convention.
They maintained that the applicant did not raise the substance of his
complaint before the domestic courts, which were always in a position
to examine such matters.
- The
Court reiterates that the obligation to exhaust domestic remedies
only requires that an applicant make normal use of effective and
sufficient remedies, that is those capable of remedying the situation
at issue and affording redress for the breaches alleged.
- The
Court observes that the Turkish legal system does not provide any
remedies to accelerate the proceedings. Nor, at the material time,
did it award any compensation for delays. The Court accordingly
concludes that there was no appropriate and effective remedy which
the applicant should have exercised for the purposes of Article 35 §
1 of the Convention (see Hartman v. Czech Republic, no.
53341/99, § 69, ECHR 2003 VIII (extracts)). It therefore
rejects the Government’s preliminary objection.
- The
Court notes that the 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
- The
Court notes that the period to be taken into consideration began on
22 December 1994 with the applicant’s arrest and ended on
27 May 2002, when the Court of Cassation upheld the decision of
the first-instance court. It thus lasted over seven years and five
months, for two levels of jurisdiction.
- The
Government maintained that, in the present case, the competent
authorities initiated the proceedings without losing any time.
Although the domestic court experienced difficulties because one of
the co-accused (O.I.) had absconded, this did not prolong the trial,
contrary to the applicant’s claim that the failure to separate
his case from O.I.’s caused delay. They argued that, for the
proper administration of justice, the domestic court did not separate
the criminal proceedings until the appropriate time, i.e. 20 May
1999. Moreover, they submitted that the oral evidence of several
witnesses had to be obtained.
- The
applicant maintained his allegations.
- 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,
the conduct of the applicant and the relevant authorities (see, among
other authorities, Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999 II)
- The
Court notes that the criminal case against the applicant was in fact
ready for decision well before 20 May 1999, since all but one of the
defendants had submitted their observations by that date. However,
the proceedings were prolonged while a search was made for the
fugitive defendant, despite the applicant’s persistent requests
that the court proceed with his case separately (paragraph 15 above).
The Court further observes that a period of three years elapsed
between the first-instance court’s decision of 20 May 1999 and
the decision of the Court of Cassation on 27 May 2002. The
Government did not offer any explanation for this delay.
- Recalling
that Article 6 § 1 of the Convention imposes on the Contracting
States the duty to organise their legal systems in such a way that
their courts can meet the all requirements of that provision (see
Arvelakis v. Greece, no. 41354/98, § 26, 12 April 2001), the
Court considers that the domestic courts could have applied stricter
measures to speed up the proceedings in the present case.
- In
light of the foregoing, the Court considers that the total length of
the proceedings at issue cannot be considered to have complied with
the “reasonable time” requirement of Article 6 § 1
of the Convention.
There
has accordingly been a violation of this provision.
II. 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 50,000 new Turkish liras (YTL), equivalent to
26,394 euros (EUR), in respect of pecuniary damage, and
YTL 100,000 (EUR 52,786) for non-pecuniary damage.
- The
Government contested these claims.
- The
Court finds no causal link between the applicant’s claim for
pecuniary damage and the violation found. Accordingly it makes no
award under that head. However, it accepts that the applicant must
have suffered some non-pecuniary damage on account of the duration of
the proceedings, which cannot be sufficiently compensated by the
finding of a violation. Ruling on equitable basis, it awards the
applicant EUR 3,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed YTL 5,000 (EUR 2,639) for costs and expenses
incurred before the domestic courts and the Court.
- The
Government contested this claim.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicant the global sum of
EUR 1,000 in respect of cost and expenses.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 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, EUR 3,500 (three thousand
five hundred euros) in respect of non-pecuniary damage and EUR 1,000
(one thousand euros) in respect of costs and expenses, plus any tax
that may be chargeable; these sums are to be converted into New
Turkish Liras at the rate applicable on the date of settlement;
(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 12 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
