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THIRD
SECTION
CASE OF EVCİMEN v. TURKEY
(Application
no. 21865/02)
JUDGMENT
STRASBOURG
29
November 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 Evcimen v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mrs I.
Ziemele, judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21865/02) 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 Kemal Evcimen
(“the applicant”), on 28 January 2000.
- The
applicant was represented by Mr A. Şahin, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- On
31 August 2006 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the alleged
unfairness of the proceedings against the applicant on account of the
lack of independence and impartiality of the Erzurum State Security
Court 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
- The
applicant was born in 1971 and lives in Edirne.
- At
the material time, the applicant was the owner and editor of a local
newspaper published in Trabzon, the Özgür Karadeniz
(“The Free Black Sea”).
- On
15 January 1995 the applicant was taken into police custody on
suspicion of membership of an illegal organisation.
- On
20 January 1995 he was brought before a judge who ordered his
detention on remand.
- On
10 March 1995 the public prosecutor at the Erzincan State Security
Court filed a bill of indictment against the applicant, along with
twenty-one other persons. The applicant was accused of membership of
an illegal organisation, the DHKP-C (the Revolutionary People's
Liberation Party- Front). According to the indictment, following his
arrest, the applicant's house was searched by police officers who
found illegal periodicals, newspapers, books and a bullet. The public
prosecutor also alleged that the applicant had published a newspaper
containing propaganda in support of the DHKP-C, participated in
illegal demonstrations, put up posters,
distributed leaflets supporting the DHKP-C and carried out activities
in the Karadeniz University for the recruitment of new members for
the illegal organisation.
- On
13 March 1995 the applicant was transferred to the Erzurum special
type prison.
- On
different dates in 1995, five other criminal proceedings were brought
against the applicant before various courts, with charges of
disseminating separatist propaganda and incitement to hatred and
hostility through the medium of his newspaper.
- The
cases against the applicant and his co-accused were subsequently
joined before the Erzincan State Security Court.
- Following
promulgation of the Law no. 4210, which abolished the Erzincan State
Security Court and established the Erzurum State Security Court, in
1997 the Erzurum State Security Court acquired jurisdiction over the
case and the case-file was sent to it.
- On
27 November 1998 the Erzurum State Security Court convicted the
applicant under Article 168 § 2 of the Criminal Code of
membership of an illegal organisation, namely the DHKP-C. The court
found that two articles published in Özgür Karadeniz on
15 November 1994 and 1 March 1995 contained separatist propaganda and
incitement to hatred. It further found it established that the
applicant had participated in illegal demonstrations,
put up posters, distributed leaflets supporting the DHKP-C and
carried out activities in the Karadeniz University for the
recruitment of new members for the illegal organisation. The court
sentenced the applicant to twelve years and six months' imprisonment.
- On
18 November 1999 the Court of Cassation upheld the judgment of
27 November 1998 in respect of the applicant.
- On
29 May 2004 the applicant was conditionally released from prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in Özel v. Turkey (no. 42739/98, §§
20-21, 7 November 2002) and Gençel v. Turkey (no.
53431/99, §§ 11-12, 23 October 2003).
- By
Law no. 5190 of 16 June 2004, published in the official journal on 30
June 2004, the State Security Courts were abolished.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant submitted that he had been denied a fair hearing by an
independent and impartial tribunal on account of the presence of a
military judge on the bench of the Erzurum State Security Court which
tried and convicted him. The applicant relied on Article 6 § 1
of the Convention, which in so far as relevant reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing ... by
an independent and impartial tribunal established by law.”
A. Admissibility
- The
Government submitted that the application should be declared
inadmissible for failure to observe the six-month rule since the
final domestic decision had been pronounced by the Court of Cassation
on 18 November 1999, in the presence of the applicant's
representative, while the application had been lodged on 10 May 2001;
i.e. more that six months after the final domestic decision. They
further noted that it had not been proven that the application had
been lodged on 28 January 2000 because no document bearing the latter
date had been communicated to them.
- The
applicant disputed the Government's submissions and claimed that he
had submitted his application to the Court in a letter dated
28 January 2000 within the prescribed time-limit.
- Having
regard to the documents in its possession, the Court notes that the
applicant filed his application in a letter dated 28 January 2000
where he set out the facts and complaints giving rise to the present
application. Given that the applicant had learned about the final
domestic decision on 18 November 1999, the Court observes that the
application was lodged within the six months' time-limit. It
therefore dismisses the Government's objection on the alleged failure
to observe the six-month rule.
- Moreover,
the Court considers this complaint not to be 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
Government maintained that the State Security Courts had been
established by law to deal with threats to the security and integrity
of the State. They submitted that, in the instant case, there was no
basis on which to find that the applicant could have had any
legitimate doubts about the independence of the Erzurum State
Security Court. The Government further referred to the
abolition of the State Security Courts in 2004.
- The Court has examined a large number of cases raising
similar issues to those in the present case and in which it found a
violation of Article 6 § 1 of the Convention (see Özel,
cited above, §§ 33-34; Özdemir v. Turkey,
no. 59659/00, §§ 35-36, 6 February 2003).
- The
Court finds no reason to reach a different conclusion in the instant
case. Accordingly, there has been a violation of Article 6 § 1
of the Convention.
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 379,320 New Turkish liras (YTL) (approximately
202,600 euros (EUR)) in respect of pecuniary damage and YTL 150,000
(approximately EUR 80,115) for non-pecuniary damage.
- The
Government claimed that the amounts claimed were excessive.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. It further considers that the finding of a
violation of Article 6 § 1 constitutes in itself sufficient
compensation for any non-pecuniary damage suffered by the applicant
(see Incal v. Turkey, judgment of 9 June 1998, Reports of
Judgments and Decisions 1998 IV, p. 1575, § 82;
Çıraklar v. Turkey, judgment of 28 October
1998, Reports 1998 VII, § 45).
- The
Court considers that where an individual, as in the instant case, has
been convicted by a court which did not meet the Convention
requirements of independence and impartiality, a retrial or a
reopening of the case, if requested, represents in principle, an
appropriate way of redressing the violation (see Öcalan v.
Turkey, no. 46221/99 [GC], § 210, in fine, ECHR
2005 IV).
B. Costs and expenses
- The
applicant also claimed EUR 19,500 for the costs and expenses incurred
before the domestic courts and the Court. The applicant did not
submit any receipt or documents in support of his claim.
- The
Government contended that the applicant's claim was unsubstantiated.
- According
to the Court's case-law, 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. In the present case, regard being had to the above criteria
and the applicant's failure to substantiate his claim, the Court
makes no award under this heading.
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 that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
