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SECOND
SECTION
CASE OF CENGİZ POLAT v. TURKEY
(Application
no. 40593/04)
JUDGMENT
STRASBOURG
11
December 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 Cengiz Polat v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Mrs D. Jočienė,
Mr D. Popović,
judges
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 20 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 40593/04) 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 Cengiz
Polat (“the applicant”), on 15 October 2004.
- The
applicant was represented by Mr E. Kanar, 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
6 November 2006 the
Court decided to give notice of the application 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.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965. He is currently detained in the Edirne
F-type Prison.
- On
6 February 1993 the applicant was arrested and placed in police
custody by officers from the Anti-terror branch of the Istanbul
Security Directorate on suspicion of involvement in the activities of
an illegal armed organisation, the TKP/ML-TIKKO (the Turkish
Communist Party/Marxist Leninist -Turkish Workers and Peasants'
Liberation Army).
- On
15 February 1993 the applicant was brought before the public
prosecutor and then the investigating judge at the Istanbul State
Security Court. On the same day the investigating judge remanded the
applicant in custody pending trial.
- By
an indictment dated 5 April 1993, the public prosecutor initiated
criminal proceedings against the applicant and nineteen other
defendants before the Istanbul State Security Court, accusing them,
inter alia, of membership of an illegal armed organisation and
of involvement in activities which undermined the constitutional
order of the State. The prosecution sought the death penalty under
Article 146 § 1 of the Criminal Code.
- In
the course of the proceedings, the State Security Court rejected the
applicant's requests for release, taking into account the nature of
the alleged offence and the state of the evidence.
- On
12 June 2000 the applicant was convicted as charged by the Istanbul
State Security Court and sentenced to life imprisonment.
- On
15 May 2001 the Court of Cassation quashed the applicant's conviction
for procedural reasons. The case was remitted to the Istanbul State
Security Court for further examination and the applicant remained in
custody.
- On
7 May 2004 State Security Courts were abolished following a
constitutional amendment and the applicant's case was transmitted to
the Istanbul Assize Court. In the course of the proceedings, the
domestic courts rejected the applicant's requests for release, taking
into account the nature of the alleged offence and the documents in
the case file. The applicant challenged these decisions under Article
298 of the Criminal Procedure Code; however, the domestic courts
rejected all his requests.
- On
31 January 2005 the Istanbul Assize Court found the applicant guilty
and sentenced him to life imprisonment under Article 146 § 1 of
the Criminal Code.
- On
20 March 2006 the Court of Cassation quashed the decision of the
Assize Court and the case file was remitted to Istanbul Assize Court.
- On
4 October 2006 the applicant was released pending trial. According to
the information in the case file, as submitted by the parties, the
case is still pending before the Istanbul Assize Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his detention pending trial had exceeded
the “reasonable time” requirement of Article 5 § 3
of the Convention, which in so far as relevant reads 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.”
- The
Government contested that argument.
A. Admissibility
- The
Government submitted that, as the applicant had lodged his complaint
under Article 5 § 3 of the Convention on 15 October 2004, the
time he had spent in detention between 6 February 1993 and 12 June
2000 should be ruled out for having been lodged outside the six-month
time-limit.
- The
Court refers to the principles adopted in the Solmaz
v. Turkey judgment (no.
27561/02, § 36, ECHR 2007 ...), where it was held that, if
the applicant is in effect imprisoned throughout, the multiple,
consecutive detention periods should be regarded as a whole and the
six-month period should start running only from the end of the last
period. Therefore, the six-month period should start running only
from the end of the last period of detention, namely 4 October 2006.
- The
Court accordingly dismisses the Government's objection.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. Nor is
it inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government submitted that the Istanbul State Security Court had not
unduly prolonged the applicant's detention pending trial. The offence
with which the applicant had been charged was of a serious nature.
- The
applicant reiterated that he had been detained pending trial for an
excessive length of time.
- The
Court notes that, as explained above, the period in question began on
6 February 1993 with the applicant's arrest and ended on 4 October
2006 when the applicant was released pending trial. In line with its
case-law, after deducting the period when the applicant was detained
after conviction under Article 5 § 1 (a) of the Convention –
namely the periods between 12 June 2000 and 15 May 2001 and between
31 January 2005 and 20 March 2006 – from the total time
that he was deprived of his liberty, the period to be taken into
consideration in the instant case is over eleven years and six
months.
- During
this period, the domestic courts prolonged the applicant's detention
pending trial using identical, stereotyped terms, such as “having
regard to the nature of the offence, the state of the evidence and
the duration of detention”. The Court takes note of the
seriousness of the offence attributed to the applicant and the
severity of the possible punishment. However, it reiterates that the
issue of whether a period of detention is reasonable cannot be
assessed in the abstract. Whether it is reasonable for an accused to
remain in detention must be assessed in each case according to its
particular 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 Kudła v. Poland
[GC], no. 30210/96, § 110, ECHR 2000 XI). In the
instant case, the Court notes the lack of such reasoning in the
domestic court's decisions to prolong the applicant's detention In
the Court's view, although, in general, the expression “the
state of the evidence” may be a relevant factor in the
existence and persistence of serious indications of guilt,
nevertheless in the present case it, alone, cannot justify the length
of detention of which the applicant complains (see the following
judgments: Letellier v. France, 26 June 1991, Series
A no. 207, § 43; Tomasi v. France, 27 August 1992,
Series A no. 241-A; Mansur v. Turkey, judgment of 8 June
1995, Series A no. 319 B, § 55).
- The
Court has frequently found violations of Article 5 § 3 of the
Convention in cases raising similar issues to those in the present
application (see, for example, Atıcı v. Turkey (no. 1),
no. 19735/02, 10 May 2007; Dereci v. Turkey, no.
77845/01, 24 May 2005; Taciroğlu v. Turkey,
no. 25324/02, 2 February 2006).
- Having
examined
all the material submitted to it, the Court considers that the
Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion. Having
regard to its case-law on the subject, it considers that in the
instant case the length of the applicant's detention pending
trial was excessive and contravened Article 5 §
3 of the Convention.
- There
has
accordingly been a violation of this provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant submits that the manner in which the domestic courts
reviewed his detention pending trial breached the Convention. He
maintains in this respect that, when the domestic courts delivered
their decisions, neither he nor his representative was able to attend
the proceedings and the decisions were delivered solely on the basis
of the case file.
- This
part of the applicant's complaint must be examined under Article 5
§ 4 of the Convention, which reads:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. Admissibility
- The
Government submitted that this complaint should be rejected for
failure to exhaust domestic remedies as required by Article 35 §
1 of the Convention. They maintained that the applicant had not
relied on Article 5 of the Convention at any stage before the
domestic authorities.
- The Court observes that
admissibility issue here is closely linked to the consideration of
the complaint under Article 5 § 4. It therefore joins it
to the merits.
B. Merits
- The
Government
rejected the allegations.
- The
Court notes that the law at the time did not allow the applicant or
his lawyer to attend the court sessions and the reviews were carried
out solely on the basis of the papers in the file. As a result, the
applicant was not able to receive the benefit of a procedure that was
genuinely adversarial. The Court recalls
its judgment in the case of Bağrıyanık
v. Turkey (no. 43256/04, 5 June 2007) where
it had examined a similar issue and found a violation of Article 5 §
4 of the Convention. The Court finds no particular circumstances in
the instant case which would require it to depart from its previous
findings.
- Consequently,
the Court concludes that there has been a violation of Article 5
§ 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention of
the length of the criminal proceedings, which are still pending after
more than fourteen years. Article 6 § 1 provides as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Court 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.
- The
Government submitted that the case was complex, considering the
charges against the applicant and the need to organise a large-scale
trial involving nine defendants and numerous witnesses. They
contended that these factors explained the length of the proceedings
and that no negligence or delay could be imputed to the judicial
authorities.
- The
Court observes
that the proceedings began on 6 February 1993 with the applicant's
arrest and, according to the information available in the case file,
are still pending before the Istanbul Assize Court. The case was thus
examined four times at two levels of jurisdiction over a period of
some fourteen years and seven months as of the adoption of the
present judgment.
- The Court has frequently found
violations of Article 6 § 1 of the Convention in cases raising
issues similar to that in the present application (see Pélissier
and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999 II; Ertürk
v. Turkey, no. 15259/02, 12 April
2005).
- Having
examined all the material submitted to it and having regard to its
case-law on the subject, the Court considers that the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
- There
has
accordingly been a breach of Article 6 § 1 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 5 § 1 (a) that the length
of his police custody had exceeded a reasonable time.
- The
Government
contended that this complaint was inadmissible for non-compliance
with the six-month rule.
- The Court
reiterates that, where no domestic remedy is available, the six-month
period runs from the date of the act alleged to constitute a
violation of the Convention (Ege v.
Turkey (dec.), no. 47117/99,
10 February 2004).
- The
Court
observes that the applicant's police custody ended on 15 February
1993. The applicant, however, lodged his application with the Court
on 15 October 2004, that is more than six months later.
- It
follows
that this complaint was introduced out of time and must be rejected
in accordance with Article 35 §§ 1 and 4 of the Convention.
V. 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
70,000 new Turkish liras (YTL) (approximately 40,000 euros (EUR)) in
respect of pecuniary damage and YTL 100,000 (approximately EUR
57,000) for non-pecuniary damage. In respect of pecuniary damage, the
applicant referred to the excessive length of the criminal
proceedings and the time he had spent in detention pending trial, as
a result of which he had not been able to work.
- The
Government contested the amounts.
- The
Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it
therefore rejects this claim. However, it accepts that the applicant
must have suffered some 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 12,500 for
non-pecuniary damage.
B. Costs and expenses
- Referring
to the Istanbul Bar Association's scale of fees, the applicant's
representative claimed YTL 210,740 (approximately EUR 120,000)
for 189 hours' legal work, spent during the
domestic proceedings as well as in the preparation and presentation
of the instant case before the Court.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
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 information in
its possession and the above criteria,
the Court finds it reasonable to award the sum of EUR 1,500 for costs
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 complaints raised under Articles 5 §§ 3 and 4 and
Article 6 § 1 of the Convention admissible and the remainder of
the application inadmissible;
- Holds
that there has been a violation of Article 5 § 3 of the
Convention;
3. Holds
that there has been a violation of Article 5 § 4 of the
Convention;
- 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 according to
Article 44 § 2 of the Convention, EUR 12,500 (twelve
thousand five hundred euros) in respect of non-pecuniary damage and
EUR 1,500 (one thousand five hundred euros) for costs and expenses,
to be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(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 11 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
