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THIRD
SECTION
CASE OF ÇEM v. TURKEY
(Application
no. 4819/02)
JUDGMENT
STRASBOURG
13
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 Çem 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 A.
Gyulumyan,
Mr David Thór Björgvinsson,
Mrs I.
Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S.
Naismith, Deputy Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4819/02) 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 Niyazi Çem
(“the applicant”), on 6 June 2001.
- The
applicant was represented by Mr A.E. Yılmaz, 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
13 September 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in Istanbul.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
an unspecified date in 1993, a detained member of the PKK (Workers'
Party of Kurdistan) confessed to the authorities that a number of
lawyers, among whom was the applicant, had been operating as
undercover members of the organisation. Upon his confession, the
public prosecutor attached to the State Security Court of Diyarbakır
initiated a criminal investigation.
- On
23 November 1993 the applicant was taken into custody, where he
denied any association with the PKK.
- On
20 December 1993 he was brought before a judge, who ordered his
release pending trial.
- On
22 December 1993 the prosecutor filed an indictment, charging the
applicant, together with twenty-two other lawyers, with being a
member of the PKK. The specific charges against him included the
transmission of messages, documents and money among the incarcerated
PKK members, the sheltering and healing of a wounded PKK militant and
the delivery of 2 kilograms of heroin belonging to the PKK from
Diyarbakır to Istanbul. The prosecutor subsequently charged nine
other persons with similar crimes. Their cases were also joined to
that of the applicant.
- With
a hearing on 17 February 1994, the State Security Court of Diyarbakır
began the trial. At the same hearing, it ordered the release of all
the accused who had not been already released by then.
- On
19 September 1996 the prosecutor filed his observations on the
merits.
- On
18 June 1999 the Constitution was amended and the military judge
sitting on the bench of the Diyarbakır State Security Court was
replaced by a civilian judge.
- On
21 December 2000 Law no. 4616 governing conditional release,
discontinuation of proceedings and suspension of the execution of
sentences for offences committed before 23
April 1999 came into force.
- On
22 February 2001 the court held that all of the accused were
eligible, under the new legislation, for the discontinuation of the
proceedings against them. Accordingly, it discontinued the
proceedings against the applicant, to be resumed only if he were to
be convicted of an offence of the same or a more serious kind within
a five-year period.
- On
22 February 2006 the five-year period expired and, no information
from the applicant to the contrary having been submitted, the
suspended criminal case against the applicant would appear to have
been definitively dropped.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to Article 1/4 of Law no. 4616 on conditional release,
discontinuation of proceedings and suspension of the execution of
sentences given for offences committed before 23 April 1999,
proceedings are to be discontinued and subsequently dropped if the
accused is not convicted of an offence of the same or a more serious
kind within a five year period.
- In
the absence of such a subsequent conviction, the earlier prosecution
and trial would be considered annulled with retroactive effect. Thus,
in practice, this particular legislation operates as a conditional
amnesty law.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings 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 ... any criminal charge against him, everyone is
entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 23 November 1993
and ended on 22 February 2001. It thus lasted seven years and three
months before one level of jurisdiction.
A. Admissibility
- 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.
B. Merits
- 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
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- 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.
Having regard to its case-law on the subject, the Court considers
that in the instant case 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 of the Convention that
he had been denied a fair hearing by an independent and impartial
tribunal.
- The
Court finds nothing whatsoever in the case file which might disclose
any appearance of a violation of these provisions. It follows that
this part of the application is manifestly-ill founded and must be
rejected, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. 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 US dollars (USD) in respect of pecuniary
damage and USD 100,000 for non-pecuniary damage.
- The
Government submitted that the amounts claimed were excessive and
would lead to unjust enrichment.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
him EUR 5,000 under that head.
B. Costs and expenses
- The
applicant also claimed USD 50,000 for the costs and expenses incurred
before the Court.
- 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.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- 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 5,000 (five
thousand euros) in respect of non-pecuniary damage plus any tax that
may be chargeable, to be converted into New Turkish liras at 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 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič
Deputy
Registrar President
