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THIRD
SECTION
CASE OF BAKAY v. TURKEY
(Application
no. 9464/02)
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 Bakay 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,
Mr E.
Myjer,
Mr David
Thór Björgvinsson,
Mrs I.
Ziemele, 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. 9464/02) 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 Orhan Bakay
(“the applicant”), on 17 September 2001.
- The
applicant was represented by Mr M.A. Altunkalem, a lawyer practising
in Diyarbakır. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
28 September 2006 the
Court 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.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Diyarbakır.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
11 August 1994 the applicant was taken into police custody on
suspicion of membership of the PKK (Workers' Party of Kurdistan).
- During
an on-site inspection the applicant showed the location of a firearm
to the security forces.
- On
29 August 1994 the applicant was brought before a single judge at the
Diyarbakır State Security Court who ordered his detention on
remand.
- On
an unspecified date, the public prosecutor at the Diyarbakır
State Security Court filed a bill of indictment against the
applicant, along with ten other persons. The applicant was accused of
carrying out activities for the purpose of bringing about the
secession of part of the national territory under Article 125 of the
Criminal Code. The public prosecutor alleged that the applicant had
been involved in a bombing with a certain H.Y.
- On
25 November 1994 the applicant denied the allegations against him
before the Diyarbakır State Security Court. On the same day, the
applicant's lawyer asked the first-instance court to request
information as to whether criminal proceedings were initiated against
H.Y. regarding the alleged bombing. The Diyarbakır State
Security Court accepted the request and requested the public
prosecutor at this court to submit information.
- On
30 March 1995 the public prosecutor at the Diyarbakır State
Security Court informed the latter that there was a non-prosecution
decision in respect of H.Y.
- On
26 October 1995 the applicant's lawyer requested the Diyarbakır
State Security Court that the applicant be released pending trial.
His request was dismissed.
- On
8 February 1996 the applicant's representative once again requested
that the applicant be released pending trial. He maintained,
inter alia, that according to the expert report drawn up
in respect of the firearm belonging to the applicant, this gun had
never been used in any illegal activity and that there was no other
evidence against the applicant. His request was dismissed.
- Between
8 February 1996 and 15 April 1999 the applicant requested to be
released pending trial several times, reiterating that there was no
evidence against him.
- On
15 April 1999 the Diyarbakır State Security Court convicted the
applicant for membership of the PKK under Article 168 § 2 of the
Criminal Code and sentenced him to twelve years and six months'
imprisonment.
- The
applicant appealed. In his appeal petition, he requested not to be
convicted, invoking Repentance Law no. 4450, which provided for
amnesty to members of terrorist organisations, claiming that he had
surrendered his weapon to the security forces and provided
information about the PKK.
- 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
10 February 2000 the Court of Cassation quashed the first- instance
court's judgment in respect of the applicant and another accused,
İ.B., holding that the first-instance court should consider
their requests under Law no. 4450. It then remitted the case-file to
the Diyarbakır State Security Court.
- On
13 April 2000 the Diyarbakır State Security Court requested the
Ministry of the Interior to submit an opinion as to whether the
applicant and İ.B. could benefit from Law no. 4450.
- On
10 August 2000 the Ministry of the Interior replied that the accused
should not benefit from the law in question. On the same day, the
Diyarbakır State Security Court ordered the public prosecutor to
make his submissions on the merits of the case.
- On
5 October 2000 the public prosecutor submitted his opinion on the
merits.
- On
7 December 2000 the applicant filed his defence submissions.
- On
14 December 2000 the Diyarbakır State Security Court dismissed
the applicant's and İ.B.'s requests concerning the application
of Law no. 4450 and convicted them under Article 168 § 2 of
the Criminal Code.The applicant was sentenced to twelve years and six
months' imprisonment. He appealed.
- On
2 July 2001 the Court of Cassation upheld the judgment of 14 December
2000.
- In
the meantime, on 21 December 2000 Law no. 4616, which governed the
conditional release, suspension of proceedings or execution of
sentences in respect of offences committed before 23 April 1999, came
into force. The Law stipulated that parole would not be applicable to
persons who had committed offences under Article 168 of the Criminal
Code. Thus, the applicant could not benefit from Law no. 4616.
- On
31 October 2003 the applicant was released from prison during the
proceedings that he had initiated in order to benefit from Law
no. 4959, which provided for amnesty and mitigation of sentence
for members of terrorist organisations.
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 11 August 1994 and
ended on 2 July 2001. It thus lasted approximately six years and
eleven months before two levels of jurisdiction.
A. Admissibility
- The
Court notes that this part of the application 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
and 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, and Tendik
and Others v. Turkey, no. 23188/02, §§ 29-31,
22 December 2005).
- Having
examined all of 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. 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 5,000 euros (EUR) in respect of pecuniary damage
and EUR 10,000 for non-pecuniary damage.
- The
Government submitted that no award should be made under this heading.
They asserted, alternatively, that any award to be made by the Court
should not 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 3,500 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 2,665 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 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, 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
