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THIRD
SECTION
CASE OF CANPOLAT v. TURKEY
(Application
no. 63354/00)
JUDGMENT
STRASBOURG
15
February 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 Canpolat v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič, President,
Mr R.
Türmen,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr S.
Quesada, Section Registrar,
Having deliberated
in private on 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 63354/00) 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 Aziz Canpolat
(“the applicant”), on 15 September 2000.
- The
applicant was represented by Mr M. Güzeler, a lawyer practising
in Şanlıurfa. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
31 May 2005 the Court decided to give notice of the application 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 1950 and was detained in the Hilvan prison,
in Şanlıurfa at the time of the application.
- On
11 October 1997 following receipt of information that the applicant
was in possession of narcotic substances, police officers from the
Siverek Security Directorate arrested the applicant, his son and one
of the applicant's employees, İ.Ş., in the applicant's
house. During the search of the applicant's house and farm, a certain
amount of cannabis was found.
- On
12 October 1997 the suspects were brought before the Siverek
Magistrates' Court who ordered their detention on remand.
- On
14 October 1997, the Siverek Magistrates' Court sent the case file to
the public prosecutor's office at the Diyarbakır State Security
Court holding that the case concerned the prosecution of organised
drug trafficking.
- On
24 October 1997 the public prosecutor at the Diyarbakır State
Security Court filed a bill of indictment against the applicant and
the two other suspects. The public prosecutor charged them under
Article 403 § 5 of the Criminal Code of being in possession of
hashish with the aim of trafficking. İ.Ş. was also charged
with the consummation of hashish.
- On
26 May 1998 the Diyarbakır State Security Court convicted the
applicant and İ.Ş. The applicant was sentenced to three
years and four months' imprisonment.
- On
5 October 1998 the Court of Cassation quashed the judgment of the
first-instance court.
- On
24 November 1998 the Diyarbakır State Security Court once again
convicted the applicant and his co-accused and sentenced them to six
years and three months' imprisonment.
- On
15 April 1999 the Court of Cassation again quashed the first instance
court's judgment, holding that the applicant's and his co accused's
defence rights had not been respect as they had not been informed
about the date of the hearing.
- On
15 June 1999 the Diyarbakır State Security Court convicted the
applicant and his co-accused and sentenced them to six years and
three months' imprisonment. It also ordered their release from
detention having regard to the time that they had spent in prison.
- On
20 April 2000 the Court of Cassation upheld the judgment of the
first-instance court.
II. RELEVANT DOMESTIC LAW
- The
description of the relevant domestic law at the material time can be
found in the judgments of Ağaoğlu v. Turkey (no.
27310/95, §§ 30-32, 6 December 2005) and Canevi and
Others v. Turkey (no. 40395/98, §§
22 and 23, 10 November 2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had been denied a fair hearing on account of a military judge
sitting on the bench of the Diyarbakır State Security Court
which had tried and convicted him. He further complained that the
length of the proceedings brought against him was incompatible with
the “reasonable time” requirement provided in Article 6 §
1 of the Convention. The relevant parts of Article 6 § 1 read as
follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law...”
A. Independence and impartiality of the Diyarbakır
State Security Court
1. Admissibility
- The
Government argued that the applicant's complaint in respect of the
independence and impartiality of the Diyarbakır State Security
Court must be rejected for non-exhaustion of domestic remedies. They
maintained that the applicant did not raise this complaint before the
domestic courts. They further argued that the applicants should have
lodged their application with the Court within six months of the date
on which the State Security Court rendered its judgment.
- The Court recalls that it has already examined and
rejected the Government's similar preliminary objections (see, for
example, Vural v. Turkey, no. 56007/00, § 22,
21 December 2004; Çolak v. Turkey (no. 1),
no. 52898/99, § 25, 15 July 2004; Özel v. Turkey,
no. 42739/98, § 25, 7 November 2002; and Özdemir
v. Turkey, no. 59659/00, § 26,
6 February 2003). The Court finds no particular
circumstances, in the instant case, which would require it to depart
from its findings in the aforementioned cases. The Court accordingly
rejects the Government's preliminary objections.
- 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.
2. Merits
- The
Government submitted that there was no basis to find that the
applicant could have any legitimate doubts about the independence of
the Diyarbakır State Security Court. The Government further
referred to the constitutional amendment of 18 June 1999 whereby
military judges could no longer sit on such courts. Finally, they
stated that the State Security Courts had been abolished as of 2004.
- The Court notes that it has examined similar cases in
the past and has found a violation of Article 6 § 1 of the
Convention (see Incal v. Turkey, judgment of 9
June 1998, Reports of Judgments and Decisions 1998 IV,
§ 73; Özel, cited above, §§ 33-34;
Ağaoğlu, cited above, § 41; and
Canevi and Others, cited above, § 35).
- The
Court sees no reason to reach a different conclusion in this case. It
is understandable that the applicant, a civilian who was prosecuted
in a State Security Court, should have been apprehensive about being
tried by a bench which included a regular army officer and member of
the Military Legal Service. On that account, even though the
applicant was appearing before the State Security Court for organised
drug trafficking, he could have legitimate reasons to fear that the
court might allow itself to be unduly influenced by considerations
having nothing to do with the nature of his case. In other words, the
applicant's fears as to the State Security Court's lack of
independence and impartiality can be regarded as objectively
justified.
- In the light of the foregoing the Court finds that
there has been a violation of Article 6 § 1 of the Convention in
this respect.
B. Length of the proceedings
- The Government submitted that the length of the
proceedings in the instant case could not be considered unreasonable
in view of the complexity of the case and the nature of the offence
with which the applicant was charged.
- The
Court notes that the proceedings began on 11 October 1997 when the
applicant was taken into police custody and ended on 20 April 2000
when the Court of Cassation upheld the judgment of the Diyarbakır
State Security Court. The proceedings thus lasted approximately two
years and six months.
- 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 criteria
established by its case-law, particularly the complexity of the case,
the conduct of the applicant and of the relevant authorities and what
was at stake for the applicant (see, among many others, Kiper v.
Turkey, no. 44785/98, § 36, 23 May 2006).
- After examining the overall duration of the
proceedings, taking into account the complexity of the case and the
fact that the case was dealt with at two levels of jurisdiction, each
of which examined the case three times, as well as the number of the
accused, the Court does not consider that the length of the
proceedings in the present case was excessive. Moreover, the
applicant has not shown any substantial periods of inactivity
attributable to the judicial authorities.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded within the meaning of Article 35 § 3 and
4 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 a total of 20,000 euros (EUR) for pecuniary and
non-pecuniary damage.
- The
Government contested the applicant's claim.
- Regarding
the question of pecuniary damage, the Court considers in the first
place that it cannot speculate as to what the outcome
of the proceedings before the State Security Court might
have been had the violation of the Convention not
occurred (see Tezcan Uzunhasanoğlu v. Turkey,
no. 35070/97, § 27, 20 April 2004). Moreover, the
applicant's claim in respect of pecuniary damage has not been
substantiated by any evidence whatsoever. It therefore makes no award
under this head.
- With
regard to non-pecuniary damage, the Court considers that
the finding of a violation constitutes in itself sufficient
compensation for any non-pecuniary damage suffered by
the applicant (see İncal, cited above, § 82).
- Nevertheless, 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 [GC], no. 46221/99,
§ 210, ECHR 2005 ...; and Ağaoğlu,
cited above, § 60).
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for the costs and expenses incurred
before the Court.
- The
Government submitted that the claims were excessive and
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(see Sawicka v. Poland, no. 37645/97, § 54, 1
October 2002). In the present case, regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 for the
proceedings before the Court.
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
independence and impartiality of the State Security Court which tried
and convicted the applicant admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in that the applicant was not tried by
an independent and impartial tribunal;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for non-pecuniary
damage sustained by the applicant;
- 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 1,000 (one
thousand euros) in respect of costs and expenses plus any tax that
may be chargeable to be converted into new Turkish liras at the rate
applicable at the date of the settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
