BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF MESUT YURTSEVER v. TURKEY
(Application
no. 42086/02)
JUDGMENT
STRASBOURG
19 July
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 Mesut Yurtsever 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 E.
Myjer,
Mr David Thór Björgvinsson,
Mrs I.
Ziemele, judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 28 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42086/02) 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 Mesut Yurtsever (“the
applicant”) on 26 October 2002.
- The
applicant was represented by Mr M. Beştaş, 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
31 August 2006 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning non-communication
to the applicant of the submissions of the principal public
prosecutor 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 1974 and lives in Istanbul.
- On
6 April 1999 the applicant was arrested and taken into custody by
police officers from the anti-terrorism branch of the Istanbul
Security Directorate on suspicion of membership of the PKK (the
Workers' Party of Kurdistan).
- On
13 April 1999 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant and two
others, accusing them, inter alia, of membership of an illegal
armed organisation and of participating in separatist activities. The
public prosecutor sought the death penalty for the applicant pursuant
to Article 125 of the Criminal Code.
- On
25 September 2001 the Istanbul State Security Court convicted the
applicant of as charged and sentenced him to death, which sentence
was later commuted to life imprisonment. The judgment was ex
officio subject to appeal.
- On
17 January 2002 the Principal Public Prosecutor submitted his written
opinion to the 9th Division of the Court of Cassation, in
which he had argued that the Court of Cassation should quash the
applicant's conviction on account of the severity of the sentence
imposed on the applicant. He opined that the applicant should have
been sentenced pursuant to Article 168 § 2 of the Criminal Code,
which punishes membership of an illegal organisation, instead of
Article 125.
- On
20 April 2002 the Court of Cassation held a hearing, differed with
the opinion of the Principal Public Prosecutor, and upheld the
judgment of the Istanbul State Security Court. The applicant's
representative did not attend this hearing. The decision was
pronounced in the absence of the applicant and his representative on
1 May 2002.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in the Göç v. Turkey judgment ([GC], no.
36590/97, § 34, ECHR 2002 V).
- On
2 January 2003 Article 316 of the Code of Criminal Procedure Law was
amended to provide that the written opinion of the principal public
prosecutor at the Court of Cassation be notified to the parties.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the written opinion of the Principal Public
Prosecutor at the Court of Cassation had never been served on him,
thus depriving him of the opportunity to put forward his
counter-arguments. He relied on Article 6 § 3 (b) of the
Convention.
- The
Court considers that this complaint should be examined from the
standpoint of Article 6 § 1, which in so far as relevant
provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
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
Government maintained, in particular, that the applicant had the
possibility to submit his counter-arguments since the written opinion
of the Principal Public Prosecutor had been read out during the
hearing before the Court of Cassation. They argued that had the
applicant's representative attended the hearing he would have been
aware of the opinion of the Principal Public Prosecutor and thus
could have challenged them and submitted counter-arguments.
- The
applicant maintained his allegations.
- The Court notes that it has already examined the same
grievance in the past and has found a violation of Article 6 § 1
of the Convention (see, in particular, Göç, cited
above, § 55; Sağır v. Turkey,
no. 37562/02, § 26, 19 October 2006, and Ayçoban
and Others v. Turkey, nos. 42208/02, 43491/02 and
43495/02, 22 December 2005).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases.
- There
has accordingly 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 did not claim pecuniary damage. He claimed 20,000 new
Turkish liras (YTL), approximately 11,214 euros (EUR), in respect of
non-pecuniary damage.
- The
Government contended that the amount claimed was excessive and
unjustified.
- The
Court considers that, in the present case, the finding of a violation
constitutes in itself sufficient compensation for any non-pecuniary
damage suffered by the applicant (see, mutatis mutandis,
Parsil v. Turkey, no. 39465/98, § 38, 26 April
2005; and Ayçoban and Others, cited above, § 32).
B. Costs and expenses
- The
applicant also claimed YTL 9,800 (approximately EUR 5,488) for the
costs and expenses that had incurred in the preparation and
presentation of the case before the Court.
- The
Government contested the amount.
- Making
its own estimate, based on the information available, the Court
considers it reasonable to award the sum of EUR 1,000 under this
head.
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 that finding of a violation constitutes
itself sufficient compensation for any non-pecuniary damage incurred
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, to be
converted into new Turkish liras at the rate applicable at the day 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 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 19 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
