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SECOND
SECTION
CASE OF BAYAM v. TURKEY
(Application
no. 26896/02)
JUDGMENT
STRASBOURG
31
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 Bayam v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Mr D. Popović, judges,
and Mrs
F. Elens-passos, Deputy Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26896/02) 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 Rıfat Bayam (“the
applicant”), on 23 November 2000.
- The
applicant was represented by Mr M. Vefa, 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
13 April 2006 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and was detained in the Batman E-Type
Prison at the time of his application to the Court.
- On
14 December 1993 the applicant was taken into police custody on
suspicion of membership of an illegal organisation, the PKK (the
Kurdistan Workers' Party).
- On
28 December 1993 the Batman Magistrates' Court ordered his detention
on remand.
- On
25 January 1994 the public prosecutor lodged a bill of indictment
with the Diyarbakır State Security Court against the applicant
and twelve other people, charging him with carrying out activities
aimed at breaking up the unity of the State and removing part of the
national territory from the State's control. He requested the court
to sentence the applicant in accordance with Article 125 of the
Criminal Code.
- On
27 December 1996 the Diyarbakır State Security Court convicted
the applicant under Article 168 § 2 of the Criminal Code of
membership of the PKK and sentenced him to twelve years and six
months' imprisonment.
- On
10 November 1997 the Court of Cassation quashed the judgment of the
first-instance court in respect of the applicant and a certain R.K.,
holding that the applicant should have been convicted of membership
of the PKK and for throwing explosives, under Articles 168 § 2
and 264 of the Criminal Code. The case against the applicant and R.K.
was referred to the Diyarbakır State Security Court.
- On
3 November 1998 the first-instance court convicted the applicant
under Articles 168 § 2 and 264 of the Criminal Code. It
sentenced the applicant to twelve years and six months' imprisonment
for membership of the PKK and to five years, six months and twenty
days' imprisonment for having thrown explosives.
- On
15 June 1999 the Court of Cassation once again quashed the judgment
of the first-instance court.
- On
26 September 2000 the Diyarbakır State Security Court convicted
the applicant under Article 168 § 2 of the Criminal Code.
However, it acquitted the applicant of the charge under Article 264
of the Criminal Code.
- On
22 February 2001 the Court of Cassation dismissed the applicant's
appeal, holding that it had not been submitted within the statutory
time-limit.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his detention on remand 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 asked the Court to dismiss the application for failure to
exhaust domestic remedies, under Article 35 § 1
of the Convention. In this regard, they maintained that the applicant
had failed to object to his continued remand in detention. They
further maintained that the applicant could have sought compensation
pursuant to Law no. 466 on the Payment of Compensation to Persons
Unlawfully Arrested or Detained.
- The
Court recalls that it has already examined and rejected the
Government's preliminary objections in similar cases (see Koşti
v. Turkey, no. 4321/01, §§ 18-24, 3 May 2007 in respect
of the first objection and Yağcı and Sargın v.
Turkey, judgment of 8 June 1995, Series A no. 319 A,
§ 44 in respect of the second objection). The Court finds
no particular circumstances in the instant case which would require
it to depart from this jurisprudence. As a result, it rejects the
Government's preliminary objections.
- The Court considers 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 notes that, when calculating the period to be taken into
consideration, the multiple, consecutive detention periods of the
applicant should be regarded as a whole. While assessing the
reasonableness of the length of the applicant's pre-trial detention,
it should make a global evaluation of the accumulated periods of
detention under Article 5 § 3 of the Convention (see Solmaz v.
Turkey, no. 27561/02, §§ 36-37, ECHR 2007 ...
(extracts)). Consequently, after deducting the periods when the
applicant was detained after conviction under Article 5 § 1 (a)
of the Convention – namely the periods between 27 December 1996
and 10 November 1997, 3 November 1998 and 15 June 1999 and 26
September 2000 and 22 February 2001 – from the total time
that he was deprived of his liberty, the period to be taken into
consideration in the instant case is nearly five years and three
months.
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.
19735/02, 10 May 2007; Solmaz, cited above; 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 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 finds that in
the instant case the length of the applicant's pre-trial detention
was excessive and contravened Article 5 § 3 of the Convention.
- There
has accordingly been a violation of this provision.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention about
the length of the criminal proceedings.
- The
Government contested that argument.
- The Court reiterates that the reasonableness of the
length of criminal proceedings is to be assessed in the light of the
particular circumstances of the case, including its complexity, the
applicant's conduct and the conduct of the competent authorities
(see, Pélissier and Sassi v. France [GC], no. 25444/94,
§ 67, ECHR 1999-II).
- In
the instant case, it is observed that the period to be taken into
consideration began on 14 December 1993, when the applicant was taken
into police custody and ended on 22 February 2001 with the final
decision of the Court of Cassation. It has thus lasted for
approximately seven years and two months for two levels of
jurisdiction, who each examined the case three times.
- The
Court notes that the case was complex. It involved several accused
and the charges concerned membership of an illegal organisation. As
regards the conduct of the authorities, the Court does not observe
any period of inactivity that could be attributable to the domestic
courts. Furthermore, following the appeal requests, the Court of
Cassation decided on the case in less than one year.
- In
light of the foregoing, the Court concludes that, in the present
case, the length of the criminal proceedings cannot be regarded as
exceeding the reasonable time requirement of Article 6 § 1 of
the Convention (see, Özkan v. Turkey (dec.), no.
12822/02, 21 November 2006; Bayram Yılmaz and Others
(dec.), no. 38370/02, 19 September 2006).
- 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.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- Invoking
Article 3 of the Convention, the applicant alleged that during his
trial he had to live with the fear of death penalty.
- The
Court notes, first, that the applicant faced charges under
Article 125 of the Criminal Code, which carried the death
penalty until 27 December 1996, the date on which the
first instance court rendered its first judgment and sentenced
the applicant to twelve years and six months' imprisonment under
Article 168 § 2 of the Criminal Code. During the
subsequent proceedings the charges against the applicant were still
brought under Article 168 § 2. The Court further observes that,
as of October 1984, the Turkish National Assembly did not render any
decision authorising the enforcement of a death penalty. It therefore
concludes that, in the circumstances of the case, the enforcement of
the death penalty against the applicant was illusory and that the
applicant cannot be considered to have suffered ever-present and
mounting anguish at the prospect of being executed, exposing him to
treatment going beyond the threshold set by Article 3 of the
Convention (see Osman v. Turkey (dec.), no. 4415/02, 6
October 2005; Çınar v. Turkey, no. 17864/91,
Commission decision of 5 September 1994, Decisions and Reports
79-A/B, p.5; Sertkaya v. Turkey (dec.), no. 77113/01, 11
December 2003).
- Therefore,
the Court considers that this part of the complaint should be
declared inadmissible as being manifestly ill-founded within the
meaning of Article 35 §§ 3 and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his reply to the Government's observations, the applicant submitted
further complaints. He alleged that he had to travel about 120 km.
between Batman and Diyarbakır to attend the trials before the
Diyarbakır State Security Court. He further complained about the
length of his detention in police custody and stated that he had been
deprived of his right to legal assistance while there. Finally, he
maintained that the Diyarbakır State Security Court could not be
considered an independent and impartial tribunal due to the presence
of a military judge on the bench. In respect of these complaints, the
applicant invoked Articles 3, 5 and 6 of the Convention.
-
The Court recalls that, pursuant to Article 35 § 1 of the
Convention, the Court may only deal with a matter “within a
period of six months from the date on which the final decision was
taken”. The running of the six months time-limit is, as a
general rule, interrupted by the first letter from the applicant
indicating an intention to lodge an application and giving some
indication of the nature of the complaints made. As regards
complaints not included in the initial application, the running of
the six months time-limit is not interrupted until the date when the
complaint is first submitted to a Convention organ (see, Allan
v. the UK (dec.), no. 48539/99, 28 August 2001).
- In
the present case, the six months period in respect of the applicant's
Article 5 complaint started to run on 28 December 1993 and in respect
of his complaints under Articles 3 and 6 on 22 February 2001. The
Court notes that these complaints were not mentioned in any
communication prior to 25 May 2006.
- Consequently,
the Court concludes that this part of the application should be
rejected for being introduced out of time pursuant to 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 1,500 euros (EUR) in respect of pecuniary damage
and EUR 25,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it accepts that the applicant must have suffered some
non-pecuniary damage on account of the undue length of his pre-trial
detention, which cannot be sufficiently compensated by the finding of
a violation alone. Ruling on an equitable basis, the Court awards the
applicant EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 2,537 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government contested the applicant's claim as being unsubstantiated
by any documentation.
- Making
its own estimate based on the information available, the Court
considers it equitable to award the applicant EUR 1,000 for the costs
and expenses incurred 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 length of
the applicant's detention on remand admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 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, the following
amounts to be converted into New Turkish liras at the rate applicable
at the date of settlement and free of any taxes or charges that may
be payable:
(i) EUR
4,000 (four thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses.
(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 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-passos F. Tulkens
Deputy Registrar President
