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FOURTH
SECTION
CASE OF MAHMUT ASLAN v. TURKEY
(Application
no. 74507/01)
JUDGMENT
STRASBOURG
2
October 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 Mahmut Aslan v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr R. Türmen,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mrs P. Hirvelä,
judges,
and Mrs F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 11 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 74507/01) 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 Mahmut Aslan
(“the applicant”), on 2 November 2000.
- The
applicant was represented by Mr P. Frei, lawyer practising in Zurich.
The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Convention organs.
- On
4 October 2005 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the length of
the criminal proceedings and the lack of an effective domestic remedy
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 1959 and lives in Seewen, Switzerland.
- On
17 May 1982 the applicant was arrested and taken into custody. On 8
July 1982 he was remanded in custody.
- On
6 December 1982 the public prosecutor at the Diyarbakır Martial
Law Court filed a bill of indictment with the latter, accusing the
applicant of membership of an illegal organisation. He requested that
the applicant be convicted and sentenced under Article 168 § 1
of the Criminal Code.
- On
19 February 1985 the Diyarbakır Martial Law Court convicted the
applicant as charged and sentenced him to twenty-four years'
imprisonment. This judgment was quashed by the Military Court of
Cassation on 10 April 1990.
- On
27 November 1990 the applicant was released from detention.
- Subsequent
to promulgation of Law no. 3953 on 27 December 1993, which
abolished the jurisdiction of the Martial Courts, the Diyarbakır
Assize Court acquired jurisdiction over the applicant's case.
- On
13 July 1998 the Diyarbakır Assize Court ordered that the
criminal proceedings against the applicant be terminated on the
ground that the statutory time limit under Articles 102 and 104 of
the Criminal Code had expired. At the time of this decision the
applicant was not represented by a lawyer before this court. However,
this judgment was erroneously notified to Mr S.D. (the legal
representative of another co-accused, who bore the same name and
surname as the applicant, during the proceedings before the
Diyarbakır Martial Law Court) and became final on 12 March
1999.
- The
applicant inquired about the developments in his case on 16 May
2000. As the judgment was in his favour, the applicant did not lodge
an appeal with the Court of Cassation.
THE LAW
I. ADMISSIBILITY
- The
Government argued, firstly, that the applicant was no longer a victim
since the proceedings against him had been discontinued. Secondly,
they maintained that the applicant had failed to exhaust domestic
remedies as he did not raise the substance of his complaints before
the national authorities. Finally, the Government submitted that the
applicant had failed to comply with the six-month rule. They
maintained in this respect that the applicant should have lodged his
application with the Court within six months of the date on which the
decision of the Diyarbakır Assize Court became final and that it
was incumbent on the applicant to follow the proceedings with due
diligence in order to keep himself informed of the date on which this
decision was rendered or deposited with the registry of the court.
- The
applicant disputed the Government's arguments.
- The
Court reiterates that an applicant is deprived of his or her status
as a victim if the national authorities have acknowledged, either
expressly or in substance, and then afforded redress for, a breach of
the Convention (see Dalban v. Romania [GC], no. 28114/95,
§ 44, ECHR 1999-VI). In the instant case, the Court
considers that the discontinuation of the criminal proceedings
against the applicant does not constitute recognition or a redress
for the violation alleged by the applicant. Accordingly, the
Government's objection under this head should be rejected.
- The
Court further reiterates that it has already examined and rejected,
in previous case, similar objections of the Government as regards the
alleged failure to exhaust domestic remedies (see, in particular,
Karakullukçu v. Turkey, no. 49275/99, §§
27-28, 22 November 2005). The Court finds no particular circumstances
in the instant case, which would require it to depart from its
findings in the above-mentioned application. It therefore also
rejects the Government's objection under this head.
- As
to whether the applicant has complied with the six-month rule, the
Court reiterates that where an applicant is entitled to be served ex
officio with a written copy of the final domestic decision the
object and purpose of Article 35 § 1 of the Convention are best
served by counting the six-month period as running from the date of
service of the written judgment (see Worm v. Austria,
judgment of 29 August 1997, Reports of Judgments and Decisions
1997-V, p. 1547, § 33).
- In
the instant case, it is not disputed that the applicant learned of
the decision of the Diyarbakır Assize Court's judgment on 16 May
2000, i.e. one year and ten months after it was rendered. Contrary to
domestic law and practice, this judgment was never served on the
applicant but on a lawyer who did not represent him. The Government
have failed to provide the Court with any explanation in this
respect. Therefore, the Court, taking into account, particularly, the
overall length of the criminal proceedings against the applicant,
does not find it unreasonable that the applicant waited for the
official notification of the judgment and did not inquire about the
development in the case against him until 16 May 2000. The
application was lodged with the Court on 2 November 2000. In view of
the above, the Court considers that the application was introduced
within the six-month time-limit provided in Article 35 § 1 of
the Convention. It therefore rejects the Government's objection under
this head also.
- Moreover,
the Court notes that the application is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. No other
grounds for declaring it inadmissible has been established. It must
therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
brought against him exceeded the “reasonable time”
requirement under Article 6 § 1 of the Convention, which
provides as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Period to be taken into consideration
- The
Court considers that the period to be taken into consideration in
determining whether the proceedings satisfied the “reasonable
time” requirement laid down by Article 6 § 1 began on 17
May 1982, the date of the applicant's arrest, and ended on 13 July
1998, when the Diyarbakır Assize Court ordered the termination
of the criminal proceedings against the applicant. They therefore
lasted approximately sixteen years.
- The
Court's jurisdiction ratione temporis permits it to only
consider the period of eleven years and five months that elapsed
after 28 January 1987, the date of deposit of Turkey's
declaration recognising the right of individual petition to the
European Commission of Human Rights. It must nevertheless take
account of the state of the proceedings at the time when the
aforementioned declaration was deposited (see Şahiner v.
Turkey, no. 29279/95, § 22, ECHR 2001 IX, and
Cankoçak v. Turkey, nos. 25182/94 and 26956/95,
§§ 25-26, 20 February 2001). On that critical date the
proceedings had already lasted more than four years and eight months.
B. Reasonableness of the length of the proceedings
- The
Government maintained that, in the circumstances of the present case,
the length of the criminal proceedings could not be considered
unreasonable. In this respect, they referred to the number of the
co accused and the time spent by the domestic court to gather
evidence. The Government further submitted that the applicant and the
co-accused had contributed to the prolongation of the proceedings by
failing to attend a number of hearings.
- The
applicant maintained his allegations.
- The
Court has frequently found violations of Article
6 § 1
of the Convention in cases raising issues similar to the one in the
present application (see, in particular, Ege v.
Turkey, no. 47117/99, §§ 23-25, 29 March 2005,
and Gümüşten v. Turkey, no. 47116/99, §§
24-26, 30 November 2004).
- Having
examined all the material submitted to it and 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 violation of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that there had been no effective remedy
in domestic law whereby he could challenge the excessive length of
the criminal proceedings in question. He relied on Article 13 of the
Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government disputed the applicant's argument. In particular, they
stated that he could have filed a complaint with the public
prosecutor or initiated a civil action for damages against the
officials who had allegedly caused delays in the proceedings.
- The
Court has examined similar cases on previous occasions and has found
violations of Article 13 of the Convention in respect of the lack of
an effective remedy under Turkish law whereby the applicant could
have contested the length of the proceedings at issue (see, in
particular, Bahçeyaka v. Turkey, no. 74463/01, §§
26-30, 13 July 2006, and Tendik and Others v. Turkey, no.
23188/02, §§ 34-39, 22 December 2005). It finds no reason
to depart from that conclusion in the present case.
- There
has accordingly been a breach of Article 13.
IV. 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, costs and expenses
- The
applicant claimed damages and costs and expenses but left the
assessment of the amounts to the discretion of the Court. He asked
the Court to determine a sum which takes into account inter alia
the fact that he had been tortured in custody and that he had lost
his job as a result of his lengthy remand in custody. In respect of
costs and expenses he submitted that he had been charged with 6 hours
of work at the rate of 200 Swiss franc (CHF) and expenses at CHF 75
plus taxes.
- The
Government requested the Court not to award any damages.
- The
Court notes that there is no evidence before it of any pecuniary
damage. On the other hand, it accepts that the applicant must have
suffered non-pecuniary damage, such as distress and frustration, on
account of the duration of the proceedings, which cannot be
sufficiently compensated by the finding of a violation alone. Making
an assessment on an equitable basis, it awards the applicant 9,500
euros (EUR) plus any tax that may be chargeable on that amount.
- As
for costs and expenses, according to the Court's case law, an
applicant is entitled reimbursement of 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 information in its possession
and the above criteria, the Court considers it reasonable to award
the sum of EUR 500.
B. 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 according to
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:
(i) EUR
9,500 (nine thousand five hundred euros) in respect of non pecuniary
damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 2 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
