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SECOND
SECTION
CASE OF AYHAN AND OTHERS v. TURKEY
(Application
no. 29287/02)
JUDGMENT
STRASBOURG
14
October 2008
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 Ayhan and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş, judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 23 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29287/02) 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 three Turkish nationals, Mr Mehmet Ali Ayhan,
Mr Ali Akkurt and Mr Şükrü Töre (“the
applicants”), on 11 June 2002.
- The
applicants were represented by Mr M.A. Kırdök and
Mrs M. Kırdök, lawyers practising in Istanbul.
The Turkish Government (“the Government”) were
represented by their Agent for the purposes of the proceedings before
the Court.
- On
11 December 2006 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1961, 1959 and 1964 respectively.
A. The criminal proceedings against Mr Ayhan
- In
the course of a police operation against an illegal armed
organisation, namely the TKEP (the Communist Labour Party of Turkey),
the police arrested and detained Mr Ayhan in police custody on 5 May
1993. The applicant had fake identity papers on him at the time of
the arrest.
- He
was subsequently brought before a judge who remanded him in custody
on 19 May 1993.
- By an indictment dated 30 July 1993, the public
prosecutor initiated criminal proceedings against the applicant and
other accused before the Istanbul State Security Court, accusing the
applicant, inter alia, of participation in activities which
undermined the constitutional order of the State. These included
aggravated theft from various jewellery shops and involvement in the
killing of Mr Y.I. and Mr M.Ö in 1990 and 1991 respectively. The
prosecution sought the death penalty under
Article 146
§ 1 of the Criminal Code.
- In
the course of the proceedings before the Istanbul State Security
Court, the latter considered the applicant's detention at the end of
each hearing of its own motion and each time it ordered continued
detention with reference to the nature of the offence, the state of
the evidence and the content of the case file. At the hearing held on
28 January 1997, the applicant requested to be released for the first
time. The court ordered the continuation of his detention, having
regard to the nature of the offences with which he was charged and
the state of the evidence. Thereafter until 30 May 2000 the
applicant did not specifically request release. However, the court
continued of its own motion to examine the applicant's detention and
ordered it to be continued on the same grounds as before. Between the
hearings held on 30 May 2000 and 24 February 2004, the court
considered the applicant's detention regularly, either of its own
motion or at the request of the applicant, and each time it ordered
his continued detention, having regard to the nature of the offence,
the state of the evidence and the content of the case file.
- On
24 February 2004 the Istanbul State Security Court convicted the
applicant as charged and sentenced him to life imprisonment. This
judgment was upheld by the Court of Cassation on 4 October 2004.
B. The criminal proceedings against Mr Akkurt and Mr
Töre
- On
10 February 1994 the second applicant, Mr Akkurt, and the third
applicant, Mr Töre, were arrested and taken into custody on
suspicion of involvement in the activities of the above-mentioned
organisation. They were remanded in custody on 24 February 1994.
- By
an indictment dated 17 May 1994, the public prosecutor initiated
criminal proceedings against the applicants and other accused before
the Istanbul State Security Court, accusing the applicants, inter
alia, of involvement in activities which undermined the
constitutional order of the State. These included aggravated theft
from various jewellery shops. The prosecution sought the death
penalty under Article
146 §
1 of the Criminal Code.
- In
the course of the proceedings before the Istanbul State Security
Court, the latter considered the applicants' detention at the end of
each hearing of its own motion, and each time it ordered their
continued detention with reference to the nature of the offence, the
state of the evidence and the content of the case file. At a
hearing held on 5 August 1998, the applicants requested to be
released for the first time. The court ordered the continuation of
their detention, having regard to the nature of the offence and the
length of their detention. Thereafter until 4 November 2002 the
court considered the applicants' detention regularly, either of its
own motion or at the request of the applicants, and each time it
ordered their continued detention, having regard to the nature of the
offence, the state of the evidence and the content of the case file.
On 4 November 2002 the applicants, at their request, were released
pending trial. The court took note, in determining their request for
release, of the length of time the applicants had already spent in
detention and the state of the evidence.
- On
27 December 2006 the Istanbul Assize Court convicted the applicants
as charged and sentenced them to life imprisonment. Their appeal
against this decision is apparently pending before the Court of
Cassation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in Çobanoğlu and Budak v. Turkey (no.
45977/99, §§ 29 30, 30 January 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicants complained that their detention during judicial
proceedings exceeded the “reasonable time” requirement as
provided in Article 5 § 3 of the Convention, which reads, in so
far as relevant, 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.”
A. Admissibility
- The
Government maintained under Article 35 § 1 of the Convention
that the application must be rejected for non-exhaustion of domestic
remedies or, alternatively, for failure to comply with the six-month
rule. Under the first
limb of their objections, the Government pointed out that the
criminal proceedings against the applicants were still pending when
they lodged their application with the Court. They also noted that
the applicants had failed to object to the continuation of their
detention until 5 August 1998.
As regards the second
limb of their objections, the Government argued that the applicants
should have lodged
their complaint within six months following the date on which they
had realised the ineffectiveness of the domestic remedies, that is on
5 August 1998.
17. The
applicants contested the Government's arguments.
18. The
Court notes that it has already examined and rejected the
Government's similar objections regarding exhaustion of domestic
remedies in previous cases (see, in particular, Özden Bilgin
v. Turkey, no. 8610/02, § 21, 14 June 2007,
Tamer and Others v. Turkey, no. 235/02, § 28,
22 June 2006, and Koşti and Others v. Turkey, no.
74321/01, §§ 19-24, 3 May 2007). It finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above mentioned applications.
In so far as the Government suggest that the applicants have failed
to comply with the six-month rule, the Court reiterates that if an
applicant submits complaints of the present kind to the Court while
he is still in detention, the case cannot be dismissed as being out
of time (see, in particular, Ječius v. Lithuania,
no. 34578/97, § 44, ECHR 2000-IX). In the instant case, the
applicants were still in detention on remand when they lodged their
Article 5 complaint with this Court. Consequently, the Court rejects
the Government's objections under this head.
- Moreover,
the Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. No other grounds for declaring it inadmissible have been
established. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The Government maintained that the seriousness of the
crime and the existence of a genuine public interest justified the
applicants' continued detention. In this connection they maintained
that the aim was to avoid the risk that the accused would abscond or
reoffend. The Government submitted that the custodial measure had
been reviewed periodically by the competent authority in accordance
with the requirements laid down by the applicable law at the relevant
time, and that the applicants had had the opportunity to object every
time the court had continued their pre-trial detention.
- The
applicants disputed the Government's arguments. In particular, they
submitted that they had contested not the decision to remand them in
custody, but the continuation of their remand in custody when it had
exceeded the reasonable time requirement of Article 5 § 3. In
this respect, the applicants submitted that the compilation of the
evidence in the criminal proceedings against them had been completed
at the end of 1998 and that, therefore, their continued detention
after this date had not had any bearing on the proper administration
of justice. They pointed out that throughout the criminal proceedings
the court, irrespective of whether the applicants had requested it or
it had examined the matter of its own motion, had always used
identical reasoning when prolonging their detention.
2. The Court's assessment
- The
Court reiterates the basic principles laid down in its judgments
concerning Article 5 § 3 (see, in particular, Sevgin
and İnce v. Turkey,
no. 46262/99, § 61, 20 September 2005, Ilijkov
v. Bulgaria, no. 33977/96, § 77, 26 July 2001,
Labita v. Italy [GC], no. 26772/95, §§
152-153, ECHR 2000-IV, Kudła v. Poland [GC], no.
30210/96, § 110, ECHR 2000-XI, Smirnova v. Russia,
nos. 46133/99 and 48183/99, § 59, ECHR 2003 IX
(extracts)), and Letellier v.
France, judgment of
26 June 1991, Series A no. 207, § 43).
It will examine the present case in the light of these principles.
- In
the instant case the first applicant's detention began on
5 May 1993, when he was arrested and taken into police custody,
and ended on 24 February 2004, when he was convicted by the
first-instance court. It thus lasted over ten years and nine months.
The other applicants' detention began on 10 February 1994 with their
arrest and ended on 4 November 2002 when the first-instance
court ordered their release pending trial. It thus lasted
approximately eight years and nine months. During this time, the
first-instance court considered the applicants' continued detention
at the end of each hearing either of its own motion or at the request
of the applicant. However, the Court notes from the material in the
case file that the State Security Court ordered the applicants'
continued detention using identical, stereotyped terms, such as
“having regard to the nature of the offence and the state of
the evidence”.
- 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, Dereci v. Turkey, no. 77845/01,
24 May 2005, Teslim Töre v. Turkey (no. 2), no.
13244/02, 11 July 2006,
Taciroğlu v. Turkey, no. 25324/02, 2
February 2006, and Çarkçı v. Turkey, no.
7940/05, 26 June 2007).
25. Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present case. In this respect, even assuming that a certain period of
the applicants' detention should be deducted in the assessment of the
“reasonable time” requirement under Article
5 § 3 of the Convention because they had not specifically asked
to be released before 28 January 1997 and 5 August
1998 respectively, the
Court considers that, having regard to its case law on the
subject, in the instant case, the length of the applicants' detention
during these criminal proceedings was excessive and contravened
Article 5 § 3 of the Convention.
- There
has accordingly been a violation of this provision.
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
- Mr
Ayhan claimed 20,000 euros (EUR), and Mr Akkurt and Mr Töre each
requested EUR 15,000 in respect of non-pecuniary damage.
- The
Government contested the amounts.
- The
Court considers that the applicants must have suffered some
non-pecuniary damage which cannot be sufficiently compensated by the
finding of a violation alone. Taking into account the particular
circumstances of the case and having regard to its case-law, it
awards Mr Ayhan EUR 6,000, and Mr Akkurt and Mr Töre EUR
4,000 each, for non pecuniary damage.
B. Costs and expenses
- The applicants also claimed, in total, 10,210 new
Turkish liras [TRY] (approximately EUR 5,900) for the costs and
expenses incurred before the Court. In support of their claims they
submitted a legal fees
agreement
and a time sheet prepared by their legal representatives.
- The
Government contested the amount.
- According
to the Court's case-law, an applicant is entitled to the
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 ruling on an equitable basis,
the Court awards the applicants, jointly, 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 application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay 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
6,000 (six thousand euros) to Mr Ayhan, and EUR 4,000 (four thousand
euros), each, to Mr Akkurt and Mr Töre, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) to the applicants, jointly, plus any tax
that may be chargeable to the applicants, 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally
Dollé Françoise Tulkens
Registrar President
