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SECOND
SECTION
CASE OF UÇMA v. TURKEY
(Application
no. 15071/03)
JUDGMENT
STRASBOURG
4
March 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 Uçma v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Ireneu Cabral
Barreto,
Rıza Türmen,
Danutė
Jočienė,
Dragoljub Popović,
Nona
Tsotsoria, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 12 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15071/03) 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 two Turkish nationals, Mr Erhan Uçma and
Mr Yurttaş Uçma (“the applicants”), on 8
April 2003.
- The
applicants were represented by Mr S. Çetinkaya, a lawyer
practising in Izmir. The Turkish Government (“the Government”)
are represented by their agent.
- On
3 October 2006 the Court declared the application partly inadmissible
and decided to notify the Government of the applicants' complaint
concerning the non-communication to them of the submissions of the
Principal Public Prosecutor at the Court of Cassation. 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
applicants were born in 1979 and 1982 respectively and live in Izmir.
- On
28 April 2001 the applicants were taken into police custody.
- On
30 April 2001 the applicants were brought before the investigating
judge, who ordered their detention on remand.
- On
3 May 2001 the Izmir State Security Court public prosecutor filed an
indictment against the applicants He accused the first applicant of
aiding and abetting an illegal organisation, and the second applicant
of being a member of an illegal organisation.
- On
13 September 2001 the Izmir State Security Court found the applicants
guilty as charged and sentenced each of them to ten months'
imprisonment and a fine.
- On
6 December 2001 the Principal Public Prosecutor at the Court of
Cassation submitted his written opinion on the merits of the appeal.
He advised that the appeal be rejected and that the first-instance
judgment be upheld.
- On
24 January 2002 the Court of Cassation quashed the first-instance
court's judgment on the ground that the applicants should have been
sanctioned under Article 169 of the Criminal Code for aiding and
abetting an illegal armed organisation.
- On
16 May 2002 the Izmir State Security Court adhered to the reasoning
of the Court of Cassation and convicted the applicants pursuant to
Article 169 of the Criminal Code.
- On
13 November 2002 the Principal Public Prosecutor submitted his
written opinion on the merits of the case and stated that the Court
of Cassation should uphold the judgment of the State Security Court.
- On
28 November 2002, the Court of Cassation, in conformity with the
opinion of the Principal Public Prosecutor, upheld the first instance
judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants maintained under Article 6 § 1 of the Convention that
their right to a fair trial was breached as they had not been given
an opportunity to reply to the Principal Public Prosecutor's written
opinion submitted to the Court of Cassation. Article 6 § 1
of the Convention reads as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
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
applicants alleged that they were not informed of the written opinion
of the Principal Public Prosecutor submitted to the Court of
Cassation. In this connection, they argued that they did not have an
opportunity to respond to the prosecutor's submission and to present
their own arguments.
- The
Government denied the allegation. They stated that the applicants
could have seen the written opinion of the Principal Public
Prosecutor, as all documents before the Court of Cassation can be
examined by the parties.
- The
Court notes that it has already examined the same grievance and found
a violation of Article 6 § 1 of the Convention in its Göç
v. Turkey judgment (no. 36590/97, § 58, ECHR
2002 V). In that case, it held that, having regard to the nature
of the Principal Public Prosecutor's submissions and to the fact that
the applicant was not given an opportunity to make written
observations in reply, there had been an infringement of the
applicant's right to adversarial proceedings (loc. cit. §
55).
- The
Court has examined the present application and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention as regards the non-communication to the applicants of the
Principal Public Prosecutor's submissions before the Court of
Cassation.
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
applicants claimed 5,000 euros (EUR) each in respect of pecuniary
damage and EUR 3,000 each in respect of non-pecuniary damage.
- The
Government contended that the amounts claimed were excessive and
unacceptable.
-
The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this
claim. Moreover, it considers that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage suffered by the applicants.
B. Costs and expenses
- The
applicants claimed EUR 3,000 for costs and expenses. They did not
produce any supporting documents.
- The
Government submitted that the claim was excessive and
unsubstantiated.
- 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 above criteria and the applicants' failure to substantiate their
claim, the Court makes no award under this head.
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 the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicants;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 4 March 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens Registrar President
