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THIRD
SECTION
CASE OF MEHMET REŞİT ARSLAN v. TURKEY
(Application
no. 31320/02)
JUDGMENT
STRASBOURG
31 January
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 Mehmet Reşit Arslan v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Boštjan
M. Zupančič,
President,
Corneliu
Bîrsan,
Rıza
Türmen,
Alvina
Gyulumyan,
Egbert
Myjer,
David
Thór Björgvinsson,
Ineta
Ziemele, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 10 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31320/02) 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 Mehmet
Reşit Arslan (“the applicant”), on 21 August 2001.
- The
applicant was represented by Ms S. Gürcan, a lawyer practising
in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
1 June 2006 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the alleged
ill treatment of the applicant and the length of the proceedings
to the Government. Applying Article 29 § 3 of the Convention,
the Court decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and was serving a prison sentence in
Diyarbakır prison at the time of his application to the Court.
- On
4 April 1993 the applicant was taken into custody by police officers
from the Anti-Terrorist Branch of the Istanbul Security Directorate
on suspicion of membership of an illegal organisation the PKK (the
Kurdistan Workers' Party). According to the arrest report, the
applicant resisted the arrest and the police officers had to use
force to apprehend him.
- On
19 April 1993 the applicant was brought before the investigating
judge at the Istanbul State Security Court, where he denied the
allegations against him. The judge ordered the applicant's detention
on remand.
- On
29 April 1993 the applicant was examined by a doctor at the
Sağmalcılar State Hospital who noted that there was a
restriction in the functioning of the right shoulder and elbow.
- On
4 May 1993 a doctor from the Eyüp Forensic Medicine Institute
drew up a report, according to which there were numerous ecchymoses
and lesions on the various parts of the applicant's body and there
was a reduced functioning of the right arm.
- In
a further report dated 9 July 1993, it was concluded that the
injuries on the applicant's body rendered him unfit for work for ten
days.
- On
5 May 1993 the public prosecutor at the Istanbul State Security Court
filed a bill of indictment against the applicant, along with
twenty seven other persons, charging him with membership of an
illegal organisation under Article 168 § 1 of the Criminal Code.
- On
12 July 1993 the applicant maintained before the Istanbul State
Security Court that his statements had been taken under torture while
in police custody. At the end of the hearing, the court concluded
that the applicant's representative could file a complaint with the
authorities about the applicant's allegations of ill-treatment.
- On
22 January 1997 the public prosecutor proposed to alter the charge
against the applicant to treason against the integrity of the State,
a capital offence under Article 125 of the Criminal Code.
- Between
12 July 1993 and 6 March 2000 the first-instance court held forty-six
hearings. The applicant did not attend twenty-eight of them.
- On
6 March 2000 the applicant submitted his final defence submissions to
the court. In his petition, the applicant denied the charges against
him. Repeating his allegations of torture, the applicant maintained
that he had been hung from his arms during his police custody.
- On
the same day, the Istanbul State Security Court found the applicant
guilty as charged and sentenced him to the death penalty under
Article 125 of the Criminal Code. The death penalty was commuted to a
life sentence. In its judgment, the first-instance court did not list
the applicant's statements taken by the police as evidence, having
regard to the doctors' reports. It nevertheless convicted the
applicant holding that other evidence corroborated his statements to
the police.
- The
applicant appealed. In his petition, he maintained that the judgment
of the first-instance court was based on his police statements which
had been taken under torture.
- On
21 March 2001 the Court of Cassation upheld the judgment of 6 March
2000.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged that he had been ill-treated during his police
custody between 4 and 19 April 1993.
- The
Government argued that this complaint should be declared inadmissible
on account of the applicant's failure to comply with the
admissibility conditions contained in Article 35 § 1 of the
Convention.
- In
the first place, they stated that the applicant could not be
considered to have exhausted domestic remedies since he had never
filed a formal complaint with the public prosecutor in respect of his
ill treatment allegations during police custody.
- Secondly,
the Government contended that the applicant failed to comply with the
six months rule. In their view, the fact that the authorities would
take no action in respect of his ill-treatment allegation must have
become gradually apparent to the applicant before the decision of the
Court of Cassation.
(a) Exhaustion of domestic remedies
- The
Court notes that, contrary to the Government's assertion, the
applicant can be considered to have brought the substance of his
complaint to the notice of the Istanbul State Security Court on 12
July 1993 during the first hearing. In the Court's opinion this
submission should have been sufficient in itself to alert the
authorities to the need to investigate the applicant's complaint.
Having regard to these circumstances, the Court considers that the
applicant can be considered to have done all that could be expected
of him to bring his complaint to the attention of the authorities
with a view to the opening of an investigation into his allegation
(see Veznedaroğlu v. Turkey (dec.), no. 32357/96, 7
September 1999). Accordingly, this part of the Government's
objections should be dismissed.
(b) Six months time-limit
- As
regards the Government's objection concerning the applicant's failure
to comply with the six months rule, the Court reiterates that the
purpose of the six months' rule is to promote security of law and to
ensure that cases raising issues under the Convention are dealt with
within a reasonable time. Furthermore, it ought also to protect the
authorities and other persons concerned from being in an uncertain
situation for a prolonged period of time (see Kenar v. Turkey
(dec.), no. 67215/01, 1 December 2005). The Court further
recalls that under Article 35 § 1 of the Convention it may only
deal with a matter within a period of six months from the date on
which the final decision was taken in domestic proceedings. However,
special considerations could apply in exceptional cases where an
applicant first avails himself of a domestic remedy and only at a
later stage becomes aware, or should have become aware, of the
circumstances which make that remedy ineffective. In such a
situation, the six-month period might be calculated from the time
when the applicant becomes aware, or should have become aware, of
these circumstances (see Hazar and others v. Turkey,
(dec.) no. 62566/00, 10 January 2002).
24. The
Court observes that, at the hearing held on 12 July 1993, the
applicant submitted his allegations of ill-treatment to the Istanbul
State Security Court. At the end of the hearing, the domestic court
held that the applicant's lawyer could lodge a complaint with the
domestic authorities in respect of these allegations. It is also
noted that, in the applicant's appeal petition, he had argued that
his conviction was based on his police statements which had been
taken under torture. The Court observes that throughout the criminal
proceedings, and subsequently before the Court, the applicant's
claims that his statements in police custody were taken under duress
and torture were made without giving any descriptions or details as
to the kind of ill-treatment to which he had allegedly been
subjected. It was only in his defence submissions dated 6 March 2000
that the applicant stated that he had been hung from his arms.
25. In
the particular circumstances of the present case, the Court considers
that the failure of the judicial authorities to act must have become
gradually apparent to the applicant up until 6 March 2000, i.e. the
date on which the Istanbul State Security Court rendered its decision
on the matter, and that therefore the applicant should have been
aware of the ineffectiveness of remedies in domestic law by that
date. Accordingly, the six months' period provided for in Article 35
of the Convention should be considered to have started running not
later than 6 March 2000 (see İçöz
v. Turkey
(dec.), no. 54919/00, 9 January 2003; Kenar,
cited above). However, the application was introduced with the Court
on 21 August 2001, more than six months later.
26. It
follows that this part of the application has been introduced out of
time and must be rejected under Article 35 §§ 1 and 4 of
the Convention
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 4 April 1993 with the
applicant's arrest and ended on 21 March 2001 with the decision of
the Court of Cassation. It thus lasted approximately eight years for
two levels of jurisdiction.
A. Admissibility
- The
Government argued that the applicant did not exhaust the domestic
remedies, as he failed to raise his complaint before the national
courts.
- The
Court reiterates that the obligation to exhaust domestic remedies
only requires that an applicant make normal use of effective and
sufficient remedies; that is, those capable of remedying the
situation at issue and affording redress for the breaches alleged.
- It
observes that the Turkish legal system does not provide any remedies
to accelerate the proceedings. Nor does it award any compensation for
delay. The Court accordingly concludes that there was no appropriate
and effective remedy which the applicant should have exercised for
the purposes of Article 35 § 1 of the Convention (see Mete v.
Turkey, no. 39327/02, §§ 18-19, 25 October 2005).
It therefore rejects the Government's preliminary objection.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. Nor is
it inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government submitted that the case was rather complex, having regard
to the number of the accused and the charges they faced, which made
it difficult to gather evidence and determine the facts. Moreover, no
negligence or delay could be imputed to the judicial authorities.
They further maintained that the applicant had contributed to the
length of the proceedings by refusing to attend twenty-eight
hearings.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant, and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- The
Court observes that the applicant did not appear before the trial
court on a number of occasions. However, it is of the opinion that
the applicant's absence from some of the hearings cannot justify the
overall length of the proceedings (see, Osman v. Turkey, no.
4415/02, § 23, 19 December 2006.)
- Recalling
that Article 6 § 1 of the Convention imposes on the Contracting
States the duty to organise their legal systems in such a way that
their courts can meet each of the requirements of that provision,
including the obligation to decide cases within a reasonable time
(see Arvelakis v. Greece, no. 41354/98, § 26, 12 April
2001), the Court considers that the trial court should have applied
stricter measures to speed up the proceedings. It therefore finds
that the instant case was unnecessarily prolonged as the State
Security Court failed to act with the necessary diligence.
- 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 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 breach of Article 6 § 1.
III. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
Done in English, and notified in writing on 31 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M.
Zupančič
Registrar President
