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SECOND
SECTION
CASE OF MÜCEK v. TURKEY
(Application
no. 7605/05)
JUDGMENT
STRASBOURG
16
July 2009
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 Mücek 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,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 23 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7605/05) 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 Ahmet Akif Mücek
(“the applicant”), on 4 February 2005.
- The
applicant was represented by Mr H. Şenses, a lawyer practising
in Istanbul. The Turkish Government (“the Government”)
were represented by their Agent.
- On
27 March 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1960 and lives in Kandıra.
- On
26 November 1995 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,
namely the Dev-Yol (Revolutionary Way). On 8 December 1995 he
was brought before the investigating judge at the Istanbul State
Security Court, who ordered him to be detained pending trial. On 9
May 1996 the public prosecutor at the Istanbul State Security Court
filed an indictment against the applicant and twelve other accused.
Invoking Article 146 of the Criminal Code, he accused the
applicant of membership of an illegal armed organisation and of
involvement in activities which undermined the constitutional order
of the State.
- The
trial commenced before the Istanbul State Security Court. In the
subsequent hearings the court refused to release the applicant on
account of the nature of the alleged offence and the state of the
evidence. On 7 May 2004 the State Security Courts were abolished
following a constitutional amendment, and the applicant’s case
was transferred to the Istanbul Assize Court. On 30 November 2006 the
applicant was released pending trial.
THE LAW
- Relying
on Article 5 § 3 of the Convention, the applicant complained
about his pre-trial detention.
- The
Government asked the Court to dismiss the application for failure to
exhaust domestic remedies under Article 35 § 1. Referring to the
Court’s decision in the case of Köse v. Turkey
((dec.), no. 50177/99, 2 May 2006), the Government maintained that
the applicant had failed to object to his continued detention under
Articles 292-304 of the former Code of Criminal Procedure. The Court
reiterates that it has already examined and rejected the Government’s
preliminary objections in cases similar to the present application
(see Koşti and Others v. Turkey, no. 74321/01, §§
18-24, 3 May 2007). It finds no particular circumstances in the
instant case which would require it to depart from this
jurisprudence. Consequently, it rejects the Government’s
preliminary objection.
- The
Court notes that the application 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.
- As
regards the merits of the complaint raised under Article 5 § 3
of the Convention, the Court observes that the applicant’s
pre-trial detention began on 26 November 1995 with his arrest and
ended on 30 November 2006, when he was released pending trial.
Thus, the period to be taken into consideration is eleven years,
during which the domestic courts constantly extended the applicant’s
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, Atıcı v. Turkey,
no. 19735/02, 10 May 2007; Solmaz v. Turkey,
no. 27561/02, ECHR 2007 ...; Dereci v. Turkey, no.
77845/01, 24 May 2005, and 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. In the light of the
foregoing, the Court finds that the length of the applicant’s
pre-trial detention contravened Article 5 § 3 of the Convention.
There has accordingly been a violation of this provision.
- Concerning
just satisfaction, the applicant claimed 436,000 Turkish liras (TRY)
(approximately 203,000 euros (EUR)) in respect of pecuniary damage
and TRY 1,000,000 (approximately EUR 467,000) in respect of
non-pecuniary damage. The applicant further requested a total of
TRY 81,000 (approximately EUR 37,000) for the costs and expenses
incurred in domestic proceedings and EUR 10,000 for those before the
Court. The Government contested these claims.
- The
Court does not discern any causal link between the violation found
and pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have suffered
certain non-pecuniary damage which cannot be sufficiently compensated
by the finding of a violation alone. Therefore, ruling on an
equitable basis, it awards the applicant EUR 9,000. Regarding the
applicant’s claims for costs and expenses, in accordance with
its case-law and regard being had to the documents its possession and
the above criteria, the Court rejects the claim for costs and
expenses in the domestic proceedings and considers it reasonable to
award the sum of EUR 1,000 for the proceedings before the Court.
- The
Court further finds 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
- 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 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 Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
9,000 (nine thousand euros) plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) plus any tax that may be chargeable to the
applicant, 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 16 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
