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SECOND
SECTION
CASE OF SİNGAR v. TURKEY
(Application
no. 13467/05)
JUDGMENT
STRASBOURG
22
September 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 Singar 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,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 13467/05) 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 Mahmut
Singar (“the applicant”), on 30 March 2005.
- The
applicant was represented by Ms R. Doğan, a lawyer practising in
İstanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
10 September 2008 the
President of the Second Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
- The
applicant was born in 1966 and lives in Ağrı.
- On
28 January 1995 the applicant was arrested in Istanbul on suspicion
of being a member of an illegal organisation. On 15 February 1995 he
was remanded in custody.
- On
24 April 1995 the public prosecutor filed a bill of indictment
against the applicant and nineteen other accused with the Istanbul
State Security Court. On 2 May 1995 the trial commenced. On 10 May
2001 the applicant was released pending trial.
- By
Law no. 5190, in June 2004 State Security Courts were abolished.
Subsequently, the Istanbul Assize Court acquired jurisdiction over
the case.
- On
23 October 2008 the Istanbul 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.
THE LAW
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement of
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 argued that the applicant was no longer a victim since the
proceedings against him had been terminated because the statutory
time-limit had expired. They further stated that the applicant had
failed to exhaust domestic remedies as the criminal proceedings
against him were still pending at the time when he lodged his
application with the Court. Finally, referring to Article 141 of the
New Criminal Procedure Code (no. 5271), they contended that the
applicant could have sought a remedy under domestic law.
- As
to the Government's first two objections, the Court reiterates that
it has already examined and rejected similar objections by the
Government in previous cases (see, in particular, Mahmut Aslan v.
Turkey, no. 74507/01, § 14, 2 October 2007, in respect of
the first objection, and Tutar v. Turkey, no. 11798/03, §§
12-14, 10 October 2006, and Ertürk v. Turkey, no. 15259/02,
§§ 21-22, 12 April 2005, in respect of the second
objection). The Court finds no particular circumstances in the
instant case which would require it to depart from its findings in
the above-mentioned applications. It therefore rejects the
Government's objections under these heads. As to the third objection
concerning Article 141 of the New Criminal Procedure Code, the Court
observes that this provision provides for the possibility of
compensation for those who were kept in pre-trial detention for a
long time. As the present application concerns the length of the
criminal proceedings, the Government's objection cannot be upheld.
- 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
to the merits of the complaint raised under Article 6 § 1 of the
Convention, the Court observes that the period to be taken into
consideration began on 28 January 1995 and ended on 23 October 2008.
It thus lasted thirteen years and eight months at one level of
jurisdiction. 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 and 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
application (see Pélissier and Sassi, cited
above). 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. The Court therefore considers that 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.
- Concerning
just satisfaction, the applicant claimed 4,285 Euros (EUR) in respect
of pecuniary damage. Emphasising the length of the proceedings, he
left the determination of the award for non-pecuniary damage to the
discretion of the Court. The Government contested the claims. The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers 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. Taking into account
the circumstances of the present case, and ruling on a equitable
basis, the Court awards the applicant EUR 12,000 in respect of
non-pecuniary damage.
- The
applicant further requested EUR 6,260 for the costs and expenses
before the Court, solely referring to the Istanbul Bar Association's
scale of fees. However, 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 are reasonable as to quantum. In the present
case, the applicant has not established that he actually incurred the
costs claimed. Accordingly, the Court makes no award under this head.
- 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
6 § 1 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, EUR 12,000 (twelve thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into Turkish liras at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
