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SECOND
SECTION
CASE OF BAHÇELİ v. TURKEY
(Application
no. 35257/04)
JUDGMENT
STRASBOURG
6 October
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 Bahçeli 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 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35257/04) 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 Murat Bahçeli
(“the applicant”), on 31 August 2004. The applicant was
represented by Mr K.T. Sürek, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
28 August 2008 the Court declared the application partly inadmissible
and decided to communicate the complaints concerning the applicant's
right to be released pending judicial proceedings and to a fair
hearing within a reasonable time 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
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Istanbul.
- On
20 August 1996 the applicant was arrested and taken into custody on
suspicion of membership of an illegal organisation, namely the DHKP C
(Devrimci Halk Kurtuluş Partisi-Cephesi; the
Revolutionary People's Liberation Party-Front), as well as aiding and
abetting the said organisation.
- On
3 September 1996 the applicant was remanded in custody.
- On
6 December 1996 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant, along with
other persons, charging him with membership of an illegal
organisation under Article 168 § 1 of the former Criminal Code.
- On
20 May 2002 the Istanbul State Security Court found the applicant
guilty of activities carried out for the purpose of bringing about
the secession of part of the national territory. The applicant was
sentenced to death; his sentence was subsequently commuted to life
imprisonment.
- On
30 September 2003 the Court of Cassation quashed the judgment of the
first-instance court on the ground that the latter had failed to
specify the provision of the Criminal Code under which the applicant
had been found guilty. The Court of Cassation held that the applicant
had been unlawfully held accountable for an event which had not been
included in the bill of indictment of 6 December 1996.
- By
Law no. 5190 of 16 June 2004, published in the Official Gazette on 30
June 2004, State Security Courts were abolished. The case against the
applicant was therefore transferred to the Istanbul Assize Court.
- On
31 March 2006 the applicant was released pending trial.
- According
to the information in the case file, the case is still pending before
the Istanbul Assize Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 5 § 3 AND 6 § 1
OF THE CONVENTION
- The
applicant complained under Article 5 § 3 of the Convention that
the length of his pre-trial detention had been excessive. He further
alleged under Article 6 § 1 of the Convention that the criminal
proceedings against him had not been concluded within a reasonable
time.
- The Court notes that the applicant's pre-trial
detention began on 20 August 1996 when he was taken into police
custody and continued until he was convicted by the trial court on 20
May 2002. From that point on until the Court of Cassation quashed his
conviction on 30 September 2003, he was detained “after
conviction by a competent court”, within the meaning of Article
5 § 1 (a) of the Convention (see Solmaz v. Turkey,
no. 27561/02, §§ 34-37, ECHR 2007 II). From 30
September 2003 until his release on 31 March 2006, however, the
applicant was once more in pre-trial detention for the purposes of
Article 5 § 3 of the Convention. It follows that the applicant
spent a total of eight years and three months in this form of
custody.
- As
for the length of the proceedings, the Court observes that the
relevant proceedings commenced on 20 August 1996 with the applicant's
arrest and, according to the information in the case-file as
submitted by the parties to date, are still pending before the
Istanbul Assize Court. They have thus already lasted over thirteen
years and one month for two levels of jurisdiction.
A. Admissibility
- The
Government asked the Court to dismiss the application for failure to
exhaust domestic remedies, under Article 35 § 1 of the
Convention. 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, pursuant to Articles 298 of the former Code of
Criminal Procedure. They also argued, in the alternative, that
domestic remedies had not been exhausted as the criminal proceedings
were still pending before the Istanbul Assize Court.
- The
Government further submitted that the applicant could not claim to be
a victim of a violation of Article 5 § 3 of the Convention
because the time spent by him on remand would eventually be deducted
from the total sentence imposed on him.
- Lastly,
the Government argued that the applicant had failed to comply with
the six-month rule laid down in Article 35 § 1 of the
Convention. In their view, the applicant should have brought his
application to the Court sooner, had he considered that there were no
effective remedies under domestic law in respect of his Convention
grievances.
- As
regards the Government's non-exhaustion objection, the Court notes
that it has already examined and rejected both aspects of this
contention in previous cases (see, in particular, Koşti and
Others v. Turkey, no. 74321/01, §§ 19-24, 3
May 2007; Mehmet Şah Çelik v. Turkey,
no. 48545/99, §§ 22-31, 24 July 2007; Tamamboğa
and Gül v. Turkey, no. 1636/02, §§
27-29, 29 November 2007; Ertürk v. Turkey, no. 15259/02,
§§ 21 22, 12 April 2005; Tutar v. Turkey,
no. 11798/03, §§ 12 14, 10 October 2006).
The Court finds no particular circumstances in the instant case which
would require it to depart from this jurisprudence. It therefore
rejects the Government's objection under this head.
- As
regards the applicant's victim status, the Court notes that it has
already examined similar submissions made by the respondent
Government in other cases (see, for example, Arı and Şen
v. Turkey, no. 33746/02, § 19, 2 October 2007 and
the cases cited therein). In the present case the Government have not
submitted any arguments which could lead the Court to reach a
different conclusion. Accordingly, the Government's objection to the
applicant's victim status must be rejected.
- As
for the applicant's compliance with the six-month time-limit, the
Court reiterates that, according to its established case-law, where
no domestic remedy is available the six month period runs from
the date of the act alleged to constitute a violation of the
Convention. However, where there is a continuing situation, the
period of six months only begins to run from the end of the situation
concerned (İpek and Others v. Turkey,
nos. 17019/02 and 30070/02, § 24, 3 February 2009).
In the instant case, the applicant was released from pre trial
detention only on 31 March 2006, whereas he lodged his application
with the Court on 31 August 2004, when his detention was still
continuing. Consequently, and bearing in mind that the criminal
proceedings are still pending before the Istanbul Assize Court, the
Court finds that the application was lodged well within time.
- The
Court considers that these complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
- As
regards the complaint under Article 5 § 3 of the Convention the
Government submitted that the applicant's detention had been based on
the existence of reasonable grounds of suspicion of his having
committed an offence, and that the custodial measure had been
reviewed periodically by the competent authority. They further
pointed out that there had been a genuine requirement of public
interest for the applicant's continued detention in view of the
serious nature of the offence with which he had been charged. They
maintained that his detention had also been necessary to prevent him
from committing a further offence, absconding and removing evidence.
- The
Government contended in relation to the complaint under Article 6
§ 1 of the Convention that, in the circumstances of the present
case, the criminal proceedings could not be considered to have been
unreasonably long. In this respect, they submitted that the case was
complex, considering the charges against the applicant and the number
of defendants involved, and that no negligence or delay could be
imputed to the judicial authorities. They further alleged that the
applicant had contributed to the length of the proceedings by not
appearing at a number of hearings and that his lawyer had been
inactive in defending him.
- The
Court has frequently found violations of Articles 5 § 3 and 6
§ 1 of the Convention in cases raising similar issues to
those in the present application (see, for example, Yaşar v.
Turkey, no. 46412/99, §§ 56 65, 24 January
2006; Atıcı v. Turkey (no. 1), no. 19735/02,
§§ 48 51, 10 May 2007; Solmaz, cited
above, §§ 34-51; Arı and Şen, cited above,
§§ 27 30; Getiren v. Turkey, no. 10301/03,
§§ 104-109, 22 July 2008; Cahit Demirel v. Turkey,
no. 18623/03, §§ 21-28 and §§
35-42, 7 July 2009).
- 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, it considers that the
length of the applicant's pre-trial detention and of the criminal
proceedings against him was excessive and contravened Articles 5 §
3 and 6 § 1 of the Convention. The Court notes particularly in
this regard that even if the delay in the criminal proceedings may be
considered to have been partly attributable to the applicant as
alleged by the Government, the overall length of the proceedings was
still excessive and failed to meet the “reasonable-time”
requirement.
- There
has accordingly been a violation of these provisions.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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 remainder of the application
admissible;
- Holds that there has been a violation of
Articles 5 § 3 and 6 § 1 of the Convention.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
