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THIRD
SECTION
CASE OF AKYAZICI v. TURKEY
(Application
no. 43452/02)
JUDGMENT
STRASBOURG
15
December 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 Akyazıcı
v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall, President,
Elisabet
Fura,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Egbert Myjer,
Işıl Karakaş,
Ann
Power, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 24 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43452/02) 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 Tuğrul Akyazıcı
(“the applicant”), on 16 September 2002.
- The
applicant was represented by Mr M. Akyazıcı, a lawyer
practising in Samsun. The Turkish Government (“the Government”)
were represented by their Agent for the purposes of the proceedings
before the Court.
- On
1 February 2007 the Court decided to give notice of the application.
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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, an anaesthesiologist, was
born in 1968 and lives in Samsun.
- The
applicant was working at the Kars State Hospital when criminal
proceedings were instigated against him for alleged involvement in
the activities of an illegal organisation. He was accused together
with other suspects of, inter alia, hanging posters and
banners in various places in Ankara on behalf of that organisation.
Throughout the proceedings the applicant maintained his innocence. In
the meantime, Kars State Hospital suspended the applicant pending the
criminal proceedings.
- On 11 September 2001 the Ankara State Security Court,
on the basis of the evidence contained in the case file, convicted
the applicant under Article 7
§ 1 of Law no. 3713 and sentenced him to two years and six
months' imprisonment and to a fine. The applicant appealed.
- On
an unspecified date a written opinion of the principal public
prosecutor at the Court of Cassation dated 10 December 2001 was
submitted to that court. This opinion was not communicated to the
applicant.
- On
27 March 2002 the Court of Cassation held a hearing and upheld the
judgment of the first-instance court in respect of the applicant.
- The
applicant's request for a rectification of the Court of Cassation's
judgment was dismissed by the principal public prosecutor at that
court.
- The
applicant submitted that he had been released from prison in July
2003.
- By
an additional judgment dated 4 May 2004, the Ankara State Security
Court, taking into account the amendment to the definition of “terror
acts” under section 7 of Law no. 3713 pursuant to Law no. 4928,
acquitted the applicant, who had not taken part in any violent
activities, and nullified his conviction, together with all its
consequences. This judgment became final on 11 May 2004.
- In
the meantime, on 28 February 2002, the Supreme Disciplinary
Commission of the Ministry of Health decided to dismiss the applicant
from the civil service. The applicant's objection to this decision
was dismissed by the administrative court who noted, inter alia,
that, according to the disciplinary investigation, the applicant had
taken fifteen days leave from 2 June 2000 in pursuit of his
illegal activities. The court also noted that the applicant's
conviction had become final. This decision was subsequently upheld by
the Supreme Administrative Court on 27 December 2005. In his
observations the applicant submitted that, despite his acquittal, his
request for a retrial had been rejected by the administrative court.
However, he did not submit any court decisions.
- According
to an attestation dated 10 September 2007 the applicant is currently
employed at Atasam hospital in Samsun.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time and
subsequent changes to domestic legislation are outlined in the
following judgments; Göç v. Turkey, [GC],
no. 36590/97, § 34, ECHR 2002-V, and Erdal Taş v.
Turkey, no. 77650/01, §§ 18-19, 19 December 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the written opinion of the principal public
prosecutor at the Court of Cassation had never been served on him,
thus depriving him of the opportunity to put forward his
counter-arguments. The applicant relied on Article 6 of the
Convention which, in so far as relevant, provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Admissibility
- The Government suggested that, since the applicant had
been acquitted in 2004, he could no longer be considered a victim.
The Government invited the Court to strike the application out of the
Court's list of cases in accordance with Article 37 of the
Convention.
- The applicant disagreed with the Government's
arguments and maintained his complaints.
- The Court reiterates that “a decision or measure
favourable to the applicant is not in principle sufficient to deprive
him of his status as a 'victim' unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention” (see Dalban v.
Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Only when
these conditions are satisfied does the subsidiary nature of the
protective mechanism of the Convention preclude examination of an
application (see, for example, Jensen and Rasmussen v. Denmark
(dec.), no. 52620/99, 20 March 2003).
- The
Court notes that in 2002 the applicant was convicted by the Ankara
State Security Court. He was sentenced to a fine and to two years and
six months' imprisonment. It is true that following an amendment in
domestic law the applicant subsequently had a retrial and, in 2004,
was acquitted of the charges against him. However, the Court notes
that, in the meantime, the applicant had already served his prison
sentence. In the absence of any submissions by the Government
concerning the possible avenues provided for in the domestic law for
claiming compensation in respect of these periods, the Court cannot
but observe that, as matters stand, no compensation has been paid to
the applicant for any violation of his right in the first trial. The
Court therefore concludes that the Government's objection that the
applicant can no longer be considered a victim cannot be upheld.
- The
Court notes that this part of 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.
B. Merits
- The
Court notes that it has already examined the same grievance in the
past and has found a violation of Article 6 § 1 of the
Convention (see, in particular, Göç, cited above,
§ 58; Abdullah Aydın v. Turkey (no. 2),
no. 63739/00, § 30, 10 November 2005; and Ayçoban
and Others v. Turkey, nos. 42208/02, 43491/02 and
43495/02, 22 December 2005).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his application form and subsequent observations the applicant
further complained under Articles 6 and 10 of the Convention that he
had been denied a fair hearing by an independent and impartial
tribunal and that the outcome of the proceedings had been unfair. He
further complained of the manner in which the evidence had been
gathered and assessed by the domestic authorities. The applicant
claimed that his conviction and sentence had constituted an
unjustified interference with his freedom of expression. He further
pointed out that as a result of the criminal proceedings he had been
dismissed from Kars State Hospital and that despite his acquittal he
had not been reinstated in his previous post.
- However,
in the light of all the material in its possession, the Court finds
that the applicants' above submissions do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols. It follows that this part of the application must
be declared inadmissible as manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
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.”
A. Damage
- The
applicant claimed, in total, 201,600 new Turkish liras (TRY)
(approximately 115,714 euros (EUR)) in respect of pecuniary and
non pecuniary damages. The sum for pecuniary damages concerned
loss of earnings.
- The
Government contested the amounts.
- On the question of pecuniary damage, even assuming
that there was any causal link between the violation found and the
pecuniary damage alleged, the Court considers that it cannot
speculate as to what the outcome of proceedings compatible with
Article 6 § 1 would have been. The Court therefore makes no
award in respect of pecuniary damage.
- Moreover, it considers that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage suffered by the applicant (see Ayçoban
and Others, cited above, § 32; Turğay v. Turkey,
no. 21085/02, § 24, 12 April 2007; and Mesut Yurtsever
v. Turkey, no. 42086/02, § 23, 19 July 2007).
B. Costs and expenses
- The
applicant also claimed, in total, TRY 41,527 (approximately
EUR 23,835) for the costs and expenses incurred both before the
domestic courts, including administrative proceedings, and before the
Court. The applicant submitted a fees agreement concluded between him
and his lawyer and some receipts pertaining to postal and court fees.
- The
Government contested the amounts.
- 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, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,500 covering costs
under all heads.
C. Default interest
- The
Court considers 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 UNANIMOUSLY
- Declares the complaint concerning the
non communication of the written opinion of the principal public
prosecutor at the Court of Cassation to the applicant admissible and
the remainder of the application inadmissible;
- 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 compensation for any non-pecuniary
damage suffered by the applicant;
- 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 2,500 (two
thousand five hundred euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, 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 15 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
