[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF KILIÇGEDİK AND OTHERS v. TURKEY
(Applications
nos. 4517/04, 4527/04, 4985/04, 4999/04, 5115/04, 5333/04, 5340/04,
5343/04, 6434/04, 10467/04 and 43956/04)
JUDGMENT
STRASBOURG
14
December 2010
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 Kılıçgedik
and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 23 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in 11 applications (nos. 4517/04, 4527/04, 4985/04,
4999/04, 5115/04, 5333/04, 5340/04, 5343/04, 6434/04, 10467/04
and 43956/04) 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 28 Turkish nationals, Zeki Kılıçgedik, Hasan
Yıldırım, Kemal Bülbül, Kemal Okutan, Kudret
Gözütok, Muharrem Bilbil, Eşref Odabaşı,
Güven Özata, Serhat İman, Mehmet Yücedağ,
Sakine Berktaş, Sabri Sel, Ali Gelgeç, Ferhat Avcı,
Hıdır Berktaş, Beser Kaplan, Abuzer Yavaş, Mehmet
Yardımcıel, Bedir Çetin, Ramazan Sertkaya, Rıza
Kılınç, İsmail Turap, Şükrü
Karadağ, Hacı Pamuk, Abuzer Arslan, Arif Atalay, Hasan
Doğan and Hayri Ateş (“the applicants”), who
are listed with further particulars in the appendix. They were
represented by lawyers whose names are also indicated in the
appendix. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicants alleged, in particular, that a ban imposed by the
Constitutional Court had prevented them from continuing to take part
in active politics and had thus infringed their rights under Article
3 of Protocol No. 1 to the Convention.
- On
6 February 2008 the President of the Second Section decided to give
notice of the applications to the Government. It was also decided to
examine the merits of the applications at the same time as their
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- Halkın
Demokrasi Partisi (People's Democracy Party, hereafter referred
to as “HADEP”) was a political party which was
established on 11 May 1994. It opened branches in 47 cities and
in hundreds of districts. The applicants were members of HADEP and
they held executive positions within the party.
- On
29 January 1999 the chief prosecutor at the Court of Cassation
brought proceedings before the Constitutional Court and demanded that
HADEP be dissolved. The prosecutor argued that HADEP had become a
“centre of illegal activities against the integrity of Turkey”.
In support of his allegations he referred to a number of pending
criminal proceedings against HADEP members, including the applicants.
- In
its decision of 13 March 2003, which was published in the Official
Gazette on 19 July 2003 and thus became final, the Constitutional
Court dissolved HADEP.
The Constitutional Court based its decision on sections 68 and
69 of the Constitution and sections 101 and 103 of Law no. 2820
on Political Parties. In arriving at its conclusion, the
Constitutional Court took account of the actions and statements of
certain leaders and members of HADEP, including the applicants. As an
ancillary measure under section 69 § 9 of the Constitution and
section 95 of Law no. 2820, the Constitutional Court banned the
applicants and 18 other HADEP members and leaders from becoming
founder members, ordinary members, leaders or auditors of any other
political party for a period of five years.
- Details
of the criminal proceedings which had been brought against the
applicants and which were referred to by the Constitutional Court in
its decision are detailed below. In the opinion of the Constitutional
Court, the actions of the applicants which are set out below, as well
as the actions of the remaining 18 HADEP members and leaders, proved
that a link existed between the applicants, HADEP and the PKK.
A. Zeki Kılıçgedik,
Hıdır Berktaş, Sakine Berktaş, Muharrem Bilbil,
Hasan Yıldırım, Beser Kaplan, Serhat İman, Sabri
Sel, Ferhat Avcı, Ali Gelgeç, Abuzer Yavaş
and Hasan Doğan
- These
applicants were executive members of HADEP's Malatya branch. In 1998
criminal proceedings were brought against them for lending assistance
to an illegal organisation, namely the PKK, contrary to Article 169
of the Criminal Code then in force. The allegations against them
included allowing hunger strikers to use HADEP premises in their
protest against the arrest of Abdullah Öcalan in Italy. Banners
had also been displayed on HADEP's premises expressing discomfort
with the arrest, as well as denigrating the Turkish state and actions
of the Turkish security forces. People present on the premises had
also been allowed to watch PKK propaganda broadcasts on Med TV.
Various pro-PKK newspapers and journals, as well as photographs of
various PKK members who had been killed in operations, were also
recovered from the premises.
- These
applicants were subsequently tried by the Malatya State Security
Court and were found guilty on 16 December 1999. They were sentenced
to three years and nine months' imprisonment and their conviction was
upheld by the Court of Cassation on 4 December 2000.
- The
execution of the applicants' prison sentences was suspended following
the entry into force of Law no. 4616 on Conditional Release, Stay of
Proceedings and Suspension of Punishment.
B. Bedir Çetin, Hacı Pamuk, İsmail
Turap, Abuzer Arslan, Rıza Kılınç, Şükrü
Karadağ and Ramazan Sertkaya
- These
applicants were executive members of HADEP's Adıyaman branch. In
1999 criminal proceedings were brought against them for lending
assistance to the PKK, contrary to Article 169 of the Criminal Code
then in force. The allegations against them included allowing hunger
strikers to use HADEP premises in their protest against the arrest of
Abdullah Öcalan in Italy and keeping a PKK flag on the same
premises.
- These
applicants were subsequently tried by the Malatya State Security
Court and were found guilty on 6 May 1999. They were sentenced to
three years and nine months' imprisonment and their conviction was
upheld by the Court of Cassation on 15 May 2000.
- The
execution of the applicants' prison sentences was suspended following
the entry into force of Law no. 4616.
C. Kemal Bülbül
- On
24 February 2000 the Ankara State Security Court found Mr Bülbül
guilty of lending assistance to the PKK, contrary to Article 169 of
the Criminal Code then in force, in a speech he had made at a HADEP
congress. He was sentenced to three years and nine months'
imprisonment. While the proceedings were pending before the Court of
Cassation, Law no. 4616 entered into force. The Ankara State
Security Court accordingly suspended the criminal proceedings against
him on 2 May 2001.
- In
1998 another set of criminal proceedings was brought against the
applicant on account of a document entitled “The Kurds who
Suffered Historical Injustices, the Kurdish Problem and
Recommendations for its Solution”, which had been found in
his house. The proceedings were suspended following the entry into
force of Law no. 4616.
D. Kemal Okutan
- Mr
Okutan was chairman of the Ankara branch of HADEP until 1997. On 4
June 1997 the Ankara State Security Court found him guilty of lending
assistance to the PKK, contrary to Article 169 of the Criminal Code
then in force, in a speech he had made at a HADEP congress in 1996.
He was sentenced to four years and six months' imprisonment. While
they were pending against him the proceedings were suspended
following the entry into force of Law no. 4616.
E. Kudret Gözütok
- Mr
Gözütok was a member of the HADEP party council. A number
of documents and books prepared by PKK members having been found in
his law firm, on 4 June 1997 the Ankara State Security Court found
him guilty of lending assistance to the PKK, contrary to Article 169
of the Criminal Code then in force, and sentenced him to four years
and six months' imprisonment. The proceedings were suspended before
the Court of Cassation following the entry into force of Law no.
4616.
F. Eşref Odabaşı
- Mr
Odabaşı was the chairman of the Kırşehir branch
of HADEP. On 1 December 1997 the Ankara State Security Court
convicted him of “incitement to hatred and hostility by making
a distinction based on race and regional identity”, in breach
of Article 312 of the Criminal Code in force at the material time.
G. Hayri Ateş
- Mr
Ateş was the chairman of the youth commission of HADEP. On
24 December 1998 the İzmir State Security Court found him
guilty on two counts of spreading separatist propaganda, in breach of
section 8 of the Prevention of Terrorism Act, in two speeches he had
given earlier that year. In his speeches the applicant had advocated
recognition of the Kurdish identity, and argued that the Kurds in
Turkey were being suppressed by those ruling the country. He had also
stated that the ceasefire declared by Abdullah Öcalan had raised
the peoples' hopes. He was sentenced to one year and eight months'
imprisonment and his conviction was upheld by the Court of Cassation
on 5 March 1999. While the applicant was serving his prison sentence,
Law no. 4454 entered into force and the execution of the remainder of
his sentence was suspended. On 15 July 2003 section 8 of
the Prevention of Terrorism Act was repealed.
H. Mehmet Yücedağ
- Mr
Yücedağ was the chairman of the youth council of HADEP in
Malatya. On 16 December 1999 the Malatya State Security Court
convicted him of lending assistance to the PKK, contrary to Article
169 of the Criminal Code then in force, and sentenced him to three
years and nine months' imprisonment. The court found that the
applicant had committed this offence by having organised seminars for
university students, during which he had claimed that there were
Kurdish people in Turkey who were experiencing a number of problems.
- His
conviction was upheld by the Court of Cassation on 4 December
2000 but the execution of the sentence was suspended following the
entry into force of Law no. 4616.
I. Arif Atalay
- Mr
Atalay was the secretary of the Seyhan branch of HADEP. On
16 December 1998 the Adana State Security Court convicted him of
incitement to hatred and hostility, contrary to Article 312 of the
Criminal Code in force at the time. He was sentenced to 10 months'
imprisonment. His conviction was based on a speech which he had made
during a party congress. According to the Adana State Security Court,
during his speech Mr Atalay had said things such as that the
Kurds and Turks were different people, that the Republic of Turkey
was at war with the Kurdish people and that the Kurds who were killed
during that war were martyrs.
J. Güven Özata
- Mr
Özata was the deputy leader of HADEP. On 17 September 1998 he
was found guilty by the Ankara State Security Court of spreading
separatist propaganda, contrary to Article 312 of the Criminal Code
then in force. According to the Ankara State Security Court, in an
article he had written in 1997 the applicant had argued that the
Kurds and Turks were two different nations and that the fight the
Turkish armed forces had been waging against the PKK was a “dirty
war and murder”. He was sentenced to two years' imprisonment
and his conviction was subsequently upheld by the Court of Cassation.
On 3 September 1999 execution of the applicant's prison sentence was
suspended in accordance with Law no. 4454 concerning the
suspension of pending cases and penalties in media-related offences.
K. Mehmet Yardımcıel
- On
21 March 1997 Mr Yardımcıel made a speech during Newruz
celebrations in his capacity as chairman of the Kars branch of HADEP.
In his speech the applicant stated the following:
“We,
the Kurdish people, should join forces with the revolutionaries,
workers and patriots... The Kurds like the colour red; because red is
the colour of the blood they have been shedding for years for their
freedom. The Kurds like the colour green; because it is the colour of
getting ready for liberation. The Kurds like the colour yellow;
because it is the colour of getting ready for everything”.
- Criminal
proceedings were brought against him for spreading separatist
propaganda in breach of section 8 of the Prevention of Terrorism Act.
On 4 June 1999 he was found guilty as charged and sentenced to ten
months' imprisonment. He was also ordered to pay a fine. His
conviction was upheld by the Court of Cassation on 7 October 1999.
- On
3 September 1999 Law no. 4454 entered into force and the execution of
the judgment against the applicant was suspended. On 15 July
2003 section 8 of the Prevention of Terrorism Act was repealed.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
169 of the Criminal Code in force at the relevant time provided as
follows:
“Any person who, knowing that such an armed gang
or organisation is illegal, assists it, harbours its members,
provides it with food, weapons and ammunition or clothes or
facilitates its operations in any manner whatsoever, shall be
sentenced to not less than three and not more than five years'
imprisonment ...”
- Article
312 of the Criminal Code in force at the relevant time provided as
follows:
“Non-public incitement to commit an offence
A person who expressly praises or condones an act
punishable by law as an offence or incites the population to break
the law shall, on conviction, be liable to between six months' and
two years' imprisonment and a heavy fine of between six thousand and
thirty thousand Turkish liras.
A person who incites people to hatred or hostility on
the basis of a distinction between social classes, races, religions,
denominations or regions, shall, on conviction, be liable to between
one and three years' imprisonment and a fine of between nine thousand
and thirty-six thousand liras. If this incitement endangers public
safety, the sentence shall be increased by one-third to one-half.
The penalties to be imposed on those who have committed
the offences defined in the previous paragraph shall be doubled when
they have done so by the means listed in Article 311 § 2.”
- Section
8 of the Prevention of Terrorism Act provided, in so far as relevant,
as follows:
“Written and spoken propaganda, meetings,
assemblies and demonstrations aimed at undermining the territorial
integrity of the Republic of Turkey or the indivisible unity of the
nation are prohibited. Any person who engages in such an activity
shall be sentenced to not less than one and not more than three
years' imprisonment and a fine of between one hundred million and
three hundred million Turkish liras. The penalty imposed on a
reoffender may not be commuted to a fine.”
- Article
69 § 9 of the Constitution provides as follows:
“Founding members or ordinary members whose
actions or declarations lead to the permanent dissolution of a
political party shall be disqualified from acting as founders,
ordinary members, administrators or financial controllers of another
political party for a period of five years starting from the date of
publication in the Official Gazette of the reasoned decision of the
Constitutional Court.”
- Section
95 of Law no. 2820 on Political Parties provides as follows:
“Founding members or ordinary members whose
actions or declarations lead to the dissolution of a political party
shall be disqualified from acting as founders, ordinary members,
administrators or financial controllers of another political party
for a period of five years starting from the date of publication in
the Official Gazette of the reasoned decision of the Constitutional
Court...”
- Under Law no. 4616, execution of sentences in respect
of offences committed before 23 April 1999 could be suspended if no
crime of the same or a more serious kind was committed by the
offender within a five-year period.
THE LAW
- Given
the similarity of the applications, as regards both fact and law, the
Court deems it appropriate to join them.
I. ALLEGED VIOLATIONS OF ARTICLES 9, 10 AND 11 OF THE
CONVENTION AND ARTICLE 3 OF PROTOCOL No. 1
- The
applicants complained that the ban imposed on them had prevented them
from making use of their political rights and from becoming members
of political parties. In respect of this complaint some of them
relied on Articles 9, 10 or 11 of the Convention, while others
invoked Article 3 of Protocol No. 1 to the Convention.
- The
Court deems it appropriate to examine these complaints solely from
the standpoint of Article 3 of Protocol No. 1 which reads as follows:
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint 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
applicants complained that the ban imposed on them because of past
criminal proceedings brought against them for having exercised their
freedom of speech meant that they were being punished twice.
- They
further argued that the ban had effectively prevented them from
taking an active part in politics during crucial periods.
- The
Government argued that the ban imposed on the applicants pursued the
legitimate aims of preventing disorder, protecting the rights of
others and protecting territorial integrity, thus preserving national
security.
- The
Government considered that the ban had not impaired the very essence
of the applicants' rights under this provision. To that end they
argued, firstly, that the restriction had not been permanent but
limited to five years and during the five-year period only one
general election had been held. Secondly, it would have been possible
for the applicants to stand as independent candidates in that
election.
- Finally,
the Government submitted that the circumstances of the applicants
differed from those of the applicants in the cases of Selim Sadak
and Others v. Turkey (no. 2) (nos. 25144/94, 26149/95 to
26154/95, 27100/95 and 27101/95, ECHR 2002 IV), Ilıcak
v. Turkey (no. 15394/02, 5 April 2007), and Kavakçı
v. Turkey (no. 71907/01, 5 April 2007), in which the Court had
found violations of Article 3 of Protocol No. 1 on account of a
similar ban imposed on them as a result of which they had had to
forfeit their parliamentary seats. The Government pointed to the fact
that the applicants in the present case were not members of
parliament at the time of the imposition of the ban.
- The
Court reiterates that implicit in Article 3 of Protocol No. 1
are the subjective rights to vote and to stand for election. Although
those rights are important, they are not absolute. Since the
above-mentioned provision recognises them without setting them forth
in express terms, let alone defining them, there is room for implied
limitations. In their internal legal orders the Contracting States
make the rights to vote and to stand for election subject to
conditions which are not in principle precluded under Article 3 of
Protocol No. 1. They have a wide margin of appreciation in this
sphere, but it is for the Court to determine in the last resort
whether the requirements of Article 3 of Protocol No. 1 have been
complied with; it has to satisfy itself that the conditions do not
curtail the rights in question to such an extent as to impair their
very essence and deprive them of their effectiveness; that they are
imposed in pursuit of a legitimate aim; and that the means employed
are not disproportionate (see Selim Sadak and Others,
cited above, § 31 and the cases cited therein).
- The
Court would also point out that Article 3 of Protocol No. 1
enshrines a characteristic principle of an effective political
democracy, and is accordingly of prime importance in the Convention
system. As to the links between democracy and the Convention, it made
the following observations (ibid, § 32 and the cases
cited therein):
“Democracy is without doubt a fundamental feature
of the European public order ... That is apparent, firstly, from the
Preamble to the Convention, which establishes a very clear connection
between the Convention and democracy by stating that the maintenance
and further realisation of human rights and fundamental freedoms are
best ensured on the one hand by an effective political democracy and
on the other by a common understanding and observance of human rights
... The Preamble goes on to affirm that European countries have a
common heritage of political traditions, ideals, freedom and the rule
of law. The Court has observed that in that common heritage are to be
found the underlying values of the Convention ...; it has pointed out
several times that the Convention was designed to maintain and
promote the ideals and values of a democratic society ...”
- Furthermore,
the Court also reiterates that this Article guarantees the
individual's right to stand for election and, once elected, to sit as
a member of parliament (ibid, § 33).
- Turning
to the facts of the present case, and concerning the Government's
argument that the present case differed from the three cases referred
to by them (see paragraph 42 above), the Court observes that on
22 June 2001, that is before the Constitutional Court imposed
the ban on the applicant in the above-mentioned case of Kavakçı
v. Turkey, following the dissolution of the political party from
whose list she had been elected as a member of parliament, the
Speaker of the National Assembly had removed her parliamentary status
in March 2001 on account of her having breached the Nationality Act.
Thus, at the time of the imposition of the ban, she was no longer a
member of parliament.
- Furthermore,
like the applicants in the present case, the applicant in the case of
Sılay v. Turkey (no. 8691/02, 5 April 2007), whose
application was examined by the Court on the same date as the
above-mentioned Kavakçı and Ilıcak
judgments and which also concerned the ban imposed by the
Constitutional Court in its same decision of 22 June 2001, was not a
member of parliament at the time of the imposition of the ban. It
therefore cannot agree with the Government's submissions that the
present case was different from those referred to above.
- The
Court has already considered the legal basis for the imposition of
similar bans on politicians, and found it to be too wide to be
considered proportionate to the legitimate aims pursued (see Selim
Sadak and Others, cited above, § 40; Sılay,
cited above, §§ 31-34; Kavakçı, cited
above, §§ 44 47; Ilıcak, cited above,
§§ 34-37; and Sobacı v. Turkey, no. 26733/02,
§§ 30 33, 29 November 2007).
- The
Court reaches the same conclusion in the present case. In this
connection it also notes that, despite the fact that the convictions
of three of the applicants had never become final because the
criminal proceedings against them were suspended following the entry
into force of Law no. 4616 (see paragraphs 14-17 above), but
before the Court of Cassation decided on their appeals, the three
applicants were still held responsible for the dissolution of HADEP
within the meaning of Article 69 § 9 of the Constitution. The
Court considers that since the penalty in this case was based on a
legal norm which is open to such a wide interpretation, it cannot be
regarded as proportionate to any of the legitimate aims relied on by
the Government.
- It
follows that the substance of the applicants' rights under this
provision was impaired. There has accordingly been a violation of
Article 3 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained of a violation of Article 6 of the Convention
on account of alleged shortcomings in the proceedings before the
Constitutional Court, including, in particular, their inability to
defend themselves in those proceedings.
- The
Government argued that Article 6 of the Convention was not applicable
in the instant case.
- The
Court observes that in a number of previous cases which concerned
dissolutions of political parties in Turkey, complaints under
Article 6 of the Convention concerning the alleged shortcomings
in the proceedings before the Constitutional Court were rejected as
being incompatible ratione materiae with Article 6 of the
Convention on the ground that the right in question was a political
right par excellence (see, inter alia, Sılay v.
Turkey (dec.), no. 8691/02, 6 April 2004; Yazar and Others v.
Turkey, nos. 22723/93, 22724/93 and 22725/93, §§ 66-67,
ECHR 2002 II, and The Welfare Party and Others v.
Turkey (dec.), nos. 41340/98, 41342/98, 41343/98, 41344/98, 3
October 2000). The Court sees no reason to reach a different
conclusion in the instant case and concludes that Article 6 of
the Convention is not applicable.
- It
follows that the complaints under Article 6 of the Convention are
inadmissible as being incompatible ratione materiae with the
provisions of the Convention, and must be rejected in accordance with
Article 35 § 3 and 4 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLES 7, 13 AND 14 OF THE
CONVENTION
- Finally,
the applicants complained that the ban imposed on them by the
Constitutional Court had also been in breach of Articles 7, 13 and 14
of the Convention.
- The
Government contested that argument.
- Having
regard to its conclusion as to compliance with Article 3 of Protocol
No. 1, the Court does not consider it necessary to examine these
complaints separately (see Selim Sadak and Others, cited
above, § 47).
IV. 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
- Each
of the 11 applicants in applications nos. 4517/04, 4527/04, 5115/04
and 5333/04 claimed 75,000 euros (EUR) in respect of non-pecuniary
damage.
- Each
of the five applicants in application no. 4985/04 claimed EUR 10,000
in respect of pecuniary, and EUR 15,000 in respect of non-pecuniary
damage.
- Each
of the nine applicants in applications nos. 4999/04, 5340/04
and 5343/04 claimed EUR 100,000 in respect of non-pecuniary
damage.
- The
applicant in application no. 6434/04 claimed EUR 20,000 in respect of
pecuniary, and EUR 20,000 in respect of non-pecuniary damage.
- The
applicant in application no. 10567/04 claimed EUR 100,000 in respect
of non-pecuniary damage.
- The
applicant in application no. 43956/04 claimed EUR 15,000 in respect
of non-pecuniary damage.
- The
Government were of the opinion that the sums claimed by the
applicants were excessive and not supported by evidence.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged by some of the applicants. It
therefore rejects their claims for pecuniary damage. The Court
considers that the finding of a violation of Article 3 of Protocol
No. 1 is sufficient to remedy the non-pecuniary damage suffered by
the applicants. In this connection it notes that, unlike the
applicants in the above-mentioned Selim Sadak and Others
case, the applicants were not members of parliament (see, Selim
Sadak and Others, cited above, § 56).
B. Costs and expenses
- The
11 applicants in applications nos. 4517/04, 4527/04, 5115/04
and 5333/04 claimed EUR 15,000 for costs and expenses in respect
of each of the four applications. No documentary evidence or other
information has been provided by the applicants in support of those
claims.
- The
five applicants in application no. 4985/04 claimed the total sum of
EUR 6,345 in respect of their costs and expenses. In support of
their claim the applicants submitted that they had incurred a total
of EUR 285 for various expenses such as photocopying, telephone
calls, stationery, etc. They also claimed that each applicant had had
a two-hour long meeting with their legal representative for which
they had been charged a total of 3,500 Turkish liras (TRY;
approximately EUR 2,000). The applicants also claimed the sum of TRY
7,080 (approximately EUR 4,060) in respect of the fees of their legal
representative, for which they referred to the fee scales recommended
by the Ankara Bar Association.
- Each
of the nine applicants in applications nos. 4999/04, 5340/04
and 5343/04 claimed EUR 15,000 in respect of costs and expenses,
but they have not provided any documentary evidence or other
information in support of their claims.
- The
applicant in application no. 6434/04 claimed EUR 5,250 in
respect of costs and expenses. This sum included EUR 150 for
translation costs for which the applicant submitted a receipt and EUR
5,000 in respect of the fees of his lawyer who worked on the case for
a total of 10 hours.
- The
applicant in application no. 10567/04 claimed EUR 15,000 in
respect of costs and expenses, but has not provided any documentary
evidence or other information in support of this claim.
- The
applicant in application no. 43956/04 claimed TRY 2600
(approximately EUR 1,240 at the time of the submission of the claim)
in respect of costs and expenses. This sum included TRY 2,000
(approximately EUR 950) for the fees of his legal representative, for
which the applicant submitted an official bill.
- The
Government considered the sums claimed to be excessive and
unsupported by adequate documentation.
- 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 applicants in
applications nos. 4517/04 4527/04, 4999/04, 5115/04, 5333/04,
5340/04, 5343/04 and 10467/04 did not submit any bills or any other
information quantifying their claims. In the absence of such
information and substantiation, the Court makes no award under this
head to those applicants.
- Regard
being had to the documents in its possession and the above-mentioned
criteria, the Court considers it reasonable to award the sum of
EUR 3,000 jointly to the five applicants in application no.
4985/04; the sum of EUR 1,500 to the applicant in application
no. 6434/04; and the sum of EUR 1,240 to the applicant in
application no. 43956/04, to cover 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
- Decides to join the applications;
- Declares the complaint under Article 3 of
Protocol No. 1 to the Convention admissible and the complaint under
Article 6 of the Convention inadmissible;
- Holds that there has been a violation of Article
3 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine
separately the complaints under Articles 7, 13 and 14 of the
Convention;
5. Holds that the finding of a violation of Article 3 of
Protocol No. 1 constitutes adequate just satisfaction in respect
of non-pecuniary damage;
- Holds
(a) that
the respondent State is to pay seven of the twenty-eight applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following sums, plus any tax that may be chargeable to those
applicants, in respect of costs and expenses, to be converted into
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros) jointly to the applicants Kemal Bülbül,
Kemal Okutan, Kudret Gözütok, Muharrem Bilbil and Eşref
Odabaşı;
(ii) EUR
1,500 (one thousand five hundred euros) to the applicant Arif Atalay;
and
(iii) EUR
1,240 (one thousand two hundred and forty euros) to the applicant
Hayri Ateş;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
ANNEX
|
App. no.
|
Applicant's
name
|
Date of
birth
|
Place of
residence
|
Representative
|
Date of introduction
|
|
4517/04
|
Zeki
Kılıçgedik
|
1950
|
Malatya
|
Hasan Doğan
in Malatya
|
13/1/2004
|
|
4527/04
|
Hasan
Yıldırım
|
1948
|
Malatya
|
Hasan Doğan
in Malatya
|
13/1/2004
|
|
4985/04
|
Kemal
Bülbül
Kemal
Okutan
Kudret
Gözütok
Muharrem
Bilbil
Eşref
Odabaşı
|
1963
1957
1957
1959
1966
|
Ankara
Ankara
Bursa
Kırşehir
Malatya
|
Levent Kanat in
Ankara
|
17/12/2003
|
|
4999/04
|
Güven
Özata
|
1945
|
Ankara
|
Yusuf Alataş
in Ankara
|
19/11/2003
|
|
5115/04
|
Serhat İman
|
1975
|
Malatya
|
Hasan Doğan
in Malatya
|
13/1/2004
|
|
5333/04
|
Mehmet
Yücedağ
Sakine
Berktaş
Sabri
Sel
Ali
Gelgeç
Ferhat
Avcı
Hıdır
Berktaş
Beser
Kaplan
Abuzer Yavaş
|
1973
1976
1947
1971
1971
1941
1957
1953
|
Malatya
Malatya
Adıyaman
Malatya
Malatya
Malatya
Malatya
Malatya
|
Hasan Doğan
in Malatya
|
13/1/2004
|
|
5340/04
|
Mehmet
Yardımcıel
|
1961
|
Kars
|
Yusuf Alataş
in Ankara
|
13/1/2004
|
|
5343/04
|
Bedir
Çetin,
Ramazan
Sertkaya
Rıza
Kılınç
İsmail
Turap
Şükrü
Karadağ
Hacı
Pamuk
Abuzer
Arslan
|
1949
1960
1966
1963
1951
1963
1941
|
Adıyaman
|
Yusuf Alataş
in Ankara
|
17/11/2003
|
|
6434/04
|
Arif Atalay
|
1950
|
Adana
|
Mustafa
Çinkılıç in Adana
|
9/1/2004
|
|
10467/04
|
Hasan Doğan
|
1948
|
Malatya
|
Berna Aktaş
in Malatya
|
13/1/2004
|
|
43956/04
|
Hayri Ateş
|
1964
|
Izmir
|
Zeynep Sedef
Özdoğan in İzmir
|
23/9/2004
|
