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SECOND
SECTION
CASE OF BAYAV v. TURKEY
(Application
no. 45140/05)
JUDGMENT
STRASBOURG
22
November 2011
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 Bayav v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
Isabelle Berro-Lefèvre,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45140/05)
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 two
Turkish nationals, Ms Sakine Bayav and Ms Zehra Bayav (“the
applicants”), on 21 November 2005.
- The
applicants were represented by Mr V. Özkan, a lawyer practising
in Adana. The Turkish Government (“the Government”)
were represented by their Agent.
- On
4 November 2009 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1979 and 1974 respectively and
live in Adana.
- On
17 January 2002 the applicants were placed in detention on remand on
suspicion of aiding an illegal organisation, namely the PKK (the
Workers’ Party of Kurdistan). On 22 January 2002 the public
prosecutor filed an indictment against the applicants before the
Adana State Security Court.
- On
22 March 2002 the applicants were released pending trial.
Subsequently, on 22 May 2003 the Adana State Security Court acquitted
them of all charges.
- On
11 August 2003 the applicants applied to the Adana Assize Court,
seeking compensation for both pecuniary and non-pecuniary damage
pursuant to Law no. 466, pertaining to the payment of compensation to
persons unlawfully arrested or detained.
- On
11 December 2003 the judge rapporteur at the Adana Assize Court heard
both applicants, who indicated that they had been deprived of their
income as a result of the unlawful detention.
- On
30 November and 1 December 2004, respectively, the Adana Assize Court
awarded each applicant 783,050,956 Turkish liras (TRL) (approximately
443 euros at the time). The Court of Cassation upheld those judgments
on 19 April and 2 May 2005, respectively. The final decisions were
served on the applicants on 7 June and 20 July 2005 respectively.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time are
outlined in the Göç v. Turkey judgment ([GC], no.
36590/97, §§ 27-32, ECHR 2002-V).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1
of the Convention that they had not had an oral hearing before the
Adana Assize Court for the determination of their compensation
claims. They further claimed under the same provision that the
proceedings did not comply with the “reasonable time”
requirement and that the amount of compensation awarded to them had
been too low.
A. Absence of an oral hearing in domestic proceedings
- Admissibility
- The
Government submitted that the application was introduced out of time
as the six-month period had started running from the date when the
final decisions had been served on the applicants. They contended
therefore that the applicants should have lodged their case with the
Court before 19 October and 2 November 2005, respectively.
- The
Court notes that the dates indicated by the Government actually
correspond to six months after the dates when the Court of Cassation
delivered its decisions. It observes that the said decisions were
served on the applicants on 7 June and 20 July 2005, respectively,
that is less than six months before they brought the application
before the Court. It therefore rejects the Government’s
preliminary objection.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
- Merits
- The
Government maintained that a hearing was held before the Adana Assize
Court for each of the applicants and that they had had a fair and
public trial.
- The Court reiterates that in the Göç v
Turkey judgment a similar situation to the present case
was examined ([GC], no. 36590/97, §§ 43-52, ECHR
2002-V). In considering whether there were any exceptional
circumstances which justified dispensing with an oral hearing on the
applicant’s compensation claim, the Court held that the
applicant should have been afforded an opportunity to explain orally
to the first-instance court the moral damage which his detention had
entailed for him in terms of distress and anxiety. According to the
Court, the administration of justice and the accountability of the
State would have been better served by affording the applicant the
right to explain his personal situation at a hearing before the
domestic court subject to public scrutiny. The Court concluded that
the above factor outweighed the considerations of speed and
efficiency on which, according to the Government, Law no. 466 was
based.
- The
Court notes that in the instant case the applicants were afforded the
right to explain their personal situation orally before the judge
rapporteur at the Adana Assize Court. However, it also observes that
on each occasion they were heard by the judge rapporteur alone, in
the absence of the other two judges, the public prosecutor and the
defendant party. The Court concludes therefore that the circumstances
in which the applicants were heard in the instant case did not afford
them the right “to explain their personal situation in a
hearing before the domestic court subject to public scrutiny”
as required in the Göç judgment (see Göç
v. Turkey, cited above, and Şahin Karakoç v.
Turkey, no. 19462/04, §§ 35-41, 29 April 2008).
18. Accordingly,
the Court finds that there has been a violation of Article 6 §
1 of the Convention in respect of the applicants’ complaints
concerning the lack of a hearing.
B. Fairness and length of proceedings
- The
applicants argued that the proceedings before
the Adana Assize Court had lasted for an unreasonably long period of
time and that the amount of compensation awarded to them was
insufficient.
- As
for the complaint concerning the length of proceedings, the Court
notes that the two sets of proceedings in question began on 11 August
2003 and ended on 19 April and 2 May 2005, respectively, having thus
lasted for a period of one year and eight months.
- The
Court will examine the reasonableness of that period in the light of
the circumstances of the case and with reference to the criteria
established by its case-law, particularly the complexity of the case,
the conduct of the applicant and of the relevant authorities and what
was at stake for the applicant in the dispute (see, among many
others, Frydlender v. France [GC], no. 30979/96, § 43,
ECHR 2000-VII). The Court observes that the cases in
question were of a certain complexity as the determination of the
claim required expert evidence and that they were examined before two
levels of jurisdiction. It concludes therefore that the length of the
proceedings in the instant case does not raise an issue under the
Convention.
- In so far as the applicants complained about the
outcome of the proceedings, the Court reiterates that it is not its
task to act as a court of appeal or, as is sometimes said, as a court
of fourth instance, for the decisions of domestic courts. According
to the case-law, the latter are best placed to assess the credibility
of witnesses and the relevance of evidence to the issues in the case
(see, among many others, Vidal v. Belgium, 22 April 1992,
§ 32, Series A no. 235-B, and Edwards v. the United Kingdom,
16 December 1992, § 34, Series A no. 247-B).
- In
the present case, it is observed that the national court decisions
were based on the domestic law and the particular circumstances of
the case. The Court finds no element which might lead it to conclude
that the domestic courts acted in an arbitrary or unreasonable manner
in their assessment. There is therefore no appearance of a violation
of Article 6 § 1 in this respect.
- In
the light of the foregoing, the Court finds that both complaints
should be rejected as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 5 of the
Convention about the unlawfulness and the length of their pre-trial
detention.
- The
Government argued that the applicants had failed to exhaust the
domestic remedies in that they had not complained about the length of
their pre-trial detention during the criminal proceedings against
them. The Court will not examine the preliminary objection as it
finds in any case that the impugned detention ended on 22 March 2002
with the applicants’ release pending trial and that the
complaints under this provision were introduced outside the six-month
period.
- In
so far as the applicants argued under Articles 9 and 10 of the
Convention that their freedom of thought and expression had been
violated as a result of the criminal proceedings brought against
them, the Court observes that the proceedings in question ended with
the judgment of the Adana State Security on 22 May 2003, more than
six months before the applicants lodged an application with the
Court. In any event, they cannot claim to be the victims of a
violation of their rights under Articles 9 and 10, as they were
acquitted of all charges against them by the above-mentioned
judgment.
- Consequently,
the Court holds that these complaints are inadmissible for
non-compliance with the six-month time-limit pursuant to Article 35
§§ 1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Each
of the applicants claimed 30,000 euros
(EUR) in respect of pecuniary damage and EUR 50,000 in respect of
non-pecuniary damage. They also requested EUR 8,830 for the costs and
expenses incurred before the Court.
- The
Government contested these claims, considering the requested amounts
excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. As
for the alleged non-pecuniary damage, the Court considers that it is
sufficiently compensated by the finding of a violation of Article 6
§ 1 in paragraph 11 above (see Şahin Karakoç
v. Turkey, no. 19462/04, § 67, 29 April 2008, and
Şentürk v. Turkey, no. 27577/04, § 29, 24
November 2009).
- As
for the costs and expenses, the Court reiterares that
according to its 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 (see Sawicka
v. Poland, no. 37645/97, §
54, 1 October 2002). In the present case, the applicants have not
substantiated that they have actually incurred the costs claimed. In
particular, they failed to submit documentary evidence, such as
bills, receipts, a contract, a fee agreement or a breakdown of the
hours spent by their lawyer on the case. Accordingly, the Court makes
no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of a
public hearing 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 just satisfaction for any
non-pecuniary damage sustained by the applicants;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
