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SECOND
SECTION
CASE OF DOLUTAŞ v. TURKEY
(Application
no. 17914/09)
JUDGMENT
STRASBOURG
17
January 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Dolutaş v.
Turkey,
The
European Court of Human Rights (Second Section),
sitting as a committee composed of:
Dragoljub Popović,
President,
András Sajó,
Paulo Pinto
de Albuquerque, judges,
and Françoise
Elens-Passos, Deputy
Section
Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17914/09)
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 Önder Dolutaş (“the applicant”),
on 14 March 2009.
- The
applicant was represented by Mr H. Karakuş and Mrs Gül
Altay, lawyers practising in Istanbul. The Turkish Government
(“the Government”) were represented by their Agent.
3.
On 21 September 2010 the Court declared
the application partly inadmissible and decided to communicate the
complaints concerning the length of criminal proceedings and the lack
of effective remedy in that respect, to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 in Sivas.
- On
6 May 1998 the applicant was taken into police custody on suspicion
of being a member of an illegal organisation.
- On
9 May 1998 he was brought before the public prosecutor and
investigating judge at the Istanbul State Security Court, who ordered
his pre-trial detention.
- On
11 May 1998 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment against the applicant, charging him
with membership of an illegal organisation.
- On
14 July 1998 due to the factual and legal connection between the
cases, the court decided to joint the applicant’s case to other
proceedings, involving seven accused (no. 1998/2).
- On
the same day the applicant was released pending trial.
- On
29 July 2000 a change took place in the judges sitting as a bench at
the Istanbul State Security Court and therefore, the next hearing was
scheduled on 7 September 2000.
- On
16 November 2000 the hearing was postponed to 20 February 2001 due
the change in the assignment of judges at the trial court.
- On
20 February 2001 the applicant was summoned to appear before the
court in order to make his supplementary submissions for his defence,
in view of a possible alteration of the offence he was charged with.
- On
10 May 2001 the court observed that the registered writ having sent
to the applicant, returned to the case file without a delivery.
- On
30 November 2001 the public prosecutor at the Istanbul State Security
Court filed an additional bill of indictment, charging the applicant
with using explosives.
- From
the date of 10 May 2001 to 24 May 2007, despite the authorities’
efforts to have summoned the applicant, his whereabouts could not be
established. During that period, the court ordered the Avcılar
Police Department to make an enquiry to the applicant’s
family about his non appearance. Subsequently, the court was
informed that the applicant had gone abroad to study.
- The
trial court invited the prosecutor’s office to transmit the
arrest warrant against the applicant to the customs with a view to
securing his appearance before the court once he entered the country.
- Following
a constitutional amendment, State Security Courts were abolished and
the applicant’s case was transferred to the Istanbul
Assize Court.
- On
6 November 2007, in his defence submissions to the court, the
applicant’s lawyer claimed that the applicant had already been
tried by another chamber of the Istanbul Assize
Court on the basis of the same facts and requested that the
matter be examined further.
- On
3 April 2008 the Istanbul Assize Court ordered the case file of the
proceedings in question to verify the reason for the applicant’s
previous conviction.
- On
24 February 2009 the court ruled that the criminal proceedings be
discontinued on the ground that the prosecution was time-barred. On
the same day, the applicant’s lawyer lodged an appeal against
the judgment.
- According
to the submissions in the case file, the proceedings are currently
pending before the Court of Cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE
6 § 1 OF THE CONVENTION
22. The
applicant complained that the length of the criminal proceedings
against him had been excessive, in breach of the “reasonable
time” requirement, laid down in 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 contested that allegation.
- The
Court notes at the outset that the 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.
- The
Government argued that the length of the proceedings could not be
attributable to the national authorities as the applicant caused the
protraction of the proceedings by his failure to have appeared
before the trial court.
- The
applicant contended that the authorities were responsible for the
excessive length because of their own conduct in the proceedings,
namely frequent changes of the judges at the bench of the trial court
and alteration of the criminal charges by the prosecution.
- The
Court notes that the criminal proceedings commenced on 6 May
1998 with the applicant’s arrest and
according to the information in the case file, they are still pending
before the Court of Cassation. They have, thus, already lasted
for thirteen years before two levels 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, Daneshpayeh v. Turkey, no.
21086/04, § 26, 16 July 2009).
- The
Court observes that from 10 May 2001 to 24 May 2007, the applicant
was summoned to give his statement before the trial court in person
in view of a possibility of an additional charge brought against him.
Following a long inquest carried out by the authorities, they found
out that the applicant had been living abroad.
- The
Court recalls that the
obligation to appear before the court is an essential element of the
criminal proceedings, except in cases of force majeure or having been
excused (see Sarı
v. Turkey and Denmark,
no. 21889/93, § 85, 8 November 2001). In the present case,
in order to establish the whereabouts of the applicant, the judicial
authorities seem to have done everything that could reasonably be
expected from them for securing the applicant’s presence before
the trial court with a view to enabling him to have been questioned
by the court as regards the new charge against him and to giving him
an opportunity to make his defense submissions on the matter, as it
guaranteed by the Code of Criminal Procedure.
- The
Court observes that although the applicant was represented by a
lawyer throughout the proceedings, there had been no defence
submissions made to the trial court for six years. Neither did the
applicant’s lawyer inform the authorities of his personal
circumstances, nor did he submit any request that the applicant
should have been excused from attending to the hearings.
- In
this regard, the Court is of the opinion that the applicant
contributed to the prolongation of the proceedings for six years by
his own failure to appear before the court and that delay could not
be attributable to the authorities (see Aladağ v. Turkey,
no. 6781/04, decision of 9 February 2010).
- On
the other hand, given the remaining length of the proceedings, i.e,
seven years before two levels of jurisdiction, the Court notes that
the period in question cannot be explained solely by the delaying
conduct of applicant, complexity of the proceedings or number of the
accused involved. Observing a number of adjournments and intervals
between the hearings, the Court finds that there were unnecessary
delays in the proceedings, for which the judicial authorities were
responsible. For this reason, the Court is not convinced that the
domestic courts showed the required diligence to conclude the
criminal proceedings within a reasonable time, despite the importance
of a matter at stake for the applicant in the court proceedings.
34. The Court has frequently found a violation
of Article 6 § 1 of the Convention in cases raising similar
issues to the one in the present case (see, among others, Er
v. Turkey, no. 21377/04, §
23, 27 October 2009; Şahap
Doğan v. Turkey, no.
29361/07, § 39, 27 May 2010, and Fırat
Can v. Turkey, no. 6644/08, §
74, 24 May 2011). 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. It concludes therefore that
in the instant case the length of the proceedings failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE
13 OF THE CONVENTION
35. The
applicant complained that there was no domestic remedy available
under the Turkish law whereby he could challenge the excessive length
of proceedings. He relies on Article 13 of the Convention which reads
as follows:
“Everyone
whose rights and freedoms as set forth in [the] Convention are
violated shall have an effective remedy before a national authority
...”
36. The
Government argued that the applicant could have had resorted to the
administarive law remedy for his complaint of undue length of
proceeedings.
37. As
the complaint under Article 6 § 1 was declared admissible, this
part of the application must also be declared admissible. The Court
observes that in the Turkish legal system there is no remedy
capable of accelerating the proceedings. In this connection, the
argument put forward by the Government that the applicant did not
bring the complaint of the length of the proceedings before the
administrative courts cannot be considered as an “effective
remedy” for the purposes of Article 13 (see above Daneshpayeh
v. Turkey, § 24; Tendik and Others v. Turkey,
no. 23188/02, § 36, 22 December 2005).
- The
Court therefore concludes that Turkish law does not provide an
effective remedy whereby the applicant could have contested the
length of the proceedings.
There
has accordingly been a breach of Article 13.
III.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
39. The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage and EUR 7,200 for cost and expenses
incurred in the proceedings before the domestic courts as well as the
Court. In this respect, the applicant submitted the agreement for
legal representation concluded with his lawyer, the Bar Association’s
tariff for legal fees, as well as a table of expenses prepared by his
lawyer, demonstrating the total costs of translation, postal service
and stationery.
- The
Government contested this amount, claiming that it was excessive and
unsubstantiated.
- The
Court awards the applicant EUR 3,600 in respect of non pecuniary
damage.
42. As
regards the cost and expensses, the
Court reiterates that an applicant is entitled to the reimbursement
of those 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,
given the information in its possession and the above criteria, the
Court, ruling on an equitable basis, awards the applicant EUR 1,200
for cost and expenses.
43. The
Court considers it appropriate that the default interest rate 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 remainder of the application admissible;
- Holds
that there has been a violation of Article 6 §
1 of the Convention on account of the length of
criminal proceedings;
- Holds
that there has been a violation of Article 13 of the Convention for
the absence of an effective domestic remedy to challenge the
excessive length of proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 3,600 (three thousand six hundred euros), plus any tax that may
be chargeable to the applicant, in respect of non-pecuniary damage
and EUR 1,200 (one thousand two hundred euros) for 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 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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Dragoljub
Popović
Registrar President
