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You are here: BAILII >> Databases >> European Court of Human Rights >> MANSUR v. TURKEY - 16026/90 [1995] ECHR 19 (8 June 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/19.html Cite as: (1995) 20 EHRR 535, 20 EHRR 535, [1995] ECHR 19 |
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In the case of Mansur v. Turkey (1),
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court A (2),
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr R. Macdonald,
Mr I. Foighel,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 25 November 1994 and
23 May 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 14/1994/461/542. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
2. Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) and thereafter only to
cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983,
as amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 15 April 1994,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 16026/90) against the Turkish Republic
lodged with the Commission under Article 25 (art. 25) by a
Turkish national, Mr Sadi Mansur, on 23 November 1989.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Turkey
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Articles 5 para. 3
and 6 para. 1 (art. 5-3, art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr F. Gölcüklü, the elected judge of Turkish nationality
(Article 43 (art. 43) of the Convention), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 26 April 1994,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr. R. Bernhardt,
Mr. R. Macdonald, Mr I. Foighel, Mr G. Mifsud Bonnici,
Mr J. Makarczyk, Mr D. Gotchev and Mr P. Jambrek (Article 43
(art. 43) in fine of the Convention and Rule 21 para. 4).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Turkish Government ("the Government"), the applicant's lawyer
and the Delegate of the Commission on the organisation of the
proceedings (Rules 37 para. 1 and 38). Pursuant to the order
made in consequence, the Registrar received the memorials of the
Government and the applicant on 1 and 5 August 1994 respectively.
The Delegate of the Commission did not submit any written
observations.
5. On 10 November 1994 the Commission produced the file on
the proceedings before it, as requested by the Registrar on the
President's instructions.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 22 November 1994. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr M. Özmen, Acting Agent,
Mrs D. Akçay, Counsel;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant
Mr T. Akillioglu, avukat (lawyer), Counsel.
The Court heard addresses by Mr Özmen, Mrs Akçay,
Mr Schermers and Mr Akillioglu, and also Mr Akillioglu's replies
to its questions.
The Government sent their replies in writing on
12 December 1994.
AS TO THE FACTS
I. Circumstances of the case
7. Mr Mansur, who is of Iranian origin, acquired Turkish
nationality by naturalisation on 5 May 1989.
8. On 12 June 1981 the Salonika Court of Appeal (Greece)
sentenced him to four years' imprisonment for drug trafficking
between Greece and Turkey.
A. The criminal proceedings
9. Three years later, in respect of the same facts, two sets
of criminal proceedings were brought against the applicant in the
First and Second Assize Courts at Edirne (Turkey). The trials
were conducted concurrently until 6 May 1987, when the Second
Assize Court realised that the subject-matter of the two cases
was identical and relinquished jurisdiction in favour of the
First Assize Court (see paragraphs 14 and 27 below).
1. The proceedings in the Edirne First Assize Court
10. On 18 April 1984, at the end of a preliminary
investigation opened after the conviction in Greece, the Ipsala
public prosecutor's office committed Mr Mansur and A.D., his
alleged accomplice, for trial at the Edirne First Assize Court
("the first court") on a charge of exporting drugs (Article 403
of the Turkish Criminal Code - see paragraph 35 below).
11. On 1 May 1984 that court asked the Greek authorities for
the documents from the criminal file opened on the two defendants
(the records of their statements, the judgment and the laboratory
report on the confiscated substances).
On 4 October 1984 the Greek Ministry of Justice replied
that the documents requested had already been sent twice, on
30 June and 23 November 1982, through the Turkish Embassy in
Athens.
12. The first court then, on 27 November 1985, ordered an
expert opinion on the substances confiscated in Greece. On
7 February 1986 the Institute of Forensic Medicine filed its
report, concluding on the basis of the case file alone that the
sample contained heroin.
13. On 31 March and 21 November 1986 the court asked the
Turkish Ministry of Justice what action had been taken on its
request for communication of the documents.
14. At a hearing on 1 May 1987 it learned that the Edirne
Second Assize Court was also trying the applicant in respect of
the same facts. It then requested joinder of the two cases,
which was ordered on 6 May (see paragraphs 9 above and 27 below).
Moreover, noting that the reply given in the meantime by
the Greek courts concerned A.D. only, the first court asked for
specific information about each type of drug confiscated from
Mr Mansur's car in Greece.
15. On 12 April 1988 the first court asked the Ankara Assize
Court to have a Turkish translation made of a one-page expert
opinion communicated by the Greek judicial authorities on
28 October 1987; on 19 July 1988 it repeated this request.
16. The Ankara Assize Court failed to find a sworn translator
and returned the document in question on 7 November 1988.
17. On 11 November 1988 the first court then made the same
request to the Istanbul Assize Court, which was unable to comply,
however, for the reason previously given by its counterpart in
Ankara.
18. At the hearing on 15 June 1989 Mr Mansur produced a
translation of the report. The court, noting that the report
merely stated that Mr Mansur was not a drug addict, once again
requested communication of the expert report on the drugs seized
in Greece.
19. On 13 July 1990 the Turkish Ministry of Justice
transmitted the report in question to the first court, which on
19 July 1990 attempted without success to obtain a translation
through the Ankara Assize Court.
20. On 19 February 1991 the first court sentenced the
applicant to thirty years' imprisonment. In its judgment it
pointed out that Mr Mansur had already been given a sentence of
four years' imprisonment in Greece for the same facts, and, on
the basis of the judgment given in Greece, the observations of
the Institute of Forensic Medicine and Mr Mansur's confessions,
established that the substance exported by him had indeed been
heroin.
21. On 30 April 1991 the Court of Cassation dismissed an
appeal by Mr Mansur on points of law.
22. On 21 June 1991, as Article 403 of the Criminal Code had
been amended by Law no. 3756 of 5 June 1991 (see paragraph 35
below), the first court reduced the sentence imposed on
19 February 1991 to ten years' imprisonment.
2. The proceedings in the Edirne Second Assize Court
23. After being released by the Greek authorities on
12 September 1984, Mr Mansur returned to Turkey. He was taking
steps to acquire Turkish nationality when, on 1 November 1984,
the police arrested him in Istanbul, at the Civil Status Registry
Office. In an order made on 5 November the Ipsala police court,
on an application by the Edirne public prosecutor's office,
placed him in detention pending trial.
The next day the same public prosecutor's office brought
criminal proceedings against him in the Edirne Second Assize
Court ("the second court") for drug trafficking.
24. On 16 November 1985 that court asked the Greek
authorities to send it the judgment in which the applicant had
been convicted and the laboratory report on the chemical
substances.
25. The documents were received on 18 June 1985 through the
Turkish Ministry of Justice. On 7 August 1985 the second court
sent them to the Ankara Assize Court to have them translated.
The translation was filed on 9 October 1985.
26. At the hearing on 25 October 1985 the second court noted
that the laboratory report was not among the documents received.
In response to a renewed request, the Greek authorities stated
that the documents in question had already been sent twice to the
Turkish Embassy in Athens. The second court then applied to the
Turkish Ministry of Justice, which sent it the report on
7 October 1986.
On being requested to provide a translation of the expert
report, the Ankara Assize Court stated that it had already sent
it for translation.
27. After making enquiries, the second court found that the
applicant was being tried for the same facts in the Edirne First
Assize Court. It therefore decided, on 6 May 1987, to relinquish
jurisdiction in favour of the latter (see paragraphs 9 and 14
above).
B. The detention pending trial
28. Mr Mansur's detention began on 5 November 1984 (see
paragraph 23 above). The Ipsala police court had given as the
reason for this detention the nature of the offence of which the
applicant stood accused.
29. On 6 December 1984 the second court dismissed Mr Mansur's
application to it to set that decision aside.
30. Subsequently the court ordered that the applicant should
remain in detention
(a) on 17 December 1984, 5 February and 10 April 1985,
"having regard to the nature of the alleged offence and
the content of the file"; and
(b) at twenty-five hearings held between 7 June 1985 and
22 April 1987, either giving no reasons or "because the
reasons set out in the detention order [were] still ...
valid".
31. After the second court relinquished jurisdiction, the
first court in turn ordered that the applicant should remain in
detention
(a) at seventeen hearings held between 12 May 1987 and
2 August 1988, without giving precise reasons;
(b) on 29 August, 28 September and 2 November 1988, "on
account of the nature of the offence the defendant stands
accused of";
(c) on 30 November 1988, without giving precise reasons;
(d) at nineteen hearings held between 23 December 1988 and
26 June 1990, having regard to "the nature of the
offence" and/or "the state of the evidence", and once
without giving precise reasons;
(e) on 25 July and 22 August 1990, without giving precise
reasons; and
(f) on 11 September and 9 October 1990, "on account of the
nature of the offence".
32. On 24 November 1987 Mr Mansur pointed out to the
President of the first court that he had already been detained
for more than three years, two of which had been taken up
exclusively with correspondence between the Turkish and Greek
judicial authorities, and that he was undergoing "great
suffering", especially as he had already served a four-year
sentence in Greece for the same facts. He asked for the trial
to be concluded speedily.
The court did not respond to this request.
33. Mr Mansur was released on 1 July 1991.
II. Relevant domestic law
A. The Constitution
34. Article 19 para. 7 of the Constitution provides:
"Everyone who is deprived of his liberty for any reason
whatsoever shall be entitled to take proceedings by which
his case shall be decided speedily by a court and his
release ordered if the detention is not lawful."
B. The Criminal Code
35. Article 403 of the Criminal Code, as in force at the
material time, provided:
"It shall be an offence, punishable by not less than ten
years' imprisonment ..., to manufacture, import or export
dangerous drugs without a permit or in contravention of
the terms of an existing permit.
Where the drugs referred to in the preceding paragraph
are heroin, cocaine, morphine base or hashish, the
maximum penalty shall be life imprisonment."
Law no. 3756 of 5 June 1991 amended this provision,
replacing the sentence of life imprisonment laid down for the
offence of organising the export of highly toxic substances by
a sentence of eighteen years' imprisonment and providing for
deduction of periods of detention abroad.
PROCEEDINGS BEFORE THE COMMISSION
36. Mr Mansur applied to the Commission on 23 November 1989.
He complained of the length both of his detention pending trial
(Article 5 para. 3 (art. 5-3) of the Convention) and of the
criminal proceedings against him (Article 6 para. 1) (art. 6-1).
37. The Commission declared the application (no. 16026/90)
admissible on 10 July 1991. In its report of 28 February 1994
(Article 31) (art. 31), it expressed the unanimous opinion that
there had been a violation of these two provisions. The full
text of the Commission's opinion is reproduced as an annex to
this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 319-B of Series A of the Publications of the Court), but
a copy of the Commission's report is obtainable from the
registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
38. In their memorial the Government asked the Court to allow
the preliminary objections they had submitted or, in the
alternative, to hold that there had been no violation of
Article 5 para. 3 or Article 6 para. 1 (art. 5-3, art. 6-1) of
the Convention.
AS TO THE LAW
I. INTRODUCTORY OBSERVATION
39. The Government submitted that their arguments in the
present case should be considered only if Turkey's recognition
of the Court's compulsory jurisdiction were deemed valid in its
entirety.
In the case of Loizidou v. Turkey the Government
contended that Turkey's declaration of 22 January 1990 under
Article 46 (art. 46) of the Convention would not be valid if the
Court held the limitation ratione loci it contained to be
invalid. The Court, in its judgment of 23 March 1995, while
holding the limitation in question invalid, ruled that the said
declaration contained a valid acceptance of its competence
(Series A no. 310, p. 32, para. 98).
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
40. As their main submission the Government raised three
objections to admissibility, based on lack of jurisdiction
ratione temporis, failure to exhaust domestic remedies and loss
of victim status.
1. Lack of jurisdiction ratione temporis
41. The Government contended that when, on 22 January 1990,
Turkey had recognised the Court's compulsory jurisdiction over
"matters raised in respect of facts, including judgments which
are based on such facts which have occurred subsequent to" that
date, its intention had been to remove from the ambit of the
Court's review events that had occurred before the date on which
the declaration made under Article 46 (art. 46) of the Convention
was deposited. Moreover, in the present case the Court's
jurisdiction ratione temporis was also excluded in respect of
events subsequent to 22 January 1990 which by their nature were
merely "extensions of ones occurring before that date".
42. The Delegate of the Commission argued that the Court had
jurisdiction to deal with the case from 28 January 1987, the date
when the recognition of the right of individual petition had
taken effect.
43. Mr Mansur agreed.
44. Having regard to the wording of the declaration Turkey
made under Article 46 (art. 46) of the Convention, the Court
considers that it cannot entertain complaints about events which
occurred before 22 January 1990 and that its jurisdiction ratione
temporis covers only the period after that date. However, when
examining the complaints relating to Articles 5 para. 3 and
6 para. 1 (art. 5-3, art. 6-1) of the Convention, it will take
account of the state of the proceedings at the time when the
above-mentioned declaration was deposited (see, among other
authorities and mutatis mutandis, the Neumeister v. Austria
judgment of 27 June 1968, Series A no. 8, p. 38, para. 7, and the
Baggetta v. Italy judgment of 25 June 1987, Series A no. 119,
p. 32, para. 20).
It therefore cannot accept the Government's argument that
even facts subsequent to 22 January 1990 are excluded from its
jurisdiction where they are merely extensions of an already
existing situation. From the critical date onwards all the
State's acts and omissions not only must conform to the
Convention but are also undoubtedly subject to review by the
Convention institutions.
2. Non-exhaustion of domestic remedies
45. The Government also pleaded failure to exhaust domestic
remedies, arguing that Mr Mansur had in the first place neglected
to rely in the national proceedings on Article 19 para. 7 of the
Constitution (see paragraph 34 above), which gave everyone in
detention pending trial the right to be tried within a reasonable
time. In addition, he had not sought relief under Law no. 466
of 7 May 1964, which guaranteed persons who had been lawfully or
unlawfully in detention the possibility of obtaining damages,
irrespective of whether they had been acquitted, discharged
without being brought to trial, or convicted.
46. Like the Delegate of the Commission, the Court notes that
this objection was not raised at the admissibility stage of the
application. There is therefore estoppel.
3. Loss of victim status
47. Lastly, the Government maintained that the applicant
could no longer claim to be a victim of breaches of the
Convention since he had been granted a substantial reduction of
his sentence on 21 June 1991 after the entry into force of Law
no. 3756 (see paragraph 22 above) and had been released on
1 July 1991.
48. Here again, the Court notes that this objection was not
raised before the Commission. It must therefore be dismissed as
there is estoppel.
III. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3) OF THE
CONVENTION
49. Mr Mansur complained of the length of his detention
pending trial. He considered it contrary to Article 5 para. 3
(art. 5-3) of the Convention, which provides:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article
(art. 5-1-c) shall be ... entitled to trial within a
reasonable time or to release pending trial. Release may
be conditioned by guarantees to appear for trial."
50. The Government contested this view, in the alternative,
whereas the Commission accepted it.
A. Period to be taken into consideration
51. Having regard to the conclusion in paragraph 44 of this
judgment, the Court can only consider the period of one year and
twenty-eight days which elapsed between the deposit of the
declaration whereby Turkey recognised the Court's compulsory
jurisdiction (22 January 1990) and the judgment of the Edirne
First Assize Court (19 February 1991). However, when determining
whether the applicant's continued detention after 22 January 1990
was justified under Article 5 para. 3 (art. 5-3) of the
Convention, it must take into account the fact that by that date
the applicant, having been placed in detention on 5 November 1984
(see paragraph 23 above), had been in custody for nearly five
years and three months.
B. Reasonableness of the length of detention
52. It falls in the first place to the national judicial
authorities to ensure that, in a given case, the detention of an
accused person pending trial does not exceed a reasonable time.
To this end they must examine all the facts arguing for or
against the existence of a genuine requirement of public interest
justifying, with due regard to the principle of presumption of
innocence, a departure from the rule of respect for individual
liberty and set them out in their decisions on the applications
for release. It is essentially on the basis of the reasons given
in these decisions and of the true facts mentioned by the
applicant in his appeals, that the Court is called upon to decide
whether or not there has been a violation of Article 5 para. 3
(art. 5-3) of the Convention (see, among other authorities, the
Letellier v. France judgment of 26 June 1991, Series A no. 207,
p. 18, para. 35).
The persistence of reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for
the validity of the continued detention, but, after a certain
lapse of time, it no longer suffices; the Court must then
establish whether the other grounds cited by the judicial
authorities continue to justify the deprivation of liberty (ibid.
and see the Wemhoff v. Germany judgment of 27 June 1968,
Series A no. 7, pp. 24-25, para. 12, and the Ringeisen v. Austria
judgment of 16 July 1971, Series A no. 13, p. 42, para. 104).
Where such grounds are "relevant" and "sufficient", the Court
must also ascertain whether the competent national authorities
displayed "special diligence" in the conduct of the proceedings
(see the Matznetter v. Austria judgment of 10 November 1969,
Series A no. 10, p. 34, para. 12; the B. v. Austria judgment of
28 March 1990, Series A no. 175, p. 16, para. 42; and the
Letellier judgment previously cited, p. 18, para. 35).
53. During the period covered by the Court's jurisdiction
ratione temporis the Edirne First Assize Court ("the first
court") considered the question of the applicant's continued
detention on nine occasions of its own motion.
As grounds for refusing to release Mr Mansur it cited
"the nature of the offence" the applicant stood accused of and
"the state of the evidence" (see paragraph 31 above); on three
occasions it omitted to state the reasons for its decision.
The Government emphasised the heavy sentence to which the
accused was liable, the danger that he would abscond or destroy
evidence and the risk of collusion. Mr Mansur had no fixed abode
in Turkey and, once released, might have ignored the summonses
of the judicial authorities or evaded enforcement of the
sentence, only the length of which remained to be determined.
54. The applicant complained of the repetitiveness of the
orders in issue and asserted that he had always lived in Turkey
and worked as a trader in the Great Bazaar in Istanbul. The
courts had therefore neglected to look into the true facts of his
situation.
55. The Court points out that the danger of an accused's
absconding cannot be gauged solely on the basis of the severity
of the sentence risked. It must be assessed with reference to
a number of other relevant factors which may either confirm the
existence of a danger of absconding or make it appear so slight
that it cannot justify detention pending trial (see, mutatis
mutandis, the Letellier judgment previously cited, p. 19,
para. 43).
In the instant case the first court's orders confirming
detention nearly always used an identical, not to say
stereotyped, form of words, and on three occasions gave no
reasons.
56. The expression "the state of the evidence" could be
understood to mean the existence and persistence of serious
indications of guilt. Although in general these may be relevant
factors, in the present case they cannot on their own justify the
continuation of the detention complained of (see the Kemmache v.
France (nos. 1 and 2) judgment of 27 November 1991, Series A
no. 218, p. 24, para. 50).
57. In the light of these considerations, the Court holds
that the applicant's continued detention during the period in
question contravened Article 5 para. 3 (art. 5-3).
That conclusion makes it unnecessary to look at the way
in which the judicial authorities conducted the case.
IV. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
58. Mr Mansur further complained of the length of the
criminal proceedings against him. He relied on Article 6
para. 1 (art. 6-1) of the Convention, which provides:
"In the determination of ... any criminal charge against
him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
59. The Government contested this view, again in the
alternative, whereas the Commission accepted it.
A. Period to be taken into consideration
60. The proceedings began when the applicant was committed
for trial at the Edirne First Assize Court, on 18 April 1984.
However, having regard to the conclusion in paragraph 44
of this judgment, the Court can only consider the period of one
year, three months and eight days that elapsed between
22 January 1990, the date on which the declaration whereby Turkey
recognised the Court's compulsory jurisdiction was deposited, and
30 April 1991, when the Court of Cassation upheld the first
court's judgment (see paragraph 21 above). Nevertheless, it must
take into account the fact that by the critical date the
proceedings had already lasted more than seven years.
B. Reasonableness of the length of the proceedings
61. The reasonableness of the length of proceedings is to be
assessed in the light of the particular circumstances of the
case, regard being had to the criteria laid down in the Court's
case-law, in particular the complexity of the case, the
applicant's conduct and that of the competent authorities (see,
among many other precedents, the Kemmache (nos. 1 and 2) judgment
previously cited, p. 27, para. 60).
1. Complexity of the case
62. The Government asserted that the case had been a complex
one, partly because it had been necessary to elucidate certain
matters relating to the drug traffic concerned - in particular
the type and quantity of drugs - and partly owing to the lack of
co-operation by the Greek authorities, who delayed supplying the
documents from Mr Mansur's criminal file.
63. According to the Delegate of the Commission, the
complexity alleged by the Government was entirely attributable
to the judicial authorities, who instituted two sets of
proceedings against the same person in respect of the same facts,
and moreover before two different assize courts in the same city.
64. Like the applicant, the Court points out that the
documents requested from the Greek authorities were sent by them
through the Turkish Embassy in Athens (see paragraphs 11 and 26
above), but for a number of reasons - including a breakdown of
communications between the various State departments concerned
and the unavailability of any sworn translators - it was not
possible for them to be used in time. On 15 June 1989 Mr Mansur
himself produced a Turkish translation of one of the documents
concerning him (see paragraph 18 above). Moreover, the Edirne
First Assize Court convicted the applicant on the basis of the
Salonika Court of Appeal's judgment (see paragraph 8 above), his
own confessions and the report produced by the Institute of
Forensic Medicine (see paragraph 20 above). Accordingly, the
case cannot be regarded as complex.
2. The applicant's conduct
65. The Court merely notes that the Government have not made
any criticism of the accused's behaviour at any stage of the
trial.
3. Conduct of the judicial authorities
66. In the Government's submission, the judicial authorities
could not be criticised for any delay in their handling of the
case. Being conscious of their country's international
responsibility in the prevention of drug trafficking, they could
not adopt an expeditious procedure; on the contrary, they had a
duty to look into all matters which might have a bearing on the
judgment. Nor did the first court lose any time in applying to
Mr Mansur's case the legislative amendment of 5 June 1991 which
made it necessary to reduce his sentence and deduct the length
of the one he had already served in Greece. The applicant was
thus able to secure his release on 1 July of the same year.
67. The Court is aware of the danger represented by drug
trafficking and of the need for effective measures to prevent it,
but in this case it cannot accept the Government's argument.
68. Article 6 para. 1 (art. 6-1) of the Convention guarantees
to everyone against whom criminal proceedings are brought the
right to a final decision within a reasonable time on the charge
against him (see, among many other authorities, the Adiletta and
Others v. Italy judgment of 19 February 1991, Series A no. 197-E,
p. 65, para. 17). It is for the Contracting States to organise
their legal systems in such a way that their courts can meet this
requirement (see, mutatis mutandis, the Vocaturo v. Italy
judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).
69. In this case the Edirne First Assize Court did not
receive the laboratory report on the substances confiscated in
Greece until 13 July 1990; six days later it sent a letter of
request to the Ankara Assize Court, asking for a translation (see
paragraph 19 above). Then, on 19 February 1991, it convicted the
applicant on the basis of other evidence, since it still did not
have a translation of the report (see paragraphs 20 and 64
above).
The Court finds it hard to understand why the proceedings
were conducted in this way, especially as the Edirne First and
Second Assize Courts had each previously persisted in requesting
the report and in adjourning the case pending receipt of it.
70. In conclusion, the length of the criminal proceedings in
issue contravened Article 6 para. 1 (art. 6-1).
V. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
71. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party."
A. Damage
72. Mr Mansur claimed 850,000,000 Turkish liras (TRL) for
pecuniary damage and TRL 500,000,000 for non-pecuniary damage.
He argued that throughout the proceedings it had been impossible
for him to carry on his occupation and that the poor conditions
of his detention had had lasting effects on his health.
73. The Government referred to their preliminary objections
based on failure to exhaust domestic remedies and loss of victim
status (see paragraphs 45 and 47 above) and asked the Court to
dismiss these claims.
74. The Delegate of the Commission expressed the opinion that
the applicant had not sustained any pecuniary damage, as the
whole length of his detention pending trial had been set off
against his sentence. As to non-pecuniary damage, a sum of
between 50,000 and 60,000 French francs (FRF) would constitute
sufficient just satisfaction.
75. The Court agrees as regards the first point. As to the
second point, on the other hand, it fixes the sum to be paid to
Mr Mansur for non-pecuniary damage at FRF 30,000.
B. Costs and fees
76. The applicant also requested reimbursement of lawyer's
fees incurred for his defence in Turkey and before the Convention
institutions, which he put at TRL 300,000,000 in all.
77. The Government made no submissions on this point.
78. Like the Delegate of the Commission, the Court notes that
in Turkish law there are no remedies in respect of the length of
proceedings, so that no costs can have been incurred under that
head; as to costs incurred before the Convention institutions,
it considers that a reasonable sum would be FRF 30,000, less the
amount of FRF 14,106.50 paid by the Council of Europe in legal
aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the preliminary objection of lack of
jurisdiction ratione temporis;
2. Dismisses the objection that domestic remedies were not
exhausted;
3. Dismisses the objection based on loss of victim status;
4. Holds that there has been a breach of Article 5 para. 3
(art. 5-3) of the Convention on account of the length of
the applicant's detention;
5. Holds that there has been a breach of Article 6 para. 1
(art. 6-1) of the Convention on account of the length of
the criminal proceedings;
6. Holds that the respondent State is to pay the applicant,
within three months, 30,000 (thirty thousand) French
francs in respect of non-pecuniary damage and 30,000
(thirty thousand) francs in respect of costs and fees,
less 14,106 (fourteen thousand one hundred and six)
francs 50 (fifty) centimes;
7. Dismisses the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 8 June 1995.
Signed: Herbert PETZOLD
Registrar
Signed: Rolv RYSSDAL
President