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FIFTH
SECTION
CASE OF ERİN v. TURKEY
(Application
no. 71342/01)
JUDGMENT
STRASBOURG
10 August
2006
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 Erin v. Turkey,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr R. Türmen,
Mr K.
Jungwiert,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 3 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 71342/01) 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 Mehmet
Salih Erin (“the applicant”), on 13 March 2001.
- The
applicant was represented by Mr K. Bilgiç, a lawyer practising
in Izmir. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- On
27 September 2005 the
Court decided to communicate the application. Applying Article 29 §
3 of the Convention, it decided to rule on the admissibility and
merits of the application at the same time.
- On
1 April 2006 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
- The
applicant was born in 1962 and lives in Izmir.
A. Background to the case
- On
an unspecified date, police officers at the Istanbul airport arrested
two persons in possession of passports containing fake visas. In
their statements to the police, these two persons submitted that they
had paid 3,000 German marks to the applicant and A.G. in order to
have their passports stamped. Consequently, on 29 January 1996
police officers carried out a search at the applicant’s home in
the presence of one of his siblings. The police officers seized four
passports belonging to the applicant, his sibling and two other
persons
- On
6 March 1996 the applicant surrendered to the police. He was then
placed in custody.
B. Proceedings before the domestic courts
- On
7 March 1996 the applicant was brought before a single judge at the
Izmir Magistrates’ Court who ordered his detention on remand.
- On
14 March 1996 the Izmir Principle Public Prosecutor filed a bill of
indictment with the Izmir Assize Court charging the applicant with
the offence of forging passport, in particular arranging for false
visa stamps for travelling abroad.
- On
9 May 1996 the Izmir Assize Court heard the applicant and released
him on bail.
- On
30 December 1998, following the qualification of the offence as
committed by a criminal organisation, the Izmir Assize Court issued a
decision of lack of jurisdiction ratione materiae and sent the
case-file to Izmir State Security Court.
- On
11 February 1999 the Izmir State Security Court issued a decision of
lack of jurisdiction ratione materiae and referred the case to
the Court of Cassation for determination of the competent court.
- On
25 March 1999 the Court of Cassation overturned the Izmir Assize
Court’s decision of lack of jurisdiction ratione materiae
and held that the offence in question was within the latter’s
jurisdiction. The case-file was therefore sent to the Izmir Assize
Court.
- Between
22 March 2001 and 3 December 2003 the Izmir Assize Court held eight
hearings. All hearings prior to the seventh one, which was held on
5 June 2003, were postponed on the ground that the address
of one of the co accused, namely A.G., could not be found.
During this period, the Izmir Assize Court sent five letters to the
Izmir Public Prosecutor’s Office and requested the latter to
find out A.G.’s address.
- On
3 December 2003 the Izmir Assize Court terminated the criminal
proceedings against the applicant holding that the prosecution was
time barred.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement,
provided 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 argument.
A. Admissibility
- The
Government requested the Court to declare the application
inadmissible for failure to comply with the requirement of exhaustion
of domestic remedies according to Article 35 §3 of the
Convention. They submitted that the applicant had failed to raise his
complaint before the domestic courts.
- The Court reiterates that the obligation to exhaust
domestic remedies requires only that an applicant make normal use of
effective and sufficient remedies that are capable of remedying the
situation at issue and affording redress for the breaches alleged
(see Karassev v. Finland (dec.), no. 31414/96, ECHR
1999-II.)
- The
Court observes that the Turkish legal system does not provide any
remedies to accelerate proceedings. Nor does it award any
compensation for delays in the proceedings. Accordingly, the Court
concludes that there was no appropriate, effective remedy which the
applicant should have exercised for the purposes of Article 35 §
1 of the Convention (see Hartman v. Czech Republic, no.
53341/99, § 69, ECHR 2003-VIII (extracts). It therefore
rejects the Government’s objection.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that the period to be taken into consideration began on 6
March 1996, when the applicant was taken into police custody, and
ended on 3 December 2003, when the Izmir Assize Court decided to
terminate the criminal proceedings against the applicant since the
offence in question was time-barred. The proceedings lasted
approximately seven years and nine months before one level of
jurisdiction.
- The
Government maintained that the applicant had contributed to the
length of the proceedings in question since he had failed to attend
the hearings.
- 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,
the conduct of the applicant and the conduct of the relevant
authorities (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- As
regards the conduct of the applicant the Court considers that it does
not appear from the case-file that the applicant contributed to the
prolongation of the proceedings.
- As
to the conduct of the authorities, the Court observes that there was
a substantial delay of the proceedings before the national courts. In
this connection it notes that the jurisdiction dispute between the
national courts lasted three years. It further notes that between 22
March 2001 and 3 December 2003 the first-instance court
postponed all the hearings on the ground that A.G.’s address
could not be found. During this period, the Izmir Assize Court sent
five letters to the Izmir Public Prosecutor’s Office and
requested the latter to find out A.G.’s address. However, no
result was achieved. Thus, it appears that the authorities failed to
deal with the case diligently and caused a substantial delay. In the
Court’s opinion, the Government had not offered a convincing
justification for the excessive length of proceedings, namely seven
years and nine months, before one level of jurisdiction.
- The
Court reiterates in this connection that Article 6 § 1 of the
Convention imposes on the Contracting States the duty to organise
their legal systems in such a way that their courts can meet each of
the requirements of that provision, including the obligation to
decide cases within a reasonable time (see, among other authorities,
Pélissier and Sassi, cited above).
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of pecuniary damage.
He further claimed a total of EUR 10,000 for non-pecuniary damage.
- The
Government contested the claim.
- The
Court considers that there is no causal link between the pecuniary
damage claimed before the Court and the violation found. However, the
Court considers that the applicants must have sustained non pecuniary
damage. Taking into account the circumstances of the case and having
regard to its case-law, the Court awards the applicant EUR 6,000
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government maintained that only those expenses which were actually
and necessarily incurred could be reimbursed. In this connection,
they submitted that the applicant and his representative had failed
to submit documents showing the costs and expenses.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the amount claimed in full.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into new Turkish liras at the rate
applicable on the date of settlement:
(i) EUR
6,000 (six thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii) any
taxes that may be chargeable on the above amounts;
(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 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
