FOURTH SECTION

CASE OF PAKKAN v. TURKEY

(Application no. 13017/02)

JUDGMENT

STRASBOURG

31 October 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 Pakkan v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Sir	Nicolas , President,
	Mr	 ,
	Mr	 ,
	Mr	 ,
	Mr	 ,
	Ms	 	Mr	  judges,
and Mr  , Section Registrar,
Having deliberated in private on 10 October 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 13017/02) 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 Muammer Pakkan (“the applicant”), on 7 March 2002.
2.  The applicant was represented by Mr M. Filorinalı and Ms Y. Başara, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
3.  On 13 October 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1963 and is currently detained on remand in the Edirne F-type prison.
5.  On 28 November 1992 the applicant was taken into police custody by police officers from the Anti-Terrorism Department of the Istanbul Security Directorate. On 10 December 1992 the Istanbul State Security Court ordered his detention on remand.
6.  On 5 January 1993 the Public Prosecutor at the Istanbul State Security Court filed an indictment against the applicant and twenty-nine others, charging them with membership of an illegal left-wing organisation, contrary to Article 146 of the Criminal Code and Article 5 of the Law on Prevention of Terrorism.
7.  At the hearing of 22 November 1993 before the Istanbul State Security Court, which included a military judge, the accused protested against the proceedings by shouting slogans in the hearing room. Following the intervention of the security forces, they broke the windows of the court building.
8.  At the hearings held between 1993 and 1994 the court heard the testimony of several witnesses and took the statements of the accused.
9.  On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of State Security Courts were replaced by civilian judges.
10.  At the end of almost every hearing the court dismissed the applicant’s request to be released pending trial and ordered his continued detention on remand, having regard to the nature of the offence and the content of the case file. At the hearings during which the applicant was absent the court considered his situation of its own motion and ordered his detention on remand, relying on the same reasons.
11.  At the hearing of 27 March 2000 the court finished taking the final statements of almost all the accused including the applicant and stated that no additional time would be given to those who had not yet submitted their final observations.
12.  On 30 July 2001 the applicant filed a petition with a different chamber of the Istanbul State Security Court, complaining about the court’s order for his continued remand in custody. On 1 August 2001 his objection was dismissed on account of the nature of the offence and the content of the case file.
13.  By 12 October 2001 fifty-five hearings had been held before the Istanbul State Security Court and the judges on the bench of the court had been changed on six occasions.
14.  State Security Courts were abolished by constitutional amendments introduced on 7 May 2004. As a result, all of the procedural safeguards provided for by the ordinary criminal procedure henceforth became applicable to all proceedings without exception.
15.  On 27 October 2004 the Istanbul Assize Court found the applicant guilty of the charges and sentenced him to life imprisonment.
16.  On 13 July 2005 the Court of Cassation quashed the decision of the State Security Court on procedural grounds.
17.  The case is still pending before the Istanbul Assize Court and the applicant is still in detention on remand. The latest hearing was held on 2 December 2005.
II. RELEVANT DOMESTIC LAW
18.  A full description of the domestic law may be found in the judgments of Demirel v. Turkey (no. 39324/98, §§ 47-49, 28 January 2003) and (no. 42739/98, §§ 20-21, 7 November 2002).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
19.  The applicant complained that his detention on remand, which lasted almost thirteen years, exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention, which reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A.  Admissibility
20.  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
21.  The Government maintained that the applicant’s arrest was based on the existence of reasonable grounds to suspect that he had committed an offence and that the custodial measure had been reviewed periodically and diligently by the competent authority. They pointed out that the offence with which the applicant had been charged was serious, and that his continued remand in custody was necessary to prevent crime and to preserve public order. Finally, the Government submitted that the overall length of his remand in custody was reasonable in view of the number of co-accused and the complex nature of the proceedings.
22.  The applicant contested these arguments. He argued that nothing could justify thirteen years of detention on remand.
23.  The Court reiterates that it falls in the first place to the domestic 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 primarily on the basis of the reasons given in these decisions, and of the established facts mentioned by the applicants in their appeals, that the Court must determine whether or not there has been a violation of Article 5 § 3 of the Convention (see, no. 46262/99, § 61, 20 September 2005).
24.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a  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 continued to justify the deprivation of liberty (see, among other authorities, , no. 33977/96, § 77, 26 July 2001, and   [GC], no. 26772/95, §§ 152‑153, ECHR 2000-IV).
25.  In the instant case, the Court notes that there were two periods of pre-trial detention. The first period began on 28 November 1992 with the applicant’s arrest and ended on 27 October 2004, the date of the judgment of the Istanbul Assize Court. From that point on, and until the Court of Cassation’s decision of 13 July 2005, the applicant was detained “after conviction by a competent court”, which falls within the scope of Article 5 § 1 (a) of the Convention. The second period began on 13 July 2005 and is still pending. It has therefore already lasted more than thirteen years in total.
26.  The Istanbul State Security Court considered the applicant’s continued detention at the end of each hearing, either of its own motion or upon the request of the applicant. However the Court notes from the material in the case file that the State Security Court ordered the applicant’s continued detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence and the state of evidence”. Although, in general, the expression “the state of evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, taken alone, cannot justify the length of the detention of which the applicant complains (see, among others, , judgment of 26 June 1991, Series A no. 207, and , cited above, § 59). Additionally, the Court notes that there was a lack of diligence on the part of the domestic authorities in the conduct of the criminal procedure. The Court will elaborate further on this matter under Article 6 (see paragraph 42 below).
27.  The foregoing considerations are sufficient to enable the Court to conclude that the length of the applicant’s detention pending trial, which lasted more than thirteen years, taken together with the stereotyped reasoning of the court, has exceeded the reasonable-time requirement under Article 5 § 3 of the Convention.
28.  There has accordingly been a violation of Article 5 § 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
29.  The applicant complained that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried him. The applicant further complained that the length of the criminal proceedings brought against him, which are still pending, was in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention. Article 6 of the Convention, in so far as relevant, reads:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”
A.  Admissibility
1.  Independence and impartiality of the trial court
30.  The Government argued under Article 35 of the Convention that the applicant’s complaint in respect of the independence and impartiality of the Istanbul State Security Court must be rejected for non-exhaustion of domestic remedies. They maintained that the applicant did not raise this complaint before the domestic courts. Moreover, the Government referred to the constitutional amendment of 1999 whereby military judges could no longer sit on such courts. They contended that the applicant cannot therefore claim to be a victim of a violation of his right to a trial by an independent and impartial court.
31.  As regards the Government’s first objection, the Court reiterates that it has already examined and rejected similar preliminary objections of the Government in respect of the non-exhaustion of domestic remedies (see Vural v. Turkey, no. 56007/00, § 22, 21 December 2004, Çolak v. Turkey (no. 1), no. 52898/99, § 24, 15 July 2004, and Özel, cited above, § 25). It finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned cases.
32.  Accordingly, the Court rejects this limb of the preliminary objection.
33.  As regards the second objection of the Government, the Court recalls that it has examined similar cases in the past and has concluded that there was a violation of Article 6 § 1 of the Convention (see , cited above, §§ 33‑34, and Özdemir v. Turkey, no. 59659/00, §§ 35-36, 6 February 2003). However, the present application may be distinguished for the following reasons.
Although the applicant’s trial commenced before the Istanbul State Security Court whose composition included a military judge, while the proceedings were still pending, in 1999, the Constitution was amended and the military judge sitting on the bench of the Istanbul State Security Court was replaced by a civilian judge. Consequently the applicant was tried thereafter by the Istanbul State Security Court which was composed of three civilian judges. Additionally, State Security Courts were abolished by constitutional amendments introduced on 7 May 2004. The applicant’s case was therefore resumed before the Istanbul Assize Court. On 27 October 2004 the Istanbul Assize Court convicted the applicant. Subsequently, the conviction was quashed by the Court of Cassation for procedural reasons. As a result, the applicant is now being tried afresh before the Istanbul Assize Court with all of the procedural safeguards provided for by the ordinary criminal procedure (see  (dec.), no. 46412/99, 31 March 2005, and Tarlan v. Turkey (dec.), no. 31096/02, 30 March 2006).
34.  In the light of the foregoing, the Court finds that the applicant’s complaint concerning the independence and impartiality of the Istanbul State Security Court should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2.  Length of proceedings
35.  The Court notes that the applicant’s complaint regarding the length of the criminal proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
36.  The Government stated that the length of the proceedings in the instant case could not be considered unreasonable in view of the number of accused persons, the complexity of the case and the nature of the offence with which the applicant was charged. Moreover they alleged that the applicant had contributed to the length of the proceedings by staging a demonstration in the hearing room.
37.  The applicant alleged that the case was not complex as all the accused were charged simply with membership of an illegal organisation. He also contended that the accused staged protests on only a few occasions and that it was their democratic right to do so.
38.  The Court notes that the period to be taken into consideration began on 28 November 1992, when the applicant was taken into police custody, and that the criminal proceedings are still pending. They have therefore already lasted more than thirteen years and nine months, for three levels of jurisdiction.
39.  The Court recalls in the first place that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, 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 (see, amongst many others, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
40.  The Court notes that, even though the case involved a certain degree of complexity, it cannot be said that this in itself justified the total length of the proceedings.
41.  As regards the conduct of the applicant, the Court observes that he did not appear before the court on a number of occasions. However, it is of the opinion that the applicant’s absence from some of the hearings cannot justify the overall length of the proceedings. Furthermore, the Court notes that there was only one occasion on which the applicant, together with the rest of the accused, delayed the proceedings by staging a protest.
42.  Concerning the conduct of the authorities, the Court notes that there was a significant period of delay which is attributable to them. In this respect, it observes from the documents in the case file that by the end of 1994 the court has finished hearing almost all witnesses. However, the final statements of the accused were only obtained by 27 March 2000. No sufficient explanation has been provided for this delay. Nor has any satisfactory explanation been offered as to why it took the first-instance court another four and a half years to render its judgment.
43.  Recalling 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 Arvelakis v. Greece, no. 41354/98, § 26, 12 April 2001), the Court considers that the domestic court should have applied stricter measures to speed up the proceedings. It therefore finds that the proceedings in the instant case were unnecessarily prolonged as the national court failed to act with the necessary diligence.
44.  In view of the above, the Court considers that the criminal proceedings cannot be considered to have complied with the reasonable time requirement laid down in Article 6 § 1.
45.  There has accordingly been a violation of this provision.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  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
47.  The applicant claimed the sum of 67,500 euros (EUR) for pecuniary damage. He referred in this connection to the excessive length of the criminal proceedings and the time he had spent in detention pending trial, as a result of which he had not been able to work. He also claimed EUR 50,000 for non-pecuniary damage.
48.  The Government contested the amounts requested by the applicants.
49.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, it accepts that the applicant must have suffered some non-pecuniary damage which cannot be sufficiently compensated by the finding of a violation alone. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 9,000 for non-pecuniary damage.
B.  Costs and expenses
50.  The applicant claimed EUR 4,750 for the costs and expenses incurred before the domestic courts and the Strasbourg Court. He claimed that his representative had applied the scale recommended by the Istanbul Bar for applications to the Court.
51.  The Government contested this claim.
52.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as 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 global sum of EUR 1,500 under this head.
C.  Default interest
53.  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
1.  Declares the complaint concerning the length of the applicant’s detention pending trial and the length of the criminal proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  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 sums, to be converted into new Turkish liras at the rate applicable at the date of settlement:
(i)  EUR 9,000 (nine thousand euros) for non-pecuniary damage,
(ii)  EUR 1,500 (one thousand five hundred euros) for costs and expenses,
(iii)  plus any tax that may be chargeable;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	T.L. 	Nicolas 
	Registrar	President